Friday, July 21, 2017

Amnesty condemns Putrajaya's trend of deporting human rights activists(Malaysiakini)

Amnesty condemns Putrajaya's trend of deporting human rights activists

(Updated
 
Amnesty International has condemned what it described as a growing trend by Putrajaya to deport human rights activists.

This was after Bangladeshi human rights group Odhikar's secretary Adilur Rahman Khan was detained by immigration at Kuala Lumpur International Airport at 4am and is set to be deported.

"Adilur's detention is the latest in a series of cases where peaceful activists have been barred from entering the country, including Hong Kong political activist Joshua Wong, Indonesian human rights defender Mugiyanto Sipin and Singaporean political activist Han Hui Hui," said James Gomez,

Amnesty International’s Director for Southeast Asia and the Pacific.Adilur was to attend the National Conference on Death Penalty tomorrow.

Gomez called for Adilur's immediate release and that he be allowed to remain in Malaysia.

“The Malaysian authorities must immediately and unconditionally release Adilur Rahman Khan and allow him to participate in and speak at the conference.

“There is no justification for detaining him whatsoever. It is an outrage that a human rights activist cannot even travel freely to speak on a key human rights issue," he said.

Meanwhile, Suaram project coordinator Dobby Chew said the Malaysian Human Rights Commission (Suhakam) visited Adilur this evening.

"Suhakam visited Adilur and verifies that he is well and was not mistreated.

"But Adilur is to be deported. The reason for denying entry was not given," he said in a statement.

Chew said Adilur's mobile phone and passport were taken away from him while he was under detention.

"They have been returned and Adilur has been in contact with friends and family," he said. Earlier today, Suaram, accompanied by lawyers, had also gone to KLIA to find out about his detention.

'Granted visa but denied entry'

Malaysians Against Death Penalty and Torture (Madpet), which is participating at the National Conference on Death Penalty, said it was appalled by the "unjustified detention".

"Being a Bangladesh citizen, he did not enjoy a visa on arrival when he arrived in Malaysia. 
 
"As such, he needed to apply for a visa from the Malaysian High Commission in Bangladesh, before he could leave Bangladesh and come to Malaysia. Such visas are never simply issued as a right, but only after a thorough vetting of the applicant and his reasons for coming to Malaysia.
As such, the arrest and detention of Adilur Rahman Khan are most unjust and unreasonable. If the Malaysian government did not want Adilur Rahman Khan to enter Malaysia, they should never have issued him the required entry visa in Bangladesh," said Madpet representative Charles Hector.

Hector urged the government to immediately release Adilur and compensate him for the "deprivation" of his rights.

He added if Putrajaya is adamant on deporting him, it should apologise to Adilur for granting him a visa in the first place. - Malaysiakini, 20/7/2017

Thursday, July 20, 2017

IMMEDIATELY ALLOW HRD ADILUR RAHMAN KHAN TO ENTER MALAYSIA



Media Statement – 20/7/2017

IMMEDIATELY ALLOW HRD ADILUR RAHMAN KHAN TO ENTER MALAYSIA

WRONG TO DENY ENTRY TO A HUMAN RIGHTS DEFENDER AFTER HE HAS BEEN ISSUED A ENTRY VISA BY MALAYSIA

MADPET (Malaysians Against Death Penalty and Torture) is appalled by the unjustifiable detention of human rights defender Adilur Rahman Khan by the Immigration authorities at the Kuala Lumpur International Airport at about 4.00am today(20/7/2017).

Being a Bangladesh citizen, he did not enjoy a visa on arrival when he arrived in Malaysia. As such, he needed to apply for a visa from the Malaysian High Commission in Bangladesh, before he could leave Bangladesh and come to Malaysia. . Such visa’s are never simply issued as of right, but only after a thorough vetting of the applicant and his reasons for coming to Malaysia.

As such, the arrest and detention of Adilur Rahman Khan is most unjust and unreasonable. If the Malaysian government did not want Adilur Rahman Khan to enter Malaysia, they should never have issued him the required entry visa in Bangladesh.

In the past, Malaysia have also sadly prevented HR Defenders, like Singaporean human rights defender Han Hui Hui and Indonesian Mugiyanto Sipin from entering Malaysia but they were from countries whose citizens had to get their visa on arrival when they reached Malaysia, whereas Adilur Rahman Khan had to first apply and obtain his visa first from the Malaysian embassy before travelling to this country. As such, this makes his current arrest, detention and possible deportation back to Bangladesh most unjust.

“We detained him over immigration issues. We are checking his documents. Adilur will not be allowed to enter Malaysia. He will be deported,” Malaysian immigration officer Shely was quoted by Bangla Tribune as saying.(Dhaka Tribune, 20/7/2017). This is absurd, as any immigration issues should have been considered before the Malaysian High Commission issued him his visa.

Adilur Rahman Khan, the Secretary of the Bangladeshi Human Rights Organisation, Odhikar, who is a member of the Anti-Death Penalty Asia Network(ADPAN), was coming to Malaysia to attend the General Assembly of ADPAN on 20/7/2017, and thereafter the “Abolition of the Death Penalty in Malaysia and in Asia” Malaysia National Conference and Training Workshop 0n 21-22 July 2017. Tan Sri Razali Ismail (Chairperson of the Malaysian Human Rights Commission (SUHAKAM) will be delivering the keynote address at this National Conference. The Minister Dato' Sri Azalina binti Othman Said has also been invited to deliver a keynote address.

