ON HUMAN RIGHTS, JUSTICE AND PEACE ISSUES, LABOUR RIGHTS, MIGRANT RIGHTS, FOR THE ABOLITION OF THE DEATH PENALTY, TOWARDS AN END OF TORTURE, POLICE ABUSES, DISCRIMINATION...
On 3/12/2021, a child died - suspected victim of child abuse and murder. The woman apparently pleaded guilty to physically abusing the
boy between April and Dec 3 this year...her 5-year old son. On the charge of murder in another court, she has yet to enter the plea.
Now, what is of major concern, is what the police reportedly said
“Back in July this year, the couple was charged in court with abusing the eldest child. “The two other children are now under the care of their grandmother,” he [Iskandar Puteri OCPD Asst Comm Dzulkhairi Mukhtar] said.
So, the question is why did the Ministry responsible for the welfare and protection of CHILDREN fail to protect this 5-year old boy? Why was the child left in such a high risk environment? And mind you, the recent charge for child abuse starts from April 2021...,'were charged with physically abusing the boy between April and Dec 3 this year..' - noting that risk of child abuse came to light in July(according to the police) when the couple was charged for abusing the eldest child.
The police said that 2 other children was placed under the custody of the grandmother - so, why was this 5-year old left out - and now the child is dead.
Surely the GOVERNMENT and the relevant departments ought to have known child abuse risk since July 2021 - so, Government and relevant Minister must explain...
Or, is this a case of mis-reporting, or wrong information provided by the police?
Court date: A policewoman escorting Kaleswary (right) to the Magistrate’s Court in Johor Baru.
JOHOR BARU: A 35-year-old jobless woman is facing the
gallows after she was charged at the Magistrate’s Court here with
allegedly causing the death of her young son.
R. Kaleswary was emotionless when the charge was read out to her in front of magistrate Nurmadiana Mamat yesterday.
The
statement of facts said Kaleswary had intentionally caused the death of
the five-year-old boy between 9am and 12.20pm on Dec 3.
She allegedly committed the offence on the upper floor of a business building at Taman Sri Yaakub here.
No plea was recorded from the accused after she was charged
under Section 302 of the Penal Code for murder, which carries the
mandatory death sentence upon conviction.
Nurmadiana then set Feb 15, 2022, for next mention and the submission of documents.
Meanwhile,
in the Sessions Court, Kaleswary and her gas delivery boyfriend,
Muhammad Iskandar Abdullah, 32, were charged with physically abusing the
boy between April and Dec 3 this year.
They were charged under
Section 31(1)(a) of the Child Act 2001, which carries a jail term of not
more than 10 years’ imprisonment or a maximum fine of RM20,000 or both
upon conviction.
Kaleswary pleaded guilty to the charge but Muhammad Iskandar claimed trial in front of Sessions Court judge Fatimah Zahari.
Fatimah postponed Kaleswary’s sentencing pending the results of a post-mortem on the child’s body.
She then set Jan 27, 2022, for the next mention and for Kaleswary’s sentencing.
Fatimah
also granted bail of RM14,000 with one surety on Muhammad Iskandar and
ordered him to report to the nearest police station once a month until
the case is settled.
As at press time, Muhammad Iskandar had yet to post bail.
Deputy
public prosecutors Khairunnisa Zainudin, M. Raveena and Chai Ing Hen
prosecuted the cases while both accused were unrepresented.
Earlier
this month, police arrested the couple after a report was lodged
alleging that they had abused the victim, resulting in his death.
Iskandar
Puteri OCPD Asst Comm Dzulkhairi Mukhtar said police were notified of
the incident following a report lodged by a Hospital Sultanah Aminah
medical officer at around 12.20pm on Dec 3.
“The five-year-old boy was already dead when he was brought to the hospital.
“He had injuries on his mouth and swellings all over his body,” he said.
Police
immediately arrested the victim’s mother at the hospital while the
mother’s boyfriend was apprehended at the family’s rented house in Taman
Nusa Bestari on the same day, he added.
ACP Dzulkhairi said
initial investigations found that the victim had two other siblings – an
eight-year-old sister and a two-year-old brother – living under the
same roof.
“Police recovered a rubber pipe in the bathroom sink,
a wooden stick and a bloodstained plastic pipe on the sofa at their
home,” he said.
Checks on the two suspects revealed that this was not their first arrest for suspected child abuse, he added.
“Back in July this year, the couple was charged in court with abusing the eldest child.
“The two other children are now under the care of their grandmother,” he said. - Star, 15/12/2021
Time to increase monthly allowance/pay of Human Rights Commissioners, increase budget for SUHAKAM, etc. I thought that the SUHAKAM Commissioners were at the very least paid RM10,000 monthly allowance, and then, I found out that they were paid RM6,000 monthly allowance(and RM1k 'entertainment' allowance) - this is way too low. The higher the monthly allowance means the less they have to worry about other income to sustain their lives - and this may mean giving more time to SUHAKAM's work...
On Human Rights Day, one must appreciate SUHAKAM(National Human Rights Commission) and also the SURUHANJAYA INTEGRITI AGENSI PENGUATKUASAAN - Enforcement Agency Integrity Commission (EAIC). Both these institutions, at the end of the day, has achieved far more than expected by Malaysians ...
BUT, then SUHAKAM had looked into so many different Human Rights issues, and had many public inquiries and reports - freedom of peaceful assembly, police torture and abuse of powers, and even enforced disappearance - go look at the SUHAKAM website
SUHAKAM - well, the performance seems to be all dependent on who the then Chairman is, and the then HR Commissioners. After, it started, many saw it as nothing more than a 'toothless tiger' - as what can one expect whether the government appoints wrong persons or rather 'correct persons' according to a government viewpoint who just want to highlight that Malaysia believes in human rights, and we even have a National Human Rights Commission. Whether they are an effective Human Rights Institution is immaterial.
