Indonesia Mulls Introduction of a 'Probationary' Death Penalty

Source: Al Jazeera (10 October 2022)

https://www.aljazeera.com/news/2022/10/10/indonesia-considers-plans-for-a-probationary-death-penalty

When Indonesia recently unveiled the latest plans to overhaul its ageing Criminal Code, one of the articles that caught everyone’s eye was the one about the death penalty.

While Indonesia has long executed those convicted of crimes such as terrorism, murder, and drug trafficking, the draft of the new Criminal Code describes execution as a “last resort” and offers an alternative: a 10-year probationary period during which those condemned can have the sentence replaced with a life term if they meet certain conditions.

According to the draft, which is expected to be signed into law in the coming months, judges will be empowered to hand down a death sentence with a probationary period of 10 years if the defendant “shows remorse, there is a chance of reform, they did not play a large role in the crime committed, or there were mitigating factors in the case”.

The so-called probationary death sentence, which has echoes of the two-year ‘reprieve’ that China offers to some of those convicted to death, has raised some concerns, however.

Usman Hamid, the head of Amnesty Indonesia, which campaigns for an end to the death penalty in its entirety, says that if a probationary period is going to be used, it should be granted to everyone who is sentenced to death.

“The concept of the death penalty as an alternative punishment is inconsistent, because the government’s formulation has regressed to where the waiting period is dependent on the judge’s decision, something that is prone to abuse,” he said.

Kirsten Han, a Singapore based anti-death penalty campaigner and independent journalist, says Indonesia’s plans for a probationary death penalty were interesting, but that it remained to be seen how it would actually work in practice.

“It is an improvement from what we have because at least it says that the death penalty should be a ‘last resort’ and that there are mitigating factors, whereas what we have here is mandatory death,” she said. “My main question would be how and who evaluates the criteria like ‘good behaviour’ and ‘chance for reform’.”

Dobby Chew, the executive coordinator of the Anti-Death Penalty Asia Network based in Malaysia, agrees.

“It is not a bad idea per se and could be described as somewhat progress. But the conception and framework can be highly problematic as the starting point still requires a person to be sentenced to death,” Chew said.

“A probationary death penalty would put inmates in this odd circumstance where they have to live with the idea they need to prove themselves redeemed with the knowledge that their life would be forfeited if they don’t hovering over their head. In such circumstances, can any repentance even be considered genuine by any standards?”

Chew also agreed that the state would need to be careful in determining the criteria or context of the probationary period and have objective and measurable benchmarks in relation to perceptions of reform.

“The impact on the mental health of inmates and families differs substantially, some families are fundamentally broken, traumatised or damaged by the incarceration as the foundation for their family and lives were destroyed with the conviction and sentence. Occurrences of mental breakdown, or inmates living on a knife edge is relatively common,” Chew added.

He worries that a probationary death sentence in Indonesia will become a compromise that fails to address either reform or punishment.

“Trying to sugarcoat it in a probationary system does not solve the fundamental issues around the death penalty, nor would it provide society with the justice expected,” he said.

“And if a person was able to prove their repentance, or was able to show a lesser degree of culpability, would they have suffered unnecessarily on death row for the 10 years?”

“Do they deserve to have a metaphorical gun pointed at them for the 10 years of their incarceration?”

‘Not only is the prisoner killed, but his family is destroyed’

Source: The Sydney Morning Herald (30 April 2022)

https://www.smh.com.au/world/asia/not-only-is-the-prisoner-killed-but-his-family-is-destroyed-20220429-p5ah3v.html

Singapore: Apart from the family members and friends of the prisoners he has represented, Julian McMahon knows about as well as any Australian about the grisly, heartbreaking reality of the death penalty.

The Melbourne barrister was the lawyer for Bali 9 members Andrew Chan and Myuran Sukumaran, who faced an Indonesian firing squad in 2015, and for Melbourne man Van Tuong Nguyen, who was put to death for drug trafficking by Singapore in 2005.

“The role of the lawyer in those circumstances is to provide steady guidance and not to be overwhelmed by the emotional horror of it all,” McMahon told The Sydney Morning Herald and The Age.

“That comes later. It’s deeply upsetting to participate in. By participating up close you see that not only is the prisoner being killed, but also his family is being destroyed. The ripple effect of an execution is to kill the prisoner, destroy the family and ultimately to harm all those involved in the process.”

The issue of capital punishment has naturally peaked in prominence in Australia over the years when Australians have been caught up in its crosshairs, most notably in those instances in Indonesia and Singapore, and in Malaysia, which executed Perth man Kevin Barlow and Brian Chambers, from Sydney, for heroin importation in 1986.

The body of Nagaenthran Dharmalingam was to be cremated in his home town of Ipoh in Malaysia’s Perak state on Friday afternoon, two days after his execution inside Changi prison and more than a decade after he was arrested entering Singapore with 42.72 grams of heroin strapped to his thigh and given a mandatory death sentence.