Adilur Rahman Khan is also currently a member of OMCT General Assembly and a FIDH Vice-President. He was also awarded the 2014 Gwangju Prize for Human Rights.

As such, MADPET
-      
  Calls of the Malaysian government to immediately release Adilur Rahman Khan and allow him to enter Malaysia;
-        Calls on Malaysia to adequately compensate for all the suffering and deprivation of rights suffered by Adilur Rahman Khan, by reason of the detention of him at the KLIA International Airport
-        Calls on Malaysia, in the event that Adilur Rahman Khan is prevented entry and is subsequently deported, to apologize to him for all the suffering and rights violated brought about by most likely the failings of the High Commission of Malaysia in Bangladesh, and to pay him a just compensation
-        Calls on Malaysia to stop denial of entry into Malaysia of Human Rights Defenders, and to abide by the UN Declaration on Human Rights Defenders (Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms)

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


Tuesday, July 18, 2017

Malaysian Prabagaran executed 14/7/2017 - and Malaysia did nothing???

 See related posts:-

MADPET calls on Singapore to stop its plans to execute Malaysian citizen in respect of Malaysian court(The Online Citizen)

EU, Malaysian Bar and FIDH calls on Singapore not to execute Prabagaran

Prabagaran executed on 14 July 2017...This must not stop our quest for JUSTICE?

MIC, BN, UMNO, PAS, PH - kenapa tak buat apa-apa menyelamatkan nyawa Warga Malaysia keturunan India?

 

‘Prabagaran maintained his innocence until the end’

 | July 15, 2017 
 
The 29-year-old Malaysian, who was hanged to death at the Changi Prison yesterday, accepted his fate but always maintained his innocence, says We Believe in Second Chances co-founder Kirsten Han. 

Kirsten-Han-S.-Prabagaran 

PETALING JAYA: S. Prabagaran, who was executed in Singapore on Friday for drug trafficking, accepted his fate but maintained his innocence until the end.

The 29-year-old Malaysian, who is from Johor Baru, was hanged to death at the Changi Prison yesterday and was cremated at the Mandai crematorium in Singapore.

We Believe in Second Chances co-founder Kirsten Han said those who were with him said he was jovial and joking with the prison guards even during the approaching hours of the execution.

“Prabagaran always told his cousin that he was innocent but that he accepted his fate,” The Star quoted Han as saying.

Prabagaran was convicted in 2012 after 22.24g of diamorphine, a pure form of heroin, was found in his car at the Singaporean immigration checkpoint as he tried to enter the country.

He maintained his innocence, claiming that he did not own the car he drove and was not aware of the drugs being in it. 
 

Earlier this year, he turned to the Malaysian courts to compel the government to start legal proceedings against Singapore before an international tribunal for denying him a fair trial.

On March 24, Prabagaran failed to obtain leave at the Kuala Lumpur High Court to compel the Malaysian government to start proceedings against Singapore.

On Thursday, lawyer N Surendran said Singapore’s Court of Appeal had dismissed Prabagaran’s application to stay his execution pending his case in the Malaysian courts.


He told FMT the appeals court had ruled that Singapore is a sovereign nation and that it would not wait for the outcome of proceedings in Malaysia.

Amnesty International criticised the execution, saying it was a shocking violation of the human right to life.

“That an appeal was pending in this case in his home country at the time of execution, and that there were serious concerns about the fairness of his trial, underlines a flagrant disregard for due process in profoundly dubious circumstances,” said its director for Southeast Asia and the Pacific, James Gomez. - FMT News, 15/7/2017

See other news stories

UN urges Singapore to halt Malaysian's execution
International-Yahoo Singapore News-Jul 11, 2017

FIDH calls for Singapore to halt its execution of Prabagaran Srivijayan

The Online Citizen-Jul 12, 2017
Paris, 12 July 2017 - Singaporean authorities must halt the execution of Prabagaran Srivijayan, FIDH said today. Prabagaran, a 29-year-old ...

4 known executions in 2017? Stop executions and abolish the death penalty — Malaysian Bar

Thursday May 25, 2017
04:59 PM GMT+8
MAY 25 — The Malaysian Bar is deeply troubled that two persons — Yong Kar Mun, aged 48, and an individual whose identity has not been reported — were executed by hanging at Sungai Buloh Prison yesterday morning. The prison authorities there had written to the family of Yong Kar Mun on May 19, 2017 to inform them that he would be hanged to death soon, and that they could pay him a final visit on May 23, 2017.

Yong Kar Mun had been convicted under Section 3 of the Firearms (Increased Penalties) Act 1971 for discharging a firearm when committing a robbery, and the mandatory death penalty was meted out.

The Malaysian Bar is appalled that the two executions yesterday bring the total of reported executions this year to four: Rames Batumalai, aged 44, and his brother Suthar Batumalai, aged 39, were reportedly executed at Kajang Prison on March 15, 2017.

