Sunday, December 10, 2017

DDA amendments better, but anti-drug policy needs overhaul(Malaysiakini)


DDA amendments better, but anti-drug policy needs overhaul

Published:     Modified:


COMMENT | Malaysians Against Death Penalty and Torture (Madpet) welcomes the fact that the government has amended the Bill to amend Section 39B of the Dangerous Drugs Act 1952, which now provides for the mandatory death penalty for drug trafficking. The Dangerous Drugs (Amendment) Act 2017, as amended, was passed after the third reading on Nov 30 at the Dewan Rakyat.

This amending Bill has been amended to remove the earlier precondition of a Public Prosecutor’s written certification of assistance before judges had the discretion in sentencing, that will allow the imposition of the life imprisonment sentence instead of the death penalty. This amendment vide Dangerous Drugs (Amendment) Bill - Amendment in Committee (D.R.45/2017) amended the Bill entitled the Dangerous Drugs (Amendment) Act 2017.

After the Dangerous Drugs (Amendment) Act 2017, a number of groups and persons including Madpet expressed dissatisfaction that judges, according to Section 2 of the original amendment Bill, would only be able to exercise discretion during sentencing if and only when the "Public Prosecutor certifies in writing to the court, that in his determination, the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia".

Proving 'assistence'

On Nov 30, the need for the public prosecutor's certification was removed. The words “the Public Prosecutor certifies in writing to the court that in his determination” was removed and replaced with the word “that”.

This would mean that one of the points that the judge now must consider before sentencing is passed is that "the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia".

Whilst this is better, there still remains the concern whether persons convicted would really be able to provide such assistance, and when will such assistance be required to be provided.

Rightly, that assistance should be provided only after one has been tried and convicted. To suggest otherwise would be most prejudicial to the accused person, and it may be seen as forcing accused persons into doing things that are self-incriminatory, including statements that will assist the prosecution to get a conviction in the face of a threat of being sentenced and put to death.

This is most unacceptable especially in capital cases, where if one is convicted, it may result in the imposition of the death sentence.

We know that many a time, drug trafficking is usually carried out by kingpins and their criminal organisations, and as such, there is also a real risk that any such "assistance" by the convicted person may bring to them and/or their families retaliation and/or harm, more so when the fact of this assistance is made known.

As such, Malaysia must develop a substantive witness protection scheme that will ensure the safety of the convicted as well as their families, if need be.

The other concern is the fact that some of the convicted may have very little information, not sufficient to have "assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia", noting that the words used on the face of it indicate assistance was given "...has assisted...".

One can only provide assistance as much as one is able to, and it may sometimes be seen as not being useful or sufficient to assist any enforcement agency. As such, what is expected to escape the death sentence may still be unreasonable.

It may have been better, if all that is required was what a person reasonably could have done to assist, irrespective of whether it really assisted the enforcement agency or not. Until there is an amendment, it is hoped that when judges do consider this element of "assistance", reasonableness and reality is also considered.

Also, it was also disappointing to note that the new amendments to the Bill did not address the concern as to what will happen to the 800 or more still on death row for drug trafficking. It was best that all their sentences be forthwith commuted to imprisonment.

Retrials likely

If and when this amendment comes into force, it will apply also to cases where the trial had started but the accused has not yet been convicted.

There are serious concerns about trials that are already started. Evidence will have been adduced, challenged and/or rebutted in these trials where both the accused and prosecution were operating under the belief that on conviction, there will only be the mandatory death penalty.

As such, even when the amendment comes into force, it will only be just if there be a new trial before a new judge, given the fact that the strategy and conduct of the trial would most likely be very different given the fact judges would now, after the amendment comes into force, the discretion to not sentence the convicted to death.

In light of the upcoming amendment to Section 39B, Madpet calls for the immediate stop of all Section 39B trials pending the coming into force the amendment that gives judges the discretion to impose a sentence other than the death sentence. There should be new trials before different judges for all these cases.

It was also revealed by Minister in the Prime Minister's Department Azalina Othman Said, that prison department statistics revealed that from 2000 until 2017, of 113 persons were sentenced to death under Section 39B, only 11 were executed, whilst another 122 persons have been pardoned and had their death sentence commuted to life imprisonment.

There was, however, no disclosure as to why some were executed and others had their sentences commuted. Did diplomatic concerns or other unacceptable considerations have a part to play in these decisions as to who lives and who is hanged to death?

Madpet urges that the death sentence of all persons on death row, especially for drug trafficking, be immediately commuted to imprisonment.

Death penalty is not a deterrent 

The minister also stated that the police statistics reveal an increase of drug cases every year despite the drastic measures taken by the police, which we could take as including the fact of the existence of the mandatory death penalty for Section 39B.

Since January 2014 until October 2017, 702,319 individuals have been arrested by the police for the offence of trafficking and possession of drugs.

A total of 21,731 persons were arrested under Section 39B, whereby investigation papers were opened for 13,036 persons and 10,878 persons were charged in court. The minister also revealed that 68 drug kingpins were arrested during this period, while 106 illegal laboratories were raided, resulting in the arrest of 409.