"When I first became chairperson, the way we looked at the commission
is that it’s worse than a toothless tiger. A tiger is a tiger, and
before it opens its mouth to show it has no teeth, you are already
scared looking at it."From my perspective, Suhakam is a watchdog that is tied to the post,"
Hasmy [Tan Sri Hasmy Agam] said at a press conference at Suhakam's headquarters in Kuala
Lumpur today, after the launch of its 2014 Annual Report.However, he said, even a watchdog can hold the government accountable. "A watchdog barks, and if you look at our record for the past several years, we have barked very loud," he said.
In the earlier period, the few HR Commissioners, who wanted to defend and promote human rights find themselves possibly suppressed by a 'gate keeper' Chairman who simply makes sure that the Commission does not expose the failings of government, its agents as far as human rights is concerned.
The Human Rights Commission of Malaysia (SUHAKAM) was established by
Parliament under the Human Rights Commission of Malaysia Act 1999, Act
597, which was gazetted on 9 September 1999. The inaugural meeting was
held on 24 April 2000.
In my opinion, SUHAKAM started to free itself from 'government influence/control or 'individual fear of antagonizing government or its agents'...' under the Chairmanship of Tan Sri Hasmy Agam (2010-2016) and thereafter Tan Sri Razali Ismail(2016 to 2019) and began functioning bravely as a better National Human Rights Institution. Whilst SUHAKAM continues to maintain its ways, no evaluation yet on the current Tan Sri Othman Bin Hashim(since June 2019)
Its Founding Statute
The Human Rights Commission of Malaysia (SUHAKAM) was established under the Human Rights Commission of Malaysia Act 1999, Act 597.
Section 2 of this Act defines “human rights” as referring to the
“fundamental liberties as enshrined in Part II of the Federal
Constitution”.
Our Functions
The functions of SUHAKAM as set out in Section 4(1) are:
to promote awareness of and provide education relating to human rights;
to advise and assist Government in formulating legislation and procedures and recommend the necessary measures to be taken;
to
recommend to the Government with regard to subscription or accession of
treaties and other international instruments in the field of human
rights;
to inquire into complaints regarding infringements of human rights.
Furthermore,
section 4(4) of the Act provides that regard shall be had to the
Universal Declaration of Human Rights 1948 (UDHR) to the extent that is
not inconsistent with the Federal Constitution. This means that whatever
rights and liberties not mentioned in Part II but referred to in the
UDHR must be considered provided that there is no conflict with the
Constitution.
The function of inquiring into complaints about
human rights infringements is subject to the conditions imposed by
section 12 of the Act. Section 12 empowers SUHAKAM to act on its own
motion to inquire into allegations of infringement of human rights, in
addition to acting on complaints submitted to it. SUHAKAM, however, may
not investigate complaints which are the subject matter of proceedings
pending in a court of law or which have been finally decided by any
court. Such investigations have to cease if the matter being
investigated is brought before the courts.
As public awareness and confidence begins to build, thanks to the human rights commitment displayed not just by words but also actions. Human Rights Commissioner's jurisdiction is the whole of Malaysia, and they do go down to the ground to meet victims, and conduct investigations personally. They also rush to detention places when made aware of torture and deaths in custody. They also do spend days committed in PUBLIC INQUIRIES...
RM6,000 monthly allowance for a SUHAKAM Commissioner is shockingly low - when today a High Court Judge gets a salary of RM26,500.00 per month(as at July 2015). Maybe, there should be an increase here...
Worse that when the salary of SUHAKAM's staff is almost as high(or better) than a HR Commissioner.
Post:PRINCIPAL ASSISTANT SECRETARY (HEAD OF DIVISION) GRADE 48OFFICE OF THECHILDREN’S COMMISSIONER Salary Scale:RM5,206.00 and additional allowance of RM1,550.00 per month - a SUHAKAM 2019 Staff advert
SUHAKAM definitely need a higher budget, to at the very least have a presence/office all over Malaysia to facilitate easy access of the public to SUHAKAM, and mind you this includes Sabah and Sarawak too.
How much is the 2022 BUDGET allocation for SUHAKAM? Looking at all the Annual Reports, Public Inquiry Reports, Media Statements and other matters - no one can deny that SUHAKAM has been doing good work to uphold, defend and promote Human Rights.
To not mess up with the good work SUHAKAM has been doing, not only is it important to increase BUDGET, but also continue to appoint good persons who will act without fear or favour in the work of upholding the cause of human rights and justice...As we know, SUHAKAM in the past did suffer almost 50% budget cuts - but despite all problems including financial problems Malaysia may be facing, the government must provide a larger BUDGET for SUHAKAM, EAIC and the promotion of human rights
For 2015, Suhakam was allocated an operating budget of RM10,986,200.
However, this amount was reduced by a further 10% by the Ministry of
Finance and by approximately 9% by the Prime Minister’s Office. In
comparison, Suhakam has been allocated a sum of RM5,509,400 for 2016, a
reduction of almost 50%. - ALIRAN, November 2015
The same call is also made for EAIC - as they have been doing good work, including doing inquiries and coming out with reports on death in custody, fisherman -- That is why I objected to Pakatan Harapan Plus's plan to transform the EAIC to their version of watered down Independent Police Complaints and Misconduct Commission (IPCMC) Bill - and now even more watered down by a Bill for another Commission...that we will discuss later...
Press Statement No. 40-2021_Budget for SUHAKAM to Carry Out the Full Range of Its Core Function
KUALA LUMPUR (1 DECEMBER 2021) – The Human
Rights Commission of Malaysia (SUHAKAM) underscores that the Parliament
has a critical role in the promotion and protection of human rights. As
such, SUHAKAM expresses support for Members of Parliament in raising
matters that affect the rights of the people of Malaysia as well as on
those that impact the effective delivery of SUHAKAM’s statutory
functions.
