Tuesday, March 28, 2023

Who 'ordered' Altantuya to be killed may have been revealed if no mandatory death penalty?....Removing Mandatory Death Penalty And Mandatory Life Imprisonment Is Just, And Increases Chances That Those Who Ordered Or ‘Paid’ For Death Will No Longer Escape Justice


Media Statement – 28/3/2023

Removing Mandatory Death Penalty And Mandatory Life Imprisonment Is Just, And Increases Chances That Those Who Ordered Or ‘Paid’ For Death Will No Longer Escape Justice

MADPET (Malaysians Against Death Penalty and Torture) welcome the tabling of the Abolition of Mandatory Death Penalty Bill 2023 in Malaysian Parliament on 27/3/2023. This Bills will finally bring about the abolition of mandatory death penalty on 27/3/2023. With mandatory death penalty offences, on conviction, judges had no choice but to sentence to death.

If the Bills tabled becomes law, judges will finally have the option and discretion to impose the death penalty or “or imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes”.

MADPET is against corporal punishment, and urge that whipping be removed.

With the mandatory death penalty, accused are less likely to reveal who paid or ordered them to kill, as they will still be sentenced to death and will be hanged to death. This situation allowed for many accomplices including those that asked or paid them to kill to escape justice.

We recall the Altantuya Shaariibuu, where many believed that the 2 policemen Sirul and Azilah who have been convicted for murder, had acted on the order or instructions of third parties.

With the mandatory death penalty, the disclosing information or evidence which could lead the one who ordered or ‘paid’ for the killing Altantuya be identified and prosecuted, really will not safe the 2 from being hanged.

As such, with the amendments, where there is the possibility of sentences other than death, the chances of accused persons revealing evidence of accomplices increases – where such corporation with law enforcement would likely mitigate the sentence, and they may evade the death penalty.

This will end situations where the one who paid or ordered someone to be killed escapes.

Therefore, MADPET urges the government to consider amending the lower limit of imprisonment of 30 years to maybe 15-20 years, as this may assist prosecution and increase chances of ALL involved in the murder being brought to justice.

MADPET is also of the position that death penalty should be restricted to offences that actually directly caused the death of the victim. The actual killer may be imposed a higher sentence, but other accomplices who did not actually kill be given lower sentence. Of course, the person who ordered or ‘paid’ for a person to be killed should be given the highest sentence – for if not, for the action of that person, no one will be killed.

MADPET opposes the death penalty as there is a serious risk of miscarriage of justice. Judges are human and not infallible. There are so many other reasons that support abolition. Malaysia had in 2018, 2020 and 2022 also voted in favour of the UN General Assembly Resolution towards abolition of the death penalty.

In 2009, the High Court found Sirul and Azilah guilty of murder. Then in 2013, a 3-member panel on Malaysia’s Court of Appeal unanimously decided that the conviction of the 2 had been unsafe, and acquitted them. The Court of Appeal said that certain evidence was not considered, and was also concerned that motive was never established. (Reuters, 23/8/2013) Then, in 2015, the Federal Court overturned that COA decision, and reinstated the High Court’s conviction and mandatory death sentence.

Then, on 8/12/2020, the Federal Court dismissed Azilah Hadri’s application for a retrial and review of his 2015 conviction over Mongolian Altantuya Shaariibuu’s 2006 murder, saying his own suppression of alleged instructions to carry out the murder did not lead to an exceptional situation warranting a review. One of the new issues raised was the alleged instructions from a “third party” to conduct murder. (Malay Mail, 8/12/2020)

However, there the Federal Court stressed on ‘the importance of finality of decisions for the administration of justice’.  The Court apparently stated ‘“Now it must be emphasized that he kept silent about this so-called new evidence during his investigation, during trial in High Court and appeals at Court of Appeal and also Federal Court.’

MADPET is concerned that the accused may have kept silent because of threats or ‘promises’ to himself and his family. Further, revelations that you killed because you were given instructions to kill by some other will NOT save you from conviction and the mandatory death penalty.

Further, many a lawyer would advise clients in criminal trial to remain silent, and the law also acknowledges this right even in police questioning, where a ‘…person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture….’(Section 112(2) Criminal Procedure Code).

If the death penalty is abolished, and there is a flexibility of sentences no more just a mandatory death penalty, or a death penalty or a mandatory life imprisonment, then accused persons will more likely corporate and reveal accomplices so that their sentence can be reduced.

Hence, there is still doubt on the guilt of Sirul and Azilah’s case? Was there miscarriage of justice? Miscarriage of justice happens also when the ‘guilty’ escapes prosecution.

