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 

Whereas

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; and
Feb 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.


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.

Therefore, MADPET

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.

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


Related links:-

UN special rapporteur seeks halt to execution of brothers

Double Execution in Less than 12 Hours Must Be Stopped, Amnesty International Malaysia Says

 

 

 



 

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.

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

Sunday, February 12, 2017

S. Bala Murugan(8/2/2017) - Another Death In Police Custody?

Thursday February 9, 2017
09:28 AM GMT+8

S. Bala Murugan died in custody at the North Klang police station yesterday.— AFP picS. Bala Murugan died in custody at the North Klang police station yesterday.— AFP pic KUALA LUMPUR, Feb 9 ― A man died at the North Klang police station yesterday, just a few weeks after a detainee died in police custody in Pahang.

However, this time, according to The Star, the police allegedly defied court orders to release S. Bala Murugan, 44, and to bring him to a hospital, as they brought him back to custody instead.

The news report said the magistrate ordered Tuesday Bala’s release so he could seek medical attention after he was seen bleeding severely from the mouth when he was brought in to be remanded at the Klang court.

“At 6am (Wednesday), we received confirmation that Bala had died in police custody. There was no report of a re-arrest, which means Bala was held illegally after the magistrate ordered for him to be released, and he died in custody,” lawyer Gerard Lazarus was quoted as saying.

Based on claims by family members, the report said Bala was wrongfully arrested by the North Klang district police officers on Monday after he happened to be with two other men, one of whom was wanted by the police.

Gerard, in the news report, claimed that Bala was beaten while in detention and brought to the court that day.

“When I tried to clean him (Bala) up and asked him to drink some water, he ended up vomiting blood, and the magistrate saw all of this.

“That was when he (the magistrate) called the investigating officer of the case and asked for Bala to be released or taken to the hospital immediately.

“The investigating officer agreed and said he would do so. However, police officers later told the family that they needed to take Bala to the police station first before releasing him,” he was quoted as saying.

Gerard then claimed that he was told that the police refused to release Bala and that the next news they received was of the latter’s death.

He also reportedly said that Bala's family members were unhappy with the post mortem and wanted another to be conducted.

The news report, however, did not state the post mortem findings.

On January 18, Soh Kai Chiok, 49, reportedly died from inflammation of the intestine while under police custody in Bera after he was brought in for allegedly stealing bananas at a plantation.

Following this, the Enforcement Agency Integrity Commission (EAIC) announced a special task force to investigate Soh's death to identify if the police had mishandled the detention procedure.

Prior to this, in 2013, the EAIC found police misconduct in the case of N. Dharmendran, 32, who died in detention.

According to the EAIC report, four policemen in charge of questioning Dharmendran had beaten up the victim, causing massive bleeding from blunt force trauma leading to his death. Evidence showed he even had staple wounds to his ears.

The EAIC found the police later fabricated evidence to cover up the violent interrogation and recommended disciplinary action.

The policemen were charged but acquitted at the High Court last year.

However, the victim’s widow won a separate civil lawsuit to claim damages for Dharmendran’s death from the policemen.

Judges should decide on Bail - not the Public Prosecutor?

Judges should be deciding whether bail is granted or not. This power should most definitely not be given to the Public Prosecutor. 

Neither should laws take away the judges discretionary powers when it comes to bail.

Remember that one is presumed innocent until proven guilty after a fair trial.

 

Perak mulls denying bail for repeat drug offenders

Bernama
 | February 2, 2017 
A proposal to deny bail has been sent to the Attorney-General's Chambers in December last year.

ravichandran 

IPOH: Perak will be the first state in the country to apply Section 41(B) of the Dangerous Drugs Act to deny bail for repeat offenders of drug addiction and traffickers if its proposal to do so is approved by the Attorney-General’s Chambers.

Perak Narcotic Criminal Investigation Department head ACP V R Ravi Chandran said a proposal to that effect was sent to the Attorney-General’s Chambers in December last year.

“The Attorney-General’s Chambers has asked us (police) to discuss implementation of the section with the Perak prosecution unit chief.

“If the proposal is accepted, we will apply the provision in the section this year,” he told a media conference at the Perak police contingent headquarters here today.

Ravi Chandran said there was a need to implement the provision in the law due to the increase of 12.2%, or 2,220 people, who were arrested for various drug-related offences last year.

They included 539 people who were arrested under Section 39B of the law which provides the mandatory death sentence upon conviction, he added.

He said 139 people were arrested under the Dangerous Drugs (Special Preventive Measures) Act 1985 where most of them were the masterminds or financiers of drug syndicates.

The number of people arrested for drug possession also increased by 13.2% last year, involving 4,622 people, from 4,083 people in 2015.

