Media Statement – 10/10/2021 (World Day against The Death Penalty)
BN, PH Plus and BN-PN-GPS governments and the Abolition of Death Penalty in Malaysia
Extrajudicial killings is also a death penalty
On the occasion of World Day Against the Death Penalty (10th October), MADPET (Malaysians Against Death Penalty and Torture) notes positively the change in the Malaysian position to now be inclined towards the abolition of the death penalty.
On Dec 16 2020, Malaysia voted in support of the resolution calling for a moratorium on the use of the death penalty at the United Nations General Assembly (UNGA). The UNGA adopted the resolution with 123 votes in favour, 38 against and 24 abstentions. The global trend indicates growing support for abolition.
Barisan Nasional Rule
During the Barisan Nasional(BN) rule under the then Prime Minister Najib Razak, the then Minister in the Prime Minister's Department Datuk Seri Azalina Othman, the de facto Law Minister, during the Parliamentary session on 2/11/2016 clarified that Malaysia was not just looking at abolishing the mandatory death penalty, but all death penalty.
The BN government then acted to remove the absolute mandatory death penalty for the offence of drug trafficking vide an amendment of the Dangerous Drugs Act 1952 that came into force on 15/3/2018. Now, judges could sentence those convicted to death or to imprisonment for life (plus whipping of not less than fifteen strokes). However, the alternate to death penalty was available only if limited conditions were fulfilled, one of which was ‘that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia…’, whereby this draconian condition undermines also one’s right to a fair trial, which include the right to 2 appeals. Full judicial discretion when it comes to sentencing is still being curtailed, but it was better than before when only death penalty if convicted of drug trafficking.
Pakatan Harapan Plus Rule
During the Pakatan Harapan Plus(PH Plus) rule, there was first talks about abolition of death penalty, and later just about the abolition of the mandatory death penalty but at the end of their time in power, sadly there was not even a Bill tabled towards abolition of the death penalty.
It was announced on October 10 2018 (being also the World Day Against the Death Penalty), that the Malaysian Cabinet had reached a consensus (a collective decision) that the death penalty for 33 offences as provided for under eight Acts of law would be abolished, and this was again reiterated several times(Straits Times, 13/11/2018).
However, on 13/3/2019, it was reported that Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin in Parliament said that the ‘…the government will only repeal the mandatory death penalty...’ for 11 criminal offences. (NST, 13/3/2019)
The change in position from total abolition to death penalty, to just abolishing the mandatory death penalty may have sadly been because of a knee-jerk response to political actions initiated by the then Opposition, for example the ‘‘MCA Youth against Abolition of the Death Penalty’’ campaign that started on 20 Nov 2018.
It is disturbing when a government’s principled position and/or promises, can so easily change simply because of a questionable worry of possible loss of political support that may affect future elections. When the French National Assembly voted to abolish the death penalty 40 years ago, more than 60 percent of the population still backed capital punishment. But the then president François Mitterrand and the government stood by their position, no matter the political cost.
Perikatan-BN-GPS Plus Rule
When the Perikatan Nasional(PN)-BN Plus came into power, to date there is still no Bills tabled to bring about the abolition of the death penalty, or even just the mandatory death penalty. Malaysia, under this government, continued to vote in favour of UNGA resolution calling for a moratorium on executions pending abolition of the death penalty.
Now, we have a new UMNO Prime Minister, heading a BN-Perikatan-GPS plus coalition government, and we hope that this government finally do the needed to abolish the death penalty, and until then continue to maintain a moratorium on executions.
Death Row
Malaysia has a very large number of persons on death row. An Amnesty International report disclosed that in early 2019, there were 1281 persons on death row, including 141 women. Today, the numbers will be even higher.
Getting statistics from government is very difficult, and the normal method is if a Member of Parliament or Senator ask a Parliamentary Question. MADPET calls for the Malaysian government to be transparent, and reveal statistics of death row prisoners, and even crimes committed at least once every quarter.
The then amendment to the Dangerous Drugs Act 1952(DDA), that abolished mandatory death penalty, failed to address the issue of persons who committed the offence before the amendment came into force, and those that were on death row. Note that amendment came about after a realization that most on death row are ‘mules’, not the ‘kingpins’ of the drug trafficking trade, and as such ‘mules’ or persons conned should justly not be sentenced to death. The position that led to the amendment of the DDA should have resulted in pardons of many on death row, commuting their death sentence to imprisonment.
