Malaysia: Legal questions over death penalty

Death penalty losing appeal
REFLECTING ON THE LAW
By SHAD SALEEM FARUQI

From The Star online
Wednesday 17 November, 2010

The trend worldwide is to move away from the death penalty, acknowledging that the quality of our civilisation is judged as much by how we honour our heroes as by how we treat the worst in our midst.

DURING question time in the Dewan Rakyat on Nov 9, Datuk Seri Nazri Abdul Aziz, our articulate Minister in the Prime Minister’s Department, in replying to MP Karpal Singh, defended the existing law on death penalty by pointing out that the Malaysian position is consistent with Article 6(2) of the International Covenant on Civil and Political Rights 1966.

Under this celebrated Covenant, there is no absolute ban on death sentences. However, the "inherent right to life" is recognised and the death sentence may be imposed "only for the most serious crimes".

There must be a right of appeal to the higher courts and the right to apply for pardon. The death sentence should not be imposed on pregnant women and those below 18.

In a spirit of openness, the minister welcomed further discussion on the issue. This must be commended. At the same time, we must alert the Government that on several scores Malaysian law is out of sync with a growing body of international law on capital punishment.

The trend throughout the world is to move away from the death penalty. The Second Optional Protocol to the International Covenant on Civil and Political Rights, which has been ratified by 57 states, commits itself to total abolition.

European and American Conventions have also moved in that direction. The UN Commission on Human Rights by Resolution 2004/67 has called for a moratorium on executions.

According to Amnesty International, 87 countries and territories have abolished the death penalty for all crimes. Eleven countries have abolished it for all but exceptional crimes such as war-time betrayals. Twenty-seven countries retain the death penalty but have not carried out any execution for the past 10 years.

This makes a total of 125 countries that have moved away from the death penalty in law or practice. However 71 other countries – including China, Iran, Saudi Arabia, the US, Malaysia and Singapore – retain, and use, the death penalty.

It is also notable that even for war crimes, crimes against humanity or genocide triable by the International Criminal Tribunals created by the United Nations Security Council for former Yugoslavia and Rwanda, the maximum penalty is life imprisonment.

In most countries of the world, drug offences are not regarded as sufficiently serious to warrant a death penalty. However, drug trafficking carries the mandatory death sentence under section 39B of our Dangerous Drugs Act.

Under Section 37, a number of crushing presumptions apply. For example, a person in the care or management of a premises is deemed to be the occupier of the premises.

A person in possession of 15 grammes of heroin or morphine, 1000 grammes of opium, 200 grammes of cannabis and specified amounts of other dangerous drugs shall be presumed to be a trafficker. The burden of proof is on him.

Reprehensible though drug possession and trafficking are, a clear fact is that people who get caught are often not involved in the high ranks of the supply chain. The main players are neither apprehended nor deterred.

A further objectionable feature of our death penalty laws is that for the crimes of murder, drug trafficking, unlawful possession of firearms and attempt by a life-convict to murder if hurt is caused, capital punishment is mandatory and the court has no choice but to impose the penalty of death.

All mandatory punishment laws compel the courts to treat the many accused as alike even though there may be substantial differences in the facts of the case.

For example, if a woman has been raped and the culprit is, for whatever reason, either not apprehended or acquitted, and the ravished victim then takes the law in her own hands and kills the accused, she may be convicted of cold-blooded murder with only one penalty: mandatory death.

Surely the judge should have discretion in such a case to impose the lighter sanction of imprisonment. To the extent that unlike cases have to be treated as alike, mandatory sentences are a violation of the constitutional ideal of equality before the law and equal protection of the law.

Mandatory sentences are also an indirect interference with judicial independence and the right of a judge to tailor the penalty to suit the crime; to temper justice with mercy and to be fair to all sides – the victim of the crime, the accused and society at large.

Many judges in their private moments have spoken with remorse of the death sentences they had to impose even though there were extenuating circumstances.

There is overwhelming evidence that as long as the death penalty is maintained, the risk of executing the innocent can never be eliminated. For example, in the US, since 1973, 123 prisoners have been released after evidence emerged of their innocence of crimes for which they were sentenced to death.

