World Day Against the Death Penalty Media Statement – 10/10/2023
Malaysia Still Retains The Death Penalty For About 33 Offences – No Change After Mandatory Death Penalty Abolished
Abolish Death Penalty and Torture
10th October is the World Day Against the Death Penalty. Every year, on this day, focus is given to a specific issue, and in 2023, the theme is Torture and the Death Penalty.
It highlights, amongst others, the use of torture, be it physical, psychological or sexual during investigations before one is charged and tried. Other focus include torture suffered by those on death row awaiting execution – known as the death row phenomenon, and torture during execution due to methods used. Lastly, it highlights the torture suffered by family and children of persons on death row, and when executed – noting this a category of innocent persons are also severely affected by the death penalty.
Torture During Investigation Must End
In Malaysia, even though torture is prohibited by law, nonetheless it still is being used by the police, other law enforcement and even the prosecution in some cases, allegedly for the purpose of securing ‘necessary evidence’ . This is an unacceptable justification, and the use of torture must end.
Allegation of torture by police and law enforcement are extremely difficult to prove by the accused, more so when there is no CCTV with recording capacity in all places of the station, or that will be able to confirm no torture by police from the point of arrest.
Getting suspects to confess was perceived as the main reason behind torture in police custody, and Parliament in Malaysia since 2007 has amended the Criminal Procedure Code that now do not allow the prosecution to use any statements made by accused during the course of a police investigation like confessions. Section 113(1) of the Criminal Procedure Code states that ‘…no statement made by any person to a police officer in the course of a police investigation made under this Chapter shall be used in evidence…’ Only the accused can use such statements in court.
However, the problem remains that other statements, not confessions, could still be used to recover other evidence other than confessions.
In the case of the murder Altantuya Shaariibuu in 2006, the fact that the accused for an offence that then carried the mandatory death penalty ‘… had also independently led the police to the scene of crime which was a remote and isolated place up in the hills…’. Why would anyone lead the police to evidence for an offence that will result in their being executed? Was there torture used? Was there ‘other promises’? Most suspects reasonably will keep quite, and most lawyers will have advised against doing anything that will assist the police get evidence needed to convict.
Malaysia and the Death Penalty
In 2018, on the World Day Against Death Penalty, it was announced that the ‘Malaysia's Cabinet has reached a consensus that the death penalty for 33 offences as provided for under eight Acts of law should be abolished…’(Bernama/Straits Times 13/11/2018).
However, on 13th March 2019, Malaysian cabinet did a U-turn on abolishing the death penalty for all 33 offences, and instead agreed to only abolish the mandatory death penalty for all 11 mandatory death penalty offences. The Pakatan Harapan then lacked the political will and courage to abolish the death penalty.
The Bill to abolish mandatory death penalty was finally tabled in October 2022, by the then Perikatan Nasional government during the premiership of Ismail Sabri. Thereafter, Parliament was dissolved and there was General Elections, and a change of government.
Then, the new Pakatan Harapan ‘unity government’ or coalition government tabled the law to abolish mandatory death penalty and life imprisonment. The Abolition Of Mandatory Death Penalty Act 2023 came into force on 4/7/2023, but sister Act that would allow those on death row to apply to court to review their death sentence was delayed.
Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 finally came into force on 12/9/2023, now allowing about 1,020 prisoners (of which about 850 on death row who had been handed mandatory death penalty) or the rest serving life imprisonment sentences to now file applications in court to review these sentences.
The result of the abolition of mandatory death penalty now means that judges now have a choice in sentence other than just the death penalty, but the reality is that the Death Penalty remains in all the still about 33 offences.
Courts Continue To Hand Down Death Sentences
Despite the abolition of the mandatory death penalty, it is disturbing that the courts are still handing down the death penalty. As examples, on 1/8/2023, Two men charged with murdering a woman were sentenced to death by the High Court; and on 2/8/2023, the Court of Appeal in Putrajaya today upheld the death sentence imposed on a businessman for trafficking in 9.528kg of cannabis. (Malaysia Now).
Number Of Offences That Provide For Death Sentence Remains The Same
MADPET (Malaysians Against Death Penalty and Torture) notes that things will still remain the same as death sentence is still available for about 33 offences, many of which do not even result in any death or grievous bodily harm of any victim whatsoever. For so long, as death penalty is not abolished, people will still continue to be sentenced to death by the Courts.