Every individual has an inherent right to life — as enshrined in Article 5(1) of the Federal Constitution — which is absolute, universal and inalienable, irrespective of any crimes that have been committed.

We do not condone or excuse any crimes that have been committed. There is no denying that guilty persons ought to receive punishment, and justice must be served. However, to be just and effective, punishment must always be proportionate to the gravity of offences committed, and the State must never resort to taking a human life. Furthermore, studies have shown that there is no conclusive evidence of the deterrent value of the death penalty.

The death penalty is an extreme, abhorrent and inhumane punishment, and must not be taken lightly, as it is irreversible.

The Malaysian Bar calls upon the Government to act swiftly to abolish the death penalty for all crimes, stop executions, and commute each death sentence to one of life imprisonment.- Malay Mail, 25/5/2017

* This statement is submitted by George Varughese, president of the Malaysian Bar.

Thursday, July 13, 2017

EU, Malaysian Bar and FIDH calls on Singapore not to execute Prabagaran

EU Local Statement on Mr Prabagaran Srivijayan death penalty case in Singapore

The European Union Delegation to Singapore issues the following statement in agreement with the EU Heads of Mission, and the Head of Mission of Norway:

The European Union (EU) calls on the Singapore authorities to halt the execution of Mr. Prabagaran Srivijayan, to commute his sentence to a non-capital sentence and to adopt a moratorium on all executions.

The EU holds a principled position against the death penalty and is opposed to the use of capital punishment under any circumstances. 

No compelling evidence exists to show that the death penalty serves as a deterrent to crime. 

Furthermore, any errors - inevitable in any legal system - are irreversible. 

The EU will continue in its pursuit on the abolition of the death penalty worldwide. - Delegation of the European Union to Singapore Website

 
Uphold the Right to Life and Stay the Execution of Prabagaran Srivijayan
 
The Malaysian Bar is extremely troubled over the reports of the imminent execution of Prabagaran Srivijayan in Singapore.  The 29-year old Malaysian citizen was convicted of drug trafficking, and sentenced to the mandatory death penalty on 22 July 2012. His family was recently informed by the authorities that he is scheduled to be hanged to death at Changi Prison Complex on 14 July 2017.
 
The Malaysian Bar appeals to the Government of Singapore for clemency, to stay the execution of Prabagaran Srivijayan and commute his death sentence to one of life imprisonment. 
 
The Malaysian Bar’s position is that every individual has an inherent right to life.  The right to life is absolute, universal and inalienable, and must be held inviolate, regardless of the crime that may have been committed. We recall the immortal words of the late Justice Ishmael Mohamed, the former Chief Justice of the Constitutional Court of South Africa:
 
Death is different.  The dignity of all of us, in a caring civilisation, must not be compromised by the act of repeating, albeit for a wholly different objective, what we find to be so repugnant in the conduct of the offender in the first place.
 
 
George Varughese
President
Malaysian Bar 
 
12 July 2017
 
FIDH - International Federation for Human Rights Press release 
 

Singapore: Halt the execution of Prabagaran Srivijayan 

 
Paris, 12 July 2017: Singaporean authorities must halt the execution of Prabagaran Srivijayan, FIDH said today. Prabagaran, a 29-year-old Malaysian national, is scheduled to be executed by hanging on 14 July 2017. 
 
“Singapore must immediately halt the execution of Prabagaran Srivijayan and put an end to all executions in the country. It is disturbing that Singapore continues to impose mandatory death sentences for drug-related crimes, which do not meet the threshold of the ‘most serious crimes’ under international law,” said FIDH President Dimitris Christopoulos. 
 
On 22 September 2014, Singapore’s High Court imposed a mandatory death sentence on Prabagaran for possession of drugs for the purpose of trafficking, after he was found in possession of 22.24 grams of heroin on 12 April 2012.
 
On 2 October 2015, the Court of Appeal dismissed Prabagaran’s appeal against his conviction and sentence. Singaporean authorities have never allowed Prabagaran’s attorneys, N Surendran and Latheefa Koya, who were hired by Prabagaran’s mother in January 2017, to visit him in Changi Prison.
 
Authorities did not provide any reason for this denial. The denial of Prabagaran to meet with his legal representatives falls short of international fair trial standards.
 
According to General Comment No. 32 concerning Article 14(3) of the International Covenant on Civil and Political Rights (ICCPR), “in cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings.” 
 
Prabagaran has spent more than five years in prison, including almost three years awaiting execution. 
 
International law reserves the death penalty for the “most serious crimes,” a threshold that international jurisprudence has repeatedly stated drug-related offenses do not meet. 
 
If Prabagaran is hanged, it will be the fourth documented execution in Singapore since the beginning of the year. On 17 March 2017, Singaporean authorities executed an unknown individual. On 21 April 2017 and 19 May 2017, Singaporean authorities executed Jeffrey Marquez Abineno, 52, and Muhammad Ridzuan, 31, respectively, for drug trafficking.
 
While the government publishes annual statistics on the total number of executions, it consistently fails to make public announcements concerning upcoming hangings and does not reveal the number of prisoners on death row. 
 
FIDH, a member of the World Coalition Against the Death Penalty (WCADP), reiterates its strong opposition to the death penalty for all crimes and in all circumstances.
 