MADPET also believes that application for retrial, reviews and even submission of additional evidence need to be made easier to ensure justice be done. That is more important than the finality of decision.

In the Altantuya matter, we also note that the High Court in a civil matter, found that, besides Sirul and Azilah, political analyst Abdul Razak Baginda was also found liable to the claim of unlawful killing of the deceased(Altantuya). The government was also vicariously liable as Sirul and Azilah were then police officers. They were ordered to pay ‘…RM5 million in general, aggravated and exemplary damages to the deceased's family,”(Edge Markets, 16/12/2022).

It is a sad situation that very view victims of crime in Malaysia commence civil suits against perpetrators of crime. For murder victims’ family, a civil suit which will allow them to get monetary compensation will bring about some justice for family members and dependents. They should simply not just be satisfied with the death penalty, prison sentence, whipping or fines imposed on the convicted.

MADPET welcomes the tabling of the Abolition of Mandatory Death Penalty Bill 2023, but calls for the death penalty to be abolished.

MADPET also calls for the abolition of the corporal punishment of whipping, and calls on the government of Malaysia to amend the Bill, and remove whipping. Whipping in Malaysia is torture and inhumane and could even result in long term physical and psychological damage. It is very different from the whipping as practiced in Syariah law.

MADPET reiterates the call for the speedy passing and putting in force of this law, for until then, all those who commit mandatory death penalty offences will still face the mandatory death penalty. Providing for retrospective effect of laws may not work.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)


Malaysia court overturns convictions in grisly, high-profile model's murder

KUALA LUMPUR (Reuters) - A Malaysian court on Friday overturned the conviction of two policemen found guilty of shooting and blowing up a Mongolian model linked to a former associate of Prime Minister Najib Razak.

The lawyer of Malaysia's former police special action unit personnel Sirul Azhar Umar and Azilah Hadri, Kamarul Hisham Kamarudin (C), is hugged by Sirul Azhar's uncle, Mustaffa Samad, as Sirul Azhar's brother looks on, outside the courthouse in Putrajaya near Kuala Lumpur August 23, 2013. REUTERS/Bazuki Muhammad

The release of the officers, who were part of Najib’s personal security detail at the time of the 2006 murder of 28-year-old Altantuya Shaariibuu, appears to distance the prime minister from the case.

But the ruling also revived public outrage over her mysterious death and raises further questions as Najib prepares for a possible leadership challenge from within his ruling party in October.

A three-member panel on Malaysia’s Court of Appeal unanimously decided that the conviction of Chief Inspector Azilah Hadri and Corporal Sirul Azhar Umar had been unsafe.

Among the grounds cited were that a key witness, Najib’s then aide-de-camp, hadn’t been called to give evidence and that a police diary that may have given one of the men an alibi hadn’t been considered.

“It is our judgment that the cumulative effect of the non-directions by the learned trial judge rendered the conviction of the appellants unsafe,” state news agency Bernama quoted one of the three judges, Justice Tengku Maimun, as saying.

The high court that found the policemen guilty and sentenced them to death in 2009 never established a motive for the crime. Najib’s one-time close associate, Abdul Razak Baginda, a political analyst, was charged with abetting the murder but was acquitted in 2008.

Civil society groups and Malaysia’s political opposition have alleged that Altantuya’s killing was connected to her role as an interpreter and associate of Razak Baginda in Malaysia’s purchase of two Scorpene-class submarines from French shipbuilding giant DCNS in 2002.

Najib, who was defence minister at the time, has strenuously denied allegations of corruption in the purchase and of having any links to the murdered woman.

But his government has declined opposition requests for a public inquiry into the case - which is currently the subject of a French investigation - and has only given brief responses to questions raised in parliament.

Documents, including records seized by French prosecutors in a raid on DCNS’s offices, detail payments made to two companies set up by Razak Baginda, but there has been no evidence linking Najib directly to corruption in the deal.

“The verdict this morning calls for nothing short of full and fresh investigations,” said Cynthia Gabriel, an activist with the rights group SUARAM, which is a plaintiff in the French investigative court case.

“SUARAM questions whether her brutal death was linked to the allegations of corruption in the Scorpene deal,” she added.

Many people took to Twitter and other sites to voice anger and disbelief over the still unresolved saga. Altantuya was blown up with military-grade explosives.