The death penalty for drug trafficking came into being in 1975, and in 1983, there was an amendment that brought in the mandatory death penalty. It is clear now that even the mandatory death penalty has not deterred people from committing the offence. On the contrary, there has been an increase of persons committing the crime.

As such, merely giving the judges the option of handing out the death sentence or life imprisonment (with at least 15 strokes of the whip) needs to be reviewed. Severe punishment does not serve as a deterrent, and as such, we should be looking at rehabilitation and second chances to persons convicted of even the crime of drug trafficking.

Our concerns should be rehabilitation, and it is certainly most unjust to be sentencing a first time offender or a young person to life imprisonment.

Madpet would suggest that Section 39B should be further amended setting a minimum sentence of 5 to 10 years, as this will be more just. Judges will then have discretion to impose the appropriate sentence depending on the facts and circumstances of each case.

Malaysia also needs to look at the reasons why people commit this mandatory death penalty crime. One of the main causes may be poverty. Hence, the way forward in reducing the crime of drug trafficking (or other crimes driven by poverty) may be addressing the socio-economic conditions that drive people to be willing to risk their life and liberty for monies.

Madpet also urges that all persons arrested for drug offences be accorded the right to a fair trial and that detention without trial laws like the Prevention of Crime Act 1959 (Poca) and the Dangerous Drugs (Special Preventive Measures) Act 1985 not be used.

Madpet also would like to remind the Malaysian government that they are looking at abolishing the death penalty, especially the mandatory death penalty, for all crimes, not just drug trafficking. Whilst we welcome this move to abolish the mandatory death penalty for Section 39B, we urge that the abolition of the mandatory death penalty is expedited.

Madpet reiterates its call for the abolition of the death penalty in Malaysia, and for the imposition of an immediate moratorium on all executions pending abolition.


The views expressed here are those of the authors/contributors and do not necessarily represent the views of Malaysiakini.



See related posts:- 

Sometimes the government listens - PP's green light before judge exercise discretion removed?

MADPET - JUDGE’S DISCRETION TO NOT IMPOSE DEATH PENALTY ONLY IF PUBLIC PROSECUTOR GIVES CERTIFICATION IS WRONG


 
 

Saturday, December 09, 2017

Singaporean Jolovan Wham - 52 Malaysian Groups Speak out & Urgent Appeal by the Observatory

URGENT APPEAL - THE OBSERVATORY

 

SGP 001 / 1217 / OBS 117
Judicial harassment
Singapore
December 8, 2017


The Observatory for the Protection of Human Rights Defenders, a partnership of FIDH and the World Organisation Against Torture (OMCT), requests your urgent intervention in the following situation in Singapore.

Description of the situation:
 
The Observatory has been informed by reliable sources about the judicial harassment against Mr. Jolovan Wham, social worker, human rights advocate, and former Executive Director of the NGO Humanitarian Organisation for Migration Economics (HOME)[1], and eight other activists for the exercise of their right to peaceful assembly.

According to the information received, on November 28, 2017, Mr. Jolovan Whan was detained at the Central Police Station in Singapore, and released on bail later that day.

On November 29, 2017, the State Court charged Mr. Jolovan Wham with: 1) "organising public assemblies without a permit", under the Public Order Act (three charges); 2) "vandalism", under the Vandalism Act (one charge); and 3) "refusing to sign statements", under Article 180 of the Criminal Code (three charges). The seven charges are related to three peaceful gatherings held by various activists, including Mr. Jolovan Wham, in Singapore between November 2016 and July 2017 without obtaining prior permission from the police.

Under Article 16(1)(a) of the Public Order Act, organising a public assembly without obtaining police permit is an offense that is punishable with fines of up to SGD 5,000 (approx. 3,140 Euros). Repeat offenders can be fined up to SGD 10,000 (approx. 6,280 Euros) or imprisoned for up to six months, or both. Under Article 3 of the Vandalism Act, the offence of vandalism is punishable with a fine not exceeding SGD 2,000 (approx. 1256 Euros) or imprisonment not exceeding three years.

The three peaceful gatherings from which the charges under the Public Order Act stem were: 1) a forum to discuss civil disobedience and social movement (held on November 26, 2016); 2) a silent protest on a Mass Rapid Transport (MRT) train to mark the 30th anniversary of the detention without trial of 22 people under the draconian Internal Security Act (ISA) as part of Operation Spectrum in May-June 1987 (held on June 3, 2017); and (3) a candlelight vigil outside Changi Prison to support the family of Prabagaran Srivijayan, a Malaysian national, awaiting execution for drug trafficking (held on July 13, 2017)[2].

Moreover, on December 5, 2017, eight other activists who took part in the three above-referenced peaceful assemblies reported themselves voluntarily to the police and were given warnings that may be facing charges should they participate in other gatherings.