FIDH calls on the Singaporean government to reinstate the moratorium on executions that was lifted in July 2014, and to make progress towards the abolition of capital punishment for all crimes.
 
 

Tuesday, July 11, 2017

MADPET calls on Singapore to stop its plans to execute Malaysian citizen in respect of Malaysian court(The Online Citizen)

See related post

SINGAPORE, DO NOT EXECUTE MALAYSIAN PRABAGARAN ON 14 JULY 2017

MADPET calls on Singapore to stop its plans to execute Malaysian citizen in respect of Malaysian court


by Charles Hector, for and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

MADPET(Malaysians Against Death Penalty and Torture) calls on Singapore to stop its plans to execute Malaysian citizen Prabagaran Srivijayan on Friday, 14 July 2017. Prabagaran was convicted and sentenced to death for the offence of drug trafficking by Singapore.  There are concerns that he was not accorded a fair trial.

There is an application now pending at the Malaysian Court of Appeal to refer Singapore to the International Court of Justice (ICJ) for breach of the right to a fair trial. Last March, the Malaysian High Court denied the application for leave for a judicial review to compel Malaysia to intervene by referring Singapore to the ICJ. 

That means that this judicial review is not even been heard on the merits. Justice demands that Prabagaran not be executed until this court application be heard.

Singapore will not lose anything by simply postponing the execution, better still commuting the death penalty to imprisonment.

As such, for Singapore to execute this Malaysian at this stage, it may be said to be an act of disrespecting not only the Malaysian courts and Malaysia, but also be an affront to justice to execute before the convicted is able fully exercise all available legal options. To now continue with a speedy execution, will also raise the presumption that Singapore may be fearful that the International Court of Justice may indeed confirm that Prabakaran was denied a fair trial.

Whilst Singapore may have amended its laws, making it a possibility that persons convicted for drug trafficking not to be sentenced to death, there are serious flaws in this new current law.

To escape the death penalty, the accussed needs to satisfy 2 conditions - (1) Must get a Certificate Of Substantive Assistance from the Attorney General's Chambers, and (2) prove on a balance of probabilities, that his involvement in the offence under section 5(1) or 7 was restricted — to transporting, sending or delivering a controlled drug; to offering to transport, send or deliver a controlled drug; to doing or offering to do any act preparatory to or for the purpose of his transporting, sending or delivering a controlled drug; or to any combination of activities above;

Thus, without the Attorney General Chamber’s certificate, the judges in Singapore cannot exercise their discretion when it comes to sentencing, and will have no choice but to sentence the  convicted to death.

It should be only court who determines whether ‘substantive assistance’ was given or not, certainly not the Attorney General’s Chambers. Some persons may not have any other information, and it is unjust conclude since they had not provided ‘substantive assistance’, they will die. Judges will certainly be more independent in determining whether the required or possible ‘substantive assistance’ was given or not – certainly not the Attorney General’s Chambers, who is also the prosecuting authority.

Hopefully, Malaysia will not make a similar mistake when it abolishes the death penalty, and would always ensure that only judges will be vested with the discretion when it comes to sentencing.

To compound matters, the denial of access of lawyers in the Malaysian court actions to Prabagaran is unacceptable and against human rights.(Malay Mail, 7/7/2017)

MADPET calls on Singapore to immediately postpone the planned execution of Prabakaran until he has fully exhausted all his legal options in Malaysia and Singapore, and maybe even the International Court of Justice(ICJ);

MADPET also call for Prabakaran’s death penalty to be commuted;

MADPET calls on Singapore to amend its laws, returning discretion to judges when it comes to sentencing. The provision in law about the requirement of ‘Certificate of Substantive Assistance’ by the Attorney General’s Chambers, before the convicted becomes entitled to a sentence other than death penalty must be repealed.

MADPET also urges the Prime Minister Najib Tun Razak and the Malaysian government to speedily act to save the life of this Malaysian. Malaysia should also withdraw its objections, and allow the judicial review to be heard on its merits by the court.

MADPET also calls on both Singapore and Malaysia to abolish the death penalty, and immediately impose a moratorium on all executions.- The Online Citizen, 11/7/2017

Monday, July 10, 2017

The execution of a M’sian by S’pore must be stopped(Malaysiakini)

The execution of a M’sian by S’pore must be stopped

Charles Hector     Published     Updated
Malaysians Against Death Penalty and Torture (Madpet) calls on Singapore to stop its plans to execute Malaysian citizen S Prabagaran on Friday, July 14, 2017.

Prabagaran was convicted and sentenced to death for the offence of drug trafficking by Singapore.  There are concerns that he was not accorded a fair trial.

There is an application now pending at the Malaysian Court of Appeal to refer Singapore to the International Court of Justice (ICJ) for breach of the right to a fair trial.

Last March, the Malaysian High Court denied the application for leave for a judicial review to compel Malaysia to intervene by referring Singapore to the ICJ.

That means that this judicial review is not even been heard on the merits. Justice demands that Prabagaran not be executed until this court application is heard.

Singapore will not lose anything by simply postponing the execution, or better still, commuting the death penalty to imprisonment.