“A woman was killed using explosives. No one is found responsible for her death. Where is justice?” tweeted one person with the username @1Obefiend. (Reporting By Siva Sithraputhran; editing by Stuart Grudgings and Nick Macfie)

Federal Court rejects Azilah's bid for retrial in Altantuya murder, says he kept silent on alleged instructions to kill

Chief Judge of the High Court of Malaya Tan Sri Datuk Sri Azahar Mohamed speaks during a press conference in Putrajaya January 10, 2020. u00e2u20acu2022 Picture by Choo Choy May
Chief Judge of Malaya Tan Sri Azahar Mohamed said Azilah had in his October 17, 2019 application asked the Federal Court to review and set aside its own January 13, 2015 decision to convict Azilah on the murder. ― Picture by Choo Choy May

The dismissal of the review application will mean that the Federal Court’s decision in 2015 to convict Azilah still stands.

Today was the hearing of Azilah’s application for the review of the Federal Court’s January 2015 decision to convict and sentence him and another to death over the murder of Altantuya.

Earlier, lawyer J. Kuldeep Kumar argued that his client Azilah was unable to give the same alleged evidence in court previously of the purported secret mission he was ordered to go on to kill Altantuya who was purportedly a foreign agent.

Kuldeep said Azilah was “under impressions it was a covert operation and it was supposed to be a secret mission and that the deceased in this case is a foreign agent and possesses national secrets and (is a) threat to national security”.

“And this evidence was unable to be adduced at the trial on the basis that this was a covert operation and therefore he would be acquitted. He never divulged this...and he never put forward this version before the court,” he said, before going on to read excerpts from Azilah’s statutory declaration and affidavit on why the former police officer was unable to provide the same evidence previously in court.

Kuldeep at one point initially suggested that there was procedural unfairness, but then clarified that the situation was not one of procedural unfairness, noting: “The position is he was unable to give that evidence during the trial”. 

Deputy public prosecutor Datuk Mohd Dusuki Mokhtar noted, however, that Azilah’s inability to produce evidence due to his own suppression of evidence “is not considered as an exceptional and rare circumstance under Rule 137”. 

“We need limited and very exceptional circumstances to urge this court to exercise its power under Rule 137. We find none in this motion filed by the learned counsel and the applicant (Azilah),” he said, referring to Azilah’s motion or application for review of the Federal Court’s 2015 decision.

“And with regard suppression, nobody actually suppressed the evidence. He himself withheld the evidence to be produced. It’s not limited and exceptional circumstances to allow for this court to exercise its power under Rule 137,” he argued.

Dusuki highlighted that it has been almost five years since the murder conviction, noting: “Within that period of time, there was a long time for the applicant to think about that, to disclose whatever he himself suppressed.”

Following the arguments presented by Kuldeep and Dusuki, the Federal Court delivered its decision on Azilah’s review application.

Later when met outside the courtroom, Tan Sri Muhammad Shafee Abdullah who was holding a watching brief for former prime minister Najib said he was “satisfied” as a whole on the Federal Court’s decision to reject Azilah’s application.

Commenting on Azilah’s review application and the court’s decision today, Shafee said that there would not be procedural unfairness or deprivation of fair proceedings for Azilah in the Altantuya trial if there was suppression of facts by Azilah.

Shafee pointed out that an application for review is different from an application to present further evidence in court, noting: “In the review you cannot adduce further evidence. In the review, it’s a challenge on procedural fairness, not on the facts.”

When asked about the statutory declaration by Azilah which had named Najib as purportedly giving instructions for Altantuya’s murder, Shafee said: “So what will happen is the statutory declaration now is in the court, we are considering to apply to expunge or not, we are considering because whether it is worthwhile doing it or not.”

Shafee also said that the court’s decision today has no impact on Najib, as the Altantuya murder case that went through the police and the courts did not implicate him. 

Lawyers Sangeet Kaur Deo and Harshaan Zamani today also held a watching brief for the family of Altantuya in the hearing of Azilah’s review application.

In December 2019, Azilah had filed an application to the Federal Court to seek for a review of his conviction and death sentence in 2015 over Altantuya Shaariibuu’s 2006 murder, and also sought for a retrial by having the case sent back to the High Court to be heard again. Azilah’s review application had named the public prosecutor as the sole respondent.

In Azilah’s statutory declaration dated October 17, 2019 and published in full by news portal Malaysiakini in December 2019, the former police Special Action Unit (UTK) officer claimed that Najib as the then deputy prime minister had in 2006 allegedly given him the orders to kill Altantuya and dispose of her body with explosives.

Najib had previously dismissed Azilah’s claims as a “complete fabrication” and maintained his innocence while also welcoming police investigations into the allegations.

In January 2015, the Federal Court reversed the Court of Appeal’s August 2013 acquittal of Azilah and former police commando Sirul Azhar Umar, reinstating the High Court’s April 2009 conviction and mandatory death sentence on the duo over Altantuya’s murder.