The Observatory denounces the judicial harassment of Mr. Jolovan Wham and the other above-mentioned activists, which only aims at punishing them for their peaceful and legitimate human rights activities and the exercise of their right to peaceful assembly.

Actions requested:

Please write to the Singaporean authorities to urge them to:

i.     Drop all charges against Mr. Jolovan Wham;

ii.   Put an end to all forms of harassment, including at the judicial level, against Mr. Jolovan Wham, the above-mentioned demonstrators and all human rights defenders in the country so that they are able to carry out their work without hindrance;

iii. Ensure full respect for the right to peaceful assembly in accordance with relevant international human rights standards;

iv. Comply with the provisions of the United Nations Declaration on Human Rights Defenders, in particular with its Articles 1, 6(c) and 12.2;

v. Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with the Universal Declaration on Human Rights.

Addresses:

·     Mr. Lee Hsien Loong, Prime Minister of Singapore, Fax: +65 63328983/68356621, Email: pmo_hq@pmo.gov.sg; Twitter: @leehsienloong
·     Mr. Kasiviswanathan Shanmugam, Minister for Home Affairs, Minister of Law, Fax: +65 62546250/ 633 28842, Email: mha_feedback@mha.gov.sg;
·     Mr. Vivian Balakrishnan, Minister for Foreign Affairs, Fax: +65 64747885, Email: mfa@mfa.sg;
·     Mr. Lucien Wong, Attorney General, Fax: +65 6538 9000
·     H.E. Mr Foo Kok Jwee, Ambassador, Permanent Mission of Singapore in Geneva, Switzerland, Fax: +41-22-796 8078, E-mail: mfa_geneva@mfa.gov.sg;
·     H.E. Mr. Jaya Ratnam, Ambassador, Embassy of Singapore in Brussels, Belgium, Fax: +32 2 660 8685; Email: singemb_bru@mfa.sg

Please also write to the diplomatic representations of Singapore in your respective countries.
 
***
Paris-Geneva, December 8, 2017

Kindly inform us of any action undertaken quoting the code of this appeal in your reply.

The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by FIDH and the World Organisation Against Torture (OMCT). The objective of this programme is to prevent or remedy situations of repression against human rights defenders. FIDH and OMCT are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.

To contact the Observatory, call the emergency line:
·   E-mail: Appeals@fidh-omct.org
·   Tel and fax OMCT +41 22 809 49 39 / +41 22 809 49 29
·   Tel and fax FIDH + 33 (0) 1 43 55 25 18 / +33 1 43 55 18 80


Joint Statement: Malaysians in solidarity with Jolovan Wham

We are a group of concerned Malaysian citizens who are alarmed and disappointed by Singapore’s prosecution of the renowned social worker and activist Jolovan Wham.

Jolovan was charged with 7 offences under the Public Order Act, Vandalism Act, and the Penal Code for his peaceful and non-violent acts. He was alleged to have organized three unlawful assemblies, which involves holding a vigil outside Changi Prison for Malaysian death row inmate Prabagaran Srivijayan who was to be executed at dawn, organising an assembly without permit in a train and a forum involving Hong Kong activist Joshua Wong through skype.

In the alleged silent protest on an MRT train, Jolovan and eight others hold the book 1987: Singapore’s Marxist Conspiracy 30 Years On to commemorate “Operation Spectrum”, a security operation initiated by Singapore government in 1987. Jolovan faces a vandalism charge for sticking two A4 size papers on the train during the event. He also faces three counts of refusal to sign his recorded statement under the Penal Code.

Jolovan is a renowned social worker and activist. He bravely speaks up for the voiceless, the weak and the oppressed - no matter what race, class or gender. Jolovan was recognized for his excellent social work, for he received “Promising Social Worker Award” in 2011, and the award was conferred by the President of Singapore. When he was serving as the executive director of HOME (Humanitarian Organisation for Migration Economics), he fought for the rights of migrant workers in Singapore who suffered abuse and ill-treatment by employers. At the same time, he has been a staunch advocate of free speech and a human rights champion who speaks against death penalty and detention without trial.

Jolovan also initiated solidarity activities in Singapore to support social movements in other parts of Asia, such as Hong Kong and Malaysia. For example, after the 13th Malaysian general election, he organized cross-border solidarity activities to support fair and clean elections in Malaysia, not to mention his support for Malaysia’s largest rally in recent years, Bersih. He also shows untiring supports for Malaysian death row inmates in Singapore such as Prabagaran Srivijayan.

We believe that Jolovan is the conscience of Singapore who bravely speaks up for the voiceless, who opposes unjust treatment and policies towards the marginalized. What is even more admirable of Jolovan is that, while fighting for minority rights in Singapore, he always goes beyond national borders and boundaries. His solidarity activities show that Singapore’s civic movement not only fights for Singaporeans, but also speaks for worldwide democracies and marginalized foreigners in Singapore. He demonstrates how Singaporeans and Singapore civil society can join forces and unite with democratic movements around the world.