Their sentences were based on prosecutorial or police misconduct, forced confessions, unreliable witnesses and inadequate defence representation.

The argument that the death penalty deters is not supported by sufficient scientific studies. This is specially so in relation to murder, which is often a crime in the heat of the moment when consequences are farthest from contemplation. Further, UN studies indicate that abolitionist countries do not show any upsurge in crime.

There is a fair amount of social data that, around the world, the death penalty is unequally administered. It tends to apply disproportionately to the poor, marginalised and the minorities.

In support of capital punishment, one could argue that no known legal system exhibits an unconditional and absolute reverence for life.

Everywhere there are laws on private defence of person and property, euthanasia, abortion and police powers that permit the extinguishing of life in certain circumstances. The Charter of the UN permits some types of wars.

Society must take a tough stand against violent crimes and must exact revenge or retribution. It is submitted that this attitude must be balanced with an equally compelling ethical issue that as God gives life, only He should take it away.

The death penalty is a form of legalised murder. It reflects primordial instincts of violence. It perpetuates a vicious cycle of brutality.

I think Malaysia should rethink its extensive provisions for death penalty. At the moment, the penalty can be imposed for a large number of offences – waging war against the Yang di-Pertuan Agong, offences against a Ruler or Governor, abetting mutiny in the armed forces, murder, abetment of suicide, attempt by a life-convict to murder if hurt is caused, kidnapping or abduction in order to murder, hostage taking, gang robbery with murder, drug trafficking and unlawful possession of firearms.

Even if total abolition is not seen as desirable because of the age of terrorism in which we are living in, a narrowing down of the offences for which the death penalty is imposed can be considered. The mandatory nature of the penalty could be lifted and judicial discretion restored.

We must remember that the quality of our civilisation is judged as much by how we honour our heroes as by how we treat the worst in our midst.

Shad Saleem Faruqi is Professor Emeritus at UiTM and Honorary Legal Advisor to USM

Singapore: Appeal against hanging of Yong Vui Kong

Amnesty International has issued the following Urgent Action appeal, calling for people to write to the Singapore government urging it not to execute Malaysian man Yong Vui Kong. Details of the latest appeal are above, with background on his case below.

URGENT ACTION
22-YEAR-OLD DUE TO BE HANGED IN SINGAPORE
14 May 2010

A Malaysian man is at immediate risk of execution in Singapore. On 14 May, the Court of Appeal dismissed his appeal against a mandatory death sentence, which violates fair-trial rights.

Yong Vui Kong was sentenced to death in January 2009 for trafficking 47 grams of diamorphine (heroin), a crime committed when he was 19 years old.

Singapore's Misuse of Drugs Act makes the death penalty mandatory for trafficking more than 30 grams of heroin, leaving judges no discretion to consider issues such as mitigating circumstances or to hand down alternative sentences. The law presumes trafficking in all cases involving the possession of over 2 grams of heroin, which shifts the burden of proving that no trafficking was involved from the prosecution to the defendant. This violates the core human right to be presumed innocent of a crime until proven guilty.

The President of Singapore rejected Yong Vui Kong's petition for clemency on 1 December 2009. On 2 December 2009, the High Court postponed Yong Vui Kong’s execution (which had been set to take place on 4 December) to allow the Court of Appeal time to hear an application for a stay.

PLEASE WRITE IMMEDIATELY in English or your own language:
- Urging President Nathan to reconsider Yong Vui Kong's clemency petition and commute his death sentence;
- Calling on the president to introduce an immediate moratorium on all executions, with a view to complete abolition of the death penalty;
- Reminding Law Minister Shanmugam, that the Misuse of Drugs Act violates international human rights law and standards concerning fairness of prosecutions and trials;
- Urging the Law Minister to recommend that Parliament revoke the mandatory death penalty for drug-trafficking and all other offences.