He said a total of 13,458 people were arrested for drug-related offences in the state last year, with drugs worth RM8.8 million seized and property worth RM8.4 million sealed. - FMT News, 2/2/2017

Friday, 3 February 2017

Perak seeks to deny bail to all repeat drug offenders


IPOH: Perak may become the first state to deny bail to all repeat drug offenders when they are charged in court.

State Narcotics Criminal Investigations Depart­ment chief Asst Comm R. Ravi Chandran said a provision under Section 41B of the Dangerous Drugs Act 1952 allowed the prosecution to request the court to deny bail for repeat offenders.

The department had forwarded the suggestion to the Attorney-General’s Chambers in December and was then told to put in the request to the Perak prosecution unit, which it has done.

“If the request is granted, our department will be the first in the country to successfully push for the provision to be implemented,” said ACP Ravi.

The move, he argued, would be a useful deterrent. He said repeat offenders are usually allowed bail when charged, and would often take advantage of this.

“Most are given bail amounts between RM2,000 and RM3,000, and after settling the amount, they are back on the streets again.

“We hope to apply the section this year if the prosecution unit gives the green light,” said ACP Ravi.

The section states that no bail is to be granted in respect of certain offences, where the public prosecutor could argue in court that it is not in the public’s interest to grant bail to the accused person.

A total of 13,548 people were arrested in Perak last year for drug-related offences in­­clu­­ding possession, trafficking and opera­ting drug processing labs, said ACP Ravi.

In another development, police detained a labourer for drug possession during a raid in Simpang, Taiping, at 11pm on Jan 31.

ACP Ravi said police seized 1.4kg of heroin in three plastic packets from the man, who was nabbed following a tip-off.

He tested positive for methamphetamine, and would be remanded until Feb 7.

ACP Ravi said the drugs confiscated are worth about RM35,000. - Star, 3/2/2017

Dangerous Drugs Act 1952

Section  41B  No bail to be granted in respect of certain offences

(1) Bail shall not be granted to an accused person charged with an offence under this Act-
(a) where the offence is punishable with death; or
(b) where the offence is punishable with imprisonment for more than five years; or
(c) 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.
(2) Subsection (1) shall have effect notwithstanding any other written law or any rule of law to the contrary.

Monday, January 30, 2017

43 Groups - INFINEON Must Reinstate Zulfadlee Thye Abdullah, President of Workers Union



Media Statement – 31/1/2017

INFINEON MUST STOP UNION BUSTING AND DISCRIMINATION AGAINST UNION LEADERS

Reinstate Zulfadlee Thye Abdullah, President of Infineon Technologies Melaka Workers Union

We, the 43 undersigned organisations and trade union are shocked to hear about the wrongful termination of Muhammad Zulfadlee Thye Bin Abdullah, the President of the Infineon Technologies Malaysia Workers Union (Kesatuan Pekerja Pekerja Infineon Technologies (M) Sdn Bhd) at INFINEON in Malacca, which is said to be the largest assembly of INFINEON with a workforce of about 8000 people.  Zulfadlee, an employee since 1998, has been the President of the Union  since 2005.

INFINEON is a German Company that produces, amongst others, electronic and auto components, which are said to be used by major Brands including Apple, BOSCH, Philips, Microsoft, Hewlette Packard, Dell and Continental.

On 13/12/2016, Zulfadlee was terminated on the grounds that he ‘committed the act of malingering’, with reference to a sick leave obtained on 18/10/2016 from a doctor, Dr Aw Cheng Yew  of  Kllnlk Melaka, which is a panel clinic of the Employer. The basis of the allegation seems to be because he was present at an activity of the Selangor Division of the Malaysian Trade Union Congress(MTUC)  in Putrajaya on the same date when he was on sick leave.  As such, one may assume that maybe the charge was simply pretending to be sick (or faking illness) for the purpose of avoiding work or duty.

It must be stated that the reason for termination used was not an employment misconduct stated in INFINEON Technologies (Malaysia) Sdn. Bhd’s document entitled Policy for Misconduct and Disciplinary.

Further, the word ‘malingering’ is not a commonly used word, and as such many are unaware of the meaning of that word. To compound matters, in this case, the word ‘malingering’ allegedly was never even clearly explained to Zulfadlee, whose mother tongue is the Malay language. When such English words are used in a charges levied against a worker, and then not explained clearly, it will have a tendency to be confusing and may result in injustice.

In law, Zulfadlee was entitled to 22 days of paid sick leave every year, and it must be pointed out that he was examined by a qualified doctor who concluded that he was entitled to   sick leave, and a medical certificate was signed and issued by the said doctor. A sick leave is given only when the doctor, after examining decides a worker is not medically fit to perform his/her duties at work.