He was the second inmate to face the gallows in Singapore in the last month. Three others have received execution notices this year – all for drug offences as well - as the city state begins carrying out the death penalty again after a two-year hiatus during the COVID-19 pandemic.

However, the case of a 34-year-old Malaysian man with “borderline intellectual functioning” being hanged by Singapore this week generated worldwide attention.

The ultimate penalty

The resumption of executions has thrust the spotlight back onto the hardline stance on narcotics of Singapore, which shares one of the world’s busiest land crossings with Malaysia and regards the death penalty as a core national policy, crucial to maintaining its status as one of the safest places on the planet.

The island nation is far from alone in Asia in handing out the ultimate penalty for drug trafficking.

The region is a global leader when it comes to capital punishment for drugs crimes. According to the latest report by Harm Reduction International, which assembles figures on the death penalty for drugs, there were 237 known drug-related death sentences handed down worldwide last year and more than 90 per cent of them were in south-east Asia.

Indonesia was the frontrunner with 89, followed by Vietnam with at least 87, Malaysia 15, Laos 14, Singapore 10 and Thailand two.

Yet while Singapore has resumed executions, none of its regional neighbours except Vietnam - where capital punishment is a state secret and numbers are unknown - have actually carried one out in recent years. In 2021, Indonesia went a fifth straight year without delivering one for any offence, Malaysia’s last execution was in 2017 and Thailand hasn’t put a prisoner to death for drugs since 2009, although it did execute a man by lethal injection in 2018 over a robbery resulting in death.
The war on drugs

It’s not to say that those tied up in the drugs game or linked to it have not paid the highest price at the hands of the state. The Philippines abolished the death penalty in 2006 but President Rodrigo Duterte took matters into his own hands after his election in 2016 in a so-called war on drugs that rights groups estimate has led to more than 20,000 drug-related killings by authorities and vigilante groups.

And in countries such as Indonesia, the lack of executions doesn’t equate to progress, said HRI’s human rights lead Ajeng Larasati, who is Indonesian.

“There is a still a huge appetite [by courts] to sentence people to death for drugs in Indonesia,” she said.

In Malaysia, judges are also still prescribing the sentence despite even though they have limited discretion to opt for a life sentence and whipping rather than the death penalty for drug trafficking, under an amendment to the law passed in 2017.

Last October Hairun Jalmani, a 55-year-old single mother of nine in Sabah, was sentenced to death after being found with 113 grams of methamphetamine.

There are at least small signs things might change. A parliamentary committee is expected to this year table a further amendment to the law in Malaysia, where convictions for murder, kidnapping and drug trafficking have had mandatory death sentences.

But Dobby Chew, the Malaysia-based executive coordinator of the Anti-Death Penalty Asia Network, warns the anticipated changes fall a long way short of abolition, as had briefly been foreshadowed by then prime minister Mahathir Mohamad when won election again in 2018.

“From what we understand it’s only going to recommend that mandatory death sentences be replaced with full discretion for judges,” Chew said.

Across the Johor-Singapore Causeway, though, there is no sign anything will change.

In Singapore, drug trafficking, including for more than 15 grams of heroin, is among the offences that carries a mandatory death penalty and all but three of 60 prisoners on death row were there on narcotics offences, according to the Transformative Justice Collective, a Singaporean organisation seeking reform of the city-state’s justice system.

This week, the United Nations human rights office expressed alarm at “a rapid rise in the number of execution notices issues since the beginning of the year in Singapore”.

But Singapore authorities staunchly back the deployment of capital publishment, pointing to its deterrent effect and studies they say demonstrate support by its population.

The Herald and The Age requested an interview with Singapore Home Affairs Minister K Shanmugam on the use of the death penalty but was directed instead towards statements by the Central Narcotics Bureau and Attorney General’s Chambers defending the execution of Nagaenthran, saying he had been transporting enough heroin to “feed the addiction of 510 drug abusers for a week”.

In response to previous questions, though, the home affairs ministry said: “The death penalty is an important component of Singapore’s criminal justice system. It is applied only after due process of law and with judicial safeguards. We use capital punishment in the most limited of circumstances, to deter the most serious crimes in Singapore’s context, such as murder and drug trafficking, and this has proven effective. In so doing, the larger interest of ensuring our people’s fundamental human right to safety and security, is served.”

In parliament here last month, Shanmugum said the majority of Singaporeans believed the death penalty served as an effective deterrent against serious crimes, reading from preliminary findings of a government study.

The home affairs ministry has said there is evidence that drug traffickers had reduced the amount of drugs they transported because they knew about the death penalty and the thresholds for different drugs, pointing to reductions in the trafficking of opium and cannabis after the introduction of the mandatory death penalty in 1990 and another government study showing “severe legal consequences had limited [offenders’] trafficking behaviour”.

The deterrence argument is one that is furiously contested including by rights groups. “Based on research that has been carried out, there is no reliable evidence of the deterrent effects of the death penalty. It’s not just for drugs, it’s also for other crimes punishable by death,” Larasati said.

The way McMahon sees it, it is also ineffective on another front. It is almost never the drug kingpins themselves who are ensnared.

