Monday, August 21, 2017

Suhakam - URGENT REFORM NEEDED REGARDING INHUMANE LOCK UP CONDITIONS IN AYER MOLEK

See earlier post:-

Ayer Molek lockup condition - Let the Home Minister and IGP spend a couple of nights there for speedy reform?

SUHAKAM'S STATEMENT IN FULL 

 

PRESS STATEMENT

“URGENT REFORM NEEDED REGARDING INHUMANE LOCK UP CONDITIONS IN AYER MOLEK”

KUALA LUMPUR    (16 AUGUST 2017)               -           The Human Rights Commission of Malaysia (SUHAKAM) visited the Ayer Molek Police Lock Up in Johor Bahru on 31 July 2017 pursuant to its legislated mandate for an independent and objective scrutiny of the conditions and human rights situation of the lock up, particularly on several critical issues such as healthcare practices.

The Ayer Molek Police Lock Up is a former prison that was converted into a temporary police lock up on 8 January 2009.  It has a maximum capacity of 180 detainees. SUHAKAM visited all cells and observed that the conditions were extremely poor, with decaying flooring and dilapidation in most cells. While detainees were not necessarily subjected to overcrowding, the cells were small, without adequate lighting and ventilation or bedding. It is SUHAKAM’s observation that the detainees were held in conditions hazardous to their health and wellbeing.

SUHAKAM is extremely concerned to learn that drinking water was only provided three times a day. SUHAKAM emphasizes that having access to safe drinking water is central to living a life in dignity; and in accordance with Rule 20(2) of the Standard Minimum Rules for the Treatment of Prisoners, drinking water shall be available to every prisoner whenever he needs it. While detainees are entitled to clothing that is clean, there was also an overall shortage of clean lock up clothes.

SUHAKAM finds it unacceptable that the daily food budget for detainees is RM 8 for three meals per detainee. Even the lock up staff acknowledge that this amount does not allow for sufficient portions that are nutritionally balanced and adequate according to the diet prescribed by the Ministry of Health. During the visit, SUHAKAM received complaints regarding the quantity and quality of food that was provided. SUHAKAM stresses that there is an urgent need to undertake a review of the budget allocation for food and potable drinking water for detainees throughout the country, as we believe that similar circumstances exist in other lock ups nationwide. Given the numbers of persons in detention, the allocated national budget for this population must be revisited.

SUHAKAM is also troubled with the absence of a custodial medical team and medical officer as stipulated under the Lock Rules 1953 to provide immediate medical care to detainees despite our repeated and numerous recommendations. Overcrowding, inadequate access to healthcare services, poor nutrition, hygiene and sanitation are not only violations of human rights, but these conditions increase the risk of the spread diseases such as tuberculosis within the lock up. 

SUHAKAM empathizes with lock up officers who have to purchase face masks and gloves on their own to protect themselves against tuberculosis and other transmission of diseases. 

SUHAKAM was informed that there were cases of police officers stationed at the lock up who had contracted tuberculosis from sick detainees.

SUHAKAM observes that the United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) which is a soft law instrument that contains provisions protecting the human rights and personal liberties of detainees are not being fully complied with. 

 SUHAKAM emphasises that lock up management must ensure that the detainee’s unconvicted status is demonstrated in their treatment and calls on the Ministry of Home Affairs to take immediate steps to remedy the deplorable and inhumane conditions endured by persons who are on remand and not yet charged.

SUHAKAM is of the view that the conditions are so poor that they amount to cruel, inhuman or degrading treatment and reiterates that treating persons deprived of their liberty with humanity and respect for their dignity is a basic and universally applicable tenet; the applicability of which cannot be dependent on budget or financial resources of a lock up. If acceptable standards in detention cannot be maintained, the Ayer Molek and other lock up’s in similar conditions must be closed.

-END-

Tan Sri Razali Ismail
Chairman
Human Rights Commission of Malaysia (SUHAKAM)


Media queries: Contact Jesrina Grewal (Ms) at 012-6200 599 or grewal.jesrina@gmail.com

Saturday, August 19, 2017

Malaysian Parliamentarians Against Death Penalty

On 25 July 2017, parliamentarians, representatives from civil society and the diplomatic community met in the Parliament of Malaysia, in Kuala Lumpur, to discuss the abolition of the death penalty in the region. This roundtable was convened by Parliamentarians for Global Action (PGA), in the framework of its partnership with Ensemble contre la peine de mort (ECPM), the Anti-Death Penalty Asia Network (ADPAN) and the Civil Rights Committee of the Kuala Lumpur and Selangor Chinese Assembly Hall (KLSCAH),

The roundtable was hosted by Honourable Kula Segaran, Secretary of PGA’s National Group in Malaysia and Member of PGA’s Executive Committee.

