Monday, November 10, 2014

Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty

Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition
of the death penalty


Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989

The States Parties to the present Protocol, 

Believing that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights, 

Recalling article 3 of the Universal Declaration of Human Rights, adopted on 10 December 1948, and article 6 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966, 

Noting that article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable, 

Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life, 

Desirous to undertake hereby an international commitment to abolish the death penalty, 

Have agreed as follows: 

Article 1
1. No one within the jurisdiction of a State Party to the present Protocol shall be executed.
2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction. 

Article 2
1. No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.
2. The State Party making such a reservation shall at the time of ratification or accession communicate to the Secretary-General of the United Nations the relevant provisions of its national legislation applicable during wartime.
3. The State Party having made such a reservation shall notify the Secretary-General of the United Nations of any beginning or ending of a state of war applicable to its territory. 

Article 3
The States Parties to the present Protocol shall include in the reports they submit to the Human Rights Committee, in accordance with article 40 of the Covenant, information on the measures that they have adopted to give effect to the present Protocol. 

Article 4
With respect to the States Parties to the Covenant that have made a declaration under article 41, the competence of the Human Rights Committee to receive and consider communications when a State Party claims that another State Party is not fulfilling its obligations shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession. 

Article 5
With respect to the States Parties to the first Optional Protocol to the International Covenant on Civil and Political Rights adopted on 16 December 1966, the competence of the Human Rights Committee to receive and consider communications from individuals subject to its jurisdiction shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession. 

Article 6
1. The provisions of the present Protocol shall apply as additional provisions to the Covenant.
2. Without prejudice to the possibility of a reservation under article 2 of the present Protocol, the right guaranteed in article 1, paragraph 1, of the present Protocol shall not be subject to any derogation under article 4 of the Covenant. 

Article 7
1. The present Protocol is open for signature by any State that has signed the Covenant.
2. The present Protocol is subject to ratification by any State that has ratified the Covenant or acceded to it. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.
3. The present Protocol shall be open to accession by any State that has ratified the Covenant or acceded to it.
4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all States that have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession. 

Article 8
1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession.
2. For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession. 

Article 9
The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions. 

Article 10
The Secretary-General of the United Nations shall inform all States referred to in article 48, paragraph 1, of the Covenant of the following particulars:
(a) Reservations, communications and notifications under article 2 of the present Protocol;
(b) Statements made under articles 4 or 5 of the present Protocol;
(c) Signatures, ratifications and accessions under article 7 of the present Protocol:
(d) The date of the entry into force of the present Protocol under article 8 thereof. 

Article 11
1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 48 of the Covenant.

Abolition is a matter of DIGNITY _ YOURS and MINE


Abolition is a matter of DIGNITY _  YOURS and MINE 

"I will not make a 'killer' make me a killer" - Stavros Lambrinidis, EU Special Representative for Human Rights, 10/11/2014


Friday, October 24, 2014

Pope: no to death penalty and to inhuman prison conditions

Pope: no to death penalty and to inhuman prison conditions

Pope addresses International Association of Criminal Law - RV

(Vatican Radio) Pope Francis on Thursday called on all men and women of good will to fight for the abolishment of the death penalty in “all of its forms” and for the improvement of prison conditions.

The Pope was addressing a group of members of the International Association of Criminal Law whom he received in the Vatican.

In his discourse the Pope also addressed the need to combat the phenomena of human trafficking and of corruption.

And he stressed that the fact that the enforcement of legal penalties must always respect human dignity.

In a dense and impassioned discourse to the Jurists assembled in the Vatican for a private audience, Pope Francis said that the “life sentence” is really a “concealed death sentence”, and that is why – he explained – he had it annulled in the Vatican Penal Code.

Many of the off-the-cuff comments  during the Pope’s speech shone the light on how politics and media all too often act as triggers enflaming “violence and private and public acts of vengeance” that are always in search of a scape-goat.

Recalling the words of Saint John Paul II who condemned the death penalty as does the Catechism, Francis decried the practice and denounced  “so-called extrajudicial or extralegal executions” calling them “deliberate homicides” committed by public officials behind the screen of the Law:

“All Christians and people of goodwill are called today to fight not only for the abolition of the death penalty be it legal or illegal, in all of its forms, but also for the improvement of prison conditions in the respect of the human dignity of those who have been deprived of freedom. I link this to the death sentence. In the Penal Code of the Vatican, the sanction of life sentence is no more. A life sentence is a death sentence which is concealed”.

And Pope Francis had words of harsh criticism for all forms of criminality which undermine human dignity, there are forms of his – he said - even within the criminal law system which too often does not respect that dignity when criminal law is applied.

“In the last decades” – the Pope said – “there has been a growing conviction that through public punishment it is possible to solve different and disparate social problems, as if for different diseases one could prescribe the same medicine.”  

He said this conviction has pushed the criminal law system beyond its sanctioning boundaries, and into the “realm of freedom and the rights of persons” without real effectiveness.

"There is the risk of losing sight of the proportionality of penalties that historically reflect the scale of values upheld by the State. The very conception of criminal law and the enforcement of sanctions as an ‘ultima ratio’ in the cases of serious offenses against individual and collective interests have weakened. As has the debate regarding the use of alternative penal sanctions to be used instead of imprisonment”.