There was no question of Zulfadlee lying or pretending to be sick, for on the subsequent day he went to see a specialist doctor, who allegedly discovered that he had a stone in his bladder and he was then given further sick leave for 3 days on 19/10/2016, 20/10/2016 and 21/10/2016. Despite being on sick leave, Zulfadlee did come to the office for a few hours to do some urgent work on 2 of these days but he was not charged for committing the ‘act of malingering’ for these days.

Being on a sick leave does not  mean that one is to be confined at home and bed rest, and cannot do any other things including also attending some union meeting or activity – a sick leave only means that he is not medically fit for work on the said day, and in law he becomes entitled to paid sick leave.

On 18/10/2016, Zulfadlee said that he had no plans whatsoever to go to the Putrajaya union activity with his union members who planned to go. It was only after he had obtained medical leave whilst he was sending off the union members heading to Putrajaya, that he was convinced by his fellow union members and suddenly decided to follow them in the bus.

Now, even if an Employer disputes the Medical Certificate issued by the doctor, then the Employer should reasonably have taken action against the doctor and/or the clinic – not with the employee.  It must be pointed out that generally a panel clinic of the employer, are less likely to simply issue Medical Certificates to employees unless the doctor is convinced that the said worker is entitled to sick leave. In this case, the Employer really had no reasonable basis to even suggest that Zulfadlee was ‘malingering’ or lied to obtain the sick leave. In such health matters, the Employer is certainly not competent – only the qualified doctor is.

We do not believe that any failings of a doctor, if there even is, should ever be blamed on a worker, and certainly not be used as justification for termination.

Further, attending or participating in a union activity cannot and should never be an employment misconduct and/or a breach of the employment contract.

ANTI-UNION ACTION & DISCRIMINATORY ACTION AGAINST UNION PRESIDENT

As such, we are of the opinion that the termination of the Union President may really not  be because of an ‘act of malingering’ by an employee, but simply a union busting action targeting the Union President and the Union.

In INFINEON’s letter dated 6/1/2017, rejecting Zulfadlee’s  appeal against the termination it was stated, amongst others, ‘…The basis of our decision was premised on the fact that the Management could not condone nor mitigate punishments for a serious act of misconduct committed by a Union President leading the employees of Kesatuan Pekerja - Pekerja lnfineon Technologies Malaysia itwu,’ This letter was signed by Lee Cheong Chee, the President & Managing Director of lnfineon Technologies Melaka.

The said letter, also did state, ‘…your illustrious career and contributions to the Company has been well acknowledged through your progress during your tenure. While that may ordinarily be a mitigating factor in considering any appeal, the Management has decided that the your act of malingering is deemed to be unacceptable and is aggravated in view of you being the Union President at the point the act of misconduct was committed…’


Besides Zulfadlee, 6 other members of the Executive Committee of the Union, including the Vice President and the Secretary, were also targeted and subjected to disciplinary action – and some of this had ended with a stern warning, whilst only the Union President was terminated.

Considering the fact that out of the 40 over employees that participated in the Union program on 18/10/2016, and only the President and 6 of the Union leaders have been subjected to disciplinary action, it certainly looks that  INFINEON  maybe discriminating against employees who are leaders of the Union, and maybe reasonably said to be an act of ‘union busting’.

The timing of these disciplinary actions and the termination of the Union President, when the Union and INFINEON is starting negotiations concerning the next Collective Bargaining Agreement, whereby the first meeting is scheduled for 23/1/2017 is most disturbing. Members of the Union will most likely be prejudiced by this.

It looks like the Employer’s actions in this case was maybe to instill fear in the Union, its members and other employees, which may affect the effectiveness of the trade union. These actions of the Employer would impact on the duty and obligation of Unions to fight for better rights and working conditions, highlight future wrongdoings, and fight against violation of the worker rights. It is failure to recognize and respect  the freedom of association.

The failure of this Union and/or its members to openly protest the wrongful dismissal of the Union President indicates that the Employer’s strategy to create a docile and compliant union maybe working. It may also seriously affect the upcoming Collective Bargaining Agreement to the  detriment of employees and Union members.

OBLIGATION TO UPHOLD WORKER AND UNION RIGHTS, AND FREEDOM OF ASSOCIATION

INFINEON Technologies (Malaysia) Sdn. Bhd.,a subsidiary of INFINEON, a German company, in this case seem to have acted contrary to the INFINEON’s own policy and Code of Conduct, Organisation for Economic Co-operation and Development (OECD) Guidelines, Electronic Industry Citizenship Coalition Code of Conduct, UN standards and principles; and other relevant standards and good practices.

Brands and corporations that do have INFINEON in their supply chain also have the obligation to ensure that justice be done, and that Codes of Conducts or Policies not be violated by reason of these action/s of INFINEON, vide it’s Malaysian subsidiary, INFINEON Technologies (Malaysia) Sdn. Bhd, including the discrimination and the wrongful termination of the Union leader.