Azilah has been on death row in Malaysian prisons since then, while Sirul did not show up in court for the Federal Court decision and was later found in Australia where he is believed to remain under detention by Australian authorities until today. - Malay Mail, 8/12/2020

Azilah, Sirul, Razak Baginda and Govt found liable in Altantuya's death, ordered to pay RM5m damages

Azilah, Sirul, Razak Baginda and Govt found liable in Altantuya's death, ordered to pay RM5m damages
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SHAH ALAM (Dec 16): The High Court here on Friday (Dec 16) found political analyst Abdul Razak Baginda, then chief inspector Azilah Hadri and then corporal Sirul Azhar Umar to be liable for the death of Altantuya Shaariibuu 16 years ago, and hence the Government was also found to be vicariously liable.

Court of Appeal judge Datuk Vazeer Alam Mydin Meera, who was sitting as a High Court judge, ruled that all four hence need to pay damages, but said the amount of RM100 million sought by the family of the slain Mongolian was excessive.

“Hence, the court awards damages to be paid jointly by all four defendants (Azilah, Sirul, Abdul Razak and the Government) of RM5 million in general, aggravated and exemplary damages to the deceased's family,” he ruled.

He ordered that the damages be charged at 5% interest from the date of the filing of the lawsuit, until the full settlement of the amount.

Vazeer Alam also ordered that all four defendants pay RM25,000 costs each.

The proceedings done via the Zoom application were also monitored by Mongolian embassy officials.

The family was represented by Sangeet Kaur Deo, Tan Chee Kian, and Simranjit Kaur Chhran, while Azilah and Sirul were not represented.

Lawyers P Mithran, Avtaran Singh and Eshwinder Kaur Gill appeared for Abdul Razak, while senior federal counsel Zetty Zurina Kamaruddin and federal counsel Khairuddin Amhar Mahmud represented the Government.

Lawsuit filed in 2007, a year after murder

Altantuya's father Dr Shaariibuu Setev, her mother Altantsetseg Sanjaa, and the deceased's two sons, Mungunshagai Bayarjargal and Altanshagai Munkhtulga, filed the lawsuit on June 4, 2007, claiming that the model's death resulted in them suffering mental shock and psychological trauma, and sought compensation as well as exemplary and aggravated damages.

They named two former members of the Special Actions Unit attached with the police force, namely Azilah and Sirul, as well as Abdul Razak and the Malaysian Government as defendants.

However, Altanshagai's name was removed from the list of plaintiffs after he died in 2017.

A total of 26 witnesses for the plaintiffs, including Altantuya's father and eldest son, testified in the trial that began in 2019. The Government presented three witnesses, while Abdul Razak chose not to testify.

Altantuya was killed in Puncak Alam in the early morning of Oct 19, 2006, and Azilah along with Sirul were found guilty with the grisly murder. At present, Azilah is on death row at the Kajang Prison, while Sirul has left the country, and is said to be detained at the Australian immigration centre in Wollongong.

Meanwhile, Abdul Razak, who was charged with abetting with the murder, was acquitted without his defence called.

Vazeer Alam in his broad grounds said although Abdul Razak had chosen not to testify and denied liability, the court found him liable to the claim of unlawful killing of the deceased.

He said the court had considered and found that Abdul Razak had a case to answer, as he had sought the assistance of both Azilah and Sirul to deal with the deceased.

“There was no reasonable motive for Azilah and Sirul to kill the deceased. The only link was the third defendant (Abdul Razak), who wanted to stop harassment [by Altantuya],” the judge added.

In relating the events, the court said Altantuya had come to Malaysia to seek compensation for translation work.

Although the court did not relate what was the translation work, past revelations said this was in relation to the purchase of the two Scorpene submarines that Malaysia had acquired from France.

Abdul Razak, the court said, sought help from Deputy Superintendent Musa Safri, who was the aide-de-camp to then deputy prime minister Datuk Seri Najib Razak, to deal with Altantuya, and hence Azilah was dispatched to meet the political analyst.

It was during this meeting that Azilah related that he could "habiskan perempuan itu" (finish off the woman) and admitted that he had done this several times.

Why the court found Abdul Razak liable

The judge said as Abdul Razak had chosen not to testify, the court had to rely on his Section 112 statement recorded by the police, which showed that he sought assistance from Azilah to stop his family from being harassed, and the court found this reason hollow.

Vazeer Alam said Abdul Razak had admitted that Azilah told him the policeman could "habiskan perempuan itu", and the political analyst replied "perkara sebegini kita jangan fikir" (we should not think of such things).