The prosecution of Jolovan is a scare tactic to silence dissidents in Singapore. Non-violent and peaceful assembly is meant to raise awareness among the public to achieve a democratic society, and thus it is not reasonable for Singapore government to charge him with these criminal laws.

Recently, we find that Singapore government is acting more actively to suppress dissidents. Besides Jolovan, other individuals are facing arrests and investigation include editor of The Online Citizen Terry Xu and journalist Kirsten Han, who were investigated for participating the vigil activity for Prabagaran Srivijayan; activist Rachel Zeng also faces investigation for organizing the skype forum with Joshua Wong; and artist Seelan Palay, who was arrested for his performance outside parliament to commemorate the 32-year detention of Chia Thye Poh.

Singapore ranks No. 1 in the world in many sectors, but its disregard of freedom of speech and assembly and its harsh actions towards dissidents are utterly disappointing. We support Jolovan and other human rights advocates in Singapore, and condemn the use of draconian laws against dissidents. We urge the Attorney General of Singapore to drop the charges against Jolovan and cease all proceedings against him.

We also call for Singapore to review its law to protect freedom of speech and peaceful assembly, to show the world that Singapore government is committed to democracy and the protection of the rights of its citizens.

We refuse to keep silent when confronted with injustice. As issues of human rights and humanitarian ideals transcend national boundaries, we urge citizens of Singapore and Malaysia to stand in solidarity with Jolovan Wham.

联署声明:谴责新加坡政府无理提控,大马人声援范国瀚

我们是一群关心新加坡人权和公民社会状况的大马公民团体。对于新加坡社运工作者范国瀚(Jolovan Wham)被控7项罪,我们感到惊讶与失望。

范国瀚因“无准证举办集会”在公共秩序法令下被控三项罪:他被指在樟宜监狱外为将被绞刑的大马死刑犯普拉巴卡兰(Prabagaran Srivijayan)举行烛光会;在地铁上组织“无声抗议”活动,以及通过skype与香港社运分子黄之锋进行连线对谈时,无准证举行室内集会。

在地铁上的无声抗议活动中,范国瀚与其他八人在车厢里沉默站着,拿起《1987:新加坡的马克思主义阴谋30年后》(1987: Singapore’s Marxist Conspiracy 30 Years On)一书阅读,抗议新加坡政府在1987年发动的“光谱行动”。范国瀚也因当时在地铁上贴上两张A4纸而被控破坏公物。他也因数次拒绝签署警方的口供声明,而被控触犯刑事法典。

范国瀚是新加坡知名社工和社运人士,长期无畏无惧为新加坡各种族、阶级和性别弱势发声,甚至获得新加坡总统在2011年颁发“有为社工奖”(Promising Social Worker Award)。他担任移工人道组织“情义之家”(HOME)执行长期间,竭力为被雇主虐待的移工谋取福利,多次与无良雇主和新加坡人力资源部斡旋;同时,他也是反对死刑和无审讯拘留的人权斗士,积极争取司法正义。

范国瀚长期关注亚洲各地如大马和香港的人权状况,并在新加坡发起连带声援活动,例如支持香港2014年的民主运动。而在2013年大马全国大选后,他在新加坡芳林公园演说者角落举办 “新加坡人声援大马”活动,抗议选举不公,跨界支持大马民主进程。他也在新加坡声援净选盟集会,以及如普拉巴卡兰等被判死刑的大马人。

我们认为,范国瀚是新加坡的良心,勇敢为弱势发声,反对不公不义的政策和状况。更令人钦佩的是,他过去在争取各弱势阶层权利之时,超越新加坡国界和各种藩篱,让新加坡的公民运动不止为新加坡人发声,也为境外民主人权发声,为境内弱势群体发声,展现世界各地民主运动积极连带的团结意识和行动。

新加坡政府对范国瀚的严厉起诉,是杀一儆百的做法,只为了让异议者噤声。范国瀚是以非暴力的和平手段发声,旨在提高人民醒觉,达致民主社会,新加坡政府不应以严厉的刑事罪提控他。

近年来,新加坡政府对异议分子的打压更趋严厉,除了范国瀚以外,不少进步人士也受到调查和对付,例如独立媒体《线上公民》(The Online Citizen)编辑许渊臣(Terry Xu)和独立记者韩俐颖(Kirsten Han),也因参与声援大马死刑犯的烛光会而被调查;社运分子Rachel Zeng因和范国瀚共同举办黄之锋连线活动也被调查;而艺术家 Seelan Palay也因在国会外举着一面镜子纪念被监禁32年的谢太宝,而被逮捕。

虽然,新加坡在国际多项指标位居第一,却无视人民的言论和集会自由,以高压手段对付异议,令人失望。我们支持范国瀚和其他新加坡的人权斗士,谴责新加坡政府以严刑峻法对付异议,并呼吁新加坡总检察长撤销对范国瀚的所有起诉。

我们也呼吁新加坡政府修法保障言论自由与和平集会活动,让世界各地关心民主的人士看见新加坡政府为民主付出的努力。

面对不公不义,我们拒绝沉默。人权与人道精神超越国界,我们呼吁新马支持民主人士,与范国瀚站在一起!