Justice demands that INFINEON Technologies (Malaysia) Sdn. Bhd should immediately reinstate Zulfadlee without electing to simply just wait for the long drawn out court process in Malaysia, that could take even 5 - 9 years before court may award victory to a wrongfully terminated worker. As such, unless INFINEON immediately reinstates Zulfadlee, an employee of INFINEON for 18 years,  great injustice would be done to this worker who has wrongfully been deprived of his employment and income that is so needed for him and his family to survive.

Unjust Malaysian laws at present, states that if the worker cannot be reinstated, he will be awarded compensation in lieu of reinstatement for just a maximum of 24 months, when previously this compensation would have been payment of all income worker would have earned from date of wrong dismissal until the date of judgment(or reinstatement). The new amended limit is not anymore a deterrent for employers seeking to wrongfully get rid of employees, especially worker leaders.

Further, in the case of a Union leader, the chances of getting employment with any other employer, especially in the same sector, is also most difficult compared to other workers. Termination of strong Union leaders is grossly unjust to the Union and its members. Without immediate reinstatement, great injustice will be done.

Therefore, we

Call for the immediate reinstatement of Zulfadlee Thye Bin Abdullah, the President INFINEON Technologies Workers Union;

Call for the immediate withdrawal of disciplinary action/s against other Union leaders and/or members, and/or for the revocation of any punishment that has already been handed out;

Call on INFINEON and its subsidiary, INFINEON Technologies (Malaysia) Sdn. Bhd, to respect and promote worker and trade union rights, and cease discrimination against Union leaders, and also cease union busting activities.

Call on Apple, BOSCH, Philips and other companies that has INFINEON in its supply chain to immediately  ensure that INFINEON respect the Freedom of Association of Workers, Worker and Trade Union Rights;

Call on Germany to ensure that INFINEON comply with the OECD Guidelines, United Nations and  International Labour Organisation (ILO) standards, principles and best practices, and other similar obligations to ensure that human rights and worker rights are respected, protected and promoted;

Call on INFINEON and INFINEON Technologies Melaka to respect and promote human rights, including worker and trade union rights

Charles Hector
Syed Shahir bin Syed Mohamud
Mohd Roszeli bin Majid
Pranom Somwong

For and on behalf of the 43 organisations, trade unions and groups listed below

ALIRAN
Asociación de Trabajadoras del Hogar a Domicilio y de Maquila–ATRAHDOM,Guatemala C.A.
Association of Human Rights Defenders and Promoters- HRDP
Building and Wood Worker's International (BWI) Asia Pacific
CEREAL Centro De Reflexión Y Acción Laboral (CEREAL), México
Center for Alliance of Labor and Human Rights (CENTRAL) -  Cambodia
Christian Development Alternative (CDA), Bangladesh
Clean Clothes Campaign International Office(CCC)
Club Employees Union Peninsular Malaysia
CWI (Committe For Workers International) Malaysia
Electrical Industry Workers' Union(EIWU)
Electronics Industry Employees Union Southern Region Peninsular Malaysia(EIEUSR)
Electronic Industry Employees Union Northern Region Peninsular Malaysia
GoodElectronics Thailand
IndustriALL Global Union
Institute for Development of Alternative Living (IDEAL)
Kesatuan Eksekutif AIROD
Kesatuan Pekerja-Pekerja Mitsui Copper Foil(MCFEU)
Kesatuan Pekerja-pekerja Perodua EngineManufacturing Sdn. Bhd
Kesatuan Pekerja-Pekerja Perusahaan Otomobil Nasional Sdn Bhd (KPP Proton)
MADPET [Malaysians Against Death Penalty and Torture]
Malaysian Trade Union Congress(MTUC)
Movimentu Kamponezes Timor Leste-Mokatil
National Union of Bank Employees (NUBE)
National Union Employees in Companies Manufacturing Rubber Products (NUECMRP)
National Union of Flight Attendants Malaysia (NUFAM)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
North South Initiative (NSI)
Paper Products Manufacturing Employees’ Union of Malaysia (PPMEU)
Parti Rakyat Malaysia(PRM)
Pertubuhan Angkatan Bahaman, Temerloh, Pahang, Malaysia
Persatuan Komuniti Prihation Selangor & KL
Persatuan Sahabat Wanita Selangor(PSWS)
PINAY (The Filipino Women's Organization in Quebec), Canada
Progressive Voice, Myanmar
PROHAM -Persatuan Promosi Hak Asasi Manusia
Sawit Watch, Indonesia
Solidarity of Cavite Workers (SCW), Philippines
SUARAM(Suara Rakyat Malaysia)
Tenaga Nasional Junior Officers Union (TNBJOU)
WH4C(Workers Hub For Change)
Workers Assistance Center, Inc., Philippines
Yayasan LINTAS NUSA, Batam-Indonesia