Even after the revision of death sentence of the about 850 on death row, it is likely that many will still end up with the death sentence. Not all will receive the alternative sentence of imprisonment plus whipping. So death row will still have people waiting to be hanged.
Courts cannot be blamed for sentencing people to death for so long as the death penalty remains in the law. Only the government, now Anwar Ibrahim’s Pakatan Harapan led ‘unity government’ can totally abolish the death penalty in law.
Malaysia’s position which had been declared to the world, when Malaysia voted in favour of the UN General Assembly Resolution in 2018, 2020 and 2022 has been than Malaysia will abolish the death penalty. Malaysia committed to a moratorium on execution pending abolition. Will Anwar Ibrahim led government have the courage and political will to abolish death penalty?
In Indonesia, at the end of 2022, the revised Criminal Code introduced an automatic 10-year probation for convicts on death row to demonstrate good behavior for the possibility of having their sentences commuted.
The global trend has been towards abolition – as countries no longer believe in ‘murdering’ the convicted, but rather imposing a punishment that will allow for repentance, rehabilitation and a second chance.
MADPET reiterates the call for the total abolition of the death penalty in Malaysia, and a moratorium on execution pending abolition;
MADPET urges Judges to consider not sentencing any person to death at the risk of miscarriage of justice, noting that the innocent can be wrongly executed just like what happened the case of Chiang Kuo-ching, who was executed in Taiwan in 1997 after being convicted of sexually abusing and murdering a five-year-old girl. After his death, in 2011, Taiwan’s Ministry of Justice admitted that Chiang had been executed in error;
MADPET calls for the abolition of Torture, especially by the police and law enforcement, and urge the speedy installation of CCTV with recording capacity be installed at all areas of police station, and body-cams be mandatory for police and other law enforcement. From the point of arrest until he/she is charged, there must be evidence that no torture or wrongdoings were committed by the police or law enforcers in violation of the law, in violation of a suspect’s rights and justice; and
Noting that death penalty cannot be abolished unless by law, MADPET calls on Prime Minister Anwar Ibrahim, the Executive and Parliament to speedily amend laws that will effectively abolish the death penalty in all lows. If not Courts that are bound to follow the written law may continue sentencing persons to death when convicted for any of the about 33 offences that still carry the death penalty.
Charles Hector
For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)
It highlights, amongst others, the use of torture - be it physical, psychological, or sexual - during investigations before one is charged and tried.
Other focuses include torture suffered by those on death row awaiting execution - known as the death row phenomenon - and torture during execution due to methods used.
Lastly, it highlights the torture suffered by the families and children of persons on death row, noting this a category where innocent persons are also severely affected by the death penalty.
Torture during investigation must end
In Malaysia, even though torture is prohibited by law, it still is being used by the police, other law enforcement, and even the prosecution in some cases, allegedly for the purpose of securing “necessary evidence”.
This is an unacceptable justification and the use of torture must end.
Allegations of torture by police and law enforcement are extremely difficult to prove by the accused, more so when there is no CCTV with recording capacity in the places of detention or any other methods that are able to confirm that there has been no torture by police from the point of arrest.
Getting suspects to confess was perceived as the main reason behind torture in police custody and the Malaysian Parliament since 2007 has amended the Criminal Procedure Code that now does not allow the prosecution to use any statements made by the accused during the course of a police investigation like confessions.
Section 113(1) of the Criminal Procedure Code states that “…no statement made by any person to a police officer in the course of a police investigation made under this Chapter shall be used in evidence…”. Only the accused can use such statements in court.
However, the problem remains that other statements, not confessions, could still be used to recover other evidence other than confessions.
In the murder of Altantuya Shaariibuu in 2006, the fact that the accused for an offence that then carried the mandatory death penalty “… had also independently led the police to the scene of the crime, which was a remote and isolated place up in the hills…” was suspicious.
Why would anyone lead the police to evidence for an offence that will result in their being executed? Was there torture used? Were there “other promises”?
Most suspects would reasonably have kept quiet and most lawyers would have advised against doing anything that would assist the police in getting the needed evidence to convict.
Malaysia and the death penalty
In 2018, on World Day Against Death Penalty, it was announced that “Malaysia’s cabinet has reached a consensus that the death penalty for 33 offences as provided for under eight Acts of law should be abolished…” (Bernama/Straits Times 13/11/2018).
However, on March 13, 2019, the Malaysian cabinet did a U-turn on abolishing the death penalty for all 33 offences and instead agreed to abolish the mandatory death penalty for all 11 mandatory death penalty offences. Pakatan Harapan then lacked the political will and courage to abolish the death penalty.