Pope Francis speaks of remand or detention of a suspect as a “contemporary form of illicit hidden punishment” concealed by a “patina of legality”, as it enforces “an anticipation of punishment” upon a suspect who has not been convicted. From this – the Pope points out – derives the risk of multiplying the number of detainees still awaiting trial, who are thus convicted without benefiting from the protective rules of a trial. In some countries – he says – this happens in some 50% of all cases with the trickledown effect of terribly overcrowded detention centers:

“The deplorable conditions of detention that take place in different parts of the world are an authentic inhuman and degrading trait, often caused by deficiencies of criminal law, or by a lack of infrastructures and good planning. In many cases they are the result of an arbitrary and merciless exercise of power over persons who have been deprived of freedom.”

Pope Francis also speaks of what he calls “cruel, inhuman and degrading punishments and sanctions,” and compares detention in maximum-security prisons to a “form of torture”. The isolation imposed in these places – he says – causes “mental and physical” suffering that result in an “increased tendency towards suicide”. Torture – the Pope points out – is used not only as a means to obtain “confession or information”:

“It is an authentic ‘surplus’ of pain that is added to the woes of detention. In this way torture is used not only in illegal centers of detention or in modern concentration camps, but also in prisons, in rehabilitation centers for minors, in psychiatric hospitals, in police stations and in other institutions for detention or punishment”.

And Pope Francis said children must be spared the harshness of imprisonment – as must, at least in a limited way – older people, sick people, pregnant women, disabled people as well as parents if they are the sole guardians of minors or persons with disabilities.

The Pope also highlighted one of the criminal phenomena he has always spoken out against vehemently: human trafficking which - he says – is the result of that “cycle of dire poverty” that traps “a billion people” and forces at least 45 million to flee from conflict:           

“Based on the fact that it is impossible to commit such a complex crime as is the trafficking of persons without the complicity, be it active or of omission of action of the State, it is evident that, when the efforts to prevent and combat this phenomenon are not sufficient, we find ourselves before a crime against humanity. This is even truer if those who are responsible for the protection of persons and the safeguard of their freedom become an accomplice of those who trade in human beings; in those cases the State is responsible before its citizens and before the international community”.

Pope Francis dedicates an ample part of his discourse to corruption. The corrupt person – according to the Pope – is a person who takes the “short-cuts of opportunism” that lead him to think of himself as a “winner” who insults and persecutes whoever contradicts him. “Corruption” – the Pope says “is a greater evil than sin”, and more than “be forgiven, must be cured”.

“The criminal sanction is selective. It is like a net that captures only the small fish leaving the big fish to swim free in the ocean. The forms of corruption that must be persecuted with greatest severity are those that cause grave social damage, both in economic and social questions – for example grave fraud against public administration or the dishonest use of administration”.

Concluding, Pope Francis exhorted the jurists to use the criteria of “cautiousness” in the enforcement of criminal sanctions. This – he affirmed – must be the principle that upholds criminal law:

“The respect for human dignity must operate not only to  limit the arbitrariness and the excesses of State officials, but as a criteria of orientation for the persecution and the repression of those behaviors that represent grave attacks against the dignity and the integrity of the human person”.

MADPET urges investigations into Malaysian prisons that leads to positive reforms

MADPET (MALAYSIANS AGAINST DEATH PENALTY AND TORTURE) also calls upon the Malaysian Human Rights Commission (SUHAKAM)and for the Malaysian government to set up a Commission or maybe even a Parliamentary Select Committee to look into the conditions of Malaysian prisons, and the treatment of prisoners.

Uthaya recounts horrors of a Malaysian prison

 

INTERVIEW P Uthayakumar showed what is an end of a much worn toothbrush on his index finger and demonstrated how to brush his teeth. It was brown, soiled, and the bristles were almost gone.

“This is shared by almost five of the prisoners in a cell - usually there are more. When I asked the wardens, they said it is because there is no budget for toothbrushes,” said Uthayakumar, who is bent on telling all about his imprisonment in Kajang prison.

Uthayakumar was sentenced to prison for sedition, but little was he prepared for what was to come.

He had served time under the now defunct Internal Security Act and thought it might be similar.  

Now, after surviving his term in Kajang prison, he said it is something he would not even wish upon his worst enemy.

While in prison itself, Uthayakumar had written many complaints of his prison conditions in smuggled letters through his wife and lawyers.

The Hindraf leader was sentenced to 30 months’ jail by the Kuala Lumpur High Court on June 5, 2013, after accusing Putrajaya of genocide against ethnic Indians.

The Court of Appeal on Sept 17 upheld Uthayakumar’s sentence but commuted the punishment from 30 months to 24 months. He was released last Oct 3.

Uthayakumar, a lawyer famed for having galvanised the Hindraf movement which brought tens of thousands of Indian Malaysians to a rally in 2007 demanding for their rights, said it was all he could do to keep his sanity while in prison. 

He said the one thing that he did not leave behind when he entered prison was his activism - the only difference being that he spoke up for all races in prison, not only for Indian Malaysians, as he was wont to do outside.

