Wednesday, October 11, 2017

BAR - Abolition of the Mandatory Death Penalty — No More Delay!


Press Release

Abolition of the Mandatory Death Penalty — No More Delay!


The World Day against the Death Penalty is commemorated on 10 October each year.

In Malaysia, the death penalty is mandatory for persons convicted of murder, trafficking in narcotics of various amounts, and discharging a firearm in the commission of various crimes (even where no one is hurt). 

The Malaysian Bar has been, and remains, in the frontline of the battle to uphold and preserve the rule of law, fundamental constitutional rights, the administration of justice, and law and order.  In this regard, we have consistently called for the abolition of the death penalty.  The Malaysian Bar at its Annual or Extraordinary General Meetings in 1985, 2006, 2012 and 2015 passed resolutions condemning the death penalty and/or calling for its abolition.

The campaign to abolish the death penalty is not meant to confer licence to commit serious crimes with impunity.  Persons convicted of serious crimes must receive proportionate punishment.  But this does not mean that they therefore ought to die.  

The Malaysian Bar has always taken the view that there is no empirical evidence or data that confirms that the death penalty serves as an effective deterrent to the commission of crimes.  There has been no significant reduction in the incidence of crimes for which the death penalty is currently mandatory.  This is particularly true of drug-related offences. 

In short, the death penalty does not work as a deterrent. 

The Malaysian Bar’s primary opposition to the death penalty is because life is sacred, and every person has an inherent right to life.  This is vouchsafed in Article 5(1) of the Federal Constitution of Malaysia, which eschews the arbitrary deprivation of life.  The right to life is a fundamental right that must be absolute, inalienable and universal, irrespective of the crime committed by the accused person.

Recently, Minister Dato’ Sri Azalina Othman Said stated on 7 August 2017 that the Cabinet had approved the abolition of the mandatory death penalty for drug-related offences.  However, there has been no announcement of any timeline, or any release of draft legislation to this effect.  The Malaysian Bar calls upon the Government of Malaysia to introduce the amending legislation without further delay.  Any delay will mean more people being sentenced to die.

The Malaysian Bar further 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 imprisonment.

George Varughese
President
Malaysian Bar

10 October 2017

Wednesday, September 20, 2017

Malaysia - Death Penalty - Recomendations from past UPRs

Death Penalty - Malaysia (What was recommended at the past 2 UPR Cycles, what was accepted and merely noted)
RS
Response
A
Issue
C

Continue exercising its sovereign right of adopting national legislation and the penal code, including the application of the death penalty
Egypt  
Africa
AU, OIC, AL, OIF
Accepted
2
·  Death penalty
1
Continue exercising its sovereign right of adopting national legislation and the penal code, including the application of the death penalty
Sudan  
Africa
AU, OIC, AL
Accepted
2
·  Death penalty
1
Description: https://www.upr-info.org/database/images_flags/FR.pngDescription: https://www.upr-info.org/database/images_flags/EG.png

Reduce the number of crimes for which the death penalty may be handed down, including non-violent crimes, and to consider abolishing the death penalty
France  
WEOG
EU, OIF
Noted
5
·  Death penalty
1
Recommended as a first step that a moratorium on executions be established
Chile  
GRULAC
OAS, OEI
Noted
5
·  Death penalty
1
Abolish the death penalty as the final form of punishment and establish a moratorium on the use of the death penalty in accordance with General Assembly resolution 62-149