“The so-called zero tolerance policy only works against the easy target – the intellectually disabled or the drug addicted or the generally incompetent low-level drug mule,” he said.

“That in itself should give pause to reflect on what’s really happening because those people are constantly replaceable by an endless line of foolish or vulnerable young offenders.”

Having experienced Singapore’s system at close quarters, he added: “It is a shocking fact and aberration for a sophisticated state to maintain a mandatory death penalty, particularly for relatively minor drug offences.”

20,000 Please for Presidential Pardon over Malaysian Man on Death Row

Source: Coconuts KL (2 November 2021)

https://coconuts.co/kl/news/20000-plead-for-presidential-pardon-over-malaysian-man-on-death-row/

Nearly 20,000 people have signed an online petition pleading to Singapore President Halimah Yacob for clemency over an intellectually-disabled Malaysian man on death row.

Nagaenthran K Dharmalingam was 21 when he was arrested in Singapore in 2009 and subsequently convicted for trafficking 42.72g of diamorphine, a narcotic analgesic used to treat severe pain. Now 33, Nagaenthran reportedly suffers from ADHD and has a very low IQ of 69.

He faces imminent execution on Nov. 10.

His family was informed of the scheduled hanging two weeks ago, according to Singaporean activist-journalist Kirsten Han, who said that she has also been assisting the family with travel arrangements so that they can bid him farewell.

“Given that Nagaenthran is intellectually disabled; committed a non-violent crime; and was allegedly coerced by assaults and threats, we sincerely appeal for President Halimah Yacob to uphold Singapore’s commitment to the [United Nations Convention on the Rights of Persons with Disabilities] by pardoning Nagaenthran’s death sentence,” the petition set up Thursday by human rights advocate Olivia Seow said. The petition also said that the Singapore justice system had failed to protect people with disabilities.

Those who commit crimes related to more than a dozen offenses including kidnapping, murder, and drug trafficking may be sentenced to death in Singapore, with exemptions to those under 18 and pregnant.

Rights groups such as Anti-Death Penalty Asia Network, or ADPAN, and Malaysia’s Lawyers For Liberty have condemned the Singapore government’s decision to execute Nagaenthran.

“The execution of any person with mental or intellectual disabilities is extremely unconscionable and reprehensible. The person would be unlikely to have the appropriate capacity to stand trial or even appreciate the severity of their predicaments,” ADPAN executive coordinator Dobby Chew wrote Friday.

Lawyers For Liberty advisor N Surendran said in a statement: “No civilized nation should resort to hanging the mentally disabled.”

The human rights group also urged the Malaysian authorities to save Nagaenthran from the gallows.

Report finds concerns with access to fair trials in Malaysian death penalty cases

Source: Mirage News (28 May 2020)

https://www.miragenews.com/report-finds-concerns-with-access-to-fair-trials-in-malaysian-death-penalty-cases/

A new report launched by Monash University, in partnership with Harm Reduction International (HRI) and the Anti-Death Penalty Asia Network (ADPAN), has questioned the fair trial standards afforded to more than 1,000 people currently sentenced to the death penalty in Malaysia.

Key findings

Monash University’s research shows that the death penalty in Malaysia has been imposed following proceedings that did not meet fair trial standards either in accordance with international, domestic or cognate common law standards.

There are 1,280 people awaiting the death penalty in Malaysia, who have not experienced fair trial standards either in accordance with international, domestic or cognate common law standards.

In certain drug trafficking trials, the presumption of innocence is undermined because as a result of the double presumptions an accused is presumed to be guilty.

Many of those accused face socio- economic, nationality and language barriers that prohibit their access to the requisite level of legal assistance.

The report, titled ‘Ensuring a Fair Trial: Fair Trial Guarantees & the Death Penalty in Malaysia’, was today launched by Malaysia’s former Chief Justice, Judge Tan Sri Richard Malanjum.

Written by Monash University and the Anti-Death Penalty Asia Network (ADPAN) with support from Harm Reduction International, the report also makes a number of recommendations, including that the Malaysian Government ratify the International Covenant on Civil and Political Rights and the Second Optional Protocol.

“Our case analysis in the Report revealed that the death penalty in Malaysia has been imposed following proceedings that did not meet fair trial standards either in accordance with international, domestic or cognate common law standards,” said report co-author Dr Natalia Antolak-Saper, from the Monash University Faculty of Law.

“Evident throughout this report is that a significant population of those sentenced to death in Malaysia is comprised of individuals convicted of drug offending, many of whom face socio- economic, nationality and language barriers that prohibit their access to the requisite level of legal assistance needed to properly test the prosecution case,” said co-author Ms Sara Kowal, Monash University Capital Punishment Impact Initiative Manager (Partnerships & Clinics).

As at December 2019, 1,280 people were on death row in Malaysia, 89 per cent of these people weremale and more than two-thirds of all persons on death row had been convicted of drug trafficking offences, according to figures from Amnesty International.