As such, for Singapore to execute this Malaysian at this stage may be an act of disrespecting not only the Malaysian courts and Malaysia, but also an affront to justice to execute before the convicted is able to fully exercise all available legal options.

To now continue with a speedy execution will also raise the presumption that Singapore may be fearful that the ICJ may indeed confirm that Prabagaran was denied a fair trial.

Whilst Singapore may have amended its laws, making it possible for persons convicted for drug trafficking not to be sentenced to death, there are serious flaws in this new current law.

To escape the death penalty in Singapore, the accused needs to satisfy two conditions. 

First, he or she must get a Certificate Of Substantive Assistance from the Singaporean Attorney-General's Chambers (AGC), which certifies that the accused has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore.

Secondly, it must be proven on a balance of probabilities that his or her involvement in the offence under section 5(1) or 7 of the Misuse of Drugs Act was restricted to transporting, sending or delivering a controlled drug; to offering to transport, send or deliver a controlled drug; to doing or offering to do any act preparatory to or for the purpose of his transporting, sending or delivering a controlled drug; or to any combination of activities above.

Thus, without the AGC’s certificate, the judges in Singapore cannot exercise their discretion when it comes to sentencing, and will have no choice but to sentence the convicted person to death.

It should only be the courts who determine whether “substantive assistance” was given or not, and certainly not the AGC.

Some persons may not possess any other information, and it is unjust to conclude that since they had not provided “substantive assistance”, they will die.

Judges will certainly be more independent in determining whether the required or possible “substantive assistance” was given or not – certainly not the AGC, who is also the prosecuting authority.

Hopefully, Malaysia will not make a similar mistake when it abolishes the death penalty, and would always ensure that only judges will be vested with the discretion to sentence a guilty party.

To compound matters, denying Prabagaran access to lawyers in the Malaysian court actions is unacceptable and against human rights.

As such, here are a number of immediate actions that Madpet believes should be taken:

  • Madpet calls on Singapore to immediately postpone the planned execution of Prabagaran until he has fully exhausted all his legal options in Malaysia and Singapore, and maybe even the ICJ;
     
  • Madpet also calls for Prabagaran’s death penalty to be commuted;
     
  • Madpet calls on Singapore to amend its laws, returning discretion to judges when it comes to sentencing. The provision in law about the requirement of a Certificate of Substantive Assistance by the AGC, before the convicted becomes entitled to a sentence other than the death penalty, must be repealed;
     
  • Madpet also urges Prime Minister Najib Abdul Razak and the Malaysian government to speedily act to save the life of this Malaysian. Malaysia should also withdraw its objections, and allow the judicial review to be heard on its merits by the court;
     
  • Madpet also calls on both Singapore and Malaysia to abolish the death penalty, and immediately impose a moratorium on all executions. - Malaysiakini, 11/7/2017
 See related post, containing the original Media Statement:-

SINGAPORE, DO NOT EXECUTE MALAYSIAN S. PRABAGARAN ON 14 JULY 2017 - Respect Malaysian Courts and Malaysia (MADPET)


Letter from Changi Prison informing about the date of execution(could not confirm the authenticity)

SINGAPORE, DO NOT EXECUTE MALAYSIAN S. PRABAGARAN ON 14 JULY 2017 - Respect Malaysian Courts and Malaysia (MADPET)


Media Statement – 11/7/2017

SINGAPORE, DO NOT EXECUTE MALAYSIAN S. PRABAGARAN ON 14 JULY 2017
-          Respect Malaysian Courts and Malaysia -

MADPET(Malaysians Against Death Penalty and Torture) calls on Singapore to stop its plans to execute Malaysian citizen Prabagaran Srivijayan on Friday, 14 July 2017. Prabagaran was convicted and sentence to death for the offence of drug trafficking by Singapore.  There are concerns that he was not accorded a fair trial.

There is an application now pending at the Malaysian Court of Appeal to refer Singapore to the International Court of Justice (ICJ) for breach of the right to a fair trial. Last March, the Malaysian High Court denied the application for leave for a judicial review to compel Malaysia to intervene by referring Singapore to the ICJ. That means that this judicial review is not even been heard on the merits. Justice demands that Prabagaran not be executed until this court application be heard. 

Singapore will not lose anything by simply postponing the execution, better still commuting the death penalty to imprisonment. 

As such, for Singapore to execute this Malaysian at this stage, it may be said to be an act of disrespecting not only the Malaysian courts and Malaysia, but also be an affront to justice to execute before the convicted is able fully exercise all available legal options. To now continue with a speedy execution, will also raise the presumption that Singapore may be fearful that the International Court of Justice may indeed confirm that Prabakaran was denied a fair trial.

Whilst Singapore may have amended its laws, making it a possibility that persons convicted for drug trafficking not to be sentenced to death, there are serious flaws in this new current law. 

To escape the death penalty, the accussed needs to satisfy 2 conditions - (1) Must get a Certificate Of Substantive Assistance from the Attorney General's Chambers, and (2) prove on a balance of probabilities, that his involvement in the offence under section 5(1) or 7 was restricted — to transporting, sending or delivering a controlled drug; to offering to transport, send or deliver a controlled drug; to doing or offering to do any act preparatory to or for the purpose of his transporting, sending or delivering a controlled drug; or to any combination of activities above; 

Thus, without the Attorney General Chamber’s certificate, the judges in Singapore cannot exercise their discretion when it comes to sentencing, and will have no choice but to sentence the  convicted to death. 