Israel  
WEOG
Noted
5
·  Death penalty
1
Publish official figures concerning executions and death sentences.
Italy  
WEOG
EU
Noted
5
·  Death penalty
1
Restrict the application of the death penalty to the most serious crimes according to international minimum standards.
Italy  
WEOG
EU
Noted
5
·  Death penalty
1
Consider abolishing the death penalty
Djibouti  
Africa
AU, OIC, AL, OIF
Noted
3
·  Death penalty
1
Consider the establishment of a moratorium on the use of death penalty with a view to its abolition.
Italy  
WEOG
EU
Noted
3
·  Death penalty
1
Reconsider consequences of the death penalty to the society and to take steps to reduce the number of crimes which carry death penalty as sanction, and secondly, to introduce a moratorium on the death penalty that would be followed by abolition
Lithuania  
EEG
EU
Noted
3
·  Death penalty
1
Ratify the ICCPR, the ICESCR, as well as their protocols
Benin  
Africa
AU, OIC, OIF
Noted
5
·  CP rights - general
·  Death penalty
·  ESC rights - general
·  International instruments
2
Ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), the ICCPR and ICESCR, as well as their Optional Protocols
Ecuador  
GRULAC
OAS, OEI
Noted
5
·  CP rights - general
·  Death penalty
·  ESC rights - general
·  International instruments
·  Labour
·  Migrants
2
Remain open and continue the engagement with the public on the death penalty matter, including on possible alternatives to the death penalty and its abolishing
Ukraine  
EEG
CIS
Noted
2
·  Death penalty
2
Maintain its good example in observing the legal safeguards surrounding the application of death penalty
Egypt  
Africa
AU, OIC, AL, OIF
Accepted
2
·  Death penalty
2
Carry out the necessary nation-wide consultations to find an alternative to the death penalty, and, as far as possible, explore the possibility of establishing a moratorium on the capital punishment
Ecuador  
GRULAC
OAS, OEI
Noted
5
·  Death penalty
2
Finalize the review of the mandatory nature of the death penalty, maintain a moratorium and ultimately move to abolish the death penalty
Australia  
WEOG
PIF, Commonwealth
Noted
3
·  Death penalty
2
Take practical steps towards the abolishment of the death penalty, and as a first step officially introduce a moratorium on the implementation of death sentences
Bulgaria  
EEG
EU, OIF
Noted
4
·  Death penalty
2
Broaden the review of the death penalty with a view of eliminating mandatory death sentencing for capital offences and commute all death sentences to terms of imprisonment
Sweden  
WEOG
EU
Noted
3
·  Death penalty
2
Consider reducing the number of crimes for which the capital punishment may be handed, including non-violent crimes, as well as establishing a moratorium on the use of the death penalty
Cyprus  
Asia
EU, OIF, Commonwealth
Noted
3
·  Death penalty
2
Reduce the number of crimes subject to death penalty and eliminate the compulsory application of the death penalty
Belgium  
WEOG
EU, OIF
Noted
5
·  Death penalty
2
Limit, as long as the death penalty persists in the country, its application to the most serious crimes, leaving drug trade while recognizing its seriousness, outside this category
Spain  
WEOG
EU, OEI
Noted
5
·  Death penalty
2
Bring legislation on the death penalty in line with international minimum standards, in particular by abolishing mandatory death penalty and the death penalty for drug-related offences, and take steps to approving a moratorium with a view to eventual abolition
Germany  
WEOG
EU
Noted
5
·  Death penalty
2
Move to discretionary sentencing for drug trafficking charges
United Kingdom  
WEOG
EU, Commonwealth
Noted
5
·  Death penalty
2
Abolish death penalty for minors and drug dealers
Albania  
EEG
OIC, OIF
Noted
5
·  Death penalty
2
Repeal compulsory death penalty and eliminate its application for drug related offences
Switzerland  
WEOG
OIF
Noted
5
·  Death penalty
2
Reinstate a moratorium on executions
Belgium  
WEOG
EU, OIF
Noted
5
·  Death penalty
2
Establish a moratorium on the death penalty
Mexico  
GRULAC
OAS, OEI, ACS
Noted
5
·  Death penalty
2
Adopt a moratorium on the execution of the death penalty, with a view to a final abolition of the death penalty
Spain  
WEOG
EU, OEI
Noted
5
·  Death penalty
2
Immediately establish an official moratorium on executions with a view to abolishing the death penalty
Norway  
WEOG
Noted
5
·  Death penalty
2
Establish a moratorium on the use of the death penalty with a view to abolishing capital punishment for all crimes
Montenegro  
EEG
Noted
5
·  Death penalty
2
Establish a moratorium on executions of those sentenced to the death penalty and move forward in the legal review to reach its abolition
Chile  
GRULAC
OAS, OEI
Noted
5
·  Death penalty
2
Instate an official moratorium on executions with a view to abolishing capital punishment, abolish the automatic sentencing to capital punishment for drug traffickers and commute all capital punishments to life prison sentences
France  
WEOG
EU, OIF
Noted
5
·  Death penalty
2


Thursday, September 07, 2017

Teoh Beng Hock - Call on the New Police IGP to investigate and prosecute?