In connection to the issue raised by Member of Parliament concerning
SUHAKAM’s budget allocation during the Parliament sitting on 22 November
2021, SUHAKAM reiterates its call for the government to ensure that
SUHAKAM receives adequate funding and afforded the necessary powers, to
enable it to safely, independently and effectively promote and protect
human rights in Malaysia. SUHAKAM had recently undergone the
reaccreditation process by the Sub-Committee on Accreditation (SCA) of
the Global Alliance of the National Human Rights Institutions (GANHRI),
in which the SCA reminded that adequate funding should, to a reasonable
degree, ensure gradual and progressive realisation of the improvement of
the institution’s operations and the fulfilment of its mandate. In
addition, it also stated that where NHRIs has been designated with
additional responsibilities by the State, additional financial resources
should be provided to enable it to assume the responsibilities of
discharging these functions. Aside from the fact that SUHAKAM currently
must address a wider range and increasingly complex human rights issues
in the country, based on subsection 5(2) of the SUHAKAM Act 1999 (Act
597), the government appointed a dedicated Children’s Commissioner since
April 2019 as part of the reforms undertaken by the government in
protecting the rights of children. Therefore, the Government should
consequently provide SUHAKAM with all the necessary support.
With respect to enhancing its independence, SUHAKAM is working
closely with the Legal Affairs Division (BHEUU) of the Prime Minister’s
Department towards amending the SUHAKAM Act 1999, among others, changes
sought on SUHAKAM’s capacity as an independent NHRI as well as SUHAKAM’s
Annual Report where the Section 21 of its enabling Act does not
specifically mention that the Annual Report has to be debated in
Parliament. SUHAKAM is of the view that it is crucial for Members of
Parliament to critically discuss human right issues of public interest
in Malaysia and propose possible solutions to these issues, especially
since Putrajaya had pledged to prioritise human rights in its
application and, subsequently, its election as a member to the Human
Rights Council (HRC) under the auspices of the United Nations for the
2022-2024 term.
Twelve custodial deaths have been reported since Jan 1 this year. (Reuters pic)
PETALING JAYA: The Human Rights Commission of Malaysia (Suhakam) says
it has launched an investigation into four more death-in-custody cases.
Suhakam commissioner Jerald Joseph said they were investigating three
deaths under the prison department and one under the police.
The three cases under the prison department were Surendran Shanker at
the Simpang Renggam prison in Johor on May 27, Roopan Karnagaran at
Kajang prison on June 21, and a Nepalese prisoner at the Kluang prison
on May 30.
The fourth case involves S Sivabalan, who died while at the Gombak district police headquarters on May 20.
Jerald Joseph.
Twelve custodial deaths have been reported since Jan 1 this year.
“Not all cases are caused by torture or abuse by the authorities.
Sometimes, it is caused by health negligence and failure to adhere to
court procedures,” Joseph said during a virtual press conference today.
Other than deaths in custody, Suhakam also presented its findings on
other issues, namely the arrest of human rights defenders and matters
pertaining to refugees and asylum seekers.
Joseph noted that since Jan 1 last year, the authorities had probed
several politicians, activists and reporters under the Sedition Act and
the Communications and Multimedia Act 1998.
These included the arrest of activist and graphic designer Fahmi Reza
over his work and the investigation of a short animated film titled
“Chilli powder and Thinner” that depicts alleged police brutality.
“The government needs to recognise that human rights-related work is ‘essential’ during this Covid-19 pandemic.
“The government must respect freedom of speech and the authorities
must not restrict this right by applying laws such as the Sedition Act
and the Communications and Multimedia Act 1998.”
Joseph said Suhakam had received 15 complaints from refugee-status holders regarding placement in three countries.
According to the complainants, they had attended interviews by the UN
High Commissioner for Refugees (UNHCR) for the placement process since
2015 but had not received any feedback or decision.
He said the delay was because of the limited placement quota in these countries.
==
Suhakam: We're worse than a toothless tiger
Zikri Kamarulzaman
Published: Apr 15, 2015 12:56 PM
⋅
Updated: 4:01 PM
Human Rights Commission (Suhakam) chief Hasmy Agam reiterated his view
today that the commission is "worse than a toothless tiger".
"When I first became chairperson, the way we looked at the commission
is that it’s worse than a toothless tiger. A tiger is a tiger, and
before it opens its mouth to show it has no teeth, you are already
scared looking at it.
"From my perspective, Suhakam is a watchdog that is tied to the post,"
Hasmy said at a press conference at Suhakam's headquarters in Kuala
Lumpur today, after the launch of its 2014 Annual Report.
However, he said, even a watchdog can hold the government accountable.
"A watchdog barks, and if you look at our record for the past several years, we have barked very loud," he said.
Hasmy admitted that among others, the government does not really
consult with Suhakam before amending or introducing new laws, such as
the controversial Prevention of Terrorism Act (Pota)
"From time to time, the government has said that it consulted Suhakam.
That's not quite true. They have only briefed us," he said.
Gov't never debated any Suhakam report
Suhakam is also frustrated, Hasmy said, that the government has not
debated any of the commission's annual reports in Parliament since
Suhakam was established in 2008.
"It has taken too long. This is where we find ourselves in a bit of a
frustrating situation to get the government to get the commission to
move along," he said.
As such, Suhakam has been pushing several recommendations to the government, to give the commission more bite.
Among them is one to make it mandatory for the government to consult
Suhakam before amending or introducing laws, to debate the Suhakam
reports in Parliament and to give the commission the power to conduct
spot checks.
"Even if we don't become a full tiger, at least we are a watchdog with teeth to bite," Hasmy said.
Among others, the report touches on deaths in police detention and
makes recommendations on the detention of children by the Immigration
Department. - Malaysiakini, 15/4/2015
Look for the recent judgment, and you can view the Najib's Court of Appeal judgement that dismissed Najib's appeal.
Many were worried that under the new BN-PN Plus government that the Courts may allow Najib's appeal against conviction and sentence, but the Court of Appeal was independent, unaffected by the change of government, - and dismissed the Appeal, and upheld the High Court's conviction and sentencing. Reading the judgment helps us to understand why?
Now, Najib may appeal to the Federal Court, and will most likely get a stay of execution pending the appeal to the Federal Court.
If the next General Elections, will Najib again try to defend his position as Member of Parliament of Pekan?
