In total there were 110 lock up deaths from 2010 until 2016, most of them due to health issues
Wednesday, April 05, 2017
KUALA LUMPUR: Only one detainee had died in police lock up due to injuries sustained from the police, revealed Home Minister Ahmad Zahid Hamidi in a written reply to Gobind Singh Deo (Puchong-DAP) today.
“For the period from the year 2010 to 2016, only one detainee died in police lock up due to injuries sustained from police personnel. That was in the year 2013,” said Zahid.
“The highest number of lock up deaths was 20 in the year 2013. Of the 20, 15 died due to various infections to the liver, throat, lung, intestines and ulcers.”
The infection cases also contributed to the majority of the deaths in lock ups – up to 84 cases out 110 deaths.
In total there were 110 lock up deaths from 2010 until 2016, revealed Zahid who is also the deputy prime minister.
The lowest number of deaths were recorded in 2010 with nine deaths.
Gobind had asked for the number of deaths in police lock ups since 2010. - Berita Daily, 28 March 2017
Suhakam: Families of dead detainees can ask for inquest
Ho Kit Yen| April 4, 2017
Inquests should be held if a detainee dies under suspicious circumstances, says Suhakam commissioner.
KUALA LUMPUR: Family members of detainees who die while in custody can seek an inquest to determine their cause of death.
Commissioner of the Human Rights Commission of Malaysia (Suhakam) Mah Weng Kwai said this was especially so in cases where custodial deaths occurred under suspicious circumstances.
“They can most certainly request (for an inquest) when there are some suspicions on how the person died and no action was taken over those allegedly responsible,” he said.
Mah was responding to questions on whether family members of detainees should seek inquests to determine the cause of death.
His remarks come in the wake of the announcement in Parliament yesterday by Deputy Prime Minister Ahmad Zahid Hamidi that over 280 custodial deaths were recorded from 2000 to 2016.
However, in Suhakam’s annual report released earlier today, the commission stated that custodial deaths in prison had increased to 269 in 2016, compared with 252 in 2015.
No information was available on deaths in police lock-ups in 2016, but there were 12 reported deaths in 2015.
Mah, who is a former Court of Appeal judge, said it was up to the magistrate to decide if there was sufficient evidence on suspected deaths for an inquiry to be held.
“The magistrate, sitting as a coroner, needs to exercise his discretion if he wants to start an inquest,” he said.
Mah added that if the coroner could make a ruling and name the suspects involved in a detainee’s death in his verdict, the alleged assaulters could be prosecuted.
There have been three cases of custodial deaths reported since January.
On Jan 18, Soh Kai Chiok was found dead at the Bera police station.
On Feb 8, S Balamurugan was found dead in the North Klang police lock-up, while M Thanaseelan was found dead in his cell at the Bukit Sentosa lock-up in Hulu Selangor on Feb 25.
Suhakam and the Enforcement Agency Integrity Commission are probing the three deaths. - FMT News,
Thursday, March 30, 2017
Over 1,600 deaths in custody since 2010, DPM revealsBY KAMLES KUMAR
Monday March 13, 2017
12:23 PM GMT+8
KUALA LUMPUR, March 13 — There have been 1,654 deaths in custody cases since 2010 until February this year, Home Minister Datuk Seri Ahmad Zahid Hamidi divulged today.
The deputy prime minister in a written parliamentary reply gave assurance that the police will not compromise or protect any police or enforcement officers who are suspected of violence resulting in injuries or death in custody.
"The statistics for death in custody from 2010 to February 2017 is 1,654 people, while the occupants received further treatment at the hospital from diseases like HIV, cancer, heart attack, blood issues, lungs, TB, asthma and other diseases," he said in his response to DAP MP Kasthuri Patto.
Ahmad Zahid also gave a complete racial breakdown of the deceased: 1,037 were Malays, 222 ethnic Chinese, 182 ethnic Indians, 28 from other ethnicities, and 185 foreigners.
He however refused to comment on the recent death in custody of S. Balamurugan in Klang, as the case is being investigated and his cause of death is still unknown.
Kasthuri, who is Batu Kawan MP, had asked the Home Ministry to list the number of deaths in custody victims since 2000s and why no immediate medical treatment was given to Balamurugan when he was in prison.