Participants first discussed the situation of the death penalty in Malaysia, with opening statements from Mr. Raphaël Chenuil-Hazan, Executive Director of ECPM, H.E. Dr. Angela Macdonald, Acting Australian High Commissioner to Malaysia, and H.E. Mrs. Maria Castillo Fernandez, Ambassador & Head of the European Union Delegation to Malaysia, who all vowed to support Malaysian parliamentarians and authorities in their efforts to reduce the scope of the capital punishment. Most significantly, Hon. Azalina Othman Said, Minister of Law, described Malaysia’s efforts to reduce the use of death penalty and announced that a bill abolishing the mandatory aspect of capital punishment for drug-related crimes would soon be presented to the Cabinet, before being put to vote in Parliament.

After substantive contributions from Hon. Kula Segaran, Mr. Charles Hector Fernandez, Coordinator of MADPET, Hon. Liew Ching Tong, PGA Member, and Tan Sri Razali Ismail, Chairman of the Human Rights Commission of Malaysia (SUHAKAM), all attendants participated in a fruitful debate where they exchanged views on how to best promote the abolition of the death penalty in Malaysia. 


The roundtable also gave the participants an overview of the situation of the death penalty in other Asian countries, thanks to the very detailed presentations from Ms. Ngeow Chow Ying, Member of the Executive Committee of ADPAN, Hon. Eva Sundari, Indonesian MP and PGA Member, Mr. Julian McMahon Barrister and Member of Reprieve Australia’s Board, and Mrs. Zainab Malik, Head of Advocacy at Justice Project Pakistan. Chaired by Hon. Thomas Su Keong Siong, Treasurer of PGA’s National group in Malaysia, and Hon. Shamsul Iskandar Mohd Akin, PGA Member, this session allowed all participants to identify similitudes and synergies between efforts led by parliamentarians in Malaysia, Indonesia, Pakistan and other countries in the region.

 
All participants voiced their deep concerns at the increasing number of executions in Indonesia and Pakistan and at the multiplication of extrajudicial killing in the Philippines. They vowed to tackle the issue of the death penalty in their respective countries and on the regional level.

The participants came out with the following Action Plan.

The Members of Parliament from Malaysia that were present included MPs from DAP, PSM, PKR and Parti Amanah Negara.

It was great to see that all the MPs present were for the abolition of the death penalty personally, and it is hoped that Malaysian Political Parties would also soon come out with a CLEAR party position in favour of the abolition of the Death Penalty in Malaysia 

See related posts:-

Bill To End Mandatory Death Penalty For Drug Offences Maybe Tabled Before This Parliamentary Session Ends(MADPET Media Statement))

Parliamentarians need educate constituents for abolition of death penalty(Star)






Action Plan

Recalling the international human rights standards and instruments that guarantee the right to life and
protect the human dignity of death row inmates, as well as the General Assembly of the United Nations’ resolution on the moratorium on the use of the death penalty,

Considering how the death penalty is currently used in Malaysia and in the region, despite the lack of
evidence of its deterrent effect,

Acknowledging the crucial role that legislators hold to promote the abolition of the death penalty, to
reduce and restrict its use and to further the development of the Rule of Law through legislative
initiatives and by leading public opinion,

We, the participants of the Parliamentary Roundtable on the abolition of the death penalty in Malaysia and in Asia, commit to:

1. Continue to strive to inform our constituents and others about the death penalty and its related issues, to grow a consensus in favour of its abolition, including through public statements;

2. Create within our respective parliaments a multi-partisan group of parliamentarians dedicated to further the abolitionist cause, through engagement with other stakeholders and in particular with PGA, ECPM and ADPAN;

3. Engage with families affected by the death penalty, both the relatives of victims and of accused, and give them a role to play in our advocacy efforts;

4. Engage with student bodies to promote the abolition of the death penalty;

5. Make clear, whenever the opportunity arises, that under international law the death penalty should only be applied to “the most serious crimes” and that drug-related crimes do not meet this threshold;

6. Make clear, whenever the opportunity arises, that under international law the death penalty should not be made mandatory for any category of crimes, as it negates the rights of the accused to benefit from a sentence reflecting the circumstances of the crime;

7. Request from our respective governments that a review of existing death row cases be conducted to
assess inter alia the impact of the mandatory death penalty and the background of those affected;

8. Raise the issue, whenever the opportunity arises, of the discriminatory aspect of the death penalty, in particular against poverty-stricken communities, trafficked individuals, the mentally ill, juveniles, and minorities;