联署团体 Endorsed by:
1. Aliran 国民醒觉运动
2. Amateur业余者
3. Angkatan Warga Aman Malaysia (WargaAMAN)
4. Baramkini 当今峇南
5. Buku Jalanan Shah Alam 街头书坊沙亚南分部
6. Center for Orang Asli Concerns (COAC) 原住民关怀中心
7. Center to Combat Corruption & Cronyism (C4) 反贪污与朋党主义中心
8. Centre for Independent Journalism (CIJ) 独立新闻中心
9. Coalition for Clean and Fair Elections (BERSIH 2.0) 干净公平选举联盟2.0
10. Community Development Centre (CDC) 社区关怀中心
11. Damn the Dams Action Group 反水坝行动小组
12. ENGAGE愿景工程
13. Federation of Malaysian Indian Organisation (PRIMA)
14. Imagined Malaysia
15. Jaringan Rakyat Tertindas (JERIT) 受压迫人民阵线
16. Johor Yellow Flame (JYF) 柔南黄色行动小组
17. Kedai Buku Mak Ali
18. KLSCAH Civil Rights Committee 隆雪华堂民权委员会
19. KLSCAH Youth Section隆雪华堂青年团
20. Lawyer for Liberty捍卫自由律师团
21. Let's Art At Sawit Center沙威文创社
22. Malaysia Christian for Justice
23. Malaysia Muda 马来西亚青年
24. Malaysia Youth & Student Democratic Movement (DEMA)马来西亚青年与学生民主运动
25. Malaysian Indians Progressive Association (MIPAS) 大马印裔进步协会
26. Malaysian Indians Transformation Action Team (MITRA)
27. Malaysian Youth Care Association (PRIHATIN)
28. Malaysians Against Death Penalty and Torture (MADPET)大马反死刑与酷刑组织
29. Meonet 大马选举监督网络
30. Monitoring Sustainability of Globalisation (MSN)
31. National Human Rights Society (HAKAM) 大马人权协会
32. North South Initiative (NSI)
33. Parti Sosialis Malaysia (PSM) 马来西亚社会主义党
34. Perak Civic Forum 霹雳公民论坛
35. Persahabatan Semparuthi 大红花之友
36. Persatuan ALUMNI PBT USM Bahagian Utara 北马理华同学会
37. Persatuan Komuniti Prihatian Selangor dan KL
38. Persatuan Masyarakat Selangor dan Wilayah Persekutuan (PERMAS)
39. Persatuan Pendidikan Du Zhong Pulau Pinang 槟城独中教育基金会
40. Persatuan Rapat Malaysia (RAPAT)
41. Persatuan Sahabat Wanita, Selangor (PSWS)雪兰莪妇女之友协会
42. Pusat Komas 社区传播中心
43. Pusat Sejarah Rakyat 人民历史中心
44. Sahabat Rakyat 人民之友
45. Selangor & Kuala Lumpur Hokkien Association Youth Wing雪兰莪暨吉隆坡福建会馆青年团
46. Suara Rakyat Malaysia (SUARAM) 人民之声
47. Sunflower Electoral Education Movement (SEED) 向日葵选举教育运动
48. Tenaganita Womens Force 大马妇女力量
49. Teoh Beng Hock Trust for Democracy赵明福民主基金会
50. Thinking Society思辨会社
51. Writers' Alliance for Media Independence (WAMI) 维护媒体独立撰稿人联盟
52. Yayasan Usman Awang 乌士曼阿旺基金会

Gabungan Bertindak Malaysia Message on International Human Rights Day











9 December, 2017
Gabungan Bertindak Malaysia
Message on International Human Rights Day

As Malaysia joins the world in commemorating International Human Rights Day on December 10, perhaps this is a good time to reflect on our own human rights record. This year, Human Rights Day will kick off a year-long campaign to mark the upcoming 70th anniversary of the Universal Declaration of Human Rights which was proclaimed on 10th December 1948. 

Gabungan Bertindak Malaysia (GBM), a coalition of 27 NGOs of diverse background, is sad to note that the past year has not seen any significant improvement of the human rights in Malaysia. To list all the violations of human rights in Malaysia in 2017 would probably take too much space, however the experience of various GBM’s member organisations in the past year is enough to illustrate the sad state of human rights in Malaysia. 

On 21st February 2017, Lena Hendry, a former programme coordinator of Pusat KOMAS, a member organisation of GBM, who was charged with airing the documentary “No Fire Zone” in a Pusat KOMAS’s event in 2013 without the approval from Malaysian Censorship Board, was found guilty under Film Censorship Act 2002 and on 22nd March 2017 she was sentenced to pay a fine of RM10,000. The documentary touches upon the alleged war crime against the Tamil community in Sri Lankan civil war. 

The case reflected the growing threat against the freedom of expression in Malaysia. It also set a dangerous precedent that it is now unlawful for people to document and screen videos without sending their videos to the Film Censorship Board for approval.  