Balamurugan, 44, died in police custody at the North Klang police headquarters on February 7. His family's lawyers had claimed from a second autopsy on the body that he had suffered multiple beatings in police custody, which subsequently triggered heart failure. - Malay Mail, 13/3/2017 -
Press Statement by SUHAKAM on the death in custody of Balamurugan M Suppiah
KUALA LUMPUR (29 MARCH 2017) - The Human Rights Commission of Malaysia (SUHAKAM) concluded its independent investigation into the death of Balamurugan M Suppiah (S.Balamurugan) who died at the North Klang District Police Headquarters on 7 February 2017. According to the police, he was found unconscious in a temporary holding area for detainees at about 11.30pm. SUHAKAM begun its investigation in accordance with sections 4(1) and 12 of the Human Rights Commission of Malaysia Act 1999 on 10 February 2017, and in the interest of public truth. Through interviews and statements recorded from 43 witnesses, SUHAKAM identified several areas of concern that continue to arise in relation to deaths in police custody.
At the outset, SUHAKAM reiterates that the right to life is the most fundamental human right, within which no derogation is permissible. As guaranteed in Article 5(1) of the Federal Constitution and recognised in Article 3 of the Universal Declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights, the right to life is a prerequisite to the realisation of all other human rights.
The deceased was arrested with two other suspects at around 6.30pm on 6 February 2017 and taken to the Bandar Baru Klang Police Station. During its investigation, SUHAKAM was informed of alleged ill-treatment and beatings of all suspects by the police between 7.30pm to 9.30pm at the police station. Before he were taken to the North Klang District Police Headquarters, the deceased was allegedly hit on the ears, beaten on his feet and legs and punched and kicked in his chest. SUHAKAM was informed that the deceased was shivering and not able to walk when he was sent to the Shah Alam Centralised Lock Up at approximately 4.10am the next morning. The suspects were produced before the Klang Magistrate’s Court at around 10.00am on 7 February 2017 for an application for further remand. The remand for the deceased was refused and the Magistrate directed the police to take him for immediate medical treatment.
SUHAKAM interviewed the Magistrate on 23 February 2017 and was informed that the deceased had a swollen face and eyes and was unable to sit up, stand or even hold his head up when his name was called in her Court. Although the police had the opportunity to take the deceased to the hospital, they failed to do so and took him back to the North Klang District Police Headquarters at about 1.15pm. SUHAKAM was informed that the deceased was shivering again at this point but he was not given any medical attention. By approximately 6.30pm by which time his detention became unlawful, S.Balamurugan’s condition had deteriorated severely to the extent that he had no control from urinating. At approximately 11.30pm, the deceased was found unconscious or presumably dead by the Investigating Officer. SUHAKAM notes with concern that from approximately 7.00pm to 11.30pm, the deceased was not monitored or checked on by the policemen on duty. SUHAKAM considers it to be the duty of the Investigating Officer to be responsible for the acceptance, safety, security, health condition and welfare of any person arrested and detained by the police.
SUHAKAM wishes to point out that although the police had 24 hours to detain the deceased, they may have deliberately flouted the Court Order or wilfully abused their powers when the deceased was taken back to the North Klang Disctrict Police Headquarters, purportedly for his statement to be recorded. Evidence show that this was not done and the deceased was instead held without a reasonable and credible justification.
The post mortems conducted by Hospital Tuanku Ampuan Rahimah Klang (HTAR) and Hospital Kuala Lumpur (HKL) both revealed that the cause of death of S.Balamurugan was coronary artery disease. Of note, the second pathologist from HKL concluded that the cause of death was coronary artery disease with blunt force trauma, and the time of death could have been as early as 9.00pm or 10.00pm.
It is SUHAKAM’s view that the allegations of ill treatment and torture corroborate the statements by both pathologists, in that the deceased had, among others, bruises and swelling on his eyes, a large bruise on his chest below his right nipple, swelling on his right ear, lacerations on his ears, injuries on his right chest muscle, blood clots on his right temple, back injuries and severe muscular injuries to his feet and ankles. The second pathologist indicated that he also found that the deceased had obvious bruises on his knees, fingers, back of his left lower leg, lower back and the back of his thighs.
Both post mortems revealed that the deceased was suffering from chronic liver failure and liver cirrhosis. While this is unlikely to be the cause of death, in the second pathologist’s medical opinion, this was a possible explanation for the bleeding from the mouth and nose of the deceased. Both pathologists also concluded that the deceased had a blocked left artery and was suffering from a severe heart condition, but it is their medical opinion that the injuries could have triggered a heart attack or worsened his heart condition leading to his death, given the severity of the injuries. The HKL pathologist noted that while the deceased had serious underlying medical concerns, the injuries on his body could not be ignored as they appeared to be abusive injuries, and not self-inflicted or accidental in nature.