9. Keep the abolition of the death penalty at the forefront of legislative discussions, and especially when discussing matters of criminal justice and criminal procedure, to ensure that the capital punishment should only be used at the outcome of a fair and transparent trial;

10. Urge our respective governments, both federal and state, and all bodies that exercise clemency powers to commute death sentences;

11. Demand from our respective governments that no execution be carried out in secret or hastily, that an adequate notice be given to the family before execution, and that statistics are strictly kept and made public;

12. Develop strategies to reduce the scope of the death penalty in our respective countries, especially by introducing legislation reducing the number of capital offences;

13. Request a full moratorium on the use of the death penalty and that a national Commission of Inquiry on the efficiency of the capital punishment be created and its results published;

14. Ensure that our governments fully respect the Convention on the rights of child (CRC) and the
Convention on the elimination of all forms of discriminations against women (CEDAW);

15. Express our concerns at the dramatic increase of executions in Indonesia;

16. Express our concerns at the dramatic increase of extrajudicial killings in the Philippines;

17. Encourage and support our Filipino colleagues in ensuring that the death penalty not be reintroduced in the Philippines;

18. Express our concerns at the dramatic increase of executions in Pakistan;

19. Urge our respective governments to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP2) aiming at the abolition of the death penalty;

20. Urge our respective governments to make a more forceful representation to countries where their
citizens are sentenced to death and that the latter be ensured legal representation under the Vienna
Convention;

21. Bring issues related to the death penalty at the forefront of regional discussions, including at the ASEAN Inter-Parliamentary Assembly, to develop a better cooperation among MPs throughout the region and promote abolition;

22. Call upon all governments to abolish the death penalty; and more specifically:

In Malaysia:

23. Continue to request from the government that the Dangerous Drugs Act 1952 be reviewed to abolish the mandatory aspect of the death penalty as announced by Min. Azalina Othman Said on 21 February 2016 and again during this very roundtable on 25 July 2017;

24. Urge the government of Malaysia to ratify the International Covenant on Civil and Political Rights(ICCPR);

In Indonesia:

25. Use all legislative powers at our disposal, including that of amendments, to ensure that the new Criminal Code and the Law on Counter-Terrorism reduce the scope of the death penalty;

In Pakistan:

26. Promote a revision of the Anti-Terrorism Act of 1997 to ensure that defendants accused of ordinary crimes not be tried before Anti-Terrorism Courts; and

27. Demand that torture be expressly prohibited in Pakistani criminal law, that penalties and remedies be defined, and that a National Prevention Institution be created.


“As parliamentarians, we have a role to play to go beyond vengeance” declared Hon. Shamsul Iskandar Mohd Akin, PGA Member.


Reference

Parliamentarians for Global Action(PGA) Website

Ayer Molek lockup condition - Let the Home Minister and IGP spend a couple of nights there for speedy reform?

SUHAKAM has the powers to visit places of detention ...and they cannot bstopped...and they really need to be doing more of this...It is very good that they have visited the Ayer Molek police lock-up in  Johor and have found it to be 'cruel and inhumane'... Places of Detention must be a priority - considering the the large number of death in police custody and also allegations of torture...

SUHAKAM has been around since 2000... and, really this should have come to light very much earlier...SUHAKAM may have, in the past, prepared 'reports with recommendations' to the government, but alas this UMNO-BN government can be really slow in reacting... Press Statements is way to go...because then all people becomes aware ...and changes are more likely to come sooner... In any event, the Ayer Molek police lock up came into being only in 2009...(but still about 7 years ago) - Who is the ADUN and MP there?

POLICE LOCK-UP - well, this is the place suspects arrested are kept....persons charged and being tried are kept in Remand Prisons, and the convicted are placed in Prisons. As such, the conditions of police lock-ups really must be so much better compared to prisons ...

Why were complaints of lock-up conditions not raised before ...they could have been raised by the Opposition parties...they could have even be raised in Parliament...Anyway, Anwar Ibrahim seems to be happy with his Prison condition - have not seen him yet fighting for better conditions in prison for him and his fellow prisoners. Uthayakumar, on the other hand, did raise a lot about prison conditions, when he was in prison... 

OTHER ISSUE - there is really no reason for suspects to be arrested and detained in police lock-ups during the investigation period... For the purpose of investigation, simply arrest and release them on police bail requiring them to turn up at the police station at this particular time for 'investigation' purposes... Only those arrested for very serious crimes, and there is a very high risk of flight, should persons be kept in police lock-ups...If the police, after arresting has sufficient evidence, then charge them immediately in court...

Maybe, we need EXPOSURE program for Najib, Ministers, MPs, Senators - they should maybe spend at least 2 days in police lock-ups ...well, that would certainly speed up Reforms...Why Not? Now even Najib uses public transport to experience how it feels like ...