“He (Abdul Razak) nevertheless continued to seek Azilah’s assistance to deal with the deceased when she showed up outside his residence that fateful night.

“On the night of Oct 19, the deceased was made to come alone to Abdul Razak’s home. Abdul Razak’s hired private investigator P Balasubramaniam then called him, who was having a meal with his family at a hotel.

“Abdul Razak then called Azilah on the phone, and told him that the deceased was outside his house. Azilah then told Abdul Razak that he will go to his house. Abdul Razak then called Balasubramaniam, and told him to keep the deceased there until Azilah arrived. It was then that Azilah arrived at Abdul Razak’s house to take her in the car to Puncak Alam and ultimately kill her.”

The judge said when the evidence is considered as a whole, the court found that there is a case against Abdul Razak, as his own private investigator had advised him to lodge a police report and have Altantuya deported.

“Instead, Abdul Razak proceeded to enlist the assistance of a self-confessed killer to deal with the deceased. Even Azilah had told the third defendant (Abdul Razak) that he can 'habiskan perempuan itu', he did not stop enlisting Azilah’s assistance.

“The first defendant (Azilah) did not know the deceased. There was no reasonable motive to kill the deceased, and the only link was the third defendant (Abdul Razak), who wanted to stop the harassment,” the judge said.

The judge added that there was no motive for Azilah and Sirul to kill Altantuya and blow her up with high-grade explosives.

“In the circumstances, I find that the plaintiffs have successfully proven on a balance of probabilities that Abdul Razak had a culpable role in the death of the deceased.  If not for Abdul Razak, Azilah and Sirul would not have taken the deceased in their car from his residence and ultimately kill her.

"This court also found the fourth defendant (the Government) to be vicariously liable, as the two defendants carried out the killing in the capacity when they were policemen. Judgement is entered on liability,” the judge added.

The High Court in finding Azilah and Sirul guilty of the murder ruled and found there was no motive for the killing.

The Court of Appeal in a unanimous judgement written by then judge Tun Tengku Maimun Tuan Mat, who is now the Chief Justice, then acquitted Azilah and Sirul.

However, a five-member Federal Court overturned the decision in January 2015, and found both of them guilty of the murder. At that time, Sirul had already left the country.

Azilah and Sirul led the police to the scene of the crime separately, as Azilah was first arrested a few days after the murder, while Sirul was arrested on Nov 6, 2006, after returning home from official duty overseas. On his return, Sirul also led the police to the same murder scene.

Surin Murugiah & Lam Jian Wyn - Edge Markets, 16/12/2022




DAP MP Lim Hui Ying - Deputy Minister who failed to prepare answers to oral questions? Minister candidate Vetting?

When, a Deputy Minister responds that she has not prepared the answer to an oral question tabled in Parliament - it is SHOCKING - is she qualified to be a Deputy Minister?

Why was the Deputy Minister answering questions in Parliament - Parliament questions are commonly addressed to the Minister, i.e. in this case, the Minister is Fadhlina Sidek. Why was she, the Minister, not answering the Parliamentary question herself? Why was her Deputy Minister answering the questions? Was Fadhlina Sidek even in Parliament on that day? 

Now, when it comes to Parliamentary Questions, after the answer is given to the question(which are submitted some time even before the Parliamentary Session begins), the person who asked the question has the right to ask a FURTHER question, which the Minister will have to answer. Then, there will be a couple of additional question on the subject matter by other MPs in the house..

Was Lim Hui Ying, the Deputy Minister, standing in because the Minister lacked the capacity to deal with the further or follow-up questions after the answer to oral questions given? I wonder ....because this requires understanding and preparation to be able to answer on the spot..

Now, for these follow-up oral questions - well, a complete answer may not be possible at times - and it is OK for the Minister to say that a more detailed reply will follow later in written form....BUT, to not be able the original oral question, long submitted to the Minister, it is a TOTAL EMBARASSMENT.

After all, these answers normally are prepared by the Ministry staff, who is always ever ready to brief the Minister so that he/she will have a good grasp of the subject matter - sufficient to be able to deal with any follow-up questions.

Look at the justification given.....It is LAME - The Minister should be prepared to answer ALL Oral questions listed on the Agenda of the Day - To prepare just for the earlier questions, in the belief that there will be no time for the other questions is LAME - it is an insult to the Parliamentarians and Parliament - It is an attitude unbecoming of a Minister or a member of the Cabinet. 

Lim Hui Ying, what have you been doing that you failed in your obligations... 

She[Lim Swee Kuan, who is Hui Ying’s special duties officer] said the typical process of preparing responses was based on the maximum number of questions that could be answered by all ministries during ministers’ questions time, which was usually between 11 and 13 questions in 90 minutes.