The circumstances under which the deceased was detained after the application for remand by the police was refused were unacceptable. He had endured approximately a further 9 hours of detention prior to his death, after he was released by the Court. This in our view demonstrates a blatant disregard for respect for human life and dignity and the conditions in which he was held may be inconsistent with the Federal Constitution (Article 5(1)).
SUHAKAM is satisfied that the police knew or ought to have known, even more so when the Magistrate had made her observations and order, of the existence of a real and immediate risk to the life of the deceased, and that the police failed to take adequate measures within the scope of their powers which, judged reasonably, might have been expected to avoid such a risk. SUHAKAM is of the view that there appears to be serious breach or wilful disregard of the duty to protect life by the police due to cumulative failures on their part to provide medical attention to the deceased. SUHAKAM underlines that where there is an alleged breach of this duty of care, there is an obligation on the police to investigate and to carry out an efficient, independent and reasonable investigation, which must lead to the perpetrators’ identification and prosecution.
Evidence from SUHAKAM’s investigation also identified numerous systemic failures on the part of the police in regard to the treatment of detainees in police custody, including but not limited to failures to follow the Lock up Rules 1953, police standard operating procedures, the Court Order and relevant international human rights norms and standards.
SUHAKAM reiterates that in accordance with Principle 1 of the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, “all persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person”. Principle 6 further states that “no person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. SUHAKAM’s investigation however revealed allegations of torture, cruel, inhuman and degrading treatment of persons in police custody. The statements of the other suspects alleged that the police had during interrogations applied paint thinner and chilli powder on the body of two of the other suspects including on their genitals. They claimed to have been beaten with a rubber hose and wooden stick, as well as with a handcuff chain for their confessions.
Two suspects arrested in relation to this investigation were below 18. While the police must observe certain legal rights whenever they arrest or detain a child suspect, SUHAKAM’s investigation revealed that the police may have been in breach of section 85 of the Child Act 2001 that stipulates appropriate arrangements shall be made to prevent a child while being detained in a police station from associating with an adult who is charged with an offence. Both suspects who are below 18 were placed in custody with the deceased who was an adult. According to section 87 of the same Act, after the arrest of a child, the police officer or other person making the arrest shall immediately inform a probation officer and the child’s parent or guardian of the arrest. SUHAKAM notes that the law in this regard was not complied with.
Despite a growing awareness of issues concerning the proper treatment of persons in police custody, the implementation of best practices and recommendations, particularly from SUHAKAM’s 2016 Death in Custody Report is seriously lacking. Some recommendations have not been implemented at all and it is observed that the police are still ignorant of their duty of care to detainees or the fact that there is a responsibility on the police to ensure that the individual in their custody is not deprived of his right to life.
In accordance with its legal duty, SUHAKAM makes the following recommendations to the Government of Malaysia and Police Di-Raja Malaysia (PDRM):
SUHAKAM is of the view that the increase in the number of deaths in police custody warrants an increased scrutiny of the operation and funding of police lock ups, particularly in relation to health services and general conditions.
TAN SRI RAZALI ISMAIL
The Human Rights Commission of Malaysia (SUHAKAM)
29 March 2017
Source: Malaysian Bar Website
Source: SUHAKAM Website
Monday, March 20, 2017
Resolution Regarding the Prosecution of Police Officers Who Killed and/or ‘Cover-Up’ Crimes of Fellow Police in Torture and Death in Custody Cases
Malaysian Bar, at its Annual General Meeting attended by 842 lawyers on 18/3/2017, adopted the following Resolution. There was no objections, but sadly about 5 abstained...
The Resolution called for the prosecution of police officers that kill, and those who 'cover-up' these crimes - no more 'secretive' internal disciplinary actions...please.
It calls for the removal of these police that commit crimes...Read on
Resolution Regarding the Prosecution of Police Officers Who Killed and/or ‘Cover-Up’ Crimes of Fellow Police in Torture and Death in Custody Cases
1. Deaths in police custody continues to happen in Malaysia. There has been 3 deaths in police custody in 2017, namely:-
Jan 18 – Soh Kai Chiok at Triang police station in Bera District, Pahang;Feb 7 – Balamurugan Suppiah – at North Klang police headquarters; andFeb 25 – Thanaseelan Muniandy – at Bukit Sentosa police station in Hulu Selangor District.