It should be only court who determines whether ‘substantive assistance’ was given or not, certainly not the Attorney General’s Chambers. Some persons may not have any other information, and it is unjust conclude since they had not provided ‘substantive assistance’, they will die. Judges will certainly be more independent in determining whether the required or possible ‘substantive assistance’ was given or not – certainly not the Attorney General’s Chambers, who is also the prosecuting authority.

Hopefully, Malaysia will not make a similar mistake when it abolishes the death penalty, and would always ensure that only judges will be vested with the discretion when it comes to sentencing. 

To compound matters, the denial of access of lawyers in the Malaysian court actions to Prabagaran is unacceptable and against human rights.(Malay Mail, 7/7/2017)

MADPET calls on Singapore to immediately postpone the planned execution of Prabakaran until he has fully exhausted all his legal options in Malaysia and Singapore, and maybe even the International Court of Justice(ICJ);

MADPET also call for Prabakaran’s death penalty to be commuted;

MADPET calls on Singapore to amend its laws, returning discretion to judges when it comes to sentencing. The provision in law about the requirement of ‘Certificate of Substantive Assistance’ by the Attorney General’s Chambers, before the convicted becomes entitled to a sentence other than death penalty must be repealed.

MADPET also urges the Prime Minister Najib Tun Razak and the Malaysian government to speedily act to save the life of this Malaysian. Malaysia should also withdraw its objections, and allow the judicial review to be heard on its merits by the court.

MADPET also calls on both Singapore and Malaysia to abolish the death penalty, and immediately impose a moratorium on all executions.

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


Lawyers complain Malaysian set for Singapore hanging despite lawsuit

Friday July 7, 2017
03:24 PM GMT+8

KUALA LUMPUR, July 7 — Malaysian citizen S. Prabagaran’s execution in Singapore has been scheduled next Friday despite his court application here to refer Singapore to the International Court of Justice (ICJ), his lawyers said today.

N. Surendran and Latheefa Koya called for a halt to the 29-year-old man’s scheduled execution, saying that his trial and conviction for drug trafficking were tainted by a breach of his right to a fair trial.

“Why is Singapore rushing the execution before the court proceedings in Malaysia are concluded?

“To carry out the execution despite the pending proceedings in Malaysia would be in breach of international law and would disregard Prabagaran's constitutional rights,” they said in a statement.

The lawyers pointed out that there was an application pending at the Malaysian Court of Appeal to refer Singapore to the ICJ for breach of the right to a fair trial, after their client failed last March to obtain leave from the High Court here for a judicial review to compel Malaysia to intervene by referring Singapore to the ICJ.

Surendran and Latheefa also said Singapore had denied their application to interview and to take instructions from their client in Changi prison.

“We call upon the government of Singapore to halt the execution, and allow us immediate access to Prabagaran as his duly appointed lawyers acting in the pending Malaysian proceedings,” they said. - Malay Mail, 7/7/2017

Thursday, July 06, 2017

MADPET - Malaysia Must Respect Right To Travel Outside The Country – No Last Minute Denial Of Right Without Expressed Reasons, The Right To Be Heard And/Or Judicial Review




Media Statement – 6/7/2017

MALAYSIA MUST RESPECT RIGHT TO TRAVEL OUTSIDE THE COUNTRY – NO LAST MINUTE DENIAL OF RIGHT WITHOUT EXPRESSED REASONS, THE RIGHT TO BE HEARD AND/OR JUDICIAL REVIEW

MADPET(Malaysians Against Death Penalty and Torture) is disappointed with the Court of Appeal’s decision, as reported in the media, that suggests that Petaling Jaya Utara MP Tony Pua has no right to be heard and that the Immigration department director-general is not required to give any reason for imposing such a ban.(Star, 5/7/2017). The fact that any Malaysian could at any time be barred from leaving the country, without knowing why, and without even being accorded the right to challenge the action of the Immigration Department in court is certainly unacceptable and most unjust.

RIGHT TO KNOW WHY AND RIGHT TO BE HEARD

 ‘…Justice Idrus Harun, who delivered the unanimous decision of the court, said Article 5 of the Federal Constitution on the right to liberty excluded the right to travel abroad…He said Pua, under Article 5 and the Immigration Act, had no right to be heard and the Immigration director-general had no duty to give reason to impose the travel ban.’ (FMT News, 5/7/2017). The coram of the Court of Appeal was Mohd Zawawi Salleh, Kamardin Hashim and Idrus.

Section 59 of the Immigration Act 1959/63 states that ‘No person and no member of a class of persons shall be given an opportunity of being heard before the Minister or the Director General, or in the case of an East Malaysian State, the State Authority, makes any order against him in respect of any matter under this Act or any subsidiary legislation made under this Act.’ It is so wrong for a person, who had expended monies and effort, to be suddenly barred from travel at the International Airport. Prior notice of a ‘travel ban’ is definitely more just, and accords the victim the right and opportunity to challenge the validity of such ban. 

