Wednesday, December 21, 2016
Malaysia, disappointingly, voted against the Death Penalty resolution - odd as Malaysia is in the process of finalizing its study on the abolition of the death penalty...Logically, Malaysia should have abstained rather than objected...
UNITED NATIONS GENERAL ASSEMBLY(UNGA) MORATORIUM ON THE USE OF THE DEATH PENALTY RESOLUTION..19/12/2016
[117 of the UN’s 193 member states voted in favour of the proposal. Only 40 states voted against it and 31 abstained at the vote]
Below the Draft Test of the Resolution(for the final text, visit UN Website)
The General Assembly,
Guided by the purposes and principles contained in the Charter of the United Nations,
Reaffirming the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child,
Recalling the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, and in this regard welcoming the increasing number of accessions to and ratifications of the Second Optional Protocol,
Reaffirming its resolutions 62/149 of 18 December 2007, 63/168 of 18 December 2008, 65/206 of 21 December 2010, 67/176 of 20 December 2012 and 69/186 of 18 December 2014 on the question of a moratorium on the use of the death penalty, in which the General Assembly called upon States that still maintain the death penalty to establish a moratorium on executions with a view to abolishing it,
Welcoming all relevant decisions and resolutions of the Human Rights Council,
Mindful that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable,
Convinced that a moratorium on the use of the death penalty contributes to respect for human dignity and to the enhancement and progressive development of human rights, and considering that there is no conclusive evidence of the deterrent value of the death penalty,
Noting ongoing local and national debates and regional initiatives on the death penalty, as well as the readiness of an increasing number of Member States to make available to the public information on the use of the death penalty, and also, in this regard, the decision by the Human Rights Council in its resolution 26/2 of 26 June 20145 to convene biennial high-level panel discussions in order to further exchange views on the question of the death penalty,
Recognizing the role of national human rights institutions in contributing to ongoing local and national debates and regional initiatives on the death penalty,
Welcoming the considerable movement towards the abolition of the death penalty globally and the fact that many States are applying a moratorium, including long-standing moratoriums, either in law or in practice, on the use of the death penalty,
Emphasizing the need to ensure that persons facing the death penalty are treated with humanity and with respect for their inherent dignity and in compliance with their rights under international human rights law,
Noting the technical cooperation among Member States, as well as the role of relevant United Nations entities and human rights mechanisms, in supporting State efforts to establish moratoriums on the death
Bearing in mind the work of special procedures mandate holders who have addressed human rights issues related to the death penalty within the framework of their respective mandates,
1. Reaffirms the sovereign right of all countries to develop their own legal systems, including determining appropriate legal penalties, in accordance with their international law obligations;
2. Expresses its deep concern about the continued application of the death penalty;
3. Welcomes the report of the Secretary-General on the implementation of resolution 69/186 and the recommendations contained therein;
4. Also welcomes the steps taken by some States to reduce the number of offences for which the death penalty may be imposed, as well as steps taken to limit its application;
5. Further welcomes initiatives and political leadership encouraging national discussions and debates on the possibility of moving away from capital punishment through domestic decision-making;
6. Welcomes the decisions made by an increasing number of States from all regions, at all levels of government, to apply a moratorium on executions, followed in many cases by the abolition of the death penalty;
7. Calls upon all States:
(a) To respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984, as well as to provide the Secretary-General with information in this regard;
(b) To comply with their obligations under article 36 of the 1963 Vienna Convention on Consular Relations, particularly the right to receive information on consular assistance;
(c) To make available relevant information, disaggregated by sex, age, and race, as applicable, and other applicable criteria, with regard to their use of the death penalty, inter alia, the number of persons sentenced to death, the number of persons on death row and the number of executions carried out, the number of death sentences reversed or commuted on appeal and information on any scheduled execution, which can contribute to possible informed and transparent national and international debates, including on the obligations of States pertaining to the use of the death penalty;
(d) To progressively restrict the use of the death penalty and not to impose capital punishment for offences committed by persons below 18 years of age, on pregnant women or on persons with mental or intellectual disabilities;
(e) To reduce the number of offences for which the death penalty may be imposed;
(f) To ensure that those facing the death penalty can exercise their right to apply for pardon or commutation of their death sentence by ensuring that clemency procedures are fair and transparent and that prompt information is provided at all stages of the process;
(g) To establish a moratorium on executions with a view to abolishing the death penalty;
8. Calls upon States which have abolished the death penalty not to reintroduce it, and encourages them to share their experience in this regard;
9. Encourages States which have a moratorium to maintain it and to share their experience in this regard;
10. Calls upon States that have not yet done so to consider acceding to or ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty;
11. Requests the Secretary-General to report to the General Assembly at its seventy-third session on the implementation of the present resolution;
12. Decides to continue consideration of the matter at its seventy-third session under the item entitled “Promotion and protection of human rights”.