On 24th May 2017, three activists from Citizen Action Group on Enforced Disappearance (CAGED) – Sevan Doraisamy, Thomas Fann and Rama Ramanathan – was questioned by the police following an order by the then Inspector General, Khalid Abu Bakar through his Twitter posting. CAGED is a coalition of NGOs that aim to monitor cases of enforced disappearance in Malaysia following the mysterious abductions of Pastor Raymond Koh and Amri Che Mat, and the disappearance of Pastor Joshua Hilmy and his wife, Ruth. Rama was representing Bersih 2.0 while Sevan and Thomas were respectively representing SUARAM and ENGAGE, which are member organisations of GBM. 

The National Human Rights Commission (SUHAKAM) has formed a public inquiry into the allegations of enforced disappearances, which is still on-going. These cases of suspected enforced disappearances is a worrying trend that has emerged in 2017 and added to the already bloated  list of human rights’ concern in Malaysia. 

On 16th August 2017, Ho Yock Lin, former president of All Women Action Society (AWAM), a member organisation of GBM focusing on women’s rights and Ivy Josiah, a women’s rights activist, were questioned by the police for their involvement in the “Free Maria” walk. The Free Maria walk was held on 23rd November 2016 where more than 500 women marched from Padang Merbok to the Parliament building, demanding Maria Chin Abdullah, the Chair of Bersih 2.0, to be released from detention under Security Offences (Special Measures) Act 2012 (Sosma) for her role in the organising of Bersih 5 rally. 

The questioning, which was held nine months after the event, was another example of assault against freedom of assembly, which was ironic considering that the walk itself was intended as a protest against the police’s detention of Maria which was itself another example of attack on the freedom of assembly as well as an example of the abuse a law which provided for detention without trial. 

Islamic Renaissance Front (IRF), another member organisation of GBM, has also became a victim of the narrowing space of human rights in Malaysia. In 2017, several books published or distributed by the organisation have been banned by the Home Ministry under the Printing Presses and Publication Act.  On 25th September 2017 Mustafa Akyol, a respected international scholar on Islam, who was invited as a speaker for a series of talks on Islam organised by IRF, was briefly detained and questioned by the police and the religious authority JAWI for allegedly teaching Islam without official credential. Dr. Ahmad Farouk Musa, Chairman and Director of IRF was questioned by JAWI on 2nd October 2017 under Section 43 of the Shariah Offences Act 1997 (Federal Territories) for allegedly abetting with Mustafa Akyol. 

Considering all these depressing developments, it is hard to be optimistic with the state of human rights in Malaysia for the year 2018 and beyond. However, we do not have the luxury of giving up or slowing down. 

As the world marks the 70th anniversary of the Universal Declaration of Human Rights in 2018, and Malaysia to have its 14th General Election, Gabungan Bertindak Malaysia urges all Malaysians to stop this rot by taking up the cause of human rights. We must stand firm and strive hard for a Malaysia that is united by human rights and human dignity, which should demonstrate these characteristics:

·         Freedoms of thought, speech, assembly and association, and by extension religious, linguistic and cultural inclusion, protected from both state and private encroachment;;

·         Governments chosen through free and fair elections, with effective mechanisms to curb distortion of electoral mandate and under-representation of women and minorities;

·         Impartiality and integrity of Judiciary, Attorney General’s Chambers, Bureaucracy, Police, Military and all other unelected public institutions; 

·         Socio-economic inclusion and sustainable development to ensure everyone can live with basic needs fulfilled, equal opportunity to pursue life goals and dignity.

Only a Malaysia where everyone’s right as human is guaranteed, can we have sustainable unity, prosperity and stability. 


Issued by
Zaid Kamaruddin,
Chair, Gabungan Bertindak Malaysia

Let Judicial Discretion in Sentencing Lead to the Total Abolition of the Death Penalty (Malaysian Bar)

Press Release | Let Judicial Discretion in Sentencing Lead to the Total Abolition of the Death Penalty

Tuesday, 05 December 2017 09:05am
ImageThe Malaysian Bar welcomes the removal of the mandatory death sentence for drug offences and the restoration of judicial discretion in sentencing with the passing of the Dangerous Drugs (Amendment) Bill 2017 (“the Bill”) by the Dewan Rakyat on 30 November 2017.

We wish to recognise the Government for having considered public feedback by amending the Bill and removing the requirement of the Public Prosecutor’s certification of the assistance rendered by the convicted person, for the Judge to not pass the death penalty.  

However, there remain limits to what the Judge can take into account in exercising his/her discretion in sentencing.  Section 39B(2A) of the Bill, inter alia, requires that the Court:

… may have regard only to the following circumstances: [emphasis added]

(a) there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested;

(b) there was no involvement of agent provocateur; or

(c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and

(d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.

We are concerned that Judges are being limited in their consideration of the mitigating factors and circumstances that surround each case, before sentencing.  Such mitigating factors can include, and are not limited to, the offender’s age, rehabilitation goals, past criminal record, role played in the offence, mental capacity, reparations made, fear of another person, use of violence, harm done to property or persons, and degree of cooperation with the authorities.  The sentencing process is, and should always remain, within the unfettered domain of the Judiciary.