“Our research draws on interviews with lawyers who identify some common fair trial challenges including the lack of sufficient funding for legal representation at all stages of the death penalty trial, appeals and clemency stages,” Dr Antolak-Saper said.

“Our analysis of the Malaysian drug trafficking legislation identifies four key challenges to fair trial rights, one of which is that the presumption of innocence is undermined because as a result of the double presumptions an accused is presumed to be guilty.”

Ms Kowal said they found the clemency process to appear at times arbitrary.

“The lack of a legal framework means the process lacks transparency and review, both essential to fair trial rights. Given the stakes are so high in death penalty matters this is particularly problematic,” she said..

Malaysia is one of 35 countries in the world that imposes the death penalty for drug offences and in 2019, was one of 13 countries to actually sentence the accused to death for drug trafficking.

“Capital punishment ends lives, destroys families, and operates in discriminatory and arbitrary ways throughout the world. It has no proven deterrence value or other demonstrated public benefits,” said Ms Kowal.

ADPAN – On the World Day Against the Death Penalty October 10, 2018

Source: Anti-Death Penalty Asia Network (10 October 2018)

https://adpan.org/2018/10/10/adpan-on-the-world-day-against-the-death-penalty-october-10-2018/

Press Statement
On the World Day Against the Death Penalty
October 10, 2018

On 10 October each year, the international community reflects on the death penalty and its futility.

This year, we also reflect on the terrible and cruel physical conditions most death penalty prisoners are forced to suffer. All prisoners on death row share the same psychological torment, as they await an unnecessary and brutal death at a pre-arranged hour, whether soon or an unknown number of days or years away.

On this World Day Against the Death Penalty, Anti-Death Penalty Asia Network (ADPAN, a network of organizations and individuals aiming for the abolition of the Death Penalty) reaffirms its strong and unequivocal opposition to the death penalty in all circumstances and for all cases. ADPAN considers the death penalty incompatible with human dignity. The international research shows that the death penalty does not have any proven deterrent effect. Whether used against prisoners who are powerless and poor, minorities who are marginalized, or political enemies, the death penalty brutalizes and diminishes each society which employs it.

On this day of the year, we call on the retentionist States who still regularly execute, to immediately put in place a moratorium, and to abandon this futile and cruel relic of history.

All too often, conditions for prisoners facing execution are cruel and harsh. Conditions vary around the world, but in some places, cruelties range from torture to overcrowding in filthy conditions to denial of basic rights such as regular access to lawyers or family, to being detained without hope for long periods, all too often in cramped, excessively hot or cold and inhuman conditions.

Systemic problems vary around the world, but these terrible prison conditions are too often accompanied by trials which have been unfair, in justice systems in urgent need of reform.

In Asia, there has been mixed development in the abolition movement in the last 12 months. On the one hand, we have seen the amendments to the Dangerous Drugs Act in Malaysia, which the government then described as a “baby step” towards abolition. In this amendment, the presiding judge is given some discretion to impose imprisonment rather than death on a convicted drug trafficking offender if certain conditions are proven. Nevertheless, whether this amendment will save lives is yet to be seen. Indonesia is also undergoing a review of its Criminal Code where, if passed, the death penalty will no longer be a primary sentence. Korea is affirming its commitment to abolition, while Cambodia has resisted a call to reintroduce the death penalty.

On the other hand, there was also a steep increase in executions in this region. Earlier this year, Japan executed 13 people within a short span of time; Thailand executed 1 person after 9 years of moratorium; Taiwan executed 1 person without much warning; we have information that Singapore recently executed 3 people; not to mention the many executions in China and Vietnam which are so often done in secret. The Philippines is threatening to bring back the death penalty, only a delayed Senate vote is holding back the floodgates; so too, Mongolia is debating reverting back to executions.

In Pakistan, executions through special and military courts and trials have been carried out, in the face of criticism of the courts’ failures to adhere to their guarantees of fair trial and due process. In India, despite extraordinary delays and other systemic problems within the justice system, there has been a rush to calling for more and more executions, in the face of child and other rape cases. In Bangladesh, there has been an increase on death penalty conviction in recent years, totally as at September 2018, 1680 people on death row.

What these occasional executions and clamor for executions all too often show is that the death penalty is used as a tool for some other undisclosed political purpose.

However, we also note that there has been an increase in discourse and dialogue on this issue within society and among policymakers, which we view as most desirable and healthy. We, in ADPAN, place much emphasis on continued education and dialogue in an open and transparent environment. We are firmly of the view that wherever there is honest, courageous and careful study of a justice system, its flaws, its strengths, its purposes; in combination with a study of trials, acknowledging the reality everywhere of the inevitability in every system of some wrongful convictions; with honest assessments of state brutality when it occurs, together with the study of prison conditions, and other relevant matters, then the futility and unnecessary cruelty of state-sanctioned executions will become apparent. So many countries of the world have already done this – rich and poor, of all political and religious persuasions. It is time for the remaining executing countries to do the same.