Teoh Beng Hock - A death in custody case...but this time, it was not the police, but Malaysian Anti-Corruption Commission (MACC) and its officers that were implicated. 

Justice Mah Weng Kwai, reading one of the three judgments, said that the open verdict in the inquest was incorrect, ruling out that the political aide had committed suicide.He said that the correct and proper verdict to be returned in the inquiry was one of death caused by person or persons unknown. "Every effort must be made to track down the perpetrator or perpetrators in a thorough police investigation. No one should be spared in the investigations so that there will be no allegations of a cover up," Justice Mah said.

Now, Malaysia has a new Inspector General of Police, and the call again for an investigation ...


Press Release by Teoh Beng Hock Trust for Democracy, 7 September 2017

Re-Investigate the Death of Teoh Beng Hock, Prosecute the Involved MACC Officers

Teoh Beng Hock Trust for Democracy urges the newly-minted Inspector General of Police (IGP) Mohamad Fuzi Harun to reinvestigate the death of Teoh Beng Hock and prosecute Malaysian Anti-Corruption Commission (MACC) officers who involved in causing Teoh’s death, as strongly suggested by the Court of Appeal ruling on 5 September 2014.

Teoh family and board members of Teoh Beng Hock Trust for Democracy are ready to meet the IGP to provide necessary information, as well as their dissatisfaction over police investigations under Khalid Abu Bakar’s incompetent leadership. The police must give commitment to carry out an independent, professional and transparent new investigation. The culture of impunity must be ended to regain public confidence in criminal justice system in the country.

Khalid Abu Bakar’s rank and file probed the cause of death of Teoh at Plaza Masalam in 2009, the lackadaisical attitude and unprofessionalism of the investigating officer (IO) was shocking. The IO miserably failed to conduct a thorough investigation, he had presumed it was a suicide case and ruled out any possibility of homicide. The bruises caused by manual strangulation was only discovered with the support of external pathologist Dr. Pornthip. The unusual behavior of the IO frowned the lawyer, many times the IO answered that he did not dig further because “there was no instruction”.  He also presented a suspicious “Teoh’s note” several months after the probe. The failure of Selangor police to conduct a free and independent investigation denied Teoh family’s right to truth and justice.

Khalid’s police team re-opened Teoh’s case ensued from the Court of the Appeal ruling. The police neither arrest the suspected MACC officers nor find out who killed Teoh. It ignore the court order that prosecution must be done to uphold justice. It did not make public the investigation report for public scrutiny. It took approximately two years to produce one sentence unconvincing conclusion “No criminal element in this case”. Khalid must take full responsibility for the prolonged injustice suffered by Teoh family. 

The public have serious doubt about the integrity of Khalid Abu Bakar. He had argued that A. Kugan died in police custody due to “fluids in lung”, but the second post-mortem vindicated that there were 45 injuries on Kugan’s corpse. The court also sentenced constable V. Navindran for three years’ jail-term.

Mohamad Fuzi must take drastic steps to reform the police force to repair the enforcement agency’s image, the first step is to reopen the case of Teoh and ensure justice is served.

Abdul Samad Said
Chairperson
Teoh Beng Hock Trust for Democracy

(Please contact Mr. Ng at 01110664526 if you have any queries)


赵明福民主基金会文告,2017年9月7日

重新调查赵明福命案  提控涉案反贪会官员

赵明福民主基金会促请新任全国总警长莫哈末弗兹重新调查赵明福命案,提控涉及致死赵明福的反贪会官员,严格执行2014年9月5日上诉庭的判决。

赵明福家人与赵明福民主基金会董事会准备会见总警长以提供更多资讯,我们也对前任总警长卡立阿布巴卡领导下的无能调查极度失望。警方必须承诺进行一个独立、专业和透明的新调查。执法机关免受惩罚的不良文化必须停止,以重新赢得公众对我国刑事正义制度的信心