We are also troubled that the determination on whether the death penalty is imposed rests upon an assessment of the convicted person’s ability or willingness to assist in disrupting drug trafficking activities.  A person’s right to life is a fundamental right, not a privilege that can be revoked if that person is deemed not sufficiently “useful” to an enforcement agency.

The Malaysian Bar calls upon the Government to further amend the Bill to enable those already convicted and sentenced to death to apply for a review of their sentence.  Meanwhile, the Government should officially declare and implement a moratorium on all pending executions. 

The Malaysian Bar remains resolute in our position that the death penalty is an extreme, abhorrent and inhumane punishment.  There are also provisions for the imposition of the mandatory death penalty in the Penal Code and the Firearms (Increased Penalties) Act 1971, and of the discretionary death penalty in the Kidnapping Act 1961.

The Malaysian Bar calls upon the Government to act without delay to abolish the death penalty for all crimes, and to uphold the right to life, which is absolute, universal and inalienable.

George Varughese
President
Malaysian Bar

5 December 2017
 
 
See earlier related posts:-

Now 45 Groups call on Malaysia to abolish POCA and Detention Without Trial Laws



Media Statement16/11/2017

ABOLISH POCA AND DETENTION WITHOUT TRIAL LAWS
142 juveniles and possibly thousands denied their
liberty without being accorded the right to fair trial

We, the 45 undersigned civil society organisations, trade unions and groups are perturbed to hear that 142 juveniles have been arrested under the Prevention of Crime Act (POCA), a law that allows the detention of people without trial. This was revealed by the Deputy Prime Minister of Malaysia, Ahmad Zahid Hamidi, in a Parliamentary written reply dated 31/10/2017.(Malaysian Insight, 7/11/2017)

We are shocked about the continued existence of Detention Without Trial laws in Malaysia, including the Prevention of Crimes Act 1959(POCA), Prevention of Terrorism Act 2015(POTA) and the Dangerous Drugs (Special Preventive Measures) Act 1985 that allows for persons to be arrested, detained and/or restricted without even being accorded the right to challenge the reasons of their incarceration and/or restriction in court. The fundamental right to a fair trial is denied. 

If 142 juveniles were victims of this Detention Without Trial(DWT) law, then one wonders whether thousands of individuals are currently being detained/restricted under POCA and other DWT laws.

The fundamental problem with these DWT laws in Malaysia is that the victim cannot even challenge even the reasons for his arrest, detention and/or restriction in a court of law. Without the ability to go for a judicial review challenging the reasons used for the detention/restriction, the judiciary is effectively barred from ensuring that the Executive is not abusing its power and/or that no innocent person is being unjustly denied his constitutionally guaranteed rights and liberties.  

DWT allows for an individual to be detained and/or restricted indefinitely according to the whims and fancies of the government, be it a Minister or some appointed Board. 

A person who has been arrested, detained and/or restricted under these draconian Detention Without Trial Laws are also denied the fundamental right to a fair trial. The  State could also deny rights/liberties of the innocent. The principle that everyone should be presumed innocent until proven guilty in a court of law must be respected.

When Malaysia finally got rid of the infamous Internal Security Act 1960(ISA) and the Emergency(Public Order and Prevention of Crime) Ordinance 1969, there was hope that all other laws that allow for DWT will also soon be repealed. 

However, the opposite happened and the ability of the State to continue using Detention Without Trial laws, was enhanced by the amendments of the Prevention of Crimes Act 1959(POCA), and the introduction of the new Prevention of Terrorism Act 2012.

An amendment to POCA, which came into effect on 2/4/2014, introduced a new Part IVA, that introduced Detention Without Trial. The Board could now issue ‘detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time, if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime.’

Previously, when POCA was used, within 24 hours after arrest when the victim is brought before the Magistrate for a remand application, a statement in writing signed by a police officer not below the rank of Assistant Superintendent stating that there are grounds for believing that the name of that person should be entered on the Register was required before a Magistrate had to grant a 14 day remand. But, after April 2014, all that is required is a statement of a police officer of merely the rank of Inspector. Hence, rather than having greater safeguard against possible abuse, it was made easier by requiring just a lower ranked Inspector’s statement. Remand period was also extended to 21 days.

POCA, which was originally enacted to be used for organized crime members, triads or gangs involved in crimes involving ‘violence or extortion’ was amended to cover all offences in the Penal Code. Originally it was to be used for gangs of 5 or more persons, but that was amended to 2 or more persons. That means that POCA can now be used for even a person who committed a  crime with another, even if the crime was theft or some other lesser crime. Right to a fair trial now could easily be denied for many more persons.