 

Section  4  Functions and powers of the Commission

 (2) For the purpose of discharging its functions, the Commission may exercise any or all of the following powers:... (d) to visit places of detention in accordance with procedures as prescribed by the laws relating to the places of detention and to make necessary recommendations;(e) to issue public statements on human rights as and when necessary; and

 (3) The visit by the Commission to any place of detention under paragraph (2)(d) shall not be refused by the person in charge of such place of detention if the procedures provided in the laws regulating such places of detention are complied with.

- Human Rights Commission of Malaysia Act 1999

RESPONSES FROM THE GOVERNMENT AND POLICE

'...Police will form a committee to look into claims by The Human Rights Commission of Malaysia (Suhakam) that the conditions at a lock-up in Johor Baru is "deplorable and hazardous to health"...' - How difficult is it to just drop by at the lock-up - it is a police lock-up. Police should not embarass themselves in this way...'they did not know???' - Let's move forward, and let us speedily put forward plans on what will be done immediately to improve conditions ...and let us do it? No money - well, I am sure Najib will find the money fast...if not what about the MP's annual RM5-6 Million allocation...after all, this is within the constituency? 

LET'S SOLVE THE PROBLEM NOW

RM8 for 3 meals...Well, let us increase it to RM20, which should also include at least 3 litres of drinking water. > Well, I am sure the local MP and/or ADUN, Rotary Club and other welfare groups, or the local people can look into this...maybe even the Opposition Parties... Donate drinking water and suitable food...

Clothes - well again, this can be donated ...I am sure that people will donate...

Bedding - well, the police should tell us what is needed ...and people will donate..

UMNO-BN government, PM, Finance Minister and Home Minister can deal with the long-term solution - Budgets can be increased...

If UMNO-BN cannot do it, maybe we need another government ... persons in police lock-ups are all considered INNOCENT...

 

Suhakam: Ayer Molek lockup conditions 'cruel and inhumane'

   Published     Updated
The Ayer Molek police lockup in Johor Bahru is in a deplorable state and should be shut down if "acceptable standards" cannot be maintained, said the Human Rights Commission (Suhakam).

Commission chairperson Razali Ismail said that a site visit showed that the facility posed a health hazard for detainees and detainees were not given adequate food and water.

"Suhakam is of the view that the conditions are so poor, that they amount to cruel, inhumane, or degrading treatment.

"We reiterate that treating persons deprived of their liberty with humanity and respect for their dignity is a basic and universally applicable tenet.

"If acceptable standards in detention cannot be maintained, the Ayer Molek and other lockups in similar conditions must be closed," he said in a statement today.

Razali said that the lack of financial resources could not be used as an excuse.

He said that Suhakam could see that all cells had "decaying floors", inadequate lighting, poor ventilation, lack of lockup clothes and lack of bedding.

The team said the police lockup had a daily budget for three meals for each detainee was RM8. This, said Razali, was "unacceptable". 

"Even the lockup staff acknowledge that this amount does not allow for sufficient portions that are nutritionally balanced and adequate according to the diet prescribed by the health ministry," he said.

Breach of laws

The team found that drinking water was provided to detainees only three times a day, therefore violating the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) which stipulated that detainees should have access to drinking water when needed.

Razali also expressed concern over poor sanitation, overcrowding and the lack of medical facilities at the lockup - itself a violation of Lockup Rules 1953 - had led to the spread of infectious diseases.

"Suhakam empathises with lockup officers who have to purchase face masks and gloves on their own to protect themselves against tuberculosis and other diseases. 
 
"Suhakam was informed that there were cases of police officers stationed at the lockup who had contracted tuberculosis from sick detainees," said Razali.

Razali said that the managers of a lockup must ensure that a detainee's unconvicted status is demonstrated in their treatment. 

He also called on the home ministry to take immediate steps to remedy the deplorable and inhumane conditions endured by persons who are on remand and not yet charged. - Malaysiakini, 16/8/2017

See full SUHAKAM Statement at SUHAKAM Website - Press Statement No. 31 of 2017 (Urgent Reform Needed Regarding Inhumane Lock Up Conditions in Ayer Molek)

Then, one of the Minister responded alleging that the SUHAKAM was outdated with regard the information relied on, and to this SUHAKAM issued another statement - Press Statement No. 32 of 2017 (“SUHAKAM’s Response to The Deputy Minister’s Statement”)


Police to look into alleged 'deplorable and hazardous to health' conditions of Ayer Molek lock-up.