PLEASE SEND APPEALS BEFORE 25 JUNE 2010 TO:

President
His Excellency SR Nathan
Office of the President
Orchard Road, Istana
Singapore 0922
Fax: +65 6735 3135
Email: s_r_nathan@istana.gov.sg
Salutation: Your Excellency

Minister for Law
The Honourable K Shanmugam
Ministry of Home Affairs
New Phoenix Park
28 Irrawaddy Road
Singapore 329560
Fax: +65 6258 0921
Email: k_shanmugam@mlaw.gov.sg
Salutation: Dear Mr Minister

And copies to:
Editor-in-Chief
The Straits Times
1000 Toa Payoh North
News Centre
Singapore 318994
Fax: +65 6319 8282
Email: stonline@sph.com.sg

Also please send copies to Singapore's diplomatic representatives in your country.

This is the third update of UA 296/09. Further information:
www.amnesty.org/en/library/info/ASA36/004/2009/en
www.amnesty.org/en/library/info/ASA36/005/2009/en
www.amnesty.org/en/library/info/ASA36/007/2009/en

Background - from Amnesty International Urgent Action appeal 269/09, 3 November 2009
Index: ASA 36/004/2009 Singapore

URGENT ACTION
malaysian man facing execution in singapore
Yong Vui Kong was sentenced to death for drug trafficking in January 2009. He had exhausted his appeals by October, and can now escape execution only if the president grants clemency.

Yong Vui Kong was arrested in June 2007, when he was 19, by officers from the Central Narcotics Bureau. He was charged with trafficking 42.27 grams of heroin, and then sentenced to death in January 2009.

He had been working as a messenger for a man in Malaysia who often asked him to collect money from debtors or deliver packages as "gifts" to people in Singapore and Malaysia. At his trial, Yong Vui Kong said he had not known what was in the packages, and when he asked, he had simply been told not to open them. The judge, however, ruled that Yong must have been aware of their contents, saying in his written summation, "I found that the accused had failed to rebut the presumption against him. I am of the view that the prosecution had proved its case against the accused beyond reasonable doubt, and I therefore found the accused guilty as charged and sentenced him to suffer death."

Yong was convicted under the Misuse of Drugs Act, which provides that anyone found guilty of illegally importing, exporting or trafficking more than 15 grams of heroin will automatically receive a mandatory death sentence.

Governments need to address crimes, including drug trafficking, but there is no clear evidence that the death penalty deters crime more effectively than other forms of punishment. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions stated in his 2005 report that the "mandatory death penalty, which precludes the possibility of a lesser sentence being imposed regardless of the circumstances, is inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment." To date, 139 countries have abolished death penalty in law or practice.

Singapore: Malaysian faces execution for drugs

Amnesty International issued the following urgent action appeal for a Malaysian man at risk imminent risk of execution in Singapore.

URGENT ACTION
MALAYSIAN MAN FACING EXECUTION IN SINGAPORE

Yong Vui Kong was sentenced to death for drug trafficking in January 2009. He had exhausted his appeals by October, and can now escape execution only if the president grants clemency

Yong Vui Kong was arrested in June 2007, when he was 19, by officers from the Central Narcotics Bureau. He was charged with trafficking 42.27 grams of heroin, and then sentenced to death in January 2009

He had been working as a messenger for a man in Malaysia who often asked him to collect money from debtors or deliver packages as "gifts" to people in Singapore and Malaysia. At his trial, Yong Vui Kong said he had not known what was in the packages, and when he asked, he had simply been told not to open them. The judge, however, ruled that Yong must have been aware of their contents, saying in his written summation, "I found that the accused had failed to rebut the presumption against him. I am of the view that the prosecution had proved its case against the accused beyond reasonable doubt, and I therefore found the accused guilty as charged and sentenced him to suffer death

Yong was convicted under the Misuse of Drugs Act, which provides that anyone found guilty of illegally importing, exporting or trafficking more than 15 grams of heroin will automatically receive a mandatory death sentence

Governments need to address crimes, including drug trafficking, but there is no clear evidence that the death penalty deters crime more effectively than other forms of punishment. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions stated in his 2005 report that the "mandatory death penalty, which precludes the possibility of a lesser sentence being imposed regardless of the circumstances, is inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment." To date, 139 countries have abolished death penalty in law or practice

PLEASE WRITE IMMEDIATELY in English, Mandarin or your own language:
Urging the president to grant clemency to Yong Vui Kong and commute his death sentence;
Expressing concern that because the death penalty is mandatory for drug-trafficking cases, the court had no discretion to sentence Yong Vui Kong to an alternative punishment;
Calling on the president to introduce a moratorium on executions, with a view to complete abolition of the death penalty.