“We prepared detailed answers for three questions, which were questions four, eight and 11. The deputy minister answered all three questions in the House,” she said in a statement.

Swee Kuan said question 16, which was submitted by Perikatan Nasional’s Ahmad Marzuk Shaary, had been “unexpected”.

Replies to ALL oral questions must be prepared - not just some because you believe that time will run out before the MP will be able to ask his/her question.

Lim Hui Ying is the daughter of Lim Kit Siang, and the sister of Lim Guan Eng - and we expected better from you, who also comes from DAP?

So, was the selection of Lim Hui Ying as candidate for MP - an act of 'nepotism' > despite not having the needed requirements to be a good MP? Was your selection to Cabinet also the same?

Will Minister Fadhlina Sidek(from PKR) explain why she was not there answering the questions in Parliament? Why did you not step in to help out your Deputy Minister?

MPs raise questions to different Ministers - and when you know that one or more of this questions will be directed to you, the Minister, it is only good manners to be there in Parliament.

Remember that Parliament's role is to 'check and balance' the executive. When a Minister is absent, then is it not a mark of disrespect to Parliament?

Bar Resolution on Security Offences (Special Measures) Act 2012 (“SOSMA”) and Related Matters

Resolution Adopted at the 77th Annual General Meeting of the Malaysian Bar (Held on 18 Mar 2023)

Resolution on Security Offences (Special Measures) Act 2012 (“SOSMA”) and Related Matters

(1) According to a news report in The Star on 7 March 2023 (emphasis added): A total of 624 individuals were detained under the Security Offences (Special Measures) Act (Sosma) last year, says Datuk Seri Saifuddin Nasution Ismail. The Home Minister added that 140 of these detainees had already been released. “Of those detained, 71 were charged in court, 401 were punished, 140 were released and 12 are still under investigation,” he said in a written reply to a question by Chow Yu Hui (PH-Raub) in the Dewan Rakyat yesterday.

(2) The admission by the Minister that SOSMA was used to punish 401 detainees is most shocking. Under Malaysian law, persons arrested are detained prior to being charged in court ONLY for the purpose of investigation, and thereafter they may be charged, tried and, if convicted, sentenced. There should be no “punishment” until there has been a fair trial and a conviction.

(3) Persons are arrested, investigated, charged and tried for offences under the Penal Code and other laws, not SOSMA. Without SOSMA, there is nothing stopping arrest, investigation, prosecution and fair trials.

(4) However, if any of these offences under the Penal Code or any other laws are listed as “SOSMA offences”, then the police and others can resort to use “special” procedures, and evade the requirements of the Evidence Act 1950 and Criminal Procedure Code.

(5) SOSMA, like the Essential (Security Cases) Regulations 1975 (“ESCAR”), is an “Act to provide for special measures relating to security offences...”. It is not a detention without trial law like the then-Internal Security Act 1960 (“ISA”), and now the Prevention of Crime Act 1959 (“POCA”), Prevention of Terrorism Act 2015 (“POTA”), and Dangerous Drugs (Special Preventive Measures) Act 1985.

(6) SOSMA violates Article 5(4) of the Federal Constitution, which says that the police shall not detain any person beyond 24 hours of arrest, and that a person “shall not be further detained in custody without the magistrate’s authority”.

(7) Under SOSMA, there is no need to bring the suspect before a magistrate within 24 hours, or for the police to apply and obtain a remand order for further detention for the purpose of investigation.

(8) Under SOSMA, after 24 hours in custody after arrest, “a police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation” (emphasis added).

(9) Hence, the important role of the magistrate to ensure that the suspect’s rights are not abused by the police or detaining authority, is removed. It is notable that the concern about police abuse and torture led to the amendment that came into force in 2007. Now, the maximum remand period on the first application for offences punishable with imprisonment of less than fourteen years is four days, and is seven days for more serious offences.

(10) If the Government deems that there is a need for a longer period of detention for investigation purposes, then there can be a law that extends the remand period beyond the current maximum of 14 days. However, the requirement of an application for a remand order before a magistrate must never be excluded, and such an application for remand ought to happen every four to five days, at the very least.

(11) Bail should be under the jurisdiction of judges and courts. However, with SOSMA, Parliament ousted the court’s jurisdiction, as section 13(1) of SOSMA states that “[b]ail shall not be granted to a person who has been charged with a security offence.”

(12) However, section 13(2) provides exceptions to the non-granting of bail for certain offences, where bail can be granted to a person below the age of eighteen years, a woman, or a sick or an infirm person. This is certainly discriminatory in terms of age and gender. Why is a man not accorded the same right as a woman? Why is a 22-year-old denied bail? What about a senior citizen?