Deputy Inspector-General of Police Tan Sri Noor Rashid Ibrahim — Sunpix by Xafiq El Shah
KUALA LUMPUR: Police will form a committee to look into claims by The Human Rights Commission of Malaysia (Suhakam) that the conditions at a lock-up in Johor Baru is "deplorable and hazardous to health".

Deputy Inspector-General of Police Tan Sri Noor Rashid Ibrahim (pix) said the committee will to look into the conditions at the Ayer Molek police station lock-up.

"We will also get in touch with Suhakam to see if they have any additional reports on the lock-up so we can improve it," he said yesterday during press conference.

Noor Rashid said the lock-up was old and it must be looked at and improved.

"Although the infrastructure must be taken a look at, more importantly, we need to address the issue of management. From a management point of view, we need to pinpoint its weaknesses and improve it," he said.

He ensured that they will take action to improve the lock-up especially its management.

Suhakam chairman Tan Sri Razali Ismail said in the statement on Wednesday that based on a recent visit to the lock up in Johor Baru, he found that all cells were in extremely poor and dilapidated conditions, and detainees have been deprived of drinking water and even food.

"Several critical issues such as healthcare practices and basic human rights have been denied for the detainees. Suhakam is extremely concerned to learn that drinking water was only provided three times a day," he revealed.

Razali said having access to safe drinking water was central to living a life in dignity; and in accordance with Rule 20(2) of the Standard Minimum Rules for the Treatment of Prisoners, drinking water shall be made available to every prisoner whenever he needs it.

"While detainees are entitled to clothing that is clean, there was also an overall shortage of clean lock up clothes," he added.

Noor Rashid earlier gave out prizes to teams of police personnel who entered the Royal Malaysia Police's innovation contests. - The Sun Daily, 17/8/2017

Friday, August 18, 2017

Suhakam: Human rights defenders do not protect criminals(FMT) and comments?

Malaysia, under the UMNO-BN government, really is not keen that other opinions, viewpoints and perspectives be disseminate to the Malaysian public - hence, the alleged 'control' of media and/or other means of communications.  Malaysia should allow for more newspapers, radio stations and television stations, be registered. Now, even State governments do not even have their own radio and/or telivision statements or even 'newspapers' - When Opposition parties are given publication permits, there is the restriction imposed that it can only be circulated to their own 'party members' - not to all Malaysians. When will all this change - and all Malaysians will have the freedom to not simply express themselves, but also access to alternative sources of information an viewpoints.

Human Rights Defenders - well, many a time, these are persons or individuals that take a lot of 'risks' to highlight on alleged and/or real wrongdoings, injustices and human rights violations committed by not just government, but really anyone who has violated rights...

“We know that the amendments will be manipulated by so-called people who are defenders of human rights....“But they are actually wolves in sheep’s clothing who are protecting criminals,” he[Ahmad Zahid Hamidi, Home Minister and Deputy Prime Minister] added.

The current government now has developed an anti-human rights way of introducing new laws, or amending existing laws - Bills are tabled suddenly and thereafter proceeded to be passed speedily. Malaysians are at most times denied the time or the ability to comment, agree or object to such new 'laws'. Our parliamentary culture, when all Member of Parliaments from parties, who currently form the government of the day, not 'objecting or voting against' any laws proposed by government is not helping - Blind agreement without even considering views coming from the Opposition and others is certainly not right. Sadly, the Opposition also seems to be doing the same thing when they are in power in the various State governments, and even in those 'appointed' Local government. 'Object everything that comes from the other side' is something that must change...

In such a culture, the role and responsibilities of human rights defenders become all the more important...as many HR Defenders do thinks necessary for the promotion and protection of human rights. HR Defenders, are not 'wolves in sheep's clothing'...they are very necessary and their role and responsibilities have also been acknowledged by the United Nations - UN Declation on Human Rights Defenders. For the Bahasa Malaysia version - PERISYTIHARAN PEMBELA HAK ASASI MANUSIA

Good job SUHAKAM for their speedy response .. 

 

 

Suhakam: Human rights defenders do not protect criminals

FMT Reporters
 | August 17, 2017 
 
Suhakam says human rights defenders work towards the realisation of rights and freedoms contained in the Federal Constitution.

razali-ismail-suhakam-4

PETALING JAYA: The Human Rights Commission of Malaysia (Suhakam) has put forth a definition of human rights defenders, two days after the deputy prime minister called them “wolves in sheep’s clothing who protect criminals”.

Suhakam chairman Razali Ismail said such individuals were people who work towards the realisation of rights and freedoms contained in the Federal Constitution, the Universal Declaration of Human Rights and other human rights instruments through non-violent means.

“The efforts of human rights defenders contribute to positive societal change and play an important role in the establishment of the rule of law.