SRC International case: COA throws out Najib’s bid to have conviction overturned
Justice
Abdul Karim said Najib (pictured) was in a position of power in SRC due
to his status as a shareholder of SRC by virtue of him being the
finance minister, prime minister and SRC's advisor emeritus when the
offences were committed. (Photo by Mohd Suhaimi Mohamed Yusuf/The Edge)
PUTRAJAYA
(Dec 8): The Court of Appeal here had on Wednesday (Dec 8) rejected
former prime minister Datuk Seri Najib Razak's appeal to set aside his
conviction in the case involving ex-1Malaysia Development Bhd (1MDB)
subsidiary SRC International Sdn Bhd.
“There is no error in the judgment of the High Court,” Court of Appeal Judge Datuk Abdul Karim Abdul Jalil said.
In a unanimous decision on Wednesday, Court of Appeal Judges Abdul
Karim, Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera upheld
the High Court's verdict on all seven charges against Najib in the SRC
case.
Abdul Karim, when reading portions of the Court of Appeal's 200-page
judgement involving Najib, said the Court of Appeal found no error in
High Court Judge Mohd Nazlan's decision in asking Najib to enter his
defence when Mohd Nazlan said a prima facie case had been proven against
Najib.
On July 28, 2020, the High Court sentenced Najib to12 years in jail
and fined him RM210 million after he was found guilty by Judge Mohd
Nazlan Mohd Ghazali of seven charges involving SRC, which included one
charge of abuse of power involving Retirement Fund (Incorporated)'s
(KWAP) RM4 billion loans to SRC, three counts of criminal breach of
trust involving RM42 million and three counts of money laundering.
Najib is also facing three money laundering charges involving RM27 million in SRC.
The Court of Appeal also agreed that Mohd Nazlan had rightly
interpreted and applied correctly the abuse of power charge under
Section 23 of the Malaysian Anti-Corruption Commission Act 2009 when
Mohd Nazlan decided that Najib's presence at Cabinet meetings which
approved KWAP's RM4 billion loans is beyond question.
“This is also irrefutable by witness testimonies. There is
overwhelming evidence that Najib had interest in approving the KWAP
loans for SRC.
Supporters of Najib outside the court (Photo by Zahid Izzani Mohd Said/The Edge Malaysia)
“This established that the appellant (Najib) had interest beyond his
office in SRC. The loan is not for national interest but ended up as a
national embarrassment. We find no good reason to disagree with the
ruling of the High Court judge,” Abdul Karim said.
Abdul Karim said the ex-premier was in a position of power in SRC due
to his status as a shareholder of SRC by virtue of Najib being the
finance minister, prime minister and SRC's advisor emeritus when the
offences were committed.
On the criminal breach of trust charges against Najib under Section
409 of the Penal Code, Abdul Karim said the Court of Appeal agrees with
the High Court that the RM42 million in Najib's bank account clearly
belongs to SRC.
Abdul Karim went into the details of the elaborate transaction and
explained how the funds finally ended in Najib’s bank account via
intermediary companies from SRC.
“The funds remain that of SRC’s despite flowing through these
companies. The movement of money clearly shows misappropriation,” Abdul
Karim said.
Abdul Karim said the money in Najib’s bank account was used for his own spending.
“He (Najib) had known that the money was transferred into his account and he did not do anything about it,” Abdul Karim said.
On the money laundering charges against Najib, Abdul Karim said the
money in Najib's bank account is from proceeds of unlawful activities
which make up the money laundering charges.
“The appellant (Najib) knew that the money in his (bank) account was from illegal and unlawful activities,” Abdul Karim said.
Abdul Karim said there is also the letter that Najib sent to the bank
to transfer RM32 million to Ihsan Perdana Sdn Bhd, a subsidiary of SRC.
"This shows that he (Najib) knew that the money in his (bank) account was from SRC,” Abdul Karim said.
Abdul Karim said the Court of Appeal agrees that the Arab donation story has no credibility.
He said that the Court of Appeal agrees with the High Court judge's
ruling that upheld the three money laundering charges against Najib
hence, the Court of Appeal rejected Najib's appeal to set aside his
conviction.
Following the Court of Appeal's decision, Najib's defence team made
submissions for and obtained a stay of execution of Najib's jail
sentence and fine.
The Federal Court, which is Malaysia's highest court and final
appellate court will be Najib's last avenue to appeal against his
conviction.
In the High Court verdict on July 28, 2020, Najib was found guilty of
abusing his power by using his positions as prime minister and finance
minister to approve two loans of RM2 billion each by KWAP to SRC in 2011
and 2012.
Prosecutor Datuk V Sithambaram at the Palace of Justice (Photo by Zahid Izzani Mohd Said/The Edge Malaysia)
Najib was also convicted of three counts each of criminal breach of
trust and money laundering involving RM42 million of SRC’s funds, which
ended in his bank account between Dec 26, 2014, and Feb 10, 2015.
The Court of Appeal on Wednesday rejected the Najib defence team's
contention that the money in his bank account was from an Arab donation.
“Such donations claim are untenable because the RM42 million in
Najib’s account was from SRC and the court does not see why the Arabs
would give the money to SRC (via) Najib’s (bank) account.
“The Arabs also did not testify in the trial and there was no evidence to suggest that this was a donation,” Abdul Karim said.- Edge Markets, 8/12/2021
In the peninsula, drug trafficking topped the list of crimes
punishable by death at 67 per cent, followed by murder at 30 per cent,
illegal possession of firearms at 2 per cent and kidnapping at 1 per
cent.
In Sabah, 70 per cent of capital punishment meted out was for drug trafficking followed by murder at 30 per cent.
Malaysians made up 372 or 77.8 per cent of the 478 total to get the
death sentence, with the remaining 106 or 22.2 per cent non-citizens.
in 2018, a total of 172 convicts were
sentenced to death and the number slid further to 118 people in 2019,
dipping to 112 in 2020, and just 76 people this year to date.
Report: Malaysia sees decline in death sentences since 2018
Sunday, 28 Nov 2021 11:08 AM MYT
BY KENNETH TEE
Members of Amnesty International
Malaysia protest against the death penalty at the Singapore High
Commission in Kuala Lumpur July 25, 2019. — Picture by Ahmad Zamzahuri
Follow us on Instagram and subscribe to our Telegram channel for the latest updates.