Some observations of a friend as follows:-
The plenary session of the UN General Assembly adopted yesterday its sixth resolution on a moratorium on the use of the death penalty with 117 votes in favour, 40 against and 31 abstentions.
The text of the resolution includes some positive new additions compared to 2014, including:
-a reference to the role of national human rights institutions in contributing to ongoing local and national debates and regional initiatives on the death penalty;
-a request to make available relevant information on any scheduled execution, in addition to other information already listed in previous resolutions;
-a call on states that still retain the death penalty “To ensure that those facing the death penalty can exercise their right to apply for pardon or commutation of their death sentence by ensuring that clemency procedures are fair and transparent and that prompt information is provided at all stages of the process;”
Unfortunately the opponents of the resolution managed this year to include in the resolution a new paragraph that recalls their sovereign right to determine their legal systems, as follows:
“1. Reaffirms the sovereign right of all countries to develop their own legal systems, including determining appropriate legal penalties, in accordance with their international law obligations;”
While the number of the votes in favour remained the same as in 2014, there have been some interesting changes in the voting, both positively and negatively:
-Guinea, Malawi, Namibia, Solomon Islands, Sri Lanka moved from abstention to vote in favour;
-Zimbabwe moved from vote against to abstention;
- Swaziland also moved from not present to vote in favour (but voted against the resolution in previous years).
-Lesotho moved from not present to abstention (but abstained in previous resolutions, so did not mention this in our AI statement); Nauru moved from not present to vote in favour (but supported the resolutions in previous years, so we did not mention this in our statement).
-Equatorial Guinea, Niger, Philippines, Seychelles moved from vote in favour to abstention;
-Maldives moved from abstention to vote against;
-Burundi and South Sudan moved from vote in favour to vote against.
Several states also did not vote yesterday, for whatever reason, contributing to the final results:
-DRC, Gambia, Senegal went from abstention to not present;
-Rwanda went from vote in favour to not present.
This leaves us with a somewhat bittersweet result: on one hand, the number of votes in favour has not become higher compared to 2014; on the other hand, some of the positive changes might signal the beginning of new journeys towards abolition.
2016 has been a very challenging year all around, including for the death penalty-some of the negative vote changes were somewhat expected, some perhaps speak to greater human rights challenges.
Thank you nonetheless for your continued work to get us all here-look forward to more work together in the new year.
Amnesty International’s public statement on yesterday’s vote can be found below and at this link: https://www.amnesty.org/en/
MADPET and 36 groups :- Abolish POCA and All Detention Without Trial Laws and the Security Offences (Special Measures) Act 2012 - Siti Noor Aishah Atam's case highlighted
Media Statement – 20/12/2016
Immediately Release Siti Noor Aishah Atam from Restrictions Under Prevention Of Crime Act 1959 (POCA)
Abolish POCA and All Detention Without Trial Laws and the Security Offences (Special Measures) Act 2012
We, the 37 undersigned civil society organisations, trade unions and groups, are appalled to hear about the case of Siti Noor Aishah Atam, 29 year old Malaysian woman, who was arrested for the alleged possession of 12 books, detained, tried and acquitted by court, and thereafter re-arrested and detained under Prevention Of Crime Act 1959 (POCA). We are shocked that Siti Noor Aishah, despite being acquitted and released by Court, which also denied the prosecution’s application to continue to detain her under the Security Offences (Special Measures) Act 2012(SOSMA) pending appeal, was re-arrested and detained, and have now been imposed with Restriction Orders, which included being fitted with an electronic monitoring device (EMD).
The case, one of the very few cases of victims POCA which had gone to trial, for most victims of POCA and other detention without trial laws never get the opportunity to get a trial. There are now more than a thousand victims of POCA, POTA and other detention without trial laws, who have been or are now still detained without trial and/or subjected to Restriction Orders, without any opportunity to even challenge the alleged reasons for their Detention or Restrictions, a gross injustice is being done to them, as many of whom like Siti Noor Aishah Atam would more than likely be innocent. These victims have certainly never been proven guilty. As at Sept 30, 2015, 975 people have been detained under Poca(Malaysiakini, 29/11/2016)
Without the right to judicial review, including habeas corpus application, the risk and possibility that the innocent are all being now denied their liberty and rights is totally unacceptable. It is a denial of the fundamental human rights, including the right to ‘a fair and public hearing by an independent and impartial tribunal’ (Article 10, Universal Declaration of Human Rights). Article 11(1) of the UDHR also states that ‘Everyone charged with a penal oﬀence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.’