“They certainly cannot be said to be defending crime syndicates and criminals,” he said in a statement today.

On Tuesday, Ahmad Zahid Hamidi had slammed those who objected to the amendments to the Prevention of Crime Act 1959 (Poca) passed in the Dewan Rakyat last week.

Zahid, who is also the home minister, said those who defended human rights were the biggest opponents of the amendments.

“We know that the amendments will be manipulated by so-called people who are defenders of human rights.

“But they are actually wolves in sheep’s clothing who are protecting criminals,” he added.

However, Razali said human rights defenders played a fundamental role in guaranteeing and safeguarding democracy and the rule of law in Malaysia. - FMT News, 17/8/2017

** A perusal of SUHAKAM's website did not disclose the full media statement - maybe, too soon and SUHAKAM yet to upload the statement. (Personally, it should not just be uploaded in the PDF version[or if uploaded in that version, it should be uploaded in a version that allows people to copy the text in the statement, and thus be able to transmit it to others). Better still, SUHAKAM should also upload a MS Word version, which is easier to copy and disseminate  vide Blogs, FB, emails and other available social media communication means.)

Thursday, August 17, 2017

An end to mandatory death penalty?(New Straits Times)

According to the Prisons Department, some 800 people are now on death row after being convicted of drug trafficking. 
 
UNDER Malaysian law, capital punishment (the death penalty) is mandatory for the crime of murder, drug trafficking, kidnapping and several other offences. Since 1992, at least 651 convicted persons (Malaysians) have been given the death penalty, most of them for drug trafficking. 

According to the Prisons Department, some 800 people are now on death row after being convicted of drug trafficking under Section 39B of the Dangerous Drugs Act 1952. A minister in the Prime Minister’s Department said recently that the act will be amended to “give back” the discretionary power to the trial judge at the end of a drug trafficking case.

Welcoming this new move by the government, an executive director of Amnesty International Malaysia was quoted as saying that whilst the proposed amendment is only in respect of drug trafficking, she hopes it will become “a first step towards total abolition”.

Bar Council Human Rights Committee co-chairman Andrew Khoo called upon the government “to repeal all mandatory death sentences”, adding that the sentence “robs judges of the opportunity to exercise their discretion” to hand down a punishment that fits the circumstances and gravity of each particular case. 

Not everyone shares the view that the mandatory death penalty for drug trafficking should be scrapped. A former Federal Court judge was quoted as saying that the status quo should remain because abolishing it might see an increase of such crimes in the future.

“Although the death penalty has not reduced such cases in the past, removing it will only cause the number of cases to spike drastically,” he had said. 

The former judge (who was once a prosecutor in the Attorney-General’s Chambers) strongly believes that the mandatory death sentence is a deterrent, and scrapping it “will only embolden” more criminals. 

If the mandatory death sentence is to be replaced with a mandatory life sentence, the Malaysian government will have to bear the financial burden of looking after the welfare of these convicts in prison for the rest of their lives. Should our taxpayers be burdened by this? Furthermore, as said by Amnesty International, there is no evidence in the world to show that the death penalty can be a deterrent.

Also, if the 1952 act is amended, and convicted drug traffickers no longer face the mandatory death penalty, a trial judge may (after considering the circumstances of the case and the gravity of the offence) still apply his judicial discretion in imposing the death penalty on him. 

The amendment therefore, repeals the “mandatory nature” of the punishment, but it does not deprive the trial judge of his judicial power to impose such a capital punishment on the convicted person. In short, the proposed amendment is still a far cry from the total abolition of the death penalty for all crimes. 

Under Malaysian law, the death penalty can still be handed down by a trial judge upon conviction of an accused charged with any of the following offences:

WAGING or attempting to wage war against the Yang di-Pertuan Agong, a ruler or Yang di-Pertua Negeri (Section 121 of the Penal Code);

OFFENCES against the person of the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri (mandatory, Section 121A of the Penal Code);

COMMITTING terrorist acts resulting in death (mandatory, Section 130C of the Penal Code);

MURDER (mandatory, Section 302 of the Penal Code);

KIDNAPPING or abducting in order to murder (Section 364 of the Penal Code);

HOSTAGE-TAKING resulting in death (mandatory, Section 374A of the Penal Code);

RAPE resulting in death (Section 376(4) of the Penal Code);

GANG-ROBBERY with murder (Section 396 of the Penal Code); 

DRUG trafficking (mandatory, Section 39B of the Dangerous Drugs Act 1952);

DISCHARGING a firearm in the commission of an offence (mandatory, Section 3 of the Firearms (Increased Penalties) Act 1971); and,

ABDUCTION, wrongful restraint or wrongful confinement for ransom (Section 3(1) of the Kidnapping Act 1961).