The state of affairs suggests that Malaysians may consider themselves ‘detained’ within Malaysia for the Director General of Immigration can at any time ‘secretly’ decide that they be not be allowed to travel out of Malaysia. Worse still, the victim of the travel ban seems to also  not have a right to know the reason why the ban was imposed. The earlier High Court judgment in the Member of Parliament Tony Pua’s case, stated, amongst others, ‘… The above evidence also shows that the DGI has given his reasons even though he is not required to do so under the Immigration Act.’ This goes contrary to norm in the administration of justice, where even the arresting or investigating authority is required to explain the reasons for any such arrest or investigations to persons affected. Rights and liberties should never be denied without giving reasons to victims.

Without the right to know the reasons, for the denial of the ability to leave Malaysia (and possibly also the right to enter the country), any victim would be extremely prejudiced and subjected to serious injustice.

Without knowing, he/she could also not correct the possible mistakes, lies or false facts upon which the DG of Immigration may have wrongly relied on when he decided on such travel bans. The denial of the opportunity to be heard even before the DG or the Minister makes it all the more unjust. Section 59 and other sections that deny such rights must be repealed, and the right to know the reason for the imposition of restrictions and/or travel bans, and the right to be heard must be guaranteed in law.

JUDICIAL REVIEW – TO PREVENT ABUSES OF THE EXECUTIVE – A FUNDAMENTAL RIGHT IN A DEMOCRACY

Judicial review is the power given to courts and judges to review executive action to determine that it is just and in accordance to the law. It is a necessary check and balance in any democracy. It is wrong to have laws that enable arbitrary unchecked exercise of power by the executive, be it the Prime Minister, Ministers, police, the Director General of Immigration or any other government department. 

Denial of the Right to Judicial Review of the reasons for the restrictions and/or travel ban is unjust. Section 59A of the Act states, ‘(1) There shall be no judicial review in any court of any act done or any decision made by the Minister or the Director General, or in the case of an East Malaysian State, the State Authority, under this Act except in regard to any question relating to compliance with any procedural requirement of this Act or the regulations governing that act or decision.’ It is the reasons for the imposition of bans/restrictions that need to be reviewed by court – not simply whether the procedure was followed.

This exclusion of the right of  the victim to ask the court to review the reasons for the detention, and in this case, travel bans imposed on him/her, makes the Immigration Act similar to other draconian Detention without Trial laws like the Prevention of Crime Act 1959(POCA) and Prevention of Terrorism Act 2015(POTA). The Immigration Act seems worse, since there is not even the obligation to inform the person prevented from leaving the country the reasons for the said ‘ban’.

TRAVEL BANS SHOULD ONLY BE IMPOSED BY COURTS

It must not be forgotten that a person is presumed innocent until proven guilty in court. A person being investigated is merely a suspect, and the fact that one is being investigated will really not be known to many unless, they have previously been arrested for suspicion of having committed a crime, or have been called in to give a statement in connection with an investigation that one may have committed some crime. Note witnesses are also called in for purpose of investigation, and here they can never be considered suspects. 

Restrictions of movement out of the country can generally only be imposed after one is charged of a crime, and is released on bail, where the court may, in exceptional cases, impose a ‘travel ban’ preventing the accused from leaving Malaysia. For suspects and potential witnesses, such powers should never be in the hand of the police, Immigration Department or government, but only the courts. The law requires that even a suspect arrested, cannot be detained longer than 24 hours without a Magistrate’s remand order. It is absurd that the power to impose travel bans should rest solely in the hands of the Immigration Department – and not the courts. Without the possibility of judicial intervention, the risk of abuse of power is unchecked.

BANS AND RESTRICTIONS – PRIOR NOTICE 

In this case, however, there were no such prior restrictions imposed by the police and/or the courts. Tony Pua was allegedly suddenly prevented from leaving the country at the KL International Airport 2 on July 2, 2015. Individuals subjected to ‘travel bans’ should be notified immediately when they are being subjected to such restrictions – to not do so, and suddenly stop them after they had made plans and expended monies, at the airport or exit points is wrong and unjust. It suggests that the Immigration authority may have had a wrong motive of causing additional suffering on the victim – prior notification would have prevented such injustice and personal losses.

Prior notice would also accord the right of the victim to challenge any such orders, restrictions and bans, and no reasonable person would have expended monies and energy planning trips if they knew there was a travel ban. I suspect that Tony Pua was not compensated for even the monies that he had spend purchasing his flight tickets and for other expenses already spent for that trip. It may be a good idea that the Immigration Department at their website, also place lists of persons who are prevented from traveling out of the country.

JUDGES MUST ACT WITHOUT FEAR TO UPHOLD THE CAUSE OF JUSTICE

In Malaysia, a Parliamentary Democracy, we have 3 branches of government – the Legislature, the Executive and the Judiciary is to ensure that any one branch of government, especially, the executive does not abuse its powers and do injustice. Judicial Review is the process that allows a person aggrieved by decision of the Executive to be able to take the matter to the courts, who will then decide whether what was done was just and right.