“In prison, all are treated equally - equally badly. There’s really 1Malaysia in prison. There is equality for all.

“In prison, it doesn’t matter, you get equal treatment and you get the same food,” said the activist in an interview with Malaysiakini.

He admitted that this is contrary to deaths in police custody as well as deaths by police shooting, in which he had all the while claimed victims were mostly Indian Malaysians.

He explained that even during roll calls, which was several times a day and called ‘muster’, everybody got punished equally.

“There are no special privileges for anybody. And the natural reaction is that we are all in it together.”

‘Doctor checks from six feet away’

Uthayakumar said much is needed to better the conditions of the Kajang prison for men, especially when it came to medical care.  

“What I feared most while in prison was that I would fall ill.”

His eyes glistened with tears when he spoke about the predicament of a fellow inmate.

‘The inmate had hepatitis C but the prison wardens said there was nothing wrong with him. One night, I saw him sitting on his bed, with a helpless look on his face.

“The next morning, he died, and I saw a prison officer erasing his name from the white board.


“I told the prisoner next to me, with that erasing, all the records of him having died in prison, are gone,’ he said.

Uthayakumar said for every ailment, the medication is the ‘KK’ pills - plain paracetamol.  

“And the doctor checks you from six feet away, without touching you,” said Uthayakumar, who said he was usually appointed the spokesperson by his fellow inmates to speak to the wardens.  

He said he had to be very careful and be at his utmost politeness while choosing the least strict of the wardens to ask for sickly fellow inmates to be given medical care.  

He said his fellow inmates, before he left, lamented that in his absence, no one would speak up for them now.

Uthayakumar, however, said that he survived being sardine-packed in cells by keeping a journal, which at times was checked upon. They even took away his pencils and then he was moved on from one block to another.  

Despite the ordeal, he said other prisoners had it worse.  

He claimed that prisoners were persecuted on a daily basis and no one could answer the wardens, who struck fear with their violence and shouts.

He said inmates were treated like “mere slaves”; being beaten up, shouted at and ill-treated.

Despite that, the inmates stuck together for fear of the wardens.

He related how he witnessed inmates of different races helping each other - a Malay helping out a Chinese, or even of a Malay inmate cleaning up a paralysed Indian inmate every time the latter answered the call of nature, to the extent of using his fingers to ease the bowels of the latter.

Part 2: In prison, one dipper for all, says Uthaya



The interview was jointly conducted by Zakiah Koya, Alyaa Azhar, Ahmad Fadli KC and Prasadh Michael


Source: Malaysiakini, 22/10/2014, Uthaya recounts horrors of a Malaysian prison


In prison, one dipper for all, says Uthaya

INTERVIEW During his imprisonment, P Uthayakumar’s wife S Indra Devi had repeatedly raised the issue of her husband being in unhygienic conditions.

 
Uthayakumar, who was sentenced to an initial 30 months under the Sedition Act in 2013, said that he had highlighted it because it was not his case alone - it happened to everyone. 

Relating his experience with the ‘multipurpose dipper’ in Kajang prison, Uthayakumar said prisoners use the same dipper to wash their wounds and soak their underwear in.

The dipper refers to the “gayong” used to fill water to wash oneself with after using the toilet.  

“When there is a shortage of food trays, wardens dump food into the dipper, from which inmates will eat from with their bare hands, even those with scabs on their hands.
 
Uthayakumar said once, he even saw a prisoner vomit in the dipper.
 
As for the food, Uthayakumar said the menu is tasteless. He calls his prison term diet as complete detoxification of the human body.
 
“It is the first time I heard of sup air (water soup). If there is oil traces on any of the food, it is considered to be such a treat. There is almost no oil, which explains why most inmates have very dry skin,” said Uthayakumar.
 
He said one can either accept the food or go hungry for the rest of the day.
 
'In the dark room, Malaysiakini saved me'
 
Due to his often “smuggled” and written complaints, he was placed in the ‘dark room’ thrice.
 
“I will tell you how to smuggle only when you are inside,” said Uthayakumar when asked how he did it. 

Once, they put him in solitary confinement for repeatedly missing the roll call. 
 
“I had to sleep on the cement floor, with the longest experience for 14 days. I was in solitary confinement with no pillow, no blanket and no toiletries. There is a small window which opens up to the corridor and when they off the light, it is pitch black. The door is of hard steel.
 
“Despite being a hardened activist, I felt helpless that I could not even save myself.
 
“I kept myself busy by having a routine in the dark room. I would walk in circles, at times a thousand circles. Then I would go to the small tap and wash myself. Then the food comes. Then I walk circles again in the cell. Once it went on for five days.”
 
However, on the sixth day, an officer pulled him outside the cell and told him that they had read his complaints which were published in Malaysiakini
 
“At that moment I was thinking, if not for Malaysiakini it was during my worst times in prison, I was hitting rock-bottom…that in a way, Malaysiakini was my saviour.”
 
Uthayakumar has initiated contempt proceedings against those who were allegedly responsible for his conditions of imprisonment.