KUALA LUMPUR, Nov 28 — Fewer individuals in the country have been
handed the death sentence over the past four years, with the decline
first noted starting 2018.
Citing data from the offices of the Registrar of the High Court of Malaya and Registrar of the High Court of Sabah and Sarawak, The Sunday Star reported today a total of 478 people were sentenced to hang from 2018 to date.
The newspaper reported that in 2018, a total of 172 convicts were
sentenced to death and the number slid further to 118 people in 2019,
dipping to 112 in 2020, and just 76 people this year to date.
Malaysians made up 372 or 77.8 per cent of the 478 total to get the
death sentence, with the remaining 106 or 22.2 per cent non-citizens.
In the peninsula, drug trafficking topped the list of crimes
punishable by death at 67 per cent, followed by murder at 30 per cent,
illegal possession of firearms at 2 per cent and kidnapping at 1 per
cent.
In Sabah, 70 per cent of capital punishment meted out was for drug trafficking followed by murder at 30 per cent.
The death penalty has been in the limelight recently due to the case
of Malaysian Nagaenthran K. Darmalingam, who was convicted of smuggling
42.72g of heroin into Singapore back in 2009.
Subsequent to Nagaenthran’s conviction, calls for abolishment to
capital punishment have further reignited with some urging against the
execution through plea for clemency on humanitarian grounds.
Malaysians Against Death Penalty and Torture spokesman Charles Hector
said death penalty should not be imposed if it did not directly result
in the death of anyone and argued that a person convicted of trafficking
lesser amount should receive a lesser punishment than those convicted
of trafficking more.
“The death penalty is also not in the best interest of any children of the convicted,” he said.
Amnesty International Malaysia also voiced its opposition against
capital punishment in all cases as it is a violation of the right to
life, further calling on the government to continue observing the
moratorium on all executions until the death penalty is fully abolished.
“With the case of Nagaenthran, the public can see just how brutal the death penalty system is.
“Despite having an intellectual disability, the Singapore government is insistent on executing him.
“Family members who visited him recently have described how his
mental health has deteriorated to the point of doubting whether he
understands that he is close to being executed.
“This is why even as we try to halt Nagaenthran’s execution in
Singapore, we urge the Malaysian government to continue efforts to fully
repeal the death penalty here,” it said.
However, some Malaysians believe that the death penalty should not be
abolished wholesale and retained for certain crimes like murder and
repeated corruption.
“For drug-related offences, I may agree to do away with the death sentence but I still support the death sentence for murder.
“I would also agree if there is a suggestion to impose capital
punishment for continuous corruption,” Malaysian Syariah Lawyers
Association deputy president Moeis Basri told The Sunday Star.
Former inspector-general of police Tan Sri Khalid Abu Bakar is another advocate of capital punishment.
Unlike Moeis, the former top policeman believes the death penalty
should be maintained for drug trafficking to keep it under control.
“With the capital punishment, we will be able to prevent Malaysia
ending up in situations like in Latin American countries, where drug
cartels are in control,” he said.
However, he agreed that instead of making it a mandatory punishment,
judges should be given discretionary powers to offer life imprisonment. - Malay Mail, 28/11/2021
When it comes to Clemency or Pardon by the President, considerations differ from what courts consider. That is why clemency/pardon comes later - it looks beyond simply the question of guilt/conviction by courts.
What other considerations the Singapore President can consider?
GOOD BEHAVIOUR - post-conviction behavior matters, and good behavior including no other incidence of law breaking post conviction, or even good behavior after the offence is a consideration.
REPENTANCE - and a desire to be a good person after commission of crime is a good reason.
Mental Capacity - well, in this case, the issue that comes up now is the mental capacity of Nagaenthran A/L K Dharmalingam. As it stands, mental capacity is a pre-requisite to determine whether one can even be charged in court - noting that one lacking the needed mental capacity may not even have the capacity needed to plead guilty or not guilty, as such one lacling said capacity cannot even be charged in court let alone be tried. - In the Nagaenthran's case, there now is the question of whether he should have even be charged and tried in court in the very first place. Did the prosecutor and/or the court even establish his mental capacity - was there a certificate by a medical professional that determined his mental capacity at the stage of him being charged and/or tried? If not, this is a PROBLEM and a RISK that cannot be ignored. [What is needed is not the viewpoint of lay persons, be it prosecutors, judges or even the accused's lawyer - it needs to be an opinion of a competent medical professional].
Diplomatic/Political Considerations-
Errors (even if unintentional) - here the failure of courts/prosecutors to conclusively establishing soundness of mind before one is being charged and tried. The onus is on court and prosecutors - not the accused and/or his lawyers. If, there was '...a certificate in writing signed by a medical
officer...'Then, there is also the question of criminal responsibility for the crime - that is both the mental element(mens rea) and action/facts(actus rea)
247.—(1) When
a court holding or about to hold any inquiry or trial or any other
proceeding, has reason to suspect that the accused is of unsound mind
and consequently incapable of making his defence, the court shall in the
first instance investigate the fact of such unsoundness.
(2) Such
investigation may be held in the absence of the accused if the court is
satisfied that owing to the state of the accused’s mind, it would be in
the interests of the safety of the accused or of other persons or in
the interests of public decency that he should be absent, and the court
may receive as evidence a certificate in writing signed by a medical
officer to the effect that the accused is in his opinion of unsound mind
or is a proper person to be detained for observation and treatment in a
psychiatric institution, or the court may, if it sees fit, take oral
evidence from a medical officer on the state of mind of the accused.
(3) If
the court, on its own motion or on the application of the Public
Prosecutor, is not satisfied that the person is capable of making his
defence, the court shall postpone the inquiry or trial or other
proceeding and shall order that person to be remanded for observation in
a psychiatric institution for a period not exceeding one month.
(4) A
designated medical practitioner must keep the accused under observation
and provide any necessary treatment during his remand and, before the
expiry of that period, shall certify in writing to the court his opinion
as to the person’s state of mind and if he is unable within that period
to form any conclusion, shall so certify to the court and shall ask for
a further remand, which may extend to a period of 2 months.