ADDITIONAL INFORMATION
The authorities in Singapore do not release any information about the use of the death penalty in the country. At least one person is known to have been hanged so far in 2009, and at least three sentenced to death; in 2008, at least one person was hanged and five sentenced to death. The true figures are likely to be higher. The government has always maintained that the death penalty is not a human rights issue, and consistently lobbied other nations against the abolition of the death penalty.

All capital cases are tried by the High Court; convicted prisoners can appeal, and if they are unsuccessful they can apply to the president for clemency. President Nathan, who has been in power since 1999, is not known to have granted clemency to any condemned prisoner.

PLEASE SEND APPEALS BEFORE 15 DECEMBER 2009:
President
His Excellency SR Nathan
Office of the President
Istana, Orchard Road
Singapore 0922

Email: s_r_nathan@istana.gov.sg
Salutation: Your Excellency

UA: 296/09 Index: ASA 36/004/2009 Singapore
Date: 03 November 2009

End the Death Penalty for Drug-Related Offences

Joint Statement by The Anti Death Penalty Asia Network (ADPAN), of which Amnesty International is a member, Human Rights Watch and the International Harm Reduction Association

As the International Day Against Drug Abuse and Illicit Trafficking approaches on 26 June, the Anti Death Penalty Asia Network (ADPAN), of which Amnesty International is a member, Human Rights Watch (HRW) and the International Harm Reduction Association (IHRA) call upon governments in Asia to cease applying the death penalty for drug-related offences.

There is a clear, long-standing and worldwide move toward restriction or abolition of the death penalty. Only a small minority of countries continue to implement the death penalty: in 2008, 25 countries carried out executions. ADPAN, Human Rights Watch and the International Harm Reduction Association oppose the death penalty in all cases as a violation of fundamental rights- the right to life and the right not to be subjected to cruel, inhuman and degrading punishment.

Sixteen countries in Asia apply the death penalty for drug-related offences. As many countries in the region do not make information on the death penalty available, it is impossible to calculate exactly how many drug-related death sentences are imposed. However, in Indonesia, Malaysia, Singapore and Thailand, reports indicate that a high proportion of death sentences are imposed upon those convicted of drug offences. ADPAN, HRW, and IHRA express particular concern that China, Indonesia, and Vietnam continue to execute individuals for drug offences – and that some countries, such as China since the early 1990s, and Indonesia in 2008, have marked the occasion of June 26 with such executions.

Despite the executions in Asia there is no clear evidence of a decline in drug-trafficking that could be attributed to the threat or use of the death penalty. There is no credible evidence that the death penalty deters serious crime in general more effectively than other punishments. The most recent survey of research findings on the relation between the death penalty and homicide rates, conducted for the United Nations (UN) in 1988 and updated in 1996 and 2002, concluded: "...research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole gives no positive support to the deterrent hypothesis."

UN human rights mechanisms – including the UN Special Rapporteur on extrajudicial, summary, or arbitrary executions, and the UN Human Rights Committee -- have concluded that the death penalty for drug offences fails to meet the condition of “most serious crime”, under which the death penalty is allowed only as an “exceptional measure” where “there was an intention to kill which resulted in the loss of life” (UN Doc, A/HRC/4/20, 29 January 2007, para 53). The UN High Commissioner for Human Rights and the director of the UN Office on Drugs and Crime have likewise expressed grave concerns about the application of the death penalty for drug offences.

Death sentences are often handed down after unfair legal processes, a problem made worse by laws, policies or practices regulating drug offences in some Asian countries. Mandatory death sentences are applied for certain drug offences in Brunei, India, Laos, Singapore and Malaysia, leaving a judge with no discretion over the sentence for defendants found guilty. Mandatory death sentences violate international standards on fair trials. Individualised sentencing is required to prevent cruel, inhuman or degrading punishment and the arbitrary deprivation of life. Singapore, which has one of the highest per capita execution rates in the world, as well as Malaysia, continue to hand down death sentences to individuals alleged to be drug traffickers after trials that presume guilt, and in which death sentences are mandatory.