ADPAN envisions a world without the death penalty, and we start from Asia. Asia covers a vast geographical area, diverse and rich in ethnicity and culture, with different forms of government. We understand the challenges, yet we believe that with the hard work of all stakeholders and the commitment towards humanity, this is not an impossible goal. History and the changes of the last 70 years show us that such goals are not merely dreams but can become practical realities.

Last but not least, on this 10th October, as every corner of the world commemorates the World Day Against the Death Penalty, ADPAN wish to take this opportunity to express our heartfelt appreciation to the abolition community and welcome all others to join the family as we call for the abolition of the death penalty, an end to state-sanctioned killings.

Issued by:

ADPAN Executive Committee

10 October 2018

contactadpan@gmail.com

Malaysia - Delay in Coming Into Force Law That Abolishes Death Penalty for Drug Trafficking results in 10 unnessarily [sic] sentenced to death

Source: Anti-Death Penalty Asia Network (13 February 2018)

https://adpan.org/2018/02/13/malaysia-delay-in-coming-into-force-law-that-abolishes-death-penalty-for-drug-trafficking-results-in-10-unnessarily-sentenced-to-death/

MADPET (Malaysians Against Death Penalty and Torture) notes that despite the fact that the Dangerous Drugs (Amendment) Act 2017 receiving royal assent on 27/12/2017, that effectively abolishes the mandatory death penalty for drug trafficking, the failure of the Minister to do the needful to bring the law into force has resulted in Malaysian judges still having no choice but to sentence convicted drug traffickers to death.

‘…”Since there is only one sentence provided for under Section 39B of the Act, the court hereby sentences all the accused to death,” he [Judge Datuk Ghazali Cha] said….’(The Sun Daily, 22/1/2018). Until the new Dangerous Drugs (Amendment) Act 2017 comes into force, Judges continues to have no discretion but to sentence those convicted to death.

The most recent victim was Malaysian lorry driver S. Gopi Kumar, 33, who was sentenced to death (The Sun Daily, 24/1/2018). Earlier, on 17/1/2018, it was reported that 5 others, Malaysian A. Sargunan, 42, and four Indian nationals (Sumesh Sudhakaran, Alex Aby Jacob Alexander, Renjith Raveendran and Sajith Sadanandan) were convicted and sentenced to death by the Shah Alam High Court on Wednesday (Jan 17) for drug trafficking under Section 39B (1)(a) Dangerous Drugs Act 1952 (Star, 17/1/2018). As not all cases get reported by the media, there may be many others that have been sentenced to death, who may not have been if not for this Ministerial delay.

A perusal of the Malaysian official e-Federal Gazette website on 25/1/2018, shows that the Dangerous Drugs (Amendment) Act 2017, that received royal assent on 27/12/2017, has still not come into force. In comparison, other laws that received royal assent on the same day like the Income Tax (Amendment) Act 2017, came into force on 30/12/2017. Even some laws that received royal assent later on 29/12/2018, like the Malaysian Maritime Enforcement Agency (Amendment) Act 2018 has already come into force since 11/1/2018.

When the Dangerous Drugs (Amendment) Act 2017 comes into force, it will finally abolish mandatory death penalty for drug trafficking that have existed since 1983. Judges, will thereafter, have the discretion to impose a sentence for drug trafficking other than the death penalty, being life imprisonment with whipping of not less than 15 strokes, for the offence of drug trafficking.

Section 3(2) of Dangerous Drugs (Amendment) Act 2017 states, ‘ (2) Any proceedings against any person who has been charged, whether or not trial has commenced or has been completed, and has not been convicted under section 39b of the principal Act by a competent Court before the appointed date, shall on the appointed date be dealt with by the competent Court and be continued under the provisions of the principal Act as amended by this Act.’

This means that any person even already on trial for drug trafficking (section 39B), so long as they have yet to be convicted, can still enjoy the benefits of Dangerous Drugs (Amendment) Act 2017. But, until the Minister do the needful, to ensure this law comes into force, judges will continue to have no discretion but to impose the mandatory death penalty on those convicted before the new law applies.

The new law, sadly, do [sic] not provide any remedy to those already convicted and/or for the 800 or more currently on death row by reason of having been convicted for drug trafficking.

Hence, as of today, Malaysian Gopi Kumar and possibly 5 or more that have already been convicted by the High Court before the new law come into force, are victims of a great injustice and may be hanged to death.

As it stands now, under even the new law, after conviction and being sentenced to death by the High Court, the Appellate Courts also will not have the capacity to change the death sentence to imprisonment, unless they choose to acquit them of drug trafficking, or possibly elect to convict for for [sic] a lesser offence that does not carry the mandatory death penalty.

In light of the adequacies of the new upcoming drug law, Malaysia must really table another new law that will result in the commuting of sentence of all those currently on death row by reason of being convicted of the offence of drug trafficking, and even other offences that carries [sic] the mandatory death penalty. This will be just for 2 Malaysians and 4 foreigners sentenced in 2018.

This new law could be tabled in the up-coming Parliamentary session this March 2018. This is the most reasonable approach, considering that there are more than 800 on death row, and judicial review of the sentence of so many may really be a difficult or near impossible task.