[Act 33 of 2012 wef 01/01/2013]
Certificate of designated medical practitioner
248.—(1) If
the designated medical practitioner certifies that the accused is of
sound mind and capable of making his defence, the court shall, unless
satisfied to the contrary, proceed with the inquiry or trial or other
proceeding.
[Act 33 of 2012 wef 01/01/2013]
(2) If
the designated medical practitioner certifies that that person is of
unsound mind and incapable of making his defence, the court shall,
unless satisfied to the contrary, find accordingly, and thereupon the
inquiry or trial or other proceeding shall be stayed but if the court is
satisfied that the accused is of sound mind and capable of making his
defence, the court shall proceed with the inquiry or trial or other
proceeding, as the case may be.
[Act 33 of 2012 wef 01/01/2013]
(3) The
determination of the issue as to whether or not the accused is of
unsound mind and incapable of making his defence shall, if the finding
is that he is of sound mind and capable of making his defence, be deemed
to be part of his trial before the court.
(4) The certificate of the designated medical practitioner shall be admissible as evidence under this section.
[Act 33 of 2012 wef 01/01/2013]
(5) If
the accused is certified to be of unsound mind and incapable of making
his defence, it shall not be necessary for him to be present in court
during proceedings under this section and he may be detained in a
psychiatric institution pending an order under section 249.
Now, in the Nagaenthran's case, this fact of 'mental capacity' has been raised now - and has the Singapore authorities, be it the public prosecutor or court, even called for an IMMIDIATE medical professional assessment at this stage.
The difficult question, even if he is declared now lacking the needed medical capacity, the question most difficult to answer is (a) Did he have the sufficient mental capacity to enter a plea, go through a trial, intruct lawyers to appeal, etc. THIS ALONE IS SUFFICIENT FOR THE PRESIDENT TO COMMUTE THE DEATH SENTENCE TO IMPRISONMENT at this stage. Further testing and medical opinion maly go further for a 2nd pardon, that may order him to be treated in a medical facility rather than be imprisoned in jail.
Then, there is Section 252
252.—(1) Whenever
the finding states that the accused committed the act alleged, the
court before which the trial has been held shall, if that act would but
for the incapacity found have constituted an offence, order that person
to be kept in safe custody in such place and manner as the court thinks
fit and shall report the case for the orders of the Minister.(2) The
Minister may order that person to be confined in a psychiatric
institution, prison or other suitable place of safe custody during the
President’s pleasure.
Thus, in the Nagaenthran's case, where there seems to have been NO confirmation by the court(or the prosecution) of the mental capacity of the accussed to stand trial.
Noting that the trial(and maybe appeals), and if the courts can rely on section 252, the courts may (oops...No), it says the MINISTER
The
Minister may order that person to be confined in a psychiatric
institution, prison or other suitable place of safe custody during the
President’s pleasure.
This may reasonably mean THE PRESIDENT in exercise of his/her powers, be it Clemency powers, can now commute the death sentence and '...order that person to be confined in a psychiatric
institution, prison or other suitable place of safe custody during the
President’s pleasure...'
With regard to execution of the death penalty, the President also has the '....power to pardoned or the sentence is commuted to another punishment, state this in the order;...'
Section 313 of the Criminal Procedure Code(f)the President must, acting in accordance with the Constitution —
(i)
transmit to the Court of Appeal a copy signed and sealed by him of any order he makes;
(ii)
if the sentence is to be carried out, state the time and place of execution of the sentence in the order; and
(iii)
if the person sentenced is pardoned or the sentence is commuted to another punishment, state this in the order;
The President also has the power in section 313(h) CPC, the
President may, at any time before the warrant is carried out, order a
respite of the execution of the warrant and afterwards appoint some
other time or other place for its execution;
Of relevance is also Section 314 of the Criminal Procedure Code
No sentence of death against person below 18 years314.
A
sentence of death must not be passed or recorded against an accused
convicted of an offence if the court has reason to believe that,
at the
time the offence was committed, he was below the age of 18 years, but
instead the court must sentence him to life imprisonment.
The question then is WHY no capital punishment for those below 18 - Minimum Age of Criminal Responsibility (MACR) refers to the minimum age
at which a person can be held criminally responsible for his or her
actions. In Singapore, chilren of different ages are treated differently - 10-12 years, 12-16, and 16-18. The issues of concern is whether a child can be criminally
responsible for his or her actions, even if they would otherwise
constitute an offence. Whether a child is sufficiently mature to understand the nature and conduct of his or her actions.
Whilst this 'old method' that only looks at age of the child outdated, the issue really, in my opinion, is looking mental capacity - maybe even IQ.
Should this principle which really look at mental capacity...'criminal responsibility' be regardless of age...for an adult with a low IQ or a mental capacity similar to an average child also be accorded similar consideration when it comes to death penalty. A child can, although very young, may have a high IQ - or the maturity of an adult.
As such, based on the fact that Nagaenthran now has been found to have a rather low IQ - hence, more likely that not may not have the required 'criminal responsibity' that justifies him still being hung to death,
As such, this may be a case that warrants the President using her discretionary powers, even if the Courts do not vary the sentence, to use her Pardon powers, to also commute the death sentence to'...order that person to be confined in a psychiatric
institution, prison or other suitable place of safe custody during the
President’s pleasure...'
Thus, the Singapore Ministry of Foreign Affairs statement that the President of Singapore had responded to the Malaysian King that that Nagaenthran A/L K Dharmalingam has been accorded full due process
under the law may be insufficient. It will be best if there were more detailed reply stating what exactly had been considered by the President - noting that what is considered by the President of Singapore is really very different from what has been considered by the Courts.
Even if the Courts decide on the death penalty, the President still have PARDON POWERS - still have the PRESIDENTIAL PREROGATIVE(a right or privilege exclusive to a particular individual) not to overturn a conviction, but to vary the sentence only - to commute a death sentence to imprisonment, to some other sentence.
In this case, the President ought to '...order that person to be confined in a psychiatric
institution, prison or other suitable place of safe custody during the
President’s pleasure...'