The bill to abolish the mandatory death penalty was finally tabled in October 2022 by the then Perikatan Nasional government during the administration of Ismail Sabri Yaakob. After that, Parliament was dissolved and there was a general election and a change of government.
Then, the new Harapan-led coalition government tabled the law to abolish the mandatory death penalty and life imprisonment.
The Abolition Of Mandatory Death Penalty Act 2023 came into force on July 4, 2023, but a sister Act that would allow those on death row to apply to the court to review their death sentence was delayed.
The Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 finally came into force on Sept 12, 2023, now allowing about 1,020 prisoners (of which about 850 on death row who had been handed mandatory death penalty) or the rest serving life imprisonment sentences to now file applications in court to review these sentences.
The result of the abolition of the mandatory death penalty now means that judges now have a choice in sentence other than just the death penalty, but the reality is that the death penalty still remains in all the 33 offences.
Courts continue to hand down death sentences
Despite the abolition of the mandatory death penalty, it is disturbing that the courts are still handing down the death penalty.
For example, on Aug 1, 2023, two men charged with murdering a woman were sentenced to death by the High Court and on Aug 2, 2023, the Court of Appeal in Putrajaya upheld the death sentence imposed on a businessperson for trafficking in 9.528kg of cannabis.
Offences that carry death sentence remain the same
Madpet (Malaysians Against Death Penalty and Torture) notes that things will still remain the same as the death sentence is still available for 33 offences, many of which do not even result in any death or grievous bodily harm of any victim whatsoever.
For so long, as the death penalty is not abolished, people will still continue to be sentenced to death by the courts.
Even after the revision of the death sentence of about 850 on death row, it is likely that many will still end up with the death sentence. Not all will receive the alternative sentence of imprisonment plus whipping.
So, death row will still have people waiting to be hanged, and the courts cannot be blamed for sentencing people to death for so long as the death penalty remains in the law.
Only the government, now Anwar Ibrahim’s Harapan-led coalition government can totally abolish the death penalty.
Malaysia’s position which had been declared to the world, when Malaysia voted in favour of the UN General Assembly Resolution in 2018, 2020 and 2022 has been that Malaysia will abolish the death penalty.
Malaysia then committed itself to a moratorium on execution pending abolition. Will Anwar’s government have the courage and political will to abolish the death penalty?
In Indonesia, at the end of 2022, the revised Criminal Code introduced an automatic 10-year probation for convicts on death row to demonstrate good behaviour for the possibility of having their sentences commuted.
The global trend has been towards abolition as countries no longer believe in “murdering” the convicted, instead imposing a punishment that will allow for repentance, rehabilitation, and a second chance.
Madpet reiterates the call for the total abolition of the death penalty in Malaysia and a moratorium on execution pending abolition.
Madpet also urges judges to consider not sentencing any person to death at the risk of miscarriage of justice, noting that the innocent can be wrongly executed just like what happened in the case of Chiang Kuo-ching, who was executed in Taiwan in 1997 after being convicted of sexually abusing and murdering a five-year-old girl.
After his death, in 2011, Taiwan’s Ministry of Justice admitted that Chiang had been executed in error.
Madpet calls for the abolition of torture, especially by the police and law enforcement, and urges the speedy installation of CCTV with recording capacity in all holding areas, and body-cams be mandatory for police and other law enforcement.
From the point of arrest until he/she is charged, there must be evidence that no torture or wrongdoings were committed by the police or law enforcers in violation of the law, in violation of a suspect’s rights and justice.
Noting that the death penalty cannot be abolished unless by law, Madpet calls on Prime Minister Anwar, the executive, and Parliament to speedily amend laws that will effectively abolish the death penalty.
If not, the courts that are bound to follow the written law may continue sentencing persons to death when convicted for any of the about 33 offences that still carry the death penalty. - Malaysiakini, 10/10/2023
1,020 can now apply to review mandatory death, life imprisonment sentences
This follows the coming into force of the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023.
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KUALA LUMPUR: The 1,020 prisoners who had been handed mandatory death or life imprisonment sentences can now file applications in court to review these sentences, says deputy law and institutional reform minister Ramkarpal Singh.
This follows the coming into force of the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 (Act 847) today, as well as the Abolition of Mandatory Death Penalty Act 2023 (Act 846) on July 4.