当卡立的警官于2009年调查赵明福命案,调查官的重大疏忽与不专业的调查方式令人震惊。该调查毫不中立与全面。调查方式预设命案为自杀案件,完全不调查他杀的可能性,唯有泰国法医发现赵明福颈上的被掐伤痕。这种不寻常的作业方式令律师起疑。在死因调查庭供证时期,许多时候调查官说他没有深入调查因为“没有收到上级指示”。他也在死因调查庭开始几个月后突然提呈一个难以令人置信的“赵明福字条”。在卡立领导下,雪州警队没展开自由与独立的调查,他们否决赵明福家人获得真相与正义的权利。

2014年上诉庭上诉庭判决指出,一个或多个不明人士致死赵明福,法官指示总警长卡立重新调查及提控元凶。卡立领导的警队重新开案调查后,既不逮捕反贪会官员,也不调查是谁杀死赵明福。警方没有根据判决提控元凶维护正义,也没有公开调查结果让公众研究。警方用了差不多两年的时间,才给予一个没有说服力的结论,“此案无刑事元素”。警方的不透明调查完全没公信力。卡立必须对赵家长期蒙受的不正义负上全责。

公众对于最高公务员之一的卡立的诚信也非常怀疑。卡立数年前坚持说扣留所死亡受害者古甘死于肺部积水,但第二次验尸报告证明古甘身上有45道严重上横。法庭也判暴力对待古甘的警员V. 纳文德兰入狱三年。

弗兹必须采取激进步骤推动改革以修复警察部队的形象,第一步就是重新开启赵明福命案及确保正义得以彰显。

赵明福民主基金会主席
沙末赛益

(如有任何疑问,请联络黄先生01110664526查询)


*This data in this chronology was obtained from the Teoh Beng Hock Trust For Democracy website


Date
Event
2008.03.08
Pakatan Rakyat defeated Barisan Nasional at the 12th General Election. Pakatan Rakyat state assemblyman was given state fund of RM500,000 each to carry out small development projects in their constituency while the executive councillors (EXCO) of Selangor state were given RM100,000 of extra allocation.
2009.02.05
Three pakatan state assemblymen declared separately friendly to Barisan Nasional. The Sultan of Perak Azlan Shah confirmed BN has the majority to rule the state. Najib Razak was then the chairman for Perak UMNO.
2009.04.24
In the UMNO Supreme council meeting, Prime Minister Najib Razak stepped down as Perak UMNO chairman and became the new chairman for Selangor UMNO.
2009.07.13
The Malaysian Anti-Corruption Commission (MACC) is probing seven Pakatan Rakyat Selangor state assemblymen in relation to the use of state funds in their respective constituencies.
2009.07.15
Malaysian Anti Corruption Commission (MACC) officers raided the office of Selangor State Executive Councillor Ean Yong Hian Wah and detained his political secretary Teoh Beng Hock. MACC carried out endless interrogations against Teoh until mid night.
2009.07.16
Teoh Beng Hock was found dead at the 5th floor roof top of Plaza Masalam where MACC Selangor office is.
2009.07.17
Five hundred people gathered at MACC Selangor to protest the death of Teoh Beng Hock. Riot police suppressed the demonstration and arrested few persons
2009.07.18
17 civil society groups issued a joint statement pointed that Teoh is the the first political death under the Najib-administration and under the MACC.
2009.07.27
The Selangor state assembly backbenchers club raised the possibility of Selangor UMNO led by Prime Minister Najib Razak in a bid to wrest power in Selangor, “First they targeted Perak and now it is Selangor…Teoh’s death is the latest chapter”
2009.07.29
The inquest into the death of Teoh Beng Hock began here before Coroner Azmil Muntapha Abas
2009.10.21
Thai Pathologist Dr. Pornthip Rojanasunand says that there was an 80 percent possibility of homicide and 20 percent chance of suicide in Teoh’s death because his injuries are inconsistent with a fall.
2010.11.18
Malaysians for Beng Hock (M4BH), a civil society initiative, launched a 100,000 signature campaign to demand the government to set up a Royal Commission of Inquiry (RCI) to probe into the cause of death of TBH.
2011.01.05
The coroner, Azmil Muntapha Abas, delivers an open verdict in the inquest into the death of political aide Teoh Beng Hock. The result caused public outcry.
2011.01.26
Under public pressure, Prime Minister Najib Tun Razak announced during the Tenang by-election that the royal commission will now investigate the cause of death of Teoh Beng Hock. He appoints five commissioners and chaired by current Federal Court judge James Foong.
2011.04.26
MACC officer Ahmad Shafik Rahman testified before the RCI that no evidence shows that Ean Yong misappropriate the state fund. The RCI chairman James Foong criticized MACC for insufficient ground work being done before summoning witness or suspect for statement recording.
2011.07.21
The RCI concluded that Teoh Beng Hock was driven to suicide due to the aggressive interrogation methods deployed by MACC officers
2011.07.30
250 civil society members attended a candle light vigil in protest of the RCI result. They demanded three MACC officers named in the RCI report to be prosecuted immediately.
2011.12.01
The Shah Alam high courts rejected the Teoh family’s application for judicial review, the judges maintained the inquest’s open verdict.
2012.07.18
Malaysians for Beng Hock launched Become Lee Lan 1 Min campaign, urged citizens to help Teoh family to ask the Prime Minister and ministers about the truth and justice for Beng Hock.
2013.07.19
Malaysians for Beng Hock organized the 4th anniversary memorial event of the passing of Teoh Beng Hock
2014.09.05
Court of appeal ruled that one or more unknown persons, including MACC officers, caused the death of Teoh Beng Hock. The ruling instructed the police to re-open the investigation.
2014.11.19
Teoh Beng Hock Trust for Democracy held a protest outside of the parliament to demand police to disclose the second investigation on the death of Teoh and suspects to be prosecuted according to the ruling of court of appeal
2015.03.19
NGOs and politicians joined protest to condemn the promotion of two MACC officers to senior positions who are suspected involved in causing the death of Teoh.