Given Malaysian Parliamentary culture, whereby the ruling party backbenchers, do not seem to oppose or disagree with the Executive, who is led by the Prime Minister/Menteri Besar/Chief Minister, who also happens to be the party leader, the role of Judiciary to be a check and balance is of becomes all the more important. It is sad that, in the past, Parliament, possibly under the influence of the Executive, has passed laws that attempt to restrict the powers Judiciary, thus weakening their ability to be a necessary and effective check and balance.
  
Thus, it falls upon Judges in Malaysia to bravely uphold the cause of justice and the rule of law without fear or favour. Judges in Malaysia risk the possibility of being transferred or not being promoted, or confirmed when they are still Judicial Commissioners, but that is a risk that they must all face in the interest of justice and human rights. Bad laws inconsistent with justice, human rights and the rule of law should never be allowed to hinder the upholding of justice. 

Therefore MADPET,

Calls for the immediate repeal of laws and/or provisions of law like Section 59 and 59A of the Immigration Act that attempts to exclude judicial review and the right to be heard;

Calls for the immediate revocation of all travel bans and/or restrictions imposed by the police, Immigration Department and/or Ministers, which are not imposed by courts and judges after according the intended victim the right to be heard.

Call for the Malaysian government, to immediately compensate Tony Pua and all other victims who had expended monies, by reason of the failure of prior notification of such travel bans.

Calls on Malaysian judges and the Judiciary to uphold the cause of justice without fear or favour;

Calls on Malaysia to respect justice and human rights, and ensure that all branches of government that play an essential role of check and balance in a democracy are not impeded by law and/or other actions.

Charles Hector

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




Government can bar anyone from travelling abroad, Court of Appeal rules

V Anbalagan
 | July 5, 2017

Three-man bench also rules that Petaling Jaya Utara MP Tony Pua has no right to be heard and that the Immigration department director-general is not required to give any reason for imposing such a ban.
tony-pua_law_600


PUTRAJAYA: In a decision that is sure to cause concern among human rights activists, the Court of Appeal today ruled that the right of Malaysian citizens to travel overseas is at the absolute discretion of the government.

Justice Idrus Harun, who delivered the unanimous decision of the court, said Article 5 of the Federal Constitution on the right to liberty excluded the right to travel abroad.

“The provision on the right to travel overseas is not expressly embodied in Article 5,” he said in dissmissing the appeal by Petaling Jaya Utara MP Tony Pua.

A three-man bench chaired by Mohd Zawawi Salleh, Kamardin Hashim and Idrus heard submissions from lawyers for Pua and the government on April 19.

Idrus said the issuance of passports to citizens to travel abroad was a privilege accorded by the government.

He said the term personal liberty in Article 5 in the Malaysian constitution had to be construed narrowly and was confined to the mounting of any challenge against the authorities for unlawful detention of a person.

Idrus said the court was mindful that it must be circumspect in interpreting the laws and constitutions of other jurisdictions in declaring the fundamental rights of citizens.

He said Pua, under Article 5 and the Immigration Act, had no right to be heard and the Immigration director-general had no duty to give reason to impose the travel ban.
 
“The appellant has failed to show any merit in his case and we have no reason to interfere in the findings of the High Court,” he said.

The bench, however, ordered no cost to be paid to the government as it is a public interest case.

Zawawi said he encouraged Pua to take up the matter to the Federal Court to determine the constitutional issues in the highest court of the land.

Pua’s lawyer Gobind Singh Deo said he would file a leave to appeal application within 30-days as there were serious questions of law that needed to be raised.

Pua dragged the authorities to court after he was prevented from leaving the country at the KL International Airport 2 on July 2, 2015.

The DAP national publicity chief was supposed to go to Yogyakarta that day using his passport, which was valid until April 23, 2020.

He claims the decision was ineffective under the law as it was a contradiction in terms of his legitimate right to travel abroad using his valid passport.

The High Court last year, in dismissing Pua’s judicial review, held that the travel ban on him was valid.

Last year, another Court of Appeal had also ruled that former Malaysian Bar president Ambiga Sreenevasan’s travel ban to Sabah was legal because Malaysia’s highest court had ruled that the judiciary could not inquire into why such a decision was made.- FMT News, 5/7/2017

Wednesday, 5 July 2017 | MYT 11:15 AM

Tony Pua's appeal to challenge 2015 travel ban fails


PUTRAJAYA: Petaling Jaya Utara MP Tony Pua (pic) failed in his bid to challenge the Immigration Department director-general's decision to bar him from travelling abroad.


Pua had filed an appeal against the High Court's July 2016 dismissal of his judicial review application challenging the director-general's decision.

He named the director-general and the Government as respondents.

In a unanimous decision Wednesday, Court of Appeal judge Justice Mohd Zawawi Salleh said there was no reason for the panel to interfere with the High Court's decision.

Justice Mohd Zawawi, who sat with Justices Idrus Harun and Kamardin Hashim, dismissed the application with no cost.

In his judicial review application, Pua claimed that he was prevented from leaving the country at KL International Airport 2 on July 2, 2015.

Pua, who is DAP national publicity secretary, said he was supposed to leave for Yogyakarta, Indonesia, using his passport, which was valid until April 23, 2020.

He claimed that the decision was ineffective under the law as it was in contradiction to his legitimate rights to travel abroad using his valid passport.

It was previously reported that the ban had been lifted in October 2016.- Star, 5/7/2017