It must also be reminded, that Malaysia was looking at abolishing the death penalty, especially the mandatory death penalty. While the new Dangerous Drugs (Amendment) Act 2017 will do away with the mandatory death penalty for just one offence – drug trafficking, mandatory death penalty still exist for murder and so many other offences, some of which are offences that do not result in any grievous injury and/or death to victims.

As such, Malaysia need [sic] to speedily table new laws, which will at the very least abolish the mandatory death penalty – returning discretion to judges to mete out appropriate just sentences based on the facts and circumstances of each and every case.

In the meantime, while Malaysia works towards abolition, there must justly be a moratorium on executions.

MADPET reiterates its call on the Minister to do the needful to ensure that Dangerous Drugs (Amendment) Act 2017 comes into force immediately without any further delay;

MADPET also calls for all trials of persons charged under section 39B(drug trafficking) be stayed, or where trial [sic] is almost over, that courts do not proceed to convict until after Dangerous Drugs (Amendment) Act 2017 comes into force. This will prevent any further injustice on any other person, as had embarrassingly happened to Gopi Kumar and 5 or more, who have in 2018 sentenced to death just because of the delay of the law that abolishes mandatory death penalty coming into force;

MADPET reiterates the call for Malaysia to speedily abolish all other remaining mandatory death penalty offences, other than drug trafficking, and returning sentencing discretion to judges; and

MADPET also reiterated the call for a moratorium on all executions, pending the abolition of the death penalty in Malaysia.

Charles Hector

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

Asia-Pacific Countries – Death Penalty Status, Population, etc

Source: Anti-Death Penalty Asia Network (18 August 2017)

https://adpan.org/2017/08/17/asia-pacific-countries-death-penalty-status-population-etc/

ASIA-PACIFIC COUNTRIES – Death Penalty Abolition Status

ASIA

Eastern Asia

China (1,367,820,000) **

China, Hong Kong SAR (7,298,600)**

China, Macao SAR (644.900)

China Tibet (3,002,000)   

Japan (126,920,000) **

Korea (North) (25,000,000 )

Korea (South) (50,800,000 ) **

Mongolia (3,061,000 )**

Taiwan (23,526,000 ) ** 

Northern Asia

Russian Federation (146,544,000)

South-Central Asia

Afghanistan (26,556,000 )  **         

Bangladesh (158,226,710 )  **        

Bhutan (760,000)

India (1,326,000,000) **   

Iran (78,226,000)         

Kazakhstan (17,713,300 )

Kyrgyzstan (5,895,000 )

Maldives (341,000)                       

Nepal    (31,000,000)   **

Pakistan (188,144,000 ) **

Sri Lanka (21,203,000 )  **

Tajikistan (8,352,000 )

Turkmenistan     (5,400,000 )

Uzbekistan          (31,000,000 )

South-East Asia

Brunei Darussalam * (417,200 )                

Cambodia * (14,676,591)

Indonesia * (258,705,000)     **      

Lao PDR * (7,000,000)

Malaysia * (31,660,000)     **          

Myanmar (Burma) * (51,419,000)

Philippines * (100,981,000)    **     

Singapore * (5,535,000)    **           

Thailand * (67,959,000)     **          

Timor-Leste (East Timor)

Vietnam * (90,730,000)  **             

Western Asia and Middle East

Armenia (3,000,000)

Azerbaijan (9,705,600)

Bahrain (1,234,000 )      

Cyprus (848,300)

Georgia (3,729,000)

Iraq (36,000,000 )           

Israel (8,522,000 )

Jordan (6,297,000)        

Kuwait (3,695,000 )       

Lebanon (4,460,000 )    

Oman    (4,469,500 )       

Palestinian territories (4,293,000 )           

Qatar (2,597,000 )          

Saudi Arabia (31,770,000 )          

Syria (24,044,000 )         

Turkey (78,741,000)

United Arab Emirates (8,264,070 )

Yemen (26,000,000 )      

PACIFIC

Australia (23,792,000)    **

Papua New Guinea (8,219,000)   **

New Zealand (4,579,000)**

Fiji (867,000)

Solomon Islands (587,000)

Vanuatu (278,000)

New Caledonia (France) [273,000]

French Polynesia (France) [273,000]

Samoa (193,000)

Guam (US) (162,000)       

Kiribati (113,000)

Tonga (104,000)  **

Federated States of Micronesia (103,000)

Marshall Islands (55,000)

American Samoa (US) [55,000]   

Northern Mariana Islands (US) [47,000]   

Palau [17,000]

Cook Islands (NZ) [15,000]

Wallis and Futuna (France) [12,000]

Tuvalu   [11,000]

Nauru [10,000 ]

Norfolk Island (Australia) [3,000]

Niue (NZ) [2,000]

Tokelau (NZ) [1,000]

Pitcairn Islands (UK) [60]

Key:-

RED BOLD – Retentionist Countries

BLUE  – Abolitionist Countries in Practice – RISK of return of DP

GOLD – US is a Retentionist Country – as such the status here is questionable?