Yesterday: Uthaya recounts horrors of a Malaysian prison



The interview was jointly conducted by Zakiah Koya, Alyaa Azhar, Ahmad Fadli KC and Prasadh Michael
 
 
 

'Suhakam, probe Uthaya's prison horror stories'


 
"Proham recognises that the Suhakam Act empowers the Human Rights Commission not only to visit detention centres but also undertake public inquiries.

"We therefore urge Suhakam to undertake a comprehensive review so as to ensure the treatment of prisoners and prison conditions are in accordance with basic United Nations standards," Proham chairperson Kuthubul Zaman Bukhari said in a statement today.

Kuthubul also called on the home minister and the director-general of prisons to engage with Suhakam for a review of current standard operating procedures (SOP) on treatment of prisoners and conditions in Malaysian prisons

Kuthubul reminded that with its recent acceptance as a UN Security Council member, Malaysia should adhere to the basic principles for the treatment of prisoners as adopted by the UN general assembly.

In a series of interviews with Malaysiakini this week, the Hindraf leader related his ordeal during his two years in Kajang Prison, after being convicted for sedition.

Prisoners have rights too

Meanwhile, Kuthubul urged for implementation of the basic principles for the treatment of prisoners which were adopted and proclaimed by the UN General Assembly resolution 45/111 in 1990.

The resolution states that all prisoners must be treated with respect as human beings and should not be discriminated on any grounds.

“Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights.

“All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality,” Kuthubul said.

He also pointed out that there should be efforts to address the abolition of solitary confinement as a punishment.

“(Also), prisoners shall have access to health services available in the country without discrimination on the grounds of their legal situation.

“Favourable conditions shall be created for the reintegration of the ex-prisoner into society under the best possible conditions,” he added. - Malaysiakini, 24/10/2014,
'Suhakam, probe Uthaya's prison horror stories'
 

In letter from prison, Uthaya tells of 'Nazi-style' bullying

 

...at the notorious Block K (AB), which is run by a group of young Malay gangsters with eight to 12 previous convictions... they shout and are rude at the smallest things, ill treat, bully, torture... punishing and 'disciplining' prisoners for even talking among themselves while forced to sit on the ground, head down and hands clutched to the knees for hours under the hot sun, like the Nazi-era war criminals and watched silently by the prison wardens.

The words above are penned by Hindraf leader P Uthayakumar from the very block where it all allegedly happened in the Kajang Prison, and released to the media yesterday, the 100th day of his incarceration there.

NONEThough Uthayakumar did not reveal if he had personally experienced such 'disciplining', it will nonetheless be humiliating for any person to undergo such treatment in prison.

Worse still, Uthayakumar claimed, the 'disciplining' appeared to be endorsed by the  wardens, who did nothing to stop the gangster inmates.

"The prison wardens' job is made easy by this 'outsourcing'. In return, these gangsters, called JL, camouflaged for 'Jurulatih' (trainer), get to reign supreme in prison.

"(They) 'extort' from prisoners some of the groceries their poor loved ones buy for (them) once a month from the prison canteen, right under the eyes of prison wardens," Uthayakumar wrote.

For turning a blind eye, the Hindraf leader alleged, the prison wardens were rewarded with "perks", such as free massage from the prisoners.

‘Humiliating life'


In his three-page letter filled with lengthy and sometimes fragmented sentences, the 52-year-old inmate details more humiliations suffered by the other prisoners.

"I was horrified when prisoners were made to strip naked, bend down, open up, and show their anus for the warden to see if they have hidden drugs in there... and then sit up and down repeatedly, and cough at the same time to see if any drugs fall off their anus," he said.

But humiliation was not the only concern, as death too, appeared much closer within the four walls.

"I almost witnessed my first death in custody, of a Chinese elderly man, brought in unconscious with a mere piece of paper with his name and body number written on it and stuck to his mouth.

"Only after eight hours and only after my insistence was he taken to the Kajang General Hospital. I never saw him again after that. I was told he had passed away," Uthayakumar said in the letter.

Uthayakumar, who is diabetic, also recounted the troubles with his prolapsed disc condition and a suspected fracture at his index finger, after slipping and falling in the bathroom because of the clogged drains.

"When I complained to the ASP on duty that what would happen if I had hit my head and something had happened to me, his reply was that if something happened there would be "no more problems after that" (as I would have died)," he wrote.

Signing off, Uthayakumar said he welcomed a mooted visit by Penang Chief Minister Lim Guan Eng, who had been  himself a former inmate after being jailed for sedition.

In light of the humiliating and precarious life of the inmates, Uthayakumar also called on the Malaysian Human Rights Commission (Suhakam), Bar Council and the opposition's human rights caucus to visit the prison. - Malaysiakini, 13/9/2013,In letter from prison, Uthaya tells of 'Nazi-style' bullying 

Saturday, October 11, 2014

When will Malaysia be like Pakistan and declare a moratorieum on executions

Yes, Pakistan has a moratorium on executions since 2008, when will Malaysia follow suit? And the new government is continuing with it

“Pakistan has decided to continue with the moratorium on capital punishment since the government is aware of its international commitments and is following them,” said Omar Hamid Khan, an interior ministry spokesman.- Dawn.com, 3/10/2013, Pakistan to continue moratorium on capital punishment

Last-minute LHC ruling stays Shoaib’s execution




ISLAMABAD: Shoaib Sarwar survived a close call with death sentence after Lahore High Court, Rawalpindi bench, ruled to stay the sessions court decision of 1998.