Confessions that have been coerced sometimes form the basis of guilty verdicts, death sentences and executions. Competent legal assistance is unavailable to many defendants, including defendants facing drugs-related charges, leaving many with little capacity to mount a defence at any stage of the proceedings.

Draconian penalties for drug offences, including the death penalty, hinder public health programmes that reduce the harm drugs may cause to individual drug users, their loved ones, communities and states. China, Malaysia and Viet Nam have recently stepped up their harm reduction programmes to reduce HIV, hepatitis C and other drug-related health and social harms. However, excessive punishments and overly repressive drug law enforcement have been shown time and again to drive target groups away from such services. The death penalty therefore not only violates the right to life of those condemned, but is actually counterproductive to efforts to reduce the harm caused by drugs.

On the occasion of UN Anti-Drugs Day 2009 ADPAN, Amnesty International, Human Rights Watch and the International Harm Reduction Association appeal to Asian governments to:

• Introduce an immediate moratorium on executions with a view to the abolition of the death penalty in line with UN General Assembly resolution 62/149 and 63/168 on “moratorium on the use of the death penalty”;
• Commute all death sentences including for drug offences;
• Remove provisions within their domestic legislation that allow for the death penalty for drugs offences;
• Abolish the use of mandatory sentencing in capital cases;
• Publicize statistics on the death penalty and facts around the administration of justice in death penalty cases;
• Use the occasion of Anti-Drugs Day 2009 to highlight public health policies that have proven effective in reducing drug-related harms.

Ends.

Tochi in Singapore: "the burden thus shifted"

This post was originally written for the excellent historical blog Executed Today.

On this day one year ago, a promising young Nigerian soccer player was taken from his cell in Singapore's Changi Prison. It was dawn on a Friday morning, execution time in a country that has come to be known for its uncompromising use of the death penalty.

Iwuchukwu Amara Tochi, 21, and his co-accused Okele Nelson Malachy, 35, were hanged one after the other in the prison's death chamber. Tochi's lawyers had been informed he would die that morning, but it had not been announced that Malachy would also hang.

Later that day the Central Narcotics Bureau (CNB), Singapore's "primary drug enforcement agency", issued a 138 word statement. With the terse formality that is common to statements by Singapore's criminal justice authorities, it noted:

The appeals of both Tochi and Malachy to the Court of Appeal and to the President for clemency have been turned down. Their sentences were carried out this morning at Changi Prison.

Waiting for Mr Marshall
Tochi was arrested at Changi Airport on 28 November 2004, in possession of 100 capsules of diamorphine, or 727.02g of high grade heroin, which the CNB claimed was worth "about $1.5 million". He said in a later interview that he had arrived in the country expecting to be met by an African man named Mr Marshall.

He did not have enough money to clear immigration, and an airport hotel called the police when he attempted to take a room. Malachy was identified as his contact after flying in from Indonesia, although he strenuously denied any connection with the drugs.

Tochi claimed he was carrying the package for a man named Mr Smith, who had befriended him at Sunday services at St Andrew's Church in Islamabad, Pakistan. He had become stranded in Pakistan while attempting to travel to Dubai, where he hoped to play soccer professionally. As a boy, he represented Nigeria in soccer tournaments, travelling to Senegal when he was 14 to play in a West African youth Championship.

According to Tochi, Mr Smith asked him to take a package of herbs to a sick friend in Singapore, saying he could then apply to play for Singapore soccer clubs. He agreed, and was given a ticket and $200 in cash.

'No direct evidence': none needed
Many sites on the web have quoted the trial judge's acknowledgement that there was no proof that Tochi knew he was carrying heroin:

There was no direct evidence that he knew the capsules contained diamorphine. There was nothing to suggest that Smith had told him they contained diamorphine, or that he had found that out on his own.

The trial judge was clearly suspicious of Tochi's knowledge. Nevertheless, he found the defendant had "wilfully turned a blind eye on the contents of the capsules because he was tempted" by what police claimed was an offer of US$2000 in payment.