KEY POSITIVE DEVELOPMENTS IN ASIA –PACIFIC

1985      AUSTRALIA abolished the death penalty for all crimes.

1989      CAMBODIA abolished the death penalty for all crimes.

1993      HONG KONG abolished the death penalty for all crimes

1997      NEPAL abolished the death penalty for all crimes

1999      EAST TIMOR, TURKMENISTAN abolished the death penalty for all crimes

2002      TURKEY abolished the death penalty for ordinary crimes. CYPRUS abolished the death penalty for all crimes

2003      ARMENIA abolished the death penalty for ordinary crimes

2004      BHUTAN, SAMOA and TURKEY abolished the death penalty for all crimes

2006      PHILIPPINES abolished the death penalty for all crimes.

2007      KYRGYZSTAN abolished the death penalty for ordinary crimes.

2008      UZBEKISTAN abolished the death penalty for all crimes.

2015      FIJI abolished the death penalty for all crimes.

2016      NAURU abolished the death penalty for all crimes.

1 July 2017 MONGOLIA abolished the death penalty for all crimes.

*may not be comprehensive, some positive developments may have inadvertently left out

ADPAN Urges Philippines to be Strong and Reject Attempts to Re-Introduce the Death Penalty

Source: Anti Death Penalty Asia Network (5 August 2016)

https://adpan.org/2016/08/05/adpan-urges-philippines-to-be-strong-and-reject-attempts-to-re-introduce-the-death-penalty/

ADPAN (Anti Death Penalty Asia Network) is shocked that the Philippines seems adamant about moving forward with plans to re-introduce the death penalty. The death penalty has been suspended since 2006, and Philippines is now considered an abolitionist country.

On 28 July 2016, the newly convened Philippine Congress heard a proposal to re-impose the death penalty for “heinous crimes”, giving priority to President Rodrigo Duterte’s push for capital punishment in its first legislative session.

Since late June 2016, House Bill No.1 and several other Bills seeking to re-introduce the death penalty have been filed for consideration of the Philippines Congress. These Bill seeks to reimpose capital punishment for human trafficking, illegal recruitment, plunder, treason, parricide, infanticide, rape, qualified piracy, bribery, kidnapping, illegal detention, robbery with violence against or intimidation of persons, car theft, destructive arson, terrorism and drug-related cases.

ADPAN is hopeful that Filipinos and lawmakers that are abolitionist will prevail, and death penalty will not be reintroduced in this ASEAN nation.

Albay Representative Edcel Lagman said the measure is anti-poor and that the death penalty has not been proven to deter heinous crimes. “What deters the commission of crimes are certainty of apprehension, speedy prosecution and inevitable conviction once warranted,…The death penalty is anti-poor because indigent and marginalized accused cannot afford the high cost of [top] caliber and influential lawyers to secure their acquittal.”

Senator Leila de Lima, who continues to oppose the death penalty, is proposing a law to impose “qualified reclusion perpetua” for those found guilty of heinous crimes. Those punished with “qualified reclusion perpetua” would not be eligible for parole at all.

RE-INTRODUCTION OF DEATH PENALTY A VIOLATION OF INTERNATIONAL LAW

The Philippines signed International Covenant on Civil and Political Rights (ICCPR) on December 19, 1966 and ratified it on October 23, 1986. It signed the Second Optional Protocol on September 20, 2006 which explicitly forbids states who have ratified it from conducting executions within their respective jurisdictions: “No one within the jurisdiction of a State Party to the present Protocol shall be executed.”

However, it provides for one exception: Countries who expressed reservations only during the time of ratification or accession may resort to the death penalty in times of war for those convicted of “a most serious crime of a military nature committed during wartime.”. Philippines cannot claim the exception because it did not make this reservation when it ratified the Second Optional Protocol.

As, such the re-introduction of the death penalty would also be considered a violation of international law.

RE-IMPOSITION OF DEATH PENALTY PROVEN AN INEFFECTIVE SOLUTION TO FIGHT CRIME

ADPAN joins Zeid Ra’ad Al Hussein, the UN high commissioner for Human Rights, in urging Phlipines ‘to remember the experience of Mongolia, which first abolished the death penalty for ordinary crimes in the 1950s, then reintroduced it, before deciding, last December, to once again stop executing people. In reaching the decision, President Tsakhiagiin Elbegdorj said the people of Mongolia had suffered enough from the death penalty. In his words: “Removing the death penalty does not mean removing punishment. Criminals fear justice, and justice must be imminent and unavoidable. But we cannot repair one death with another.” ‘

The UN High Commissioner for Human Rights, added, ‘Fear, despair and frustration clearly prevail among all Filipinos amid a rise in crime and drug-related offenses. But it is the duty of political leaders to adopt solutions to the country’s challenges in ways that will support the rule of law and advance the protection of human rights…The arguments are convincing and decisive: On every level—from principle to practice—use of the death penalty is wrong.