Shoaib had murdered Qais Nawaz on January 21, 1996. Shoaib is among 8,500 other criminals on death row in Pakistan, by far the world’s largest number of such inmates in the world.

The previous PPP government decided to adopt a moratorium on death sentence despite opposition from various state institutions.

The government, according the LHC verdict issued today, did not respond adequately on the issue of Shoaib’s sentence. Thus, the court’s Rawalpindi Bench - Justice Mahmood Maqbool Bajwa and Justice Aalia Neelum – Tuesday granted a stay of execution on the death sentence.

In sync with the previous policy, the government had announced a moratorium in 2013 to respect Pakistan’s international commitments and requirements for the much-coveted EU GSP+ trade status. Sources in the interior ministry say that the PMLN government may have to lift the moratorium to execute Taliban extremists on death row. There’s, however, no official word from the government on the issue of death penalty.

The bench was told that Shoaib was party to a petition for the abolition of the death penalty before the Supreme Court of Pakistan, and that any execution order handed out by the High Court cannot be acted upon till the matter remains with the apex court. Shoaib Sarwar also has a mercy petition pending in the office of the President of Pakistan.- Daily Times, 17/9/2014, Last-minute LHC ruling stays Shoaib’s execution

Pakistan suspends execution of Shoaib Sarwar

Pakistan called off the scheduled hanging of Shoaib Sarwar convicted on murder charges in what would have been the first execution of a civilian in six years, officials said on Wednesday.

Shoaib, convicted in 1998, was ordered to be hanged at Adiyala Prison in Rawalpindi city on Thursday, drawing outrage from national and international rights groups.

Officials said the execution also endangered a lucrative trade deal with the European Union.

A court on Tuesday ordered the hanging postponed for a month, a prison official said on condition of anonymity.- The Hindu, 17/9/2014, Pakistan suspends execution of Shoaib Sarwar


Pakistan to continue moratorium on capital punishment

Updated Oct 03, 2013 05:05pm
An interior minister spokesman said the government had decided to continue with the moratorium. — File photo 
ISLAMABAD: Pakistan has scrapped plans to reinstate the death penalty, the government said on Thursday, following threats by Taliban militants to step up attacks in retaliation.

A 2008 moratorium on capital punishment imposed by Pakistan's previous government expired on June 30 and the country had been due to execute two jailed militants in August — a plan described by the Pakistani Taliban as an act of war.

“Pakistan has decided to continue with the moratorium on capital punishment since the government is aware of its international commitments and is following them,” said Omar Hamid Khan, an interior ministry spokesman.

The new government of Prime Minister Nawaz Sharif had originally said it wanted to reinstate the death penalty in a bid to crack down on criminals and militants in a move strongly criticised by international human rights groups.

In this respect, in August, the government had decided to hang four convicts on death row. The four prisoners, including two members of the banned sectarian outfit Lashkar-i-Jhangvi (LJ), were scheduled to be executed at the Sukkur jail and Karachi Central prison on August 20, 21 and 22.

However, a temporary stay was ordered on these executions following objections from then president Asif Ali Zardari and rights groups.

Up to 8,000 people presently languish on death row in dozens of Pakistan's overcrowded and violent jails.
Pakistan's moratorium drew praise because of concerns its courts and police were too inept to ensure the accused a fair trial. Pakistan did, however, break its own rules in 2012 when it executed a convicted murderer and a former army serviceman. - Dawn.com, 3/10/2013, Pakistan to continue moratorium on capital punishment


Friday, October 10, 2014

Expedite abolition of the death penalty (MADPET statement carried by Malaysiakini)

Expedite abolition of the death penalty

Malaysians Against Death Penalty and Torture (Madpet), on the occasion of the 12th World Day Against the Death Penalty today, reiterates the urging for Malaysia to abolish the death penalty and immediately impose a moratorium on executions pending abolition as per the United Nation General Assembly’s Resolutions that have been adopted in 2007, 2008, 2010 and 2012, whereby every year the support of the global community has been increasing.

The possibility of miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable is one reason why the death penalty needs to be abolished.