Pardon powers with King and State Rulers
In Malaysia, the King have the power to pardon if the offence was committed in Federal Territories only, and with regard to offences committed in States, then the ‘…Ruler or Yang di- Pertua Negeri of a State has power to grant pardons..’.
As many of the States are ruled by the Opposition, the question is why these State government failed to move the State Rulers to pardon and commute death sentences to prison terms for those on death row for offences committed in his State. Lack of transparency makes it difficult to conclude the numbers on death row inmates for offences committed in a particular state, or even the number of death row inmates that have applied for pardon, and the number who had been successful or otherwise.
In 1983, the late Datuk Mokhtar Hashim, then Culture, Youth and Sports Minister received the death penalty for the murder of Datuk Taha Talib, the state assemblyman for Tampin, In 1984 he received a ‘royal pardon’ when his death sentence was commuted to life imprisonment, and thereafter in 1991 another ‘royal pardon’ set him free from prison. We hope that pardons and commutation of sentences are available to all, not simply certain politicians.
MADPET calls on Federal and State governments to move to get persons on death row pardoned, and their sentences commuted. Malaysia must be against the taking of lives, for repentance and rehabilitation, for second chances and re-integration into society for the reformed criminal.
Abolition of the Death Penalty includes abolishing extrajudicial killings/executions
When the State/Government through police or other law enforcement personnel, instead of arresting and according a person a fair trial, ends up killing a suspect or some other, there must be an independent inquiry to determine whether it was an indirect ‘death penalty’ by State or its agents. This could be done by way of an inquest. As a matter of policy and/or law, the government can decide that all such police killing incidents will be inquired into by an independent Coroner (a Magistrate or Judge).
The abolition of the death penalty have many often stated reasons, including the risk of miscarriage of justice and the negative impact of the family and children of the executed or persons on death row. Death penalty has been shown not to be a deterrent to crime.
MADPET reiterates its call for the abolition of the death penalty, including extrajudicial killings, and that Malaysia continues to impose a moratorium on execution pending abolition.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
We voted for a moratorium on the death penalty
The UNGA adopted the resolution with 123 votes in favour, 38 against and 24 abstentions.
The assembly also called on states to “respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of May 25,1984”.
The adoption of this resolution demonstrates a growing trend towards the abolition of the death penalty. In 2018, a similar resolution only had 121 votes in favour, which also included Malaysia. In 2007, there were 104; in 2008, it was 106; in 2010, it was 108. In 2012, it jumped to 111, and in 2016, it was 117. Malaysia voted in favour in 2018 and now again in 2020.
On the same day, the UNGA also adopted a resolution on extrajudicial, summary or arbitrary executions by a vote of 132 in favour to none against, with 53 abstentions. The assembly “demanded that states ensure the practice of extrajudicial, summary or arbitrary executions is brought to an end”.
Malaysia should have already taken the first step with the abolition of the mandatory death penalty earlier in the year but was unfortunately delayed by Covid-19 and changes in government.
Malaysians Against the Death Penalty and Torture (Madpet) urges the government to expedite the abolition of the mandatory death penalty, which will then rightfully return the power to the courts to determine the most appropriate sentence based on the facts and circumstances of each case. A mandatory penalty removes a role that should be left to the judiciary in a democracy.
As a next step, Madpet also calls on Malaysia to immediately abolish the death penalty from all offences that do not result in any deaths.
Madpet also calls for the criminalisation of extrajudicial, summary or arbitrary executions, and for the abolition of all detention without trial laws as well. No one should be detained, restricted and/or punished without being accorded the right to a fair trial.
CHARLES HECTOR
On behalf of Malaysians Against the Death Penalty and Torture (Madpet) - Star, 23/12/2020
Dato Azalina[Minister in the Prime Minister’s Department] also stressed that the mandatory death penalty has proven that it is NOT a deterrent to crime. - April 2016 - Executions of death row prisoners highly immoral, gross misconduct
Azalina: Govt to review mandatory death sentence for drug offences
KUALA LUMPUR, March 23 — Putrajaya has agreed to review Section 39B of the Dangerous Drugs Act 1952 and allow courts to decide on the penalty for drug offences, Minister Datuk Seri Azalina Othman Said said today.
Currently, the law only provides for one sentence for those convicted of drug-related offences — death.
“The Cabinet has agreed and decided that amendments be done to Section 39B of the Dangerous Drugs Act by including additional clauses which provide discretionary powers to the courts to deal with other sentences, apart from the mandatory death penalty, in certain situations,” she told Parliament.
Azalina, who oversees law matters, said the Cabinet made the decision after Attorney-General Tan Sri Mohamed Apandi Ali presented a case in favour of granting judges discretionary powers.