2. The Enforcement Agency Integrity Commission(EAIC) has completed inquiries for at least 3 deaths and custody, and in 2 it had found the police liable for the death. It also found that there had been police officers that lied and even made false reports and entries into diaries. There has also been findings that there have been attempts to ‘cover-up’, and even destroy available evidence.
Syed Mohd Azlan Bin Syed Mohamed – 27/11/2014
3. In the Inquiry Report concerning the death in custody one of Syed Mohd Azlan Bin Syed Mohamed on 27 November 2014, amongst others, the EAIC found that police officers had killed (‘murdered’) Syed Mohd Azlan. They also found, amongst others, the involvement of police officers in trying to destroy evidence and interfere with the police investigations. They recommended the Public Prosecutor to charge these police officers under section 302(murder) and for various crimes. The following are merely some extracts from the said EAIC Report.
Suruhanjaya mendapati anggota polis B4 telah mengganggu bahan bukti di tempat kejadian apabila mengarahkan A29 (pemilik rumah tempat tangkapan) melalui panggilan telefon kepada A29 pada jam lebih kurang 8.40 pagi, pada 3 November 2014 untuk membersihkan tempat kejadian dan melupuskan tikar getah dan karpet yang mempunyai kesan darah si mati….(9.6)Suruhanjaya juga mendapati anggota polis B4 telah membuat panggilan telefon kepada A29 mengarahkan A29 supaya menghilangkan /menyembunyikan diri selepas kejadian tangkapan dan kematian si mati… (9.7)Suruhanjaya mendapati terdapat perlakuan jenayah yang melibatkan unsur niat bersama atau pensubahatan (abetment)oleh B1, B2, B3, B4 dan A1 bagi melakukan serangan kekerasan fizikal secara sengaja ke atas si mati yang telah mengakibatkan kecederaan dan kematian ke atas si mati, dan perlakuan ini adalah merupakan kesalahan jenayah di bawah undang-undang khususnya di bawah seksyen 302, seksyen 325 Kanun Keseksaan dibaca bersama seksyen 34 atau seksyen 107 Kanun yang sama. (9.12)Suruhanjaya juga mendapati perlakuan anggota polis B4 yang mengarahkan A29 supaya melupuskan barang bukti dan menyembunyikan saksi material iaitu secara mengarahkan A29 supaya menghilangkan diri, adalah satu kesalahan berunsur jenayah di bawah seksyen 118 atau seksyen 119 Kanun Keseksaan yang mewajarkan pendakwaan jenayah dibawa terhadap B4 tersebut. (9.13)Suruhanjaya juga menerima perkara-perkara dan dapatan-dapatan siasatan Pasukan Petugas selaras dengan peruntukan seksyen 30(1)(c) Akta 700, bagi pendakwaan jenayah diperakukan kepada Pendakwa Raya terhadap pegawai dan anggota yang didapati telah melakukan salah laku jenayah seperti yang dikenalpasti di dalam Laporan ini. (9.16)
4. Despite the recommendation that these officers be charged and tried, there seem to be no information that any criminal action has been taken against these police officers that have broken the law.