We recall the words of the then-minister in the Prime Minister’s Department Nazri Abdul Aziz - “No criminal justice system is perfect. You take a man’s life and years later, you find out that another person did the crime. What can you do?” (The Star, Aug 29, 2010, ‘Abolish death penalty, it’s incorrect to take someone’s life, says Nazri’) - which becomes even more significant today in the light of the recent cases which resulted in the death of an innocent man, and spending up to 45 years on death row.
  • "My son was killed for a crime he did not commit... our family has lived in shame and neighbours never spoke to us. Whatever apology or compensation the government promises, it is too late.” - Wang Tsai-lien, mother of Chiang Kuo-ching who was coerced into making a confession and subsequently executed in error in 1997 in Taiwan. In January 2011, Taiwan’s Ministry of Justice admitted that Chiang Kuo-ching, a private in the air force, had been executed in error in 1997 for a murder committed 15 years previously.
  • On March 27, 2014, 78-year-old Iwao Hakamada, who had spent more than 45 years on death row, was freed. A retrial was ordered. The presiding judge, Hiroaki Murayama, when releasing Hakamada, also had this to say, “There is a possibility that [key pieces of] evidence have been fabricated by investigative bodies.”
  •  In March 2014, Glenn Ford in the USA was freed from death row after 30 years. Evidence had surfaced that he was innocent. Ford becomes the 144th death row inmate to be exonerated over the past four decades, underlining the perils of innocent people being sent to their deaths in America’s capital punishment system.
The problems of miscarriage of justice is that many a time it is linked to the police and prosecutors, and just this month, in Vietnam for having upheld the sentence of a man sentenced to life in a prison for a murder he did not commit, a former judge has been arrested and is being investigated for gross negligence, whilst the police and prosecutors are being investigated on charges of “deliberate falsification of trial documents”.

Lawyers, too, can cause miscarriage of justice, more so when many a person facing the death penalty cannot afford their own lawyers and will have to rely on court-appointed lawyers. 

Now, in Malaysia noting the number of death in police custody cases, we have to be even more concerned. Persons tortured will admit to committing an offence even when innocent.

Police, prosecutors, defence lawyers, judges  and even witnesses can make mistakes, and innocent persons can end up being hanged. There are likely to be many cases of innocent persons languishing on death row, waiting to be hanged, but alas because of lack of resources or support, this fact of their innocence will never likely be brought out.

Failure to act as a deterrent

Another reason that has been advance by Malaysia for the retention of the death penalty has been deterrence - the fact that people will be put to death will scare possible perpetrators and reduce crime but alas this assertion has never been proven scientifically. Much research have shown that the contrary it true.

In March 2012, it was also revealed in Parliament by then-home minister Hishammuddin Hussein that the mandatory death penalty has been shown to have failed to act as a deterrent.
Police statistics for the arrests of drug dealers under Section 39B of the Dangerous Drugs Act 1952, which carries the mandatory death penalty, for the past three years (2009 to 2011) have shown an increase. In 2009, there were 2,955 arrested under this section. In 2010, 3,700 people were arrested, whilst in 2011, there were 3,845 arrested.(Free Malaysia Today, March 19, 2012, ‘Death penalty not deterring drug trade’).

Malaysian Crime Prevention Foundation vice-chairperson Lee Lam Thye also did note in July 2013 that the death sentence had not deterred the drug trade.

In Malaysia, the majority of the persons that are in death row are for drug offences, but alas, unlike the norm in most criminal cases where the burden of proving all elements that constitute the crime is on the prosecution to prove beyond a reasonable doubt, in the case of drug trafficking which carries the death penalty, the burden shifts to the accused person to prove that he is not a drug trafficker.

Possession of a certain quantity of drugs invokes the legal presumption that the person in possession is a drug trafficker; and reasonably it will be a near impossible task for any accused to prove that drugs were not his, or that he is not a drug trafficker. Most accused persons do not have the resources for investigation, or even the ability to identify and/or call witnesses.

The existence of such a legal presumption and the shifting of the burden to the accused to prove his innocence would, in our opinion, make such trials an unfair trial.

It is very serious when we consider that since 1960 until 2011, 228 persons(or 52 percent of those hanged) executed in Malaysia was for the offence of drug trafficking, and there was then 479 (or 69 percent) persons on death row for the same offence. (Home Minister’s reply, Free Malaysia Today, April 3, 2011).

There was a total 930 death row prisoners were in jails in the country as of Aug 31, 2012.(New Straits Times, Oct 10, 2012, ‘930 on death row as of Aug 31, says Abu Seman’). Today, there will be even more on death row

It was disturbing when Malaysia tried to hang Chandran s/o Paskaran, convicted for murder on Feb 7, 2014, and later Osariakhi Ernest Obayangbon (aka Philip Michael), convicted for murder, on March 14, 2014 but thankfully through the intervention of the royalty, the attorney-general and the government that was initially moved by civil society, their lives was saved.

These attempts to execute was most disturbing since Malaysia seem to have not hanged any person for several years, and was also currently seriously reviewing and considering the abolition of the death penalty. It should also be stated that Malaysia needs to be more open and transparent with statistics and information especially if there will be any pending executions.

Global trend is towards abolition

The global trend is towards abolition, and Malaysia shamefully sits together with about 58 retentionist countries. There are 140 countries that have abolished the death penalty in law or in practice, and this includes five out of the 10 Asean nations, being Brunei, Phillipines, Cambodia, Myanmmar and Laos.

Madpet has been urging the abolition of the death penalty since 2005. On May 7, 2006, a call-in poll conducted by a local radio station revealed that 64 percent of Malaysian were for abolition. On Nov 3, 2012, 79 groups including 29 Malaysian groups urged the abolition of the death penalty.

At the last Universal Periodic Review of Malaysia in October 2013, United Nations member countries urged Malaysia to abolish capital punishment and repeal oppressive laws. The European Union has been urging abolition, the last being on Oct 9, 2014.