No certainty as to next hearing date, as it was postponed on 10/11/2021 because Nagaenthran contracted covid - and there is a Stay of Execution currently until the court hears and decides
Response
To Media Queries On The Appeal Letters From Malaysian Leaders On The
Judicial Execution Of Nagaenthran A/L K Dharmalingam
03 December 2021
In response to media queries, the MFA Spokesperson said:
President Halimah Yacob has replied to His Majesty Sultan Abdullah
Ri’ayatuddin Al-Mustafa Billah Shah Ibni Sultan Haji Ahmad Shah
Al-Musta’in Billah, the Yang di-Pertuan Agong of Malaysia, to convey
that Nagaenthran A/L K Dharmalingam has been accorded full due process
under the law.
Courts, if
not Singapore President, justly ought to commute mentally challenged Malaysian
Nagaenthran’s death sentence to imprisonment
Stay Of Execution
Until President Halimah Decides On Pleas For Clemency
Kenyataan Media – 26/11/2021 (Penterjemahan Kasar)
Mahkamah, jika bukan Presiden Singapura, sepatutnya meringankan hukuman mati Nagaenthran Malaysia yang dicabar secara mental kepada penjara
Tahan Pelaksanaan Hukuman Sehingga Presiden Halimah Memutuskan Rayuan Untuk Pengampunan
MADPET (Rakyat Malaysia Menentang Hukuman Mati dan Penyeksaan) memuji keprihatinan Perdana Menteri Malaysia Ismail Sabri dan YDP Agung Malaysia apabila mereka memohon pengampunan dari kerajaan Singapura dan Presiden Singapura Halimah Binte Yacob untuk menyelamatkan nyawa Nagaenthran K Dharmalingam, warga Malaysia, yang telah dijatuhkan hukuman mati kerana pengedaran dadah oleh Mahkamah Singapura.(Malay Mail, 7/11/2021; FMT, 23/11/2021).
MADPET menyeru Ketua Pembangkang dan semua parti politik Malaysia untuk turut merayu demi selamatkan nyawa rakyat Malaysia ini, di mana kegagalan berbuat demikian untuk prihatin untuk seorang rakyat Malaysia, terutamanya seorang yang berisiko dihukum bunuh di luar negara, menunjukkan kurangnya keprihatinan terhadap individu rakyat Malaysia oleh parti-parti politik ini. Ini memberi petanda negatif bahawa ada parti dan ahli politik yang sedang mencari kuasa untuk mewakili rakyat dan/atau untuk mentadbir, tetapi kurang keprihatinan untuk nyawa individu, hak asasi manusia dan keadilan.
Perlu diingat bahawa Malaysia pada masa ini mempunyai moratorium ke atas pelaksanaan hukuman mati, selaras dengan Resolusi Perhimpunan Agung Pertubuhan Bangsa-Bangsa Bersatu, dimana Malaysia turut mengundi menyokong pada 2018, dan sekali lagi pada 2020 menggesa moratorium pelaksanaan hukuman mati sehingga pemansuhan hukuman mati.
Mahkamah Nagaentran K Dharmalingam Tarikh – 30/11/2021
Nagaenthran K Dharmalingam, yang dijadualkan digantung hingga mati pada 10/11/2021, berjaya mendapatkan penangguhan pelaksanaan sehingga Mahkamah Rayuan mendengar dan memutuskan permohonan yang kini belum selesai didengar di hadapan mahkamah ini. Kes itu, yang dijadualkan dibicarakan pada 10/11/2021, kemudian ditangguhkan lagi apabila Nagaentran dijangkiti Covid-19.
Baru-baru ini telah didedahkan bahawa Mahkamah Singapura kini telah menjadualkan semula pendengaran pada 30/11/2021(Malaysian Insight, 25/11/2021). Dilaporkan bahawa rayuan Nagaenthran Dharmalingam terhadap hukuman matinya akan didengar di Mahkamah Rayuan Singapura pada 30 November, kata keluarganya, selepas menerima maklumat daripada peguam itu.
Nagaentran telah ditangkap pada 2009 dan dijatuhi hukuman mati pada 2011 di bawah Akta Penyalahgunaan Dadah kerana mengimport 42.7g diamorphine secara haram. Kes ini telah mencetuskan bantahan orang ramai dengan perhatian khusus terhadap IQnya yang lebih rendah daripada purata iaitu 69 dan isu kesihatan mental yang lain.
Walaupun apa yang diputuskan oleh Mahkamah, Presiden mempunyai kuasa pengampunan/pengampunan
Tidak kira sama ada Mahkamah mengekalkan hukuman mati, Presiden Singapura masih mempunyai kuasa untuk memberikan pengampunan, dan meringankan hukuman mati kepada penjara, dan dari segi sejarah, ini telah berlaku beberapa kali di Singapura dalam, antara lain, dalam kes berikut:-
a) 1978: Mohamad Kunjo s/o Ramalan, hukuman mati kerana pembunuhan ditukar kepada penjara seumur hidup oleh Presiden Benjamin Sheares ketika itu;
b) 1980: Bobby Chung Hua Watt, hukuman mati kerana membunuh telah ditukar kepada penjara seumur hidup oleh Presiden Benjamin Sheares ketika itu;
c) 1983: Siti Aminah binte Jaffar, hukuman mati kerana pengedaran dadah ditukar kepada penjara seumur hidup oleh kemudian Presiden Devan Nair;
d) 1993: Sim Ah Cheoh, hukuman mati kerana pengedaran dadah pada tahun 1985 telah diringankan dan dia dibebaskan pada 16 Februari 1995 oleh Presiden Wee Kim Wee ketika itu;
e) 1992: Koh Swee Beng, hukuman mati kerana membunuh telah ditukar kepada penjara seumur hidup oleh Presiden Wee Kim Wee ketika itu; dan
f) 1998: Mathavakannan Kalimuthu, hukuman mati kerana membunuh telah ditukar kepada penjara seumur hidup oleh Presiden Ong Teng Cheong ketika itu.