“The application to review the sentence must be made within 90 days from the effective date of the Act (847),” Ramkarpal said during a briefing, adding that the court will deliver its verdict in six months to a year.
“Subject to reasonable grounds, the court can consider an extension of the period to submit a review application.
“The request for a review of the sentence can only be submitted once.”
All applications will be filed by the prisons department on behalf of the prisoners.
Ramkarpal added that the prisoners may hire their own lawyers, use those appointed by the court, or those from the National Legal Aid Foundation (YBGK).
The court may either approve or reject the applications of those handed the mandatory death sentence, or propose a replacement punishment for those handed a life imprisonment sentence.
If the court decides to maintain the sentence, the prisoner may appeal to the state pardons board for a pardon.
“In reviewing the application, the court will call and examine the records of the proceedings, the reasons for the judgment, and other related documents, if any,” Ramkarpal said.
Of the 1,020 prisoners, 573 are Malaysians, and the rest foreigners.
Yesterday, law and institutional reform minister Azalina
Othman Said had confirmed that 1,020 prisoners who had been sentenced to
mandatory death or life imprisonment may file applications in court to
review their sentences with Act 847 coming into force. - FMT, 12/9/2023
High Court sentences duo to death for 2018 Pulau Kerto murder
SIBU, Aug 1 — Two men charged with murdering a woman in Pulau Kerto here in 2018 were sentenced to death by the High Court yesterday.
Jeeji Ting Kim Leong, 32, from Nanga Assan and Syahadan Othman Sabang, 29, from Kapit were convicted of causing the death of Ting Poh Sing, 58, at an unnumbered house in Pulau Kerto between 1am and 7.10pm on June 27 that year.
They were each charged under Section 302 of the Penal Code read together with Section 34 of the same Code, which provides for the death penalty or imprisonment for a term of not less than 30 years but not exceeding 40 years, and if not sentenced to death, shall be punished with whipping of not less than 12 strokes, upon conviction.
In delivering his verdict, judge Datuk Christopher Chin said the prosecution had succeeded in proving its case beyond a reasonable doubt.
He said a forensic pathologist had testified that the woman’s death was caused by traumatic asphyxia and smothering, in addition to blunt force trauma to the chest and back causing multiple fractures to the right and left ribs.
“There is nothing in my mind to doubt the evidence of the forensic pathologist. The two accused are regular drug consumers, and they had a clear motive to rob the deceased for money to feed their drug habit.
“In fact, there is undisputed evidence that the upper portion of the deceased’s house was used by two accused with others as a drug den.
“The acts of the two accused were therefore done in furtherance of a common intention to rob the deceased as a result of which the murder occurred,” he said.
The judge also said the evidence given by the two accused in their defence was insufficient to cast reasonable doubt on the prosecution’s case which had been established earlier.
“I find that Syahadan was the main perpetrator of the injury and smothering of the deceased. But I equally find that Jeeji had a common intention to commit murder as happened in this case.
“He made no direct attempts to save the deceased and in fact was found to have willingly taken a share of the spoils of the murder. There is no evidence to show that he did his best to distance himself from the events in the Pulau Kerto house resulting in the sad demise of the deceased.”
During mitigation, lawyer Yap Hoi Liong representing Jeeji said the accused regretted his action and hoped for a minimum sentence to be imposed.
Lawyer Ben Lau representing Syahadan said his client had shown his remorse in court and had submitted that his intention was merely to rob rather than kill the victim.
“It just happened that things went wrong in between. There was no reason for the second accused (Syahadan) to kill the deceased, knowing at that material time he was married and with a child of four years.
“The second accused hopes for the court to pass a custodial sentence on him so that he will still have the chance to see his child upon his release from prison,” said Lau.
Deputy Public Prosecutor Mark Kenneth Netto called on the court to impose the death sentence to reflect the seriousness of the crime.
He said the case was premeditated whereby the offenders invaded the sanctity of the deceased’s home.
“The offenders chose to diabolically attack the deceased when she was most vulnerable. After the commission of the offence, the offenders escaped leaving the helpless deceased behind, and then in cold-hearted fashion sold the deceased’s personal belongings at a goldsmith.
“Nothing can bring the deceased back to her family members and loved ones. No imprisonment term can begin compensating the loss that the family members and friends of the deceased have suffered.