CASE OF SITI NOOR AISHAH BINTI ATAM
Siti Noor Aishah, who was arrested on 22/3/2016, have been a victim of SOSMA, and now continues to be a victim of POCA.
On March 22, 2016, Siti Noor Aishah , a University of Malaya Masters of Usuluddin (Islamic Studies) student, was arrested for allegedly having in her possession, books on Jemaah Islamiyah (JI), Islamic State (IS) and Al Qaeda (AQ) at her residence at Lot 1241, Jalan Lapangan Terbang Sura, Dungun, Terengganu at 12.25pm, an offence the Penal Code.
On April 19,2016, she was charged in the Magistrate Court in Kemaman, Trengganu under Section 130JB(1)(a) of the Penal Code which states that ‘whoever- (a) has possession, custody or control of; or (b) provides, displays, distributes or sells, any item associated with any terrorist group or the commission of a terrorist act shall be punished with imprisonment for a term not exceeding seven years, or with fine, and shall also be liable to forfeiture of any such item.’ The case was then transferred to the High Court in Kuala Lumpur.
On July 25,2016, she pleaded not guilty and claimed trial at the High Court.
On 29/9/2016, Judicial Commissioner Datuk Mohamad Shariff Abu Samah, at the close of prosecution’s case, the judge acquitted and released her, without requiring Siti Noor Aishah to enter her defence as the court found that the prosecution had failed to prove a prima facie case against the accussed [‘… pihak pendakwaan telah gagal untuk membuktikan suatu kes Prima facie terhadap OKT…’ (extract from the Court Judgment)]
The Judge, amongst others, in his judgment said, ‘…Apalah ertinya pemilikan buku-buku tersebut yang dikatakan mempunyai kaitan dan unsur-unsur pengganas menjadi suatu kesalahan keatas sesiapa yang memiliki buku-buku tersebut, walhal pihak Kementerian Dalam Negeri gagal menjalankan fungsi sebenarnya untuk mengharamkan dan seterusnya menghapuskan buku-buku…’ (What is the meaning when possession of the said books said to have links and elements of terrorism is an offence against those found in possession of such books, when the Ministry of Home Affairs fails to even ban and thereafter destroy such books.)
It was also reported that the Court, after acquitting Siti Noor Aishah, also rejected the application of Deputy Public Prosecutor to continue to detain Siti Nor Aishah in prison pursuant to section 30(1) Security Offences (Special Measures) Act 2012 (SOSMA) whilst waiting for the appeal to be filed by the prosecution against the decision to acquit. (Bernama – Sinar Harian, 29/9/2016)
It was recently reported in the media (Malaysiakini, 29/11/2016), that Siti Nor Aishah was thereafter arrested and detained under the Prevention of Crime Act 1959(POCA) until Saturday(26/11/2016), and has now been fitted with an electronic monitoring device (EMD), and asked to report every Friday at the police station in Bukit Aman for 8 weeks. She is also most likely subjected to a Restriction Orders(or Police Supervision Orders) under POTA – which could include inhibitions with regard to movement, restrictions as to the people she can communicate with, and even restrictions with regard access to the internet and social media.
Security Offences (Special Measures) Act 2012(SOSMA)
This law provides for the uses of ‘special measures’ in security offences cases. After arrest, for the purpose of investigation, the police can normally hold a suspect for 24 hours, and if more time is required, the police need apply to a Magistrate for further remand in a hearing where the suspect can also be represented by a lawyer. The Magistrate will consider the reasons advanced and the submissions, and thereafter, if justified, may allow further remand for a specific number of days. If further remand is needed after that, the police will have to apply again to the Magistrate, and the maximum number of days of remand permitted is 14 days.
However, when the police resort to SOSMA, there is no more the need to apply to the Magistrate for further remand beyond 24 hours, and as such there is no more judicial intervention, which acts as a necessary check and balance to prevent abuse of detention powers by the police. SOSMA only requires the authority of a police officer of the rank of Superintendent or above, to be able to detain a suspect for up to 28 days. In Siti’s case, this provision of SOSMA was most likely used, as she was only brought to court to be charged on 19/4/2016, which is certainly more usual 14 days. SOSMA was also used recently in case of Human Rights Defender Maria Chin.