A former judge, Apandi had previously expressed a wish for discretionary powers instead of sending convicts to the gallows in narcotics-related offences, which also includes those coerced or duped into becoming drug mules.
Azalina said she has instructed the Solicitor-General to speed up draft amendments to the law to be tabled in Parliament. - Malay Mail, 23/3/2017
MCA Youth campaign against the abolition of the death penalty
The MCA Youth Executive Team Against the Abolition of the Death Penalty displayed giant banners in front of KLCC, in hope that more people can help convey the message to raise public awareness on the issue
Responding
to nationwide calls and concerns against the proposal by the Pakatan
Harapan government to amend laws to enable the abolition of capital
punishment, the MCA Youth Executive Team Against the Abolition of the
Death Penalty had on 20 Nov 2018 launched an ‘‘MCA Youth Against
Abolition of the Death Penalty’’ campaign at the KLCC business district.
Receiving overwhelming response from people of all ethnicities, the
campaign accumulated a total of 300 signatures within an hour.
The MCA Youth Executive Team Against the Abolition of the Death Penalty
also displayed giant banners at areas surrounding KLCC to convey the
message to members of public, so as to raise more public awareness on
the issue..... MCA Website
Pakatan succumbed to ‘moral cowardice’ in death penalty u-turn, says Lawyers for Liberty
KUALA LUMPUR, March 13 — Lawyers for Liberty (LFL) has criticised the Pakatan Harapan administration’s decision to retain the death penalty for selected offences, calling it shocking and unprincipled.
N Surendran, the group’s advisor, said Deputy Law Minister Hanipa Maidin’s announcement this morning that Putrajaya will only repeal the mandatory death penalty for 11 offences was a full turnaround from a Cabinet decision made in October 2018, and a key election promise.
The former Bagan Serai MP claimed the reversal followed conservative pressure, and that PH had failed to display moral leadership.
“This is a complete u-turn from the announcement made by the Cabinet in October 2018, in which the Cabinet decided for total abolition of the death penalty and gave a public undertaking to this effect,” he said in a statement.
“The reversal of the earlier decision is shocking, unprincipled and embarrassing.”
Hanipa told the Dewan Rakyat this morning that the mandatory death penalty for 11 criminal offences are to be repealed and substituted with the death penalty imposed at the discretion of the court.
Nine of the offences are listed under the Penal Code and two under the Firearms (Increased Penalties) Act 1971, the deputy minister in the Prime Minister’s Department said.
Surendran alleged the decision was meant to prevent a political backlash.
He claimed certain component parties and prominent PH leaders had wanted the death penalty retained.
“In giving in to unjustified pressure and irrational objections, Pakatan Harapan failed to display moral leadership, but instead succumbed to moral cowardice,” the former MP said.
Civil society groups have long called for the death penalty to be scrapped. They argued no available study show judicial execution to be an effective deterrent of serious crime.
Surendran said the policy reversal is also unfair for the thousands of convicted or charged persons on death row that would have otherwise been relieved.
“To hold out hope of being spared the gallows, only to have the hope snatched away again is extremely cruel and unjust,” the lawyer argued.
“It is unacceptable for the convicts to be treated in this manner, and it is utterly devastating for their families.”
LFL has urged the government to reverse their decision and table a bill in this session of Parliament to completely abolish the death penalty.
It also wanted the current moratorium on executions to be maintained pending total abolition of the death penalty. - Malay Mail, 13/3/2019
French public divided over death penalty 40 years after its abolishment
Issued on:
When the French National Assembly voted to abolish the death penalty 40 years ago Saturday, more than 60 percent of the population still backed capital punishment. But then president François Mitterrand stood by his campaign promise, no matter the political cost.
“I'm against the death sentence... I don't need to read opinion polls that say otherwise,” Mitterand said.
The man who pushed the bill abolishing executions was one of France's most notorious lawyers, Robert Badinter, who became justice minister shortly after Mitterand took office.
He said he who could no longer bare decapitations, including that of his own client, Roger Bontems, who was executed for complicity in a lethal armed robbery: "When I saw Bontems being executed – executing is cutting a living man in two! – I swore I wouldn't just be opposed to the death penalty, I would become an activist."
The National Assembly passed the law to abolish the sentence on September 18, 1981 with 363 votes in favour and 117 against.
The
French remain divided on capital punishment 40 years later, with
opinion polls showing about half of those surveyed say it should be
reinstated. - France 24, 18/9/2021
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