Dharmendran a/l Narayanasamy (May 2013)
5. In the EAIC Inquiry Report concerning death in police custody of one Dharmendran a/l Narayanasamy, it was revealed again that police officers behaved dishonestly and tampered with police records. Some extracts of this report, as examples, are as follows:-
Suruhanjaya mendapati catatan entri tambahan di P32 pada 21 Mei 2013 di catatan entri no.3150selepas sahaja perkataan “terkawal”adalah maklumat butiran palsu/salahnyatayang direkasecara bersama oleh SP60 (A/SAC Khairi Ahrasa), SP27 (A/ACP Yahya Abdul Rahman), SP39 (DSP Glenn Anthony Sinappah) dan SP44(Insp.Hare Krishnan a/l Subramaniam) pada malam kejadian (21 Mei 2013) semasa perbincangan di Bilik Mesyuarat D9, …supaya membuat catatantambahan di entri no. 3150 tersebut berdasarkan maklumat yang direka-reka tersebut...(31.2.2)Suruhanjaya mendapati catatan di entri no. 3154 di Eksibit P32 yang mencatatkan “L/Kpl 144682 terima aduan daripada OKT, penama Dharmendran a/l Narayanasamy maklum sesak nafas dan rasa hendak pergi hospital untuk buat rawatan.”;…juga merupakan entri palsu/salahnyata oleh pakatan bersama …(31.2.7)Suruhanjaya mendapati perlakuan SP60, SP27, SP39 dan SP44 yang secara bersama mereka-reka kandungan entri no. 3150 bahagian kedua, entri no. 3151, 3152, 3153 dan 3154 dengan mengarahkan SP24 dan SP25 membuat catatan kandungan yang direka-reka tersebut di dalam Eksibit P32 adalah satu perlakuan salah laku yang serius yang melibatkan pegawai-pegawai kanan bertujuan untuk melindungi (cover-up) fakta sebenar kematian si mati dengan memberi maklumat yang diketahui sebagai tidak benar atau palsu yang boleh menjejaskan suatu siasatan kes yang adil dari dapat dilakukan berkaitan kematian si mati…(31.2.11)Perlakuan SP60, SP27, SP39 dan SP44 yang mereka-reka entri alsu/salah nyata untuk dicatat di dalam Eksibit P32 (Buku Perharian Balai) boleh menjurus kepada kesalahan bersifat jenayah seperti yang diperuntukkan oleh seksyen 192, 201 dan/atau seksyen 203 Kanun Keseksaan.(31.2.12)
6. In this case 4 police officers had already been charged when the Inquiry started, as such the Inquiry did not look in greater detail the killing. It focused however on the other wrongdoings, including the dishonest behavior of the police who changed/tampered police records and documents for the purpose of possibly covering up the truth.
7. Again, we have no information of any of the said officers being charged in court for the alleged crimes that they committed.
8. It is possible that some ‘internal’ disciplinary action may have been taken against these police officers. There is also the possibility that no action was taken. In any event, this information seem to have not been reported in the media.
9. Honesty and integrity is expected especially from the police, enforcement officers, prosecutors and judges involved in the administration of criminal justice.
10. As such, when the police has been found to be wrongly and dishonestly tampering with evidence and records, and/or involved in actions of ‘cover-ups’, these actions cannot be tolerated. The failure of police officers to report wrongdoings and/or crimes of their fellow police officers also cannot be tolerated.
11. There is a need to weed out such ‘bad’ and/or dishonest police officers, and it is also important that such police officers not be ‘protected’, but be charged and tried in a court of law.
12. Such actions against ‘bad’ police officers is needed to protect the integrity of the police, and also may serve as a deterrence to other police officers, enforcement officers and prosecutors involved in the administration of justice in Malaysia.
THEREFORE, IT IS HEREBY RESOLVED:-
A. That all police officers who have committed a crime, be it torture, murder, tampering with evidence or records, and/or covering up of crimes of fellow officers need to be removed to protect the integrity of the Malaysian police and the administration of justice;
B. That all police officers who have committed a crime related to the carrying out their duties should be promptly investigated, charged and tried in open court, rather than subjected to ‘secretive’ internal disciplinary actions;
C. That torture and death in custody be eradicated from Malaysia;
D. That the Bar Council continue doing the good work they are doing to ensure the eradication of torture and death in custody in Malaysia;
E. That the Bar Council ensures that the Standard Operating Procedures(SOP) governing all police action, be made public for it is necessary for all to know so that they could claim their rights, and/or highlight when their rights are violated; and
F. That Malaysia immediately sets up Independent Police Complaints and Misconduct Commission (IPCMC).
The motion was proposed by Charles Hector Fernandez, Francis Pereira and Shanmugam a/l Ramasamy.
Source: Malaysian Bar Website
Sunday, February 26, 2017
MALAYSIA’S CABINET’S DELAY IN TABLING LAWS ABOLISHING THE DEATH PENALTY RISKS UNNECESSARY LOSS OF LIFE -Immediate Moratorium On ALL Executions -
Media Statement – 27/2/2017
MALAYSIA’S CABINET’S DELAY IN TABLING LAWS ABOLISHING THE DEATH PENALTY RISKS UNNECESSARY LOSS OF LIFE
-Immediate Moratorium On ALL Executions -
MADPET(Malaysians Against Death Penalty and Torture) is appalled that Malaysia may be very soon hanging 44-year-old Rames and 39-year-old Suthar Batumalai, when Malaysia may be on the verge of the abolition of the death penalty.