2015.07.08
A protest was held at MACC Sabah office to demand its Chief Hishamuddin Hashim, who involved in the death of Teoh, to be sacked immediately
2016.05.19
Minister in the Prime Minister Department Nancy said in parliament that the Attorney General found no criminal element involved in the death of Teoh after examining the report of the police’s special task force.
2016.07.16
Hundred people attended the 7th anniversary memorial of the passing of Teoh and vowed to continue the struggle for justice.
ooo


Friday, 5 September 2014 | MYT 11:15 AM

Open verdict in Teoh Beng Hock inquest overturned, suicide ruled out




 
 
PUTRAJAYA: In a landmark judgment, the Court of Appeal has set aside the coroner's open verdict in the inquest of Teoh Beng Hock. 

In a unanimous decision on Friday, the panel held that Teoh's death was caused by multiple injuries from a fall from the 14th floor of Plaza Masalam as a result of, or which was accelerated by an unlawful act or acts of persons unknown, inclusive of Malaysian Anti-Corruption Commission (MACC) officers who were involved in his arrest and investigation.

Court of Appeal judge Justice Mohamad Ariff Md Yusof, who chaired a three-man panel, allowed the appeal by Teoh's brother, Teoh Meng Kee, against the decision of the Shah Alam High Court which had on Dec 1, 2011 dismissed their application for a revision into Teoh's inquest and upheld a coroner's open verdict.  

Justice Mohamad Ariff said the interest of the family members and the public requires that the case be further investigated by the police. 

"This further investigation should include a more thorough examination of the alleged suicide note by a handwriting expert with a clear expertise in Chinese handwriting and with sufficient copies of the deceased's original sample handwriting be made available," he said.

Justice Mah Weng Kwai, reading one of the three judgments, said that the open verdict in the inquest was incorrect, ruling out that the political aide had committed suicide.

He said that the correct and proper verdict to be returned in the inquiry was one of death caused by person or persons unknown.

"Every effort must be made to track down the perpetrator or perpetrators in a thorough police investigation. 

No one should be spared in the investigations so that there will be no allegations of a cover up," Justice Mah said.

He added that it was incumbent on the magistrate in the inquiry of death to have treated Teoh's death as a "custodial death". 