“There is no
imprisonment sentence that can be passed which can relieve the loss that
these offenders have caused. Hence the sentence passed must reflect the
seriousness of the crime and the need to deter others from committing
it,” the DPP said. — Borneo Post Online, Malay Mail, 1/8/2023
Appeals court upholds businessman's death sentence for drug trafficking
Mohammad Firdaus Mohsin has one more avenue of appeal – the Federal Court.
The Court of Appeal in Putrajaya today upheld the death sentence imposed on a businessman for trafficking in 9.528kg of cannabis.
This followed a decision by a three-man panel of the Court of Appeal, comprising justices Hadhariah Syed Ismail, See Mee Chun, and Azmi Ariffin, dismissing the appeal by Mohammad Firdaus Mohsin, 38, to set aside his conviction and death sentence.
Justice Hadhariah, in delivering the court's decision, said there were no merits in the appeal by Firdaus.
She said Firdaus's conviction was safe to be upheld.
On Dec 3, 2021, the High Court in Shah Alam found Firdaus guilty of trafficking in the drug by the roadside of Jalan Bukit in front of the Kajang KTMB train station in the Hulu Langat district, Selangor, at 10pm on March 28, 2017.
Firdaus has one more avenue of appeal, which is to the Federal Court.
According to the facts of the case, a police team, acting on information, went to the area and saw Firdaus, who was behaving suspiciously and carrying two bags.
A police officer approached him and asked him to open the bags. They found several slabs of compressed dried leaves in one of the bags, which were later confirmed by the chemistry department to be cannabis.
In his defence, Firdaus claimed that the bag was not his but belonged to an Uber driver, and he was taking care of the bag while waiting for the Uber driver to park the car.
He claimed that he came to Kuala Lumpur from Penang to attend an event and was waiting for his uncle to fetch him to his (uncle's) house in Sungai Ramal, Kajang.
During the trial, the Uber driver, Mohd Sabri Salleh, testified that he received a booking from Firdaus through the Uber apps to send the latter from KL Sentral to the Kajang KTM station.
He said he saw Mohammad Firdaus carrying the bags, and he (Firdaus) had put the bags next to him (Firdaus) in the back seat of the car.
Lawyer Afifuddin Ahmad Hafifi represented Firdaus, while deputy
public prosecutor Mohd Fairuz Johari appeared for the prosecution.- Malaysia Now, 2/8/2023
Indonesia
Wednesday, 17 May 2023 12:34 PM MYT
Human rights activists stage a rally in Kota Tua, West Jakarta, to commemorate the World Day against the Death Penalty in this undated file photo. - The Jakarta Post
JAKARTA (The Jakarta Post/Asia News Network): A recent report from Amnesty International suggests that Indonesia's revised Criminal Code is a step in the right direction toward abolishing capital punishment, even as the country’s justice system continues to hand down high numbers of death sentences.
Passed at the end of last year, the revised Criminal Code introduced an automatic 10-year probation for convicts on death row to demonstrate good behavior for the possibility of having their sentences commuted.
After the probation elapses, the sitting president may decrease the sentence to life in prison or 20 years in prison.
The policy will take effect in 2026. Amnesty International Indonesia researcher Ari Pramuditya said that although Indonesia still had a long way to go before the death penalty was completely abolished, the new penal code was "a positive step" that deserved recognition.
"However, we still need to closely monitor its implementation. Amnesty will continue to push for the total abolition of the death penalty.
Although the probation for people sentenced to death is a step in the right direction, it's not enough, and we still have a long way to go," Ari said at a press conference on Tuesday. Amnesty International Indonesia executive director Usman Hamid said the country had to use the opportunity to significantly reduce instances of capital punishment after years of what he said were shockingly high figures.
Indonesia has continued to record-high numbers of death sentences in recent years, with 112 instances 2022, just two fewer than in 2021, according to Amnesty. In 2020, it recorded 117 death sentences.
As of Monday, there were 452 convicts awaiting execution. Zero-tolerance policy Ari said one of the main reasons for Indonesia's high level of death sentences was President Joko "Jokowi" Widodo's "zero-tolerance" policy against drugs, with drug crimes accounting for 94 per cent of all death sentences last year.
"Some judges even mentioned Jokowi's zero-tolerance approach to drugs as a contributing factor for handing out the death penalty to drug offenders," he said.
According to Ari, support for the zero-tolerance approach was partly based on the misguided idea that the death penalty deterred drug-related crimes.
Despite the high number of drug convicts sentenced to death, he noted, Indonesia continued to see a growing number of drug users. - Star, 17/5/2023
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