(13) Noting the presumption of innocence, the detention of suspects and/or accused persons prior to conviction and sentencing is grossly unjust. It impacts employment, business, or income generation, which impacts not just the suspect and/or accused person but also the family, including children.

(14) SOSMA allows evidence that is not admissible in criminal trials under the Evidence Act 1950. SOSMA allows procedures in our Criminal Procedure Code to be violated.

(15) During trial, an accused person and his/her lawyer’s rights can be denied. SOSMA allows for procedures to conduct proceedings in the absence of the accused person and his/her lawyer. It also allows for the restriction of questions that can be asked to a witness. How can an accused person’s lawyer effectively cross-examine a witness without knowledge of his/her identity, the right to even pre-trial interviews, and the ability to investigate the witness?

Therefore, the Malaysian Bar resolves:

(A) To reiterate the call that the Security Offences (Special Measures) Act (“SOSMA”) be repealed;

(B) That no laws be used to “punish” a suspect or accused person prior to a conviction after the completion of a fair trial; and

(C) That innocent suspects or accused persons be compensated by the State for the loss of liberty and other losses suffered by reason of detention under SOSMA and other laws.

Malaysian Bar Website

Thursday, March 23, 2023

Delay In The Abolition Of The Mandatory Death Penalty And The Death Penalty By The PH-Led Government Disappointing...

Media Statement – 22/3/2023

Delay In The Abolition Of The Mandatory Death Penalty And The Death Penalty By The PH-Led Government Disappointing

Table and pass the Bills in this Parliamentary Session (13/2 – 4/4/2023)

The delay of Prime Minister Anwar Ibrahim’s PH-led government in tabling the needed Bills to abolish mandatory death penalty, which his Cabinet already agreed to in December 2022 raises much concern. Assurances have been given that the relevant Bills will be tabled in February, and then March and that mandatory will likely be effectively ended in May.

This Dewan Rakyat Parliamentary session, which started on 13/2/2023 will end on 4/4/2023, and that means we have ONLY about 7 Parliamentary days remaining. After Dewan Rakyat passes it, it will then have to be passed by Senate and the King, before it can be gazette, and thereafter come into force.

Note that all who have committed any crimes that now provide for mandatory death penalty until the laws abolishing mandatory death penalty comes into force, will still be facing mandatory death penalty for offences committed before the day the law comes into force. Thus, the urgency for these laws that remove mandatory death penalty be passed and put into force is of primary importance.

Given the fact, that the immediate past Perikatan Nasional led-government, made up of BERSATU, PAS, BN, etc., had already committed to the abolition of the mandatory death penalty, by also the tabling of 7 separate Bills to do away with the mandatory death penalty on 6/10/2022. This means the passing of Bills abolishing mandatory death penalty will easily receive the support of the majority. The PN-BN Bills are no longer listed on the Parliamentary website.

After GE15, In December, Azalina Othman Said,the Minister in the Prime Minister’s Department (Law and Institutional Reform) said that the bills related to the abolition of the mandatory death penalty have already been agreed by Prime Minister Datuk Seri Anwar Ibrahim and the Cabinet. She said that the Bills will be tabled in the in the Parliament sitting in February next year (2023). (Malay Mail, 21/12/2022)

Then on 23/2/2023,  Ramkarpal Singh, Deputy Minister in the Prime Minister's Department (Law and Institutional Reform stated that the Bills will be tabled in March, passed in April and gazetted in May.(NST,23/2/2023)

The abolition of the MANDATORY death penalty does not abolish the death penalty but merely returns discretion to judges to decide whether to impose the death penalty or some other alternative sentence.

Hence, why is this PH-led government delaying? Hopefully it is not for some ‘lame’ reason. Hopefully, it is not for some political reasons like upcoming State elections. Does the Prime Minister have the needed political will to bring about speedy just law reforms?

Remember after the mandatory death penalty is abolished, later Bills can always be tabled to deal with other issues like those on death row, and the abolition of natural life imprisonment, a matter that recently was raised by Deputy Minister Ramkarpal.(FMT, 21/3/2023).  

Death Row and Those Who Commit Offence Before New Law In Force

The abolition of the mandatory death penalty will have no effect on the about 1,320 on death row, of which 840 have completed all appeals.

The abolition of the mandatory death penalty will reasonably have no impact on persons who commit offences before the law abolishing mandatory death penalty is put into force. They will still face the  mandatory death penalty if convicted. Those who commit offences after the laws abolishing mandatory death penalty is gazetted and put into force will be tried according to these new laws. Delay in abolishing mandatory death penalty cannot be tolerated.  