In November 2015, Nancy Shukri ,the then Minister in Charge, stated that the proposed amendments will be tabled in March 2016, which may have had the affect of abolishing the mandatory death penalty for murder, and if the law had been amended then, Rames and Suthar would most likely not be facing execution now. They were both convicted for murder that carries the mandatory death penalty. Hence, it may rightly be suggested that it is the failure of the Malaysian government to act promptly and speedily bring about changes in law, abolishing the mandatory death penalty that has caused this unacceptable situation today, which may result in the death of these two persons.
IF NOT FOR GOVERNMENT DELAY, RISK OF BEING HANGED WILL NOT EXIST
Nancy Shukri did say that she hoped to take her proposal to amend the Penal Code and abolish the mandatory death sentence to the Dewan Rakyat as early as March 2016.( Malay Mail, 17/11/2015). A few days before that, the Attorney-General Tan Sri Apandi Ali reportedly said he will propose to the Cabinet that the mandatory death penalty be scrapped, so that judges are given the option to choose between sentencing a person to jail or the gallows. (Malaysian Insider, 13/11/2015)
Nancy, the de facto Law Minister, also told the 6th World Congress Against the Death Penalty in Oslo (Norway)in June 2016 that a government-backed study on the death penalty had been completed and a paper is being readied by the Attorney General’s Chambers(Star, 22/6/2016). The study was said to reveal that Malaysians were in favour of the abolition of the death penalty, especially the mandatory death penalty. But, apparently when it was finally submitted to the Cabinet, the decision was that there was a need for further studies.
Minister in the Prime Minister's Department Datuk Seri Azalina Othman, the new de facto Law Minister, during the Parliamentary session on 2/11/2016 clarified that Malaysia was not just looking at the mandatory death penalty, but all death penalty. They were considering possibly replacing the death penalty with life imprisonment. It was indicated that further studies were to be done, and that. "The decision on the implementation of the death penalty in this country, either be repealed or maintained, is a policy matter to be decided by the government based on the results of the study,"(The Sun Daily, 3/11/2016)
MORATORIUM ON EXECUTIONS PENDING FINAL DECISION ON DEATH PENALTY
As such, whilst the government is in the process of considering whether the death penalty is to be abolished or not, it is only just and reasonable that a moratorium on executions be put in place until the final decision be made. A moratorium is simply a stay of execution, not a revocation of the sentence. If the Cabinet, and thereafter Parliament, ultimately decides to not abolish the death penalty and/or the mandatory death penalty, executions can still be carried out. It’s most reasonable that there be a moratorium now.
UNJUSTIFIABLE TO HAVE MORATORIUM ON CERTAIN OFFENCE THAT CARRIES THE MANDATORY DEATH PENALTY BUT NOT ALL
At present, apparently there is a moratorium on executions for drug trafficking, which carries the mandatory death penalty, as mentioned by Edmund Bon Tai Soon, Malaysia’s AICHR (ASEAN Intergovernmental Commission on Human Rights) representative, who was reported saying ‘…Malaysia’s moratorium, I understand, is only for drug trafficking cases…’ (Star, 10/7/2016).
There is no justification to have a moratorium on certain offences that carry the mandatory death penalty, but not others. Malaysia needs to be consistent, and impose a moratorium on executions of all offences that currently provide for the mandatory death penalty. If judges had the discretion on deciding appropriate sentences, even for murder, they may in some cases decide that a more appropriate sentence given the facts and circumstances may just be imprisonment – not death. But alas, with an offence that provides just one mandatory sentence, judges have been deprived of their choice of the most appropriate sentence for each case.
When Malaysian laws are finally amended, resulting in the abolition of the mandatory death penalty and/or even the death penalty, it will only be just for the courts to review the sentences of persons previously been sentenced to death – to determine what the appropriate sentence should be. This was done in Singapore, where the affected death row inmates, had their sentences reconsidered by the Courts, for even the offence of murder.
Human Rights Commission of Malaysia (SUHAKAM), also did reiterate on 29 March 2016 their recommendation that a moratorium on the use of the death penalty be put in place in Malaysia. Many others, including the Malaysian Bar and MADPET have also called for a moratorium on executions.
UN RESOLUTION ON MORATORIUM ON THE USE OF THE DEATH PENALTY
When Malaysia should have abstained, it was disappointing that Malaysia voted against the United Nations General Assembly(UNGA) Resolution on Moratorium On The Use of The Death Penalty on 19/12/2016, given the fact that Malaysia is currently in the process of studying and evaluating the future of the death penalty in Malaysia.