The POCA amendment, that came into force in May 2014, allowed for POCA to be used also for an even wider range of persons including drug traffickers including persons living on proceeds of drug trafficking, human traffickers including persons living on proceeds of human trafficking, persons involved in unlawful gaming, smugglers of migrants including persons living on proceeds of migrant smuggling, recruiters of members of gangs or persons to participate in some crime. A subsequent amendment in 2015 added ‘Persons who engage in the commission or support of terrorist acts under the Penal Code’.

An interesting amendment to POCA that came into effect on 1/9/2015 was section 4(2A) which stated that “No person shall be arrested and detained under this section solely for his political belief or political activity. 

The new Section 4(5) goes on to explain "political belief or political activity" as meaning ‘engaging in a lawful activity through-(a) the expression of an opinion or the pursuit of a course of action made according to the tenets of a political party that is at the relevant time registered under the Societies Act 1966 [Act 335] as evidenced by-(i) membership of or contribution to that party; or (ii) open and active participation in the affairs of that party; (b) the expression of an opinion directed towards any government in Malaysia; or (c) the pursuit of a course of action directed towards any government in Malaysia.".

This may give the impression that POCA will not be used against politicians (and possibly even civil society personalities) for actions directed against the government. It however does not protect civil society or human rights defenders if their actions and/or expression of opinion is directed against some our perpetrator of injustice, not being ‘any government’, or is they are alleged of committing some other crime. We recall that POCA was used in July 2016 in the case of R. Sri Sanjeevan, Malaysian Crime Watch Task Force (MyWatch) chairman – a civil society organisation.

This amendment, however, may have the effect of reducing the interest or concern of political parties about POCA and such Detention Without Trial Laws.

The victims of these DWT laws may now be mostly common people, who are being detained and/or restricted for years without even being accorded a fair trial.

The number of victims of such DWT laws are also unknown, as most such information in Malaysia are usually known when the government makes a reply to a Parliamentary Question. The recent information about the number of juvenile victims of POCA was because of a such question raised by an Opposition parliamentarian.

Now, whenever a person is suspected of a crime involving 2 or more persons, POCA can simply be used as it is so much easier, and requires no comprehensive investigation or gathering of evidence that would have been required if one was to be charged and tried in court. In a fair trial, prosecution needs to prove that a person is guilty beyond reasonable doubt. The guilt or innocence of a person must be determined by an independent judge in court, and the belief of the police, prosecution or government that a person is guilty is inadequate. A trial also gives a right to the accused persons to defend themselves, and the courts will decide after considering all evidence and facts of the case.

Therefore, we call

1.       For the immediate repeal of all Detention Without Trial laws, including the Prevention of Crimes Act 1959(POCA), Prevention of Terrorism Act 2015(POTA) and the Dangerous Drugs (Special Preventive Measures) Act 1985;
2.       For the immediate and unconditional release of all persons now currently being detained and/or restricted under these Detention Without Trial laws;
3.       For the immediate disclosure of the numbers of persons being detained under these DWT laws, and the reasons being used to justify their detention/restriction;
4.       That compensation and/or damages be paid to all victims of detention without trial laws for their loss of rights and liberties;


Charles Hector
For and on behalf the 36 groups, organisations and unions listed below

ALIRAN
Association of Human Rights Defenders and Promoters- HRDP, Myanmar
Asia Pacific Solidarity Coalition. (APSOC)
ATRAHDOM Guatemala.
AWAM
Australians Against Capital Punishment(AACP)
BERSIH 2.0
Center for Prisoners' Rights Japan
Christian Development Alternative (CDA), Bangladesh
Civil Rights Committee of KLSCAH
Democratic Commission for Human Development, Pakistan
Indonesian Legal Roundtable
Institute for development of Alternative Living (IDEAL)
Japan Innocence and Death Penalty Information Center
Legal Awareness Watch (LAW), Pakistan
MADPET(Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
Malaysia Youth & Student Democratic Movement (DEMA)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
North South Initiative
NUFAM(National Union of Flight Attendants Malaysia)
Odhikar, Bangladesh
Parti Rakyat Malaysia (PRM)
Persatuan Komuniti Prihatin Selangor & KL
Philippine Alliance of Human Rights Advocates
PROHAM (Society for the Promotion of Human Rights, Malaysia)
Sahabat Rakyat 人民之友
Sawit Watch, Indonesian Social NGO
Saya Anak Bangsa Malaysia (SABM)
Sosialis Alternatif (Committee for Workers International-Malaysia)
Suara Rakyat Malaysia (SUARAM)
Teoh Beng Hock Trust for Democracy
Think Centre, Singapore
Workers Assistance Center, Inc., Philippines
WH4C (Workers Hub For Change)
Yaung Chi Oo Workers Association (YCOWA)

Additional Endorsements:-
Asia Centre
Human Rights & Democracy Media Center SHAMS”
Lawyers For Human Rights International (India)
Action by Christians for the Abolition of Torture (ACAT-Liberia)
Inter-Research And Studies Institute (IRAS)
Iran Human Rights (IHR)
Journey of Hope...from Violence to Healing
Association Justice & Mercy  (AJEM)
lifespark – Switzerland