Court of Appeal judge Justice Dr Hamid Sultan Abu Backer, who read out a separate judgment, directed the Inspector-General of Police and Attorney General's Chambers to commence investigation under the Criminal Procedure Code (CPC) and prefer appropriate charges as they deem fit. 

In his 30-page judgment, Justice Dr Hamid said that the magistrate in Teoh's case had assumed the role of a "coroner" and proceeded to deliver an open verdict, relying much on the erroneous practice direction relating to Guidelines on 'Inquest', which is inconsistent with the provisions of the CPC. 

He said that there is no provision under the CPC or any other provision in 'Malaya' for the magistrate to act as a 'coroner' to deliver an open verdict; or a verdict of misadventure or death by person or persons unknown. 

"The failure to follow the relevant provisions of the law has resulted in erroneous result which has caused the need to appoint a 'Royal Commission' and has also attracted undue  condemnation by the public of our criminal justice system.

"This has also led to a miscarriage of justice to the family members of the deceased," he said. 

He said that Section 328 of the CPC specifically requires the cause of death or apparent cause of death to be identified. 

"The magistrate is obliged to say who are 'criminally concerned' and not who are 'criminally liable pursuant to sections 328 and 337 of CPC. This was not done in this case," he said.

He also noted that Teoh was not accused of any crime but held in custody of 'MACC' in the late hours of the night, as well as early morning, which resulted in his death.

"The MACC's position has always been that he was a potential witness and not a suspect.

"I do not see how our legal system based on Rule of Law as well as our country being a signatory to Human Rights Convention will permit a witness to be oppressed in the manner that has been done to the deceased.

"Such a conduct will also be clearly in breach of several provisions of the Federal Constitution," he said.

Justice Dr Hamid said that he did not see how any reasonable tribunal or investigating or prosecuting agency, would not take appropriate action against relevant officers for causing the death of a witness in custody.

"This case relating to a 'witness in custody' will stand as a 'blot' on our criminal justice system if remedial measures are not taken to uphold the integrity of our criminal justice system," he said.

"Technically there is an arrest. Whether it is actual or constructive or the arrest was unlawful or illegal (since he was only a witness) has little significance in an inquest hearing save to show conduct of abuse from the start," he said.

He said that the fact that the injury has been identified on Teoh's neck was sufficient to attract some level of criminal liability against MACC officers who were involved.

"A proper police investigation would have been warranted under the CPC taking into consideration that 'MACC' officers are not immune to such investigation under the law or Federal Constitution," he said.

He said that MACC or the relevant officers being a responsible body simply could not disclaim liability when its officers had taken Teoh to custody and kept the witness throughout, engaging in oppressive conduct which resulted in Teoh's death.

"The law in Malaysia does not permit a witness to be arrested and oppressively interrogated for long hours of the night and early morning; and at the end to send the dead body to the family without admission of liability; and also for the investigating authority to take a unilateral position that everything done which led to the death of the deceased was done 'prim and proper' and assert that the investigating authority is not liable," he said.

In his decision, Shah Alam High Court judge Justice Abd Rahim Uda said that while there were suspicious grounds that could lead to a conclusion, but based on the law, suspicion alone was not enough.

Justice Abd Rahim said the court had gone through the documents and found the coroner had evaluated the testimonies and observed the witnesses in the inquest.

Teoh, 30, the political secretary to Selangor executive councillor Ean Yong Hian Wah, was found dead on July 16, 2009 on the fifth floor corridor of Plaza Masalam in Shah Alam after he had given a statement at the office of the Selangor branch of the commission on the 14th floor of the building.

Coroner Azmil Muntapha Abas had given an open verdict on Jan 5, 2011, that the death of the political aide was not a suicide, nor was it a homicide.

The much-awaited Royal Commission of Inquiry (RCI) report had concluded in July 2011 that Teoh was driven to commit suicide and blamed intensive interrogation by three MACC officers.

High Court Judge Justice Rohana Yusuf had on October 2011 dismissed the family's leave application for a judicial review to nullify the RCI's findings, saying that the High Court was bound by the Federal Court's ruling in the Datuk V.K. Lingam's video clip case on Sept 13.

The Apex court had ruled in the Lingam case that the RCI's findings were not reviewable.- Star, 5/9/2014