On July 22, 2014, once again the Malaysian Human Rights Commission urged the abolition of the death penalty, seeking at the very least the removal of the mandatory death sentence and returning to the courts (judges) the discretionary powers in imposing much more appropriate sentences, including life sentences. The Malaysian Bar has been constantly urging the abolition of the death penalty.

Madpet reiterates its urging for the abolition of the death penalty in Malaysia, for an immediate moratorium on all executions pending abolition and for the commutation of the sentences of all persons currently on death row.

We also urge Malaysia to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

Stop executing criminals with mental problems



CHARLES HECTOR wrote this article for and on behalf of Malaysians Against Death Penalty and Torture (Madpet).
 

Stop executing criminals with mental problems

0:22AM Oct 10, 2014 By Liew Chin Tong

Stop executing criminals with mental problems




MP SPEAKS This year, the 12th World Day Against the Death Penalty, which is celebrated on Oct 10 every year, focuses on drawing attention to people with mental health problems who are at risk of execution under the death sentence of the state.

While the ultimate goal of the abolitionists is to end the death penalty, they are also committed to seeing international human rights standards implemented, pending that aim being achieved.

Among these is the requirement that persons with mental illness or intellectual disabilities should not face the death penalty.

The death penalty is a controversial subject in most societies.

The most important argument against the death penalty is that it is irreversible upon execution of a person, even if found innocent much later.

In Malaysia, a parliamentary roundtable was held in June 2011 which reached the view that there should be:
  1. A moratorium on execution, upon a thorough review of the death penalty; and
     
  2. An immediate end to mandatory death sentences by returning discretion to the judges.
There has not been much progress since the June 2011 meeting, apart from the attorney-general’s commitment to review the death penalty, following the framework of Malaysia's commitment in its Universal Periodic Review report presented to the United Nations Human Rights Council.

Failure to deter crimes

One aspect that requires attention relates to mandatory death sentences for drug offences.

I would like to refer to a parliamentary reply by the home minister in response to my question in March 2011.

The reply states that out of the total number of Death Row inmates executed between 1960 and 2011, 51 percent, or 228 out of 441 persons, were for drug convictions.


Of the inmates on Death Row, as of 2011 statistics, 67 percent (479 out of 696 persons) are there after conviction on drug offences.

It is alarming that when I next received another parliamentary reply in June 2013, there were already 964 inmates in the Death Row, compared with 696 in February 2011.

This is a whopping increase of 38 percent. From what I understand, most of the new death row inmates were convicted under drug offences.

Such an increase shows that the death penalty fails to deter the occurrence of crime in the first place.

Mercy for drug mules

Many of those convicted under drug offences are drug mules of very young age; this category of offenders should be distinguished from hardened drug traffickers.

Singapore recently amended its law to allow drug mules on death row who cooperate with the prosecution to be re-sentenced.

Thus far, two Malaysians – Yong Vui Kong and Cheong Chun Yin – have been given a second chance in life.

On the occasion of the World Day Against the Death Penalty, I urge the Malaysian government to commit to the following:
  • To impose a moratorium on executions, pending a thorough review of the death penalty;
     
  • To return discretion to the judges by removing the mandatory death penalty; and,
     
  • To improve the prison conditions for Death Row inmates.



LIEW CHIN TONG is the MP for Kluang and DAP national political education director.

Source: Malaysiakini, 10/10/2014,  Stop executing criminals with mental problems

Thursday, October 09, 2014

MALAYSIA SHOULD EXPEDITE THE ABOLITION OF THE DEATH PENALTY




MALAYSIA SHOULD EXPEDITE THE ABOLITION OF THE DEATH PENALTY


MADPET(Malaysians Against Death Penalty and Torture), on the occasion of the 12th World Day Against the Death Penalty (10/10/2014) reiterates the call for Malaysia to abolish the Death Penalty, and immediately impose a moratorium on executions pending abolition as per the United Nation General Assembly’s Resolutions that have been adopted in 2007, 2008, 2010, 2012, whereby every year the support of the global community has been increasing.


The possibility of miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable is one reason why the Death Penalty needs to be abolished. We recall the words of the then Malaysian Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz. “No criminal justice system is perfect. You take a man’s life and years later, you find out that another person did the crime. What can you do?(Star, 29/8/2010, Abolish death penalty, it’s incorrect to take someone’s life, says Nazri), which becomes even more significant today in the light of the recent cases which resulted in the death of an innocent man, and spending up to 45 years on death row 

* "My son was killed for a crime he did not commit…. our family has lived in shame and neighbours never spoke to us. Whatever apology or compensation the government promises, it is too late.”- Wang Tsai-lien, mother of Chiang Kuo-ching who was coerced into making a confession and subsequently executed in error in 1997 in Taiwan. In January 2011, Taiwan’s Ministry of Justice admitted that Chiang Kuo-ching, a private in the Air Force, had been executed in error in 1997 for a murder committed 15 years previously.


* On 27 March 2014, 78 year old Iwao Hakamada, who had spent more than 45 years on death row was freed. A retrial was ordered. The presiding judge, Hiroaki Murayama, when releasing Hakamada also had this to say, "There is a possibility that [key pieces of] evidence have been fabricated by investigative bodies,"


* In March 2014, Glenn Ford in USA was freed from death row after 30 years. Evidence had surfaced that he was innocent. Ford becomes the 144th death row inmate to be exonerated over the past four decades, underlining the perils of innocent people being sent to their deaths in America’s capital punishment system.