But the prosecution didn't have to prove Tochi knew; it was up to him to prove that he didn't know what was in the capsules. If he couldn't prove his ignorance of that fact -- a challenging philosophical notion in itself -- then the law would presume he knew, and therefore convict him of drug trafficking. Under section 18(2) of Singapore's Misuse of Drugs Act:

Any person who is proved or presumed to have had a controlled drug in hispossession shall, until the contrary is proved, be presumed to have known the nature of that drug.

An Act of reversal
The Misuse of Drugs Act reverses many principles that are taken as central to a fair trial, including the burden of proof and the idea that a court should consider the facts of the case before deciding a penalty.

Amnesty International reports that the Act contains a series of presumptions that:

shift the burden of proof from the prosecution to the accused. This conflicts with the universally guaranteed right to be presumed innocent until proven guilty. Amnesty International is gravely concerned that such presumptions erode the right to a fair trial, increasing the risk that an innocent person may be executed...

The Act applies a mandatory death penalty for a wide range of drug offences, including for importing more than 15 grams of diamorphine or pure heroin.

Possession of relatively small amounts of drugs -- by the standards of many countries -- is classed as "trafficking" in that drug. Trafficking in that drug carries a mandatory death penalty. Courts have no power to consider the individual circumstances of the case.

Death for drugs
Famously described as "Disneyland with the death penalty" by novelist William Gibson, Singapore brings together a record of social order and strict political control, and an unwavering use of the death penalty, particularly for drug-related offences.

No surprises then that Tochi was convicted of drug trafficking and sentenced to death in December 2005. His appeal was rejected in March 2006, with the judge pausing only to note that the accused had to prove he didn't know what was in the bag:

Under s 18(2) of the Act, the first appellant was presumed to know the nature of the drugs in his possession. The burden thus shifted to him to persuade the court on a balance of probabilities that he did not know that he was carrying drugs or that what he was carrying were drugs.

The appeal court judge acknowledged Tochi's claim that he didn’t know, but agreed that he hadn't proven his ignorance.

Seven months before Tochi's execution, his brother Uzonna told a reporter from IPS News he had not told their parents that their son, who once supported the family, was now on death row.

"My poor parents will die if they hear that a child who has worked so hard to sustain them is facing a death sentence," he said.

Tochi was hanged in the face of widespread international protest: legal efforts and a presidential appeal in Nigeria, urgent global appeals from Amnesty International activists, intervention from a United Nations human rights expert, and discreet but unequivocal opposition from a small group of human rights activists within Singapore itself.

Reflecting the colonial origins of the country's modern death penalty, Tochi was "hanged by the neck till he [was] dead", in the words of Singapore's Criminal Procedure Code. The same British legal phrase was taken with the empire to, among other countries, the United States, India, Pakistan, Brunei and Malaysia.

Mr Smith has not been found.

Asian activists condemn drug executions

An Asian network of anti-death penalty activists has condemned the region's widespread use of the death penalty for drug offences, despite there being "no convincing evidence" the punishment provides a greater level of deterrence.

The Anti-Death Penalty Asia Network (ADPAN) released a statement on United Nations Anti-Drugs Day, 26 June, expressing its "growing concern that more people are sentenced to death for drug offences than for any other crime in a number of Asia Pacific countries".

"This is at a time when there is a worldwide trend towards restricting and abolishing the death penalty."

Sixteen Asia Pacific countries continued to apply the death penalty for drug trafficking and possession offences, said ADPAN.

The network recognised that governments should take "appropriate law-enforcement measures" against drug trafficking and crime, including meeting their obligations under international drug control treaties.

"However there is no convincing evidence that the death penalty deters would-be drug traffickers more than any other punishment," it said.

'Not deterring'
The statement said Amnesty International did not know of any evidence that the death penalty had lead to a drop in drug use or trafficking in any of the sixteen countries.

"In China for example, police data shows that the number of drug users grew 35 percent in the five years since 2000.

"In Viet Nam, the BBC quoted an official who said in 2005 the quantity of drugs seized by customs had increased 400 percent year-on-year, despite its use of the death penalty."

Secret, mandatory, guilty
It also condemned the secrecy, mandatory sentences and discrimination that exacerbate the use of the death penalty for drugs.