It must also be noted that the majority of the 57 members of the Organisation of Islamic Countries (OIC) voted for the resolution and/or abstained. 24 OIC member nations voted in favour, 13 abstained and only 18 voted against.
Malaysia, Singapore and Brunei were the only 3 ASEAN member nations that voted against this resolution. Even Indonesia abstained.
The 2016 UNGA Resolution was adopted with 117 votes in favour, 40 abstentions and 31 votes against. Since the first UNGA resolution on the moratorium and death penalty in 2007, the number of votes in favour has been increasing. The global trend is towards abolition.
In this case of Rames and Suthar Batumalai, there are allegedly other concerns including the deprivation of the right for their clemency petition to properly considered and determined. Rames and Suthar had on Thursday submitted a clemency application through their lawyers to the Negri Sembilan Pardons Board. (Star, 23/2/2017) The Malaysian Bar has also urged the Government to not proceed with the execution until the clemency proceedings is completed.
Prime Minister Najib and Malaysia’s Cabinet must listen to the Malaysian people, including Malaysia’s Attorney General and SUHAKAM. Even the PAS President, Hadi Awang, and Malaysian Muslims would be for the abolition of the Death Penalty, more so when it is provided for by laws other than the Syariah law. In the recent proposed amendments to Act 355, Hadi Awang’s motion clearly excluded death penalty.
Calls on Malaysia to stay the execution of Rames and Suthar Batumalai until their clemency petition is duly considered and decided upon;
Call on Malaysia, given the fact that Malaysia is currently in the process of studying and considering the possibility of abolishing not just the mandatory death penalty, but also all death penalty, that a moratorium on all executions be put in place until a final decision is made about death penalty in Malaysia;
Call on Malaysia to tabled the required amendments and/or law in the upcoming Parliamentary Session that will bring about the abolition of the death penalty, restoring the discretion in sentencing back to the judges; and
Call on Malaysia to abolish the death penalty.
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
Tuesday, February 14, 2017
MADPET - JUDGES SHOULD DECIDE ON BAIL, NOT THE PUBLIC PROCECUTOR -Access to Bail Must Not Be Denied To The Poor Or By Law –(15/2/2017)
See related post:- Judges should decide on Bail - not the Public Prosecutor?
Media Statement:- 15/2/2017
JUDGES SHOULD DECIDE ON BAIL, NOT THE PUBLIC PROCECUTOR
-Access to Bail Must Not Be Denied To The Poor Or By Law –
MADPET(Malaysians Against Death Penalty and Torture) is shocked that the Public Prosecutor maybe considering the proposal to deny bail for repeat offenders of small drug-related crimes that carries the penalty of 5 years or less. This was reportedly disclosed by Perak Narcotic Criminal Investigation Department head ACP V R Ravi Chandran who said there was a need to do so ‘… due to the increase of 12.2%, or 2,220 people, who were arrested for various drug-related offences last year..’.(FMT News, 2/2/2017 ‘Perak mulls denying bail for repeat drug offenders’)/and Star 3/2/1017).
We recall the legal principle that every accused shall be presumed innocent until proven guilty, that is proven guilty after a fair trial.
The purpose of bail is simply that the accused person be released on condition that he turns up in court on the dates fixed for his/her case. Judges do consider all relevant factors, before deciding on the question of bail, which also may be granted on many other conditions, if needed.
As it is now, section 41B of the Dangerous Drugs Act 1952 already denies bail for persons charged with offences under the Act that carries the death sentences or sentences of more than 5 years imprisonment. Section 41B 1(c), however, states as follows, ‘where the offence is punishable with imprisonment for five years or less and the Public Prosecutor certifies in writing that it is not in the public interest to grant bail to the accused person. That means the Public Prosecutor will decide, and the accused has to stay in detention until the trial is over and the court decides whether he/she is guilty or not. This is unacceptable.
Judges should decide whether bail is to be granted or denied to an accused in any particular case. In bail applications, judges do consider all the arguments of the prosecutor and also the accused persons. Judges, after taking into account all relevant facts and the law, decides whether bail be granted or not, and if granted on what conditions. It is wrong for Parliament through laws to oust this discretion of judges and/or courts. It is even more unjust, if that decision rests just in the hands of the Public Prosecutor.
What the Perak police is allegedly asking for is even more draconian, they want bail to be denied to all ‘repeat offenders’. It must be noted that some, especially the poor, even when innocent, do plead guilty especially for offences that carry lesser sentences.