In the trial, it was also disclosed by the prosecutor in the Judgment, that SOSMA was also used for the purposes of investigation, and it was also used during the trial. SOSMA allows the use of evidence, which in normal trials would not be admissible by reason of requirements in the Evidence Act and the Criminal Procedure Code.
PREVENTION OF CRIME ACT 1959(POCA)
POCA is a Detention Without Trial law, like the former Internal Security Act(ISA), which allows for Administrative Detention and/or Restrictions to be imposed on a person. The Act also denies victims of POCA the ability to challenge the reasons and/or justification for the said Detentions/Restrictions/Police Supervision Orders in a court of law. The ousting of the Courts ability to review the reasons of the government for arresting, detaining and/or imposing restrictions only encourages abuse, and injustice against the innocent.
The use of POCA to detain, and now impose restrictions on rights and freedoms of Siti Nor Aishah, especially after the High Court had heard her case, and acquitted her is wrong.
Additionally, given the fact that the court denied the application by prosecution to continue to detain her until the appeal against her acquittal, we are of the opinion that the subsequent use of POCA to arrest and detain her may amount to contempt of court, and certainly a gross disrespect of the court.
The POCA amendments in 2014 and 2015 extended its usage was extended from just persons involved in triad gangs, to now also include persons allegedly involved in drug trafficking, trafficking of human persons, smuggling of migrants and even terrorism offences. It also covers crimes committed by 3 or more persons.
It must also be highlighted, that POCA clearly states that the detention under POCA ‘...shall be without prejudice to the taking of any criminal proceeding against that person, whether during or after the period of his detention...’ That means that a person detained on the basis of some allegation, can at a later date also find himself again being charged in court for a crime based on the same allegations.
POCA, the Prevention Of Terrorism Act 2015(POTA) and other laws that allows for detention/restrictions without trial clearly violates human rights, and it must be abolished.
CALL for the immediate and unconditional release of Siti Noor Aishah Atam from any Detention or Restriction(Police Supervision) orders under Prevention Of Crime Act 1959(POCA) or any such Detention Without Trial laws;
CALL for the immediate and unconditional release of all persons currently being detained/restricted under Prevention Of Crime Act 1959(POCA) or any such Detention Without Trial laws;
CALL for the repeal of Prevention Of Crime Act 1959(POCA), Prevention Of Terrorism Act 2015(POTA) any such Detention Without Trial laws;
CALL for the repeal of Security Offences (Special Measures) Act 2012(SOSMA)
For and on behalf of the 37 undersigned civil society organisations, trade unions and groups
Association of Domestic Home and Maquila Workers. ATRAHDOM- Guatemala
Association of Human Rights Defenders and Promoters- HRDP, Myanmar
Banglar Manabadhikar Suraksha Mancha(MASUM), India
Center for Prisoners' Rights, Japan
Center for Alliance of Labor and Human Rights (CENTRA), Cambodia
Christian Development Alternative (CDA), Bangladesh
Clean Clothes Campaign(CCC)
Community Development Centre (CDC)
Electronic Industry Employees Union (EIEU) Southern Region, Peninsular Malaysia
IDEAL (Institute for Development of Alternative Living)
Japan Innocence and Death Penalty Information Center
JERIT (Jaringan Rakyat Tertindas)
JKOASM (Jaringan Kampung Orang Asli Semenanjung)
Kesatuan Kebangsaan Anak Kapal Kabin Malaysia(NUFAM)/National Union of Flight Attendants Malaysia
MADPET(Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW), Malaysia
North South Initiative
OHMSI (Oriental Hearts and Mind Study Institute), Malaysia
Pemuda Persatuan Hokkien Selangor & KL
Persatuan Komuniti Prihatin Selangor & KL (PRIHATIN)
Persatuan Sahabat Wanita Selangor
Philipping Alliance of Human Rights Advocates or PAHRA
Programme Against Custodial Torture & Impunity, India
PROHAM - Society for the Promotion of Human Rights, Malaysia
Saya Anak Bangsa Malaysia(SABM)
SUARAM(Suara Rakyat Malaysia)
WH4C (Workers Hub For Change)
Women's Centre for Change, Penang (WCC)
Yayasan LINTAS NUSA Batam _ Indonesia