It was not possible to determine how many death senences were imposed for drug crimes in the region because "the death penalty is shrouded in secrecy in many Asian countries".

"However, reports have shown that in South East Asian countries, including Indonesia, Malaysia, Singapore, Thailand and Vietnam, the majority of death penalty cases are for drug crimes."

ADPAN said the death penalty was mandatory for certain drug offences in Brunei, India, Laos, Thailand, North Korea, Singapore and Malaysia, which gave judges "no authority to take into account extenuating circumstances" in individual cases.

The network was also particularly concerned that countries including Malaysia, China and Singapore made a presumption of guilt for drug offences, reversing the international legal standard that an accused person should first be presumed innocent until proven guilty in a fair trial.

This reversal was even more worrying in capital cases because it "increases the risk that an innocent person may be executed".

Discrimination
The statement said there was evidence that the death penalty was disproportionately used on "the poorest, most vulnerable members of society", including in drug trafficking cases.

"In many cases, people have become involved in drug trafficking out of desperation or ignorance.

"Executing these people not only fails to deter others, but also fails to deal with the underlying issues that drive them to offend, such as poverty and lack of education, and obviously precludes the possibility of reform."

Steps to abolition
The ADPAN statement urged countries in the Asia Pacific to follow the lead of the Philippines and Nepal and move towards abolition of the death penalty.

It said countries should start by "ending the use of the death penalty for drugs offences and studying and implementing alternative treatment to break the cycle of drug abuse and crime".

ADPAN said the sixteen Asia Pacific countries that still had the death penalty for drug crimes were: Bangladesh, Brunei, China, India, Indonesia, North Korea, South Korea, Laos, Malaysia, Myanmar, Pakistan, Singapore, Sri Lanka, Taiwan, Thailand, and Viet Nam.

ADPAN described itself as "is an independent informal network with over 34 members made up of individuals and organizations from 18 countries mainly from the Asia-Pacific region".

Related stories:
New voice against Asia's executions -- 10 October, 2006

Malaysia: Expanded penalty condemned

Malaysian human rights activists have condemned the reported expansion of the death penalty for terrorism offences.

Malaysians Against Death Penalty and Torture (MADPET) said in a statement on 20 March it was "shocked and disappointed" at the new offence, which applies a mandatory death sentence for terrorist acts that cause death.

A second offence applies the death penalty to people convicted of giving financial aid to terrorists.

The new laws reportedly came into effect on 6 March, one day after they were gazetted by Minister in the Prime Minister's Department Datuk Seri Mohamed Nazri Aziz.

MADPET said, however, Minister Aziz was reported in 2006 as saying: "For me, a life is a life. No one has the right to take someone else's life, even if that person has taken another life..."

The wrong direction
The organisation said the death penalty was an unsafe and unnecessary response to serious crime.

"It is not possible in any system of human justice to prevent the horrifying possibility of the execution of innocent persons; and the infliction of the death penalty makes wrongful convictions irreversible.

"In an age, when it is possible to isolate persons guilty of the most heinous of crimes from society by the imposition of life imprisonment, there can be no more justification for the usage of the death penalty," it said.

The statement said 128 countries had abolished the death penalty in law or practice, compared to the 69 countries that retain and use it.

"It is ironic that at a time when the nations of the world are rapidly moving towards abolition of the death penalty, Malaysia is once again unnecessarily and imprudently extending the range of capital offences," MADPET said.

Calls for abolition
The organisation pointed out that a Malaysian television poll conducted last year showed 64% in favour of abolishing the death penalty.

The poll was conducted on 7 May 2006, during the Hello on Two programme, which "has an estimated audience of 80,000".

In March 2006, the country's peak legal organisation the Malaysia Bar passed a resolution calling for an end to the death penalty and for all death sentences to be commuted.

Related stories:
Malaysia's 'inexcusable' position on death penalty -- 22 July, 2006
Malaysia: Life sentence under the noose - 21 July, 2006
Malaysia: Opposition to water pollution death sentences - 09 May, 2006
Malaysia may execute water polluters -- 29 April, 2006
Renewed debate on death penalty in Malaysia -- 23 March, 2006
Malaysian lawyers against the death penalty -- 21 March, 2006
Malaysia PM defends death for drug offenders -- 24 February, 2006

Ronald Ryan forty years on

Key people involved in the trial and execution of Ronald Ryan last weekend commemorated the fortieth anniversary of his death - the last judicial hanging in Australia.