DEATH PENALTY INEFFECTIVE AND HIGH RISK OF IRREPARABLE MISCARRIAGE OF JUSTICE

ADPAN reiterates that there are no credible evidence that the death penalty deters crime. As an example, in Malaysia in 2012, despite the existence of the mandatory death penalty for drug trafficking, it was revealed in Parliament that there was in fact an increase of the persons arrested for drug trafficking.

The possibility of miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable. There has just been too many cases, where persons who have languished on death row for decades have been released. We recall that in January 2011, Taiwan’s Ministry of Justice admitted that Chiang Kuo-ching, a private in the Air Force, had been executed in error in 1997 for a murder committed 15 years previously.

The global trend has been towards abolition. Philippines did us proud, when it abolished the death penalty in 2006, and it is hoped that Philippines will reaffirm its commitment to abolition when it stands strong and rejects attempts to re-introduce the draconian death penalty.

ADPAN urges the Philippine lawmakers to opposes attempts to bring back the death penalty,

Charles Hector

For and on behalf of

ADPAN (Anti Death Penalty Asia Network)

Nancy explains delay in amending death penalty law

Source: Malaysiakini (10 July 2016)

https://www.malaysiakini.com/news/348043#ixzz4DzlNZXjS

At Malaysia's presentation of its Universal Periodic Review (UPR) report at the United Nations in Geneva in 2013, one of the recommendations which had substantive amount of support was for Malaysia to put a stop to executions.

At least 18 states - including Norway - raised concerns about the death penalty and made recommendations for Malaysia to establish a moratorium on executions, as well as take steps to eliminate mandatory death sentences.

In response, the Malaysian government delegation stated it was studying the “issues arising from the imposition of [the] death penalty”, with the view of making recommendations on ways forward.

According to Amnesty International’s 2015/2016 report on Malaysia, official statistics listed 33 executions carried out between 1998 and 2015.

In a written reply to a question by Bukit Gelugor parliamentarian Ramkarpal Singh in May, Minister in Prime Minister’s Department Nancy Shukri said there were 1,041 death penalty inmates as of May 16 this year.

Mandatory death sentence is applied to those convicted of drug-trafficking, firearm offences, murder, and treason.

In November last year, attorney-general Mohamed Apandi Ali had called mandatory death penalty a “paradox” because it takes away a judge’s discretion in imposing sentences.

In late 2012, International Centre for Law and Legal Studies (I-Cells) was tasked with providing a comprehensive review of the laws and practices on death penalty in Malaysia.

According to Nancy, the research group appointed Roger Hood, emeritus professor of criminology from Oxford University, as consultant in 2014.

When asked why the study took more than three years, Nancy admitted it took a long time but said it was fair because the review was "very thorough".

“They (the researchers) went back in history to the 1800s. They looked into every aspect of the law, the history, why the law was made in such a way.

“That’s why, according to them, it took so long. They finished only about two months ago,” Nancy told Malaysiakini at the sidelines of the Sixth World Congress Against the Death Penalty in Oslo, Norway, on June 22.

The minister said it was important to ensure the recommendations put forth by cabinet echo public opinion on the matter.

“If you see cases that happened in Malaysia, especially the victims' families, they always want an eye for an eye ... So it becomes a challenge for the country.

“It's better to get a proper study to be done professionally and see whether this (amending) is something that the Malaysians can accept because we want to be at par with others as well.

“And not only that, we are talking about a human being, even though talking about what the accused or the perpetrator had done to the victim, it is very difficult for the government to just take away what (punishment) is already there.

So therefore … we feel that we need to go back to the court but still, we need to see what is the outcome of the study on legislative reforms, whether they (the recommendations) include that or not,” she said.

Make study public

The NGOs are urging the government to release the study.

“The study and recommendations must be made public,” said Hector.

For regional grouping Anti-Death Penalty Asia Network (Adpan), Malaysia going on record in front of its UN peers that it was carrying out a study adds another layer of accountability.

“It is only prudent that the report be made public now that it is completed,” said Adpan executive member Ngeow Chow Ying.

Nancy said it was about timing.

“I cannot pre-empt it because we have to present to cabinet but I believe there shouldn’t be any problem (to share the study with the public) because it is an academic study to propose to the government what is best.

The minister herself has not read the contents of the study.

“I have not seen it (the study) because it is only I-Cells and the AG’s Chambers (which are involved). Once they have prepared the recommendation paper, I will be the one (to read it), the person to table to cabinet.

“But of course it will be up to the government to take which part of the recommendations that the government feel is suitable for Malaysia to pick up,” she said.

Adpan was confident that recommendations from I-Cells’ leader Hood, whose scholarship on death penalty is known globally, would reflect international standards.

“Prof Roger Hood is an authority on this issue and he is a strong abolitionist; his recommendations will be to abolish the death penalty. The report is to be tabled to cabinet for approval. It will be a test on our politicians," said Ngeow.

Amnesty International Malaysia executive director Shamini Darshni Kaliemuthu added: "Death penalty reforms have been bandied about since 2010. Six years on, it is good to note that some progress has been made and we hope that the government will heed international calls to abolish the death penalty in its entirety."