Official statistics (released by the police Narcotics Division) revealed that despite the mandatory death penalty for drug traffickers, the number of drug trafficking cases in the country continued to increase. From 1990 to 2011, the number of persons arrested for drug trafficking increased from 744 to 3,845. The escalating figures showed clearly that the mandatory death penalty law has not achieved the aim of eradicating the drug menace. In March 2012, then home minister Datuk Seri Hishammuddin Hussein told Parliament that the mandatory death penalty has failed to stem the drug trade in Malaysia. 

Under the original provisions of Section 39B, conviction for drug trafficking does not entail a mandatory death penalty. At the end of the trial and upon conviction of the accused, the trial judge has the discretion to impose whatever penalty he deems fit in accordance with the circumstances of the case and the gravity of the crime. He can hand down a prison term (say 5 to 10 years), a life sentence or the death penalty. 

After the law was amended in 1983, this judicial discretion was removed and the trial judge must, after convicting the accused under Section 39B(1), give him the death penalty under Section 39B(2).

The Death Penalty Information Centre website stated that 104 countries have abolished the death penalty for all crimes. Malaysia is one of 57 countries, where the death penalty is retained for ordinary crimes. In the Asean region, only two countries have abolished the death penalty — Cambodia (1989) and the Philippines (2006).

Even though the mandatory aspect of the death penalty for drug trafficking may soon be scrapped, we are still a long way from abolishing capital punishment in this country. 

SALLEH BUANG formerly served the Attorney-General’s Chambers before he left for practice, the corporate sector and, then, the academia.

Malaysia: Drop Censorship of Documentary Films on Human Trafficking and Refugees (Fortify Rights)

Malaysia: Drop Censorship of Documentary Films on Human Trafficking and Refugees
Immediately repeal Film Censorship Act

(Kuala Lumpur, August 16, 2017)—Malaysian authorities should abolish film censorship and immediately repeal the Film Censorship Act, said Fortify Rights today. On August 11, the Malaysian government wrongfully censored a documentary film on the human trafficking of Rohingya girls to Malaysia and banned a documentary on refugees in Kenya.

“This censorship is unconstitutional and violates the rights of the filmmakers,” said Amy Smith, Executive Director of Fortify Rights. “Malaysia’s censorship law is inconsistent with human rights law and Malaysia’s own constitution, suppressing free speech and expression—the bedrocks of a free society. These films are in the public interest and deserve a wide audience.”

The Malaysian Home Ministry’s Film Censorship Board censored select scenes from Malaysian investigative journalist Mahi Ramakrishnan’s film “Bou,” which means “bride” in the Rohingya language and is a film about the human trafficking of Rohingya girls from Myanmar into forced marriage in Malaysia. Government censors banned a scene from “Bou” implicating Immigration Department of Malaysia officials in the human trafficking of Rohingya girls. Malaysian authorities also banned in its entirety “Kakuma Can Dance,” a film by Swedish filmmaker Duc Mallard about refugees and hip-hop dance in Kenya.

Both films were scheduled for showings during the second-annual Refugee Festival in Kuala Lumpur, August 10 to 13—an event organized by Ms. Ramakrishnan to give visibility to refugees in Malaysia and showcase their talents. Ms. Ramakrishnan screened a censored version of “Bou” at the Refugee Festival on August 13, while the screening of “Kakuma Can Dance” was cancelled. Mr. Mallard was not in Malaysia at the time of the event.

During the event, Fortify Rights also screened a short film entitled “In Limbo” on the plight of refugees in Malaysia.

Section 6 of the Film Censorship Act provides that no person shall “possess” or “circulate, exhibit, distribute, display, manufacture, produce, sell or hire” any film that has not been approved by the Film Censorship Board. The penalty for violating this section includes up to three years’ imprisonment and/or 30,000 Malaysian Ringgit (US$6,980).

“The Film Censorship Act is an archaic law that encroaches on the civil liberties of filmmakers, robs them of their creative license, and makes the Constitutional right to freedom of expression a mere illusion,” Mahi Ramakrishnan told Fortify Rights. “'Bou' has the potential to instigate serious national and regional conversations about complicity in the trafficking of children. The government shouldn't be afraid of such a discourse.”

At 2 p.m. on August 10, an hour before the opening of the Refugee Festival, Film Censorship Board officials arrived at the festival venue—the Black Box at Publika Shopping Center—and ordered Ms. Ramakrishnan to obtain clearance under the Film Censorship Act in order to screen “Bou.” The next day, Board officials reviewed the film and issued Ms. Ramakrishnan a written order to mute the audio and erase subtitle translations of select scenes.