Ryan was hanged at 8am on 3 February 1967, in Melbourne's Pentridge Prison.

He was sentenced to death for the murder of prison officer George Hodson, who was shot during a prison escape by Ryan and Peter Walker in December 1965.

The escape sparked "the biggest police manhunt in the state's history," according to Mike Richards, Ryan's biographer.

Over 17 days on the run, they held up a bank at gunpoint and Walker killed an associate, fearing he would give them up to police.

Richards said there was "widespread and genuine fear [of the two men] in the Melbourne community", accompanied by "saturation media coverage" until they were recaptured.

Ryan, a long-term petty criminal before the prison escape, was given a mandatory death sentence following his conviction for murder.

Defence counsel Dr Philip Opas has always argued Ryan was innocent, pointing to inconsistent witness statements and confusion over whether his gun could be proven to have killed the prison officer.

But his biographer accepted his guilt, and last weekend Richards wrote that Ryan confessed to Pentridge prison governor Ian Grindlay the night before he was hanged.

He said Ryan had fired so Hodson would not recapture Walker, and quoted Ryan as saying: "I did shoot him. But I didn't mean to kill him . . . only to stop him."

Protest at 'political hanging'

Throughout the 1950s and 1960s, most death sentences in Victoria were routinely commuted to life imprisonment.

In the summer of 1966-67, lawyers, students and church leaders organised an extraordinary campaign for clemency, but Liberal premier Henry Bolte appeared determined to prove his credentials on crime by insisting on Ryan's execution.

Pleas for mercy from key community leaders were concealed from Bolte's cabinet colleagues, and the premier ignored requests from Dr Opas to address cabinet. Members of Ryan's jury, who had not believed the death sentence would ever be carried out, also petitioned the state governor.

On the morning of the execution, thousands joined protests outside Pentridge Prison.

"Ryan was hanged for political reasons and I don't believe those kind of reasons have changed anywhere in the world where people are executed," Dr Opus said last week. "Bolte said 'nothing transcends politics'."

Former Anglican bishop Tom Frame noted the day before the anniversary that: "At the Victorian state elections held 85 days after the execution, Bolte increased his party's primary vote and parliamentary majority."

Ryan's other legacy: Abolition
The controversy surrounding Ryan's hanging generated widespread revulsion at the use of the death penalty - and its politicisation - and created the momentum for eventual abolition across Australia.

According to biographer Mike Richards, who led student protests in the months before the execution, "it marks the event that prompted state governments still retaining the death penalty to cut the crimson thread running through Australia's history and abolish capital punishment".

"It ensured that no government anywhere in the country would politically risk imposing the death penalty again," Richards wrote.

Over the next 18 years, capital punishment was abolished under Commonwealth law and in seven states and territories. By 1985, the country was completely abolitionist.

Taiwan limits mandatory penalties

Taiwan has removed the mandatory death penalties from serious currency offences and several crimes against the armed forces, according to The China Post.

The Legislative Yuan amended the legislation on 22 December, giving judges discretion as to whether a convicted person should receive a life or a death sentence.

The amendments were introducted by You Ching, from the ruling Democratic Progressive Party (DPP), who The China Post said "contended that the original provisions stipulating mandatory death sentences for such offenses left no room for judges to use their discretion when passing sentences that take human lives".

The newspaper said he argued judges should be given more flexibility to consider individual cases "objectively in order to mete out reasonable penalties".

The amended provisions were:

• Article 3 of the Law on Punishment for Obstruction Against the National Currency, which had provided a mandatory the death penalty for a person convicted of counterfeiting banknotes and causing serious disturbance to the nation's monetary system
• Article 27 and Article 66 of the Criminal Law of the Armed Forces. Under the previous Article 27, a mandatory death sentence was given to any member of the military who disobeyed orders at the front line. Article 66 had provided a mandatory death sentence for a person who fabricated orders, announcements or reports during wartime, causing harm to the military.