Section 41B(1)(c) give the power of denial of bail to the Public Prosecutor, who simply has to certify ‘… in writing that it is not in the public interest to grant bail to the accused person…’Judges and courts power to decide on bail is simply ousted.
Worse still, the application seems to be for a blanket denial of bail for all persons charged with a drug related offence is unacceptable. This would include even persons allegedly with a very small amounts of drugs, possibly simply for personal usage. Every person’s application for bail should be considered individually.
Great injustice when an innocent person is deprived of his liberty for so many months or years, and then found to be not guilty. As it is, trials in Malaysia can take a very long time, and it is possible some may have been detained for periods that are even longer than the maximum imprisonment sentence they would have faced if found guilty by court.
Denial of bail means not just the loss of liberty. It will also affect a person’s employment and income, a person’s business and other income generating activities. The impact will be also be felt by the family and dependants. Now, that Malaysia is a signatory of the United Nations Convention on the Rights of the Child, and by reason of the values Malaysians hold, we have to ask whether it is in the best interest of the child if her/his parent, brother or sister, is kept in detention even before the court finds/him/her guilty.
What is worse, is the greater injustice that befalls a person and also his/her family, if the courts finally determines that he/she is not guilty. Harm cause by this denial of bail can never be erased, and in Malaysia, at present there is still no law that provides for just compensation for those victims, whose freedom and liberty have been denied for so long. It is thus important, that we, at the very least, have a law to provide for just compensation and/or damages to such persons, found to be innocent, for the time they had already spent in detention by reason of denial of bail, poverty, wrong court decisions that are overturned by higher courts, and even unnecessary detention by police for remand. In some case, where there may have been justification to keep a person in detention and that person is finally acquitted and set free, he/she also needs to be compensation for the loss of liberty and freedoms, he/she had to suffer by reason of the said detentions.
The poor suffer the greatest when courts set bail at an amount, which is too high and/or affordable to them and/or their family/friends. In Malaysia, where the bail is set at RM10,000, then the surety is expected to have that RM10,000 and be willing to part with it for the necessary duration. A poor man earning RM1,000 per month, which is used to support himself and his family, when asked to post bail of even RM2,000 may find it almost impossible. A poor man’s family and friends also may not be able to afford to come up with that much. End result is that even if bail is granted, but is unaffordable, a person may end up in detention until the trial is over.
Worse still is the situation when a person, who has been in detention by reason of denial of bail or being unable to afford bail, is finally found guilty for an offence where the maximum sentence is much less than the time actually spend in detention awaiting the end of trial. There is still no compensation for the extra unnecessary time spend in detention. Some judges, do consider the period the convicted has spend in detention when handing out sentence, and sentence them to the time spend already in detention which enables the convicted to immediately go free. But the doubt arises whether the same judge would have given a much lesser sentence if the same accussed had been out on bail pending conviction.
This bleak reality also results in many persons who may be actually innocent pleading guilty at the onset, because by so doing, they will just simply have to spend time in prison for a shorter defined period, and thereafter resume their ordinary life as soon as they get released. A great injustice happens.
Now, if bail is denied for minor drug related crimes, that carry sentences, if convicted, of imprisonment of five years or less, the naturally we may find many of these persons who are innocent or will never be found guilty, simply pleading guilty at the very start of the trial. It may good for the government, the police/enforcement officers and the prosecution to show effective law enforcement, but in actual fact it may not be true and a great injustice would occur.
As such, MADPET calls for
a) That the question of bail must be always determined by the Judges and/or Courts, and certainly never the Public Prosecutor;
b) That all laws and/or provisions of law that deny the right to apply for bail, including section 41B Dangerous Drugs Act 1952 be immediately repealed;
c) That right to bail is exercisable by all who are entitled, especially the poor. Bail amounts should be set taking into account the income of the accused and/or his immediate family;
d) That trials, where the accused are not out on bail, be expedited, and completed preferably not later than six(6) months;
e) That Malaysia enacts a law that will properly compensate the loss of liberty, freedoms and rights for those who have spend time in detention who is ultimately found not guilty and/or are acquitted. This compensation should also probably compensate the expenses incurred by the said accused (or even initially convicted) in his/her struggle than ended up in court finding him not guilty and/or acquitting him;
f) That Malaysia promotes and respects the human rights and freedom of all, including the right to a fair trial and the right to bail.
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)