The problems of miscarriage of justice is that many a time it is linked to the police and prosecutors, and just this month, in Vietnam for having upheld the sentence of a man sentenced to life in a prison for a murder he did not commit, a former Judge has been arrested and is being investigated for gross negligence, whilst the police and prosecutors are being investigated on charges of “deliberate falsification of trial documents.” Lawyers too can cause miscarriage of justice, more so when many a person facing the death penalty cannot afford their own lawyers and will have to rely on court appointed lawyers.  

Now, in Malaysia noting the number of death in police custody cases, we have to be even more concerned. Persons tortured will admit to committing an offence even when innocent.


Police, prosecutors, defence lawyers, judges  and even witnesses can make mistakes, and innocent persons can end up being hanged. There are likely to be many cases of innocent persons languishing on death row, waiting to be hanged, but alas because of lack of resources or support, this fact of their innocence will never likely be brought out.


Another reason that has been advance by Malaysia for the retention of the death penalty has been deterrence – the fact that people will be put to death will scare possible perpetrators and reduce crime but alas this assertion has never been proven scientifically. Many research have shown that the contrary it true.


In March 2012, it was also revealed in Parliament by Home Minister Hishammuddin Hussein that the mandatory death penalty has been shown to have failed to act as a deterrent. Police statistics for the arrests of drug dealers under Section 39B of the Dangerous Drugs Act 1952, which carries the mandatory death penalty, for the past three years (2009 to 2011) have shown an increase. In 2009, there were 2,955 arrested under this section. In 2010, 3,700 people were arrested, whilst in 2011, there were 3,845 arrested.(Free Malaysia Today News, 19/3/2012, Death penalty not deterring drug trade). Malaysian Crime Prevention Foundation vice chairman Tan Sri Lee Lam Thye also did note in July 2013 that the death sentence had not deterred the drug trade.


In Malaysia, the majority of the persons that are in death row are for Drug Offences, but alas, unlike the norm in most criminal cases where the burden of proving all elements that constitute the crime is on the prosecution to prove beyond a reasonable doubt, in the case of drug trafficking which carries the death penalty, the burden shifts to the accused person to prove that he is not a drug trafficker. Possession of a certain quantity of drugs invokes the legal presumption that the person in possession is a drug trafficker; and reasonably it will be a near impossible task for any accused to prove that drugs were not his, or that he is not a drug trafficker. Most accused persons do not have the resources for investigation, or even the ability to identify and/or call witnesses. The existence of such a legal presumption and the shifting of the burden to the accused to prove his innocence would, in our opinion, make such trials an unfair trial.  


It is very serious when we consider that since 1960 until 2011, 228 persons(or 52% of those hanged) executed in Malaysia was for the offence of drug trafficking, and there was then 479(or 69%) persons on death row for the same offence. (Home Minister’s Reply, Free Malaysia Today, 3/4/2011) There was a total 930 death row prisoners were in jails in the country as of Aug 31 2012.(New Straits Times, 10/10/2012, 930 on death row as of Aug 31, says Abu Seman), Today, there will be even more on death row

It was disturbing when Malaysia tried to hang Chandran s/o Paskaran, convicted for murder on 7/2/2014, and later Osariakhi Ernest Obayangbon (aka Philip Michael), convicted for murder, on 14/3/2014 but thankfully through the intervention of the Royalty, Attorney General and the government that was initially moved by civil society, their lives was saved. This attempts to execute was most disturbing since Malaysia seem to have not hanged any person for several years, and was also currently seriously reviewing and considering the abolition of the Death Penalty. It should also be stated that Malaysia needs to be more open and transparent with statistics and information especially if there will be any pending executions.



The global trend is towards abolition, and Malaysia shamefully sits together with about 58 retentionist countries. There are 140 countries that have abolished the death penalty in law or in practice, and this includes 5 out of the 10 ASEAN nations, being Brunei, Phillipines, Cambodia, Myanmmar and Laos.


MADPET has been calling for the abolition of the death penalty since 2005. On 7/5/2006, a call- in-poll conducted by a local radio station revealed that 64% of Malaysian were for abolition. In 3/11/2012, 79 groups including 29 Malaysian groups called for the abolition of the Death Penalty. At the last Universal Periodic Review of Malaysia in October 2013, United Nations member countries urged Malaysia to abolish capital punishment and repeal oppressive laws. The European Union have been calling for abolition, the last being on 9/10/2014. On 22/7/2014, once again the Malaysian Human Rights Commission called for the abolition of the death penalty, urging at the very least the removal of the mandatory death sentence and returning to the courts (judges) the discretionary powers in imposing much more appropriate sentences, including life sentences. The Malaysian Bar has been constantly calling for the abolition of the death penalty. 


MADPET reiterates its call for the abolition of the death penalty in Malaysia, for an immediate moratorium on all executions pending abolition and for the commutation of the sentences of all persons currently on death row;



We also call on Malaysia to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).


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

10 October 2014