In the uncensored version of the documentary, a human trafficker is filmed explaining that passports of potential child brides are forged in Bangladesh and that “the trafficker will [then] pay money to clear [Malaysian] immigration.” In another scene that was subsequently censored, the Rohingya-refugee husband of a trafficked child-bride explains that Malaysian police routinely extort money from him during his daily commute to work, saying, “I pay the police 10 to 20 Ringgit all the time.”

The authorities also cut a scene from “Bou” showing Malaysian Prime Minister Najib Razak walking with other Government Ministers. The authorities verbally explained to Ms. Ramakrishnan that Prime Minister Najib had nothing to do with the subject of the film. Officials also verbally informed Ms. Ramakrishnan to cut an additional scene showing Ganesha, the Hindu elephant god.

The Guidelines on Film Censorship set out a list of topics in films that require further scrutiny by the Board to avoid creating “any controversy and doubt among the general public.” The Guidelines also prohibit the screening of three categories of films: those that are “seditious, anti-religious, insult the beliefs or customs of a particular community or group, have elements that contradict the policies of the government, excessive violence and cruelty;” films that may “cause foreign countries to have a poor perception of the socio-culture and noble values of the local population;” and a film that “smears the good name and image of the country and its people.”

The Board required Ms. Ramakrishnan to pay 81.20 Malaysian Ringgit (US$19) for the Board’s time. The Board subsequently granted her a Film Censorship Certificate to screen the censored version of the film.

On August 11, the Board additionally verbally ordered Ms. Ramakrishnan to completely refrain from showing the documentary film “Kakuma Can Dance,” without reviewing the film or providing reasons for prohibiting it. A Board officer threatened Ms. Ramakrishnan with arrest, saying that they would “come and nab” her if she screened “Kakuma Can Dance” during the festival. Board officials came to the festival during the scheduled screening times for both films to ensure compliance with their orders.

Under Section 21 of the Film Censorship Act, Ms. Ramakrishnan has 30 days to appeal the Board’s censorship decisions.

Malaysian authorities previously infringed on the right to freedom of expression through the Film Censorship Act. On March 22, the Kuala Lumpur Magistrates’ Court sentenced Ms. Lena Hendry to one-year imprisonment or a fine of 10,000 Malaysian Ringgit (US$2,500) for screening an award-winning documentary on the Sri Lankan civil war entitled “No Fire Zone: The Killing Fields of Sri Lanka.” She paid the fine to avoid detention.

On September 14, 2015, Malaysia’s highest court rejected a constitutional challenge that the charge against Ms. Hendry violated Articles 8 and 10 of the Malaysian Federal Constitution, which protect equality before the law and the right to freedom of speech and assembly and association, respectively. This was the first case involving the Film Censorship Act to reach the Federal Court.

Article 10(a) of the Malaysian constitution states that “every citizen has the right to freedom of speech and expression.” The vague dictates of the Film Censorship Act should not supersede constitutionally protected rights, Fortify Rights said.

The right to freedom of opinion and expression is also protected under Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Convention on Civil and Political Rights. The right includes the freedom to “seek, receive and impart information and ideas through any media and regardless of frontiers.” Under international law, restrictions on freedom of expression are permissible only when provided by law, proportional, and necessary to accomplish a legitimate aim.

According to a 2013 report by the United Nations Special Rapporteur in the field of cultural rights, Farida Shaheed: “A system whereby content automatically requires official clearance before it can be released [is] unacceptable, as its harm to freedom of artistic expression and creativity would by far outweigh the benefit of its goals. In countries where prior censorship bodies exist, the immediate abolition of these bodies should be envisaged, as regulating access for children and youth can best be implemented through rating and classification procedures.”

The Malaysian authorities should immediately drop the censorship of "Bou" and "Kakuma Can Dance" and Parliament should immediately repeal the Film Censorship Act and protect the right to freedom of expression, Fortify Rights said.

“The government uses the vague provisions of this law to suppress vital information about human rights violations,” said Amy Smith. “The law obstructs artistic freedom and violates the rights of all Malaysians. It should be scrapped without delay.”


For more information, please contact:
Henry Koh, Malaysia Human Rights Specialist, Fortify Rights, +60.17.928.1018 (Malay; English); Henry.Koh@fortifyrights.org; Twitter: @henrykoh45, @FortifyRights

Amy Smith, Executive Director, Fortify Rights, +66.87.795.5454,
 Amy.smith@fortifyrights.org; Twitter: @AmyAlexSmith, @FortifyRights

Matthew Smith, Chief Executive Officer, Fortify Rights, +66.85.028.0044,
matthew.smith@fortifyrights.org; Twitter: @matthewfsmith@FortifyRights