Oleh itu, MADPET memohon pengampunan oleh Presiden Halimah Binte Yacob dalam kes Nagaenthran K Dharmalingam ini, yang baru-baru ini telah ditunjukkan sebagai seorang yang cacat mental dan/atau intelektual – di mana ini adalah satu ketidakadilan yang besar untuk terus melaksanakan tindakan mengantung sampai mati seorang dala, keadaan sebegini.
Perlu perintah Menahan Pelaksanaan Hukuman Mati Sehingga Presiden Halimah Membuat keputusan berkenaan permohonan Pengampunan
MADPET mengenang kembali kes gantung sampai mati seorang warganegara Malaysia Jabing Kho, 32, yang dihukum gantung pada hari yang sama, beberapa jam selepas Mahkamah Rayuan menolak permohonan Mahkamah beliau. (Straits Times, 20/5/2016), dan berharap perkara yang sama tidak berlaku dengan Nagaentran.
Masa mesti diberikan, sebagai tanda hormat kepada Presiden Singapura untuk mempertimbangkan banyak rayuan untuk pengampunan, dan oleh itu MADPET menggesa supaya hukuman mati dihentikan (ditunda) sehingga Presiden Halimah memutuskan sama ada memberikan pengampunan dan meringankan hukuman mati atau tidak.
MADPET mengulangi gesaannya untuk pemansuhan hukuman mati, dan moratorium pelaksanaan hukuman gantung sementara menunggu pemansuhan hukuman mati.
Charles Hector
Untuk dan bagi pihak MADPET(Malaysian Against Death Penalty and Torture)
****
PM: Close relationship between Malaysia, Singapore of immense importance to both countries
Monday, 29 Nov 2021 04:00 PM MYT
Singapore’s Prime Minister Lee Hsien
Loong and Malaysia’s Prime Minister Datuk Seri Ismail Sabri Yaakob bump
fists during the launch of the land Vaccinated Travel Lane between both
countries in Singapore November 29, 2021. — Reuters pic
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SINGAPORE, Nov 29 — As close, immediate neighbours the deep
relationship between Malaysia and Singapore is of immense importance to
both sides, said Malaysian Prime Minister Datuk Seri Ismail Sabri
Yaakob.
“More active multi-level engagements and a much stronger cooperation
are certainly the way forward for our two countries,” said Ismail Sabri
at a joint press conference with his Singapore counterpart Lee Hsien
Loong here today. “This is crucial also for our cooperation in
undertaking effective and meaningful (economic) recovery efforts so that
our countries will come out stronger following the devastating impact
of the Covid-19 pandemic.”
The Malaysian premier is on an official visit to Singapore at the invitation of Lee.
He noted that today both countries marked another significant
milestone in their cooperation with the reopening of their borders
through the launching of the land Vaccinated Travel Lane (VTL-Land).
Ismail Sabri had this morning crossed Tambak Johor or the Johor
Causeway and was received by the Singapore Prime Minister at the
Woodlands Checkpoint.
“This in itself is very significant as we have also launched VTL-Air.
This is part of the gradual reopening of our borders to facilitate
travel between the two countries,” the Malaysian premier said.
Ismail Sabri said he had also discussed with his counterpart
additional measures that both will undertake with regard to cross-border
travels between Malaysia and Singapore.
Both of them have agreed to include all categories of travellers for
the VTL-Land, subject to the health requirements determined by both
countries.
They also agreed to expand the VTL-land to include additional bus
service routes through the Second Link, trains operated by Keretapi
Tanah Melayu (KTM), and gradually to include personal vehicles such as
motorbikes and cars.
“We acknowledge that the reopening of borders is important to
reactivate cross-border social and economic activities that will benefit
the people of both countries,” Ismail Sabri said. “We hope that by
doing this, it would provide the opportunity for more people on both
sides of the Causeway who have been away from their families due to the
Covid-19 pandemic, to be reunited with their loved ones — which we know
the people of both Malaysia and Singapore have long awaited for.”
Expanding cross-border movement by air to Penang, Langkawi, Kuching and Kota Kinabalu
Both of them also discussed the cross-border travel by air between
Singapore and destinations in Malaysia like Penang, Langkawi, Kuching,
and Kota Kinabalu.
“Both of us decided that our officials should start to draw up measures for this purpose,” he said.
Ismail Sabri and Lee had a four-eyed meeting at the Istana in the afternoon.
During the discussion, Ismail Sabri said they also agreed on the need to resume work on their existing bilateral mechanisms.
“This includes the 10th Annual Leaders’ Retreat, which we have not
been able to convene during the past two years due to the pandemic,” he
added. “Insya Allah, we will have our Leaders’ Retreat in the first
quarter of next year and I look forward to coming back to Singapore.”
Ismail Sabri revealed that he and Lee also agreed that the work on
other mechanisms at the ministerial and official levels should resume as
soon as possible.
“This is important to ensure that our multi-faceted cooperation and
outstanding issues are kept on the right track with a positive momentum
going forward. Subsequently, PM Lee and I will discuss the progress of
these bilateral mechanisms at our Leaders’ Retreat,” he said.
Both leaders also discussed the situation in Myanmar.
“We agreed that it is crucial for Asean to continue playing a
positive and constructive role in facilitating a durable and peaceful
solution in the interest of Myanmar and the larger interest of the Asean
Community.
“We share the same view that it is crucial for Myanmar to cooperate
in the implementation of the Five-Point Consensus, and the necessity to
preserve the credibility and integrity of Asean.
“We look forward to the return to democracy in Myanmar and the
participation of Myanmar at the highest level at future summits,” Ismail
Sabri said. — Bernama - Malay Mail, 29/11/2021
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.JPG "Members of Amnesty International Malaysia protest against the death penalty at the Singapore High Commission in Kuala Lumpur July 25, 2019. — Picture by Ahmad Zamzahuri")
.JPG "Singapore’s Prime Minister Lee Hsien Loong and Malaysia’s Prime Minister Datuk Seri Ismail Sabri Yaakob bump fists during the launch of the land Vaccinated Travel Lane between both countries in Singapore November 29, 2021. — Reuters pic")
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