For those on death row, the only way now is a royal pardon that will commute the death penalty to a prison term. However, considering the numbers on death row, and the fact that the King and Rulers have to obligation to deal with all crimes, not just death penalty offences, MADPET (Malaysians Against Death Penalty and Torture)  proposes an Act be enacted that immediately commutes death penalty to a prison term for at least the 840 who have completed their appeals in court.

Transparency in a Democracy demand Bills to be revealed to allow public participation

In terms of Bills to be tabled in Parliament, MADPPET proposes that draft Bills be transparently revealed to the public, so that Malaysians, including the SUHAKAM, Malaysian Bar, human rights groups and all concerned citizens will have the opportunity to provide input for improvement. Peoples’ participation is most important in enacting laws, more so since in Malaysia currently elected representatives still fail to adequately consult the people especially on laws to be tabled.

What we need is action, and not just talk. Note that any government can fall at any time, and thus speedy action to reform laws, policies and practices is very important.

MADPET calls for the immediate tabling of the Bills that will abolish mandatory death penalty, noting also that Malaysia has in 2018, 2020 and 2022 voted in favour of the UN General Assembly Resolution towards abolition of the death penalty.

MADPET reiterates the call for the total abolition of the death penalty.


Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)


Azalina: Bill to abolish mandatory death penalty slated for tabling in Feb 2023

Azalina: Bill to abolish mandatory death penalty slated for tabling in Feb 2023
Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said said the relevant legal amendments however did not abolish the death penalty entirely but gave discretion to the court to decide the appropriate punishment based on the facts of the case. — Bernama pic

KUALA LUMPUR, Dec 21 — The Cabinet today agreed to continue with reviewing laws related to the mandatory death penalty, said Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said.

In a statement today, she said the Attorney General’s Chambers has examined the implementation of policy of the proposed alternative sentence against the mandatory death penalty involving 11 offences that carry the mandatory death penalty as provided in the Penal Code and the Firearms (Increased Penalties) Act 1971 and 23 offences that carry the mandatory death penalty subject to Court discretion under the Penal Code, the Arms Act 1960, the Firearms (Increased Penalties) Act 1971 and the Kidnapping Act 1961.

She said the government had also agreed to amend related acts and presented seven related Bills for amendment.

The Bills in question are the Penal Code (Amendment) Bill 2022, the Criminal Procedure Code (Amendment) Bill 2022, the Criminal Justice (Amendment) Bill 2022, the Kidnapping (Amendment) Bill 2022, the Firearms (Increased Penalties) (Amendment) Bill 2022, the Arms (Amendment) Bill 2022 and the Dangerous Drugs (Amendment) Bill 2022.

“The moratorium is still maintained for death penalty offenders until all amendments to the bill are implemented.

“The implementation of alternative sentence to the mandatory death penalty is expected to have a direct impact on a total of 1,327 prisoners who have been sentenced to death by the court while for other individuals who have not been accused, alternative punishment to the death penalty can be enforced prospectively,” she said.

Azalina said the relevant legal amendments however did not abolish the death penalty entirely but gave discretion to the court to decide the appropriate punishment based on the facts of the case.

“The implementation of this alternative sentence proposal is the government’s commitment to ensure that the implementation of the abolition of the mandatory death penalty is scrutinised in depth and in detail from all aspects so that any follow-up action by the government related to this issue will have a positive impact on the country,” she said.

She said the bills related to the abolition of the mandatory death penalty are expected to be tabled in the Parliament sitting in February next year (2023).

Azalina said the criminal justice system is the main foundation for a safe and peaceful society and therefore, the government will also consider a phase 2 follow-up study involving the reform of the criminal justice system.

It covers things like a more effective sentencing policy, whipping and reform of the prison system which includes measures to reduce prison overcrowding.

“Focus will also be given to a punishment approach based on rehabilitation and restorative justice,” she said.

In the meantime, Azalina who presented the proposed alternative sentence to the mandatory death penalty to the Cabinet today also expressed her gratitude to Prime Minister Datuk Seri Anwar Ibrahim and the Cabinet for their agreement. — Bernama - Malay Mail, 21/12/2022


Ramkarpal: Bill related to abolition of mandatory death penalty to be tabled at Parliament next month

Ramkarpal: Bill related to abolition of mandatory death penalty to be tabled at Parliament next month
Deputy Minister in the Prime Minister’s Department (Law and Institutional Reform) Ramkarpal Singh speaks to reporters after visiting the Kajang Prison February 22, 2023. — Bernama pic