Saturday, November 28, 2015

Rights advocates in M’sia should enlarge their minds and hearts

Ronald Benjamin

22 Nov 2015, PM 8:00

It is quite interesting to note as reported in online media, that Bersih has called the United States hypocritical in supporting authoritarian leaders. It is surprising that Bersih has taken a long time to understand that in reality, the US is more concerned about geopolitical and economic designs rather than democracy and human rights.

While US President Barack Obama and British PM David Cameron may come from democracies that practices transparency, it is their forefathers of democracy who created democratic foundations, and certainly not these leaders who are global authoritarians and imperialists that one should seek support to pressure Prime Minister Najib Abdul Razak to come clean on human rights and corruption.

One has to congratulate Cynthia Gabriel from anti-corruption watchdog C4 for at least discussing the Trans-Pacific Partnership Agreement (TPPA).

Human rights advocates such as Bersih should understand that there is something called hegemonic politics where leaders, whether authoritarian or democratic, will be targeted for regime change if they are not part or supportive of exclusive self-seeking imperial designs of the West or regional powers associated with it.

Saddam Hussein was toppled because of oil and he could not fit into the hegemonic politics of the US, Israel and US corporate lust for oil. Bashar Assad seems to be too close to Iran so he had to be disposed off, using his flaws as a dictator as a premise for regime change. Authoritarian Iran seems to be the consistent target of hawks in the US and Britain for its anti-Israel policies.

If one looks at the situation in West Asia, America and Britain are basically on the side of authoritarian leaders who have oppressed their own people, and paradoxically trying to topple authoritarian leaders who do not sing to their tune.

If the United States and Britain really care for human rights, they will not have Saudi Arabia as its ally, which is the greatest violator of human rights such as freedom of religion and expression, besides being an extremist nation which is the bedrock of the Sunni extremist movement in the Middle East.

Currently the US is providing weapons and military support for Saudi airstrikes in Yemen. Thousands of people are dead due to this war. The US, Britain and Saudi Arabia, in their endeavour to topple Bashar Assad at all costs, increased the sale of weapons in Syria, resulting in the growth of the uncontrolled barbaric organisation called IS or Islamic State, that has killed scores of Christians and Shiites in that country.

Today this brutal organisation has turned global without borders. Aren’t the rights to life and dignity the cornerstone of human rights? Is it not right to assert that narrow domestic focus of human rights could play into the hands of hypocrites like Obama and Cameron as they strategise the imperial design for Asean?

This clearly shows issues are indeed complex and not just about whether a leader is democratic or not. It is obvious that advocates of human rights in Malaysia should enlarge their minds and hearts to complexities of issues, so that they could appear credible and consistent in opposing both authoritarianism and imperialism which are antitheses to human rights.

Islamic ideology and its desire to control and dominate are linked to these twin forms of oppression that we see in the world today.

Thursday, November 26, 2015

PGA Parliamentary Roundtable and Consultations on the Abolition of the Mandatory Death Penalty in Malaysia

November 23, 2015 | Kuala Lumpur, Malaysia
The Roundtable, co-hosted on Tuesday, November 17th by H.E. Min. Dato Seri Mohamed Nazri Aziz (Malaysia), Chair of PGA National Group and Minister of Culture and Tourism, was organised in the framework of PGA’s Global Parliamentary Platform for the abolition of the death penalty, created to support, enhance and maximise the impact of individual initiatives of parliamentarians worldwide on the abolition of the death penalty. Through the Parliamentary Platform, PGA also launched targeted campaigns in selected countries, including Malaysia, to raise awareness among Parliamentarians, strengthen political will and provide technical assistance for parliamentary initiatives on this issue
The Roundtable organised on 17 November 2015 was the outcome of several consultations held with PGA Members in Malaysia, as well as other parliamentarians, who helped conducting a first assessment of the death penalty situation in Malaysia as well as challenges to abolition. As such, in early June 2015, PGA had organisedConsultations on the abolition of the death penalty and the fight against impunity to present the PGA Parliamentary Campaign against the death penalty and elaborate strategies with PGA members to launch the abolition process. During the meeting, PGA Members, including H.E. Min. Nazri and H.E. Hon. Min. Nancy Shukri (Malaysia), Vice-Chair of PGA National Group and Minister of Law, highlighted their interest and support to work on this important issue and committed to organise a Parliamentary Seminar on this topic in November.
The Roundtable which took place in the Parliament of Malaysia on 17 November gathered more than 60 participants, in particular Malaysian and international MPs, high-level national authorities and stakeholders as well as experts and representatives of the international community. The roundtable aimed to analyse the situation of the national and international legal frameworks of the death penalty, as well as the particular situation of the mandatory death penalty for drug-related offences and firearms offences. The Roundtable was also designed to identify the role and contribution of Parliamentarians on this important issue, as well as strategies and measures to overcome any identified obstacle and challenge to abolition of the death penalty.

During the Opening SessionHon. Nazri, MP (Malaysia), Minister of Tourism and Chair of the PGA National Group, welcomed all the participants and expressed his support to PGA Campaign on the abolition of the death penalty. He highlighted that such issues should be discussed openly within Parliaments, and noted that there was a growing movement towards abolition in Malaysia, among parliamentarians but also the public and State officials, recalling his own support to the abolition of the mandatory death penalty when he was the Law Minister in 2011. Hon. Nazri said that one of the most important challenge at the political level was the public opinion, and added that it was now the State’s responsibility to show compassion and forgiveness to offenders, considering that the crimes are considered offences against the State. He underlined the responsibility and role of parliamentarians to have a concrete impact towards a society more respectful of human rights and human dignity, and declared that he personally believed that the mandatory death penalty should not be maintained and that he would introduce or support any bill introduced in this regard.
Hon. Shukri, MP (Malaysia), Minister of Law and Vice-Chair of the PGA Malaysia Group informed the participants that a draft amendment to the law on the death penalty had been prepared in order to remove the mandatory death penalty, an objective she could fully commit to. She considered that the aforementioned bill could be presented next year, and welcomed the organisation of the Roundtable, which provided a key forum to exchange and gather support on this issue.
Hon. Melissa Parke, MP (Australia), Chair of PGA Australia Group, presented PGA and its Global Parliamentary Platform for the abolition of the death penalty. She underlined the already existing movement towards abolition in Malaysia, particularly under the leadership of PGA Members who repeatedly expressed their strong interest and political will in achieving abolition of the death penalty. She also reminded the role of Parliamentarians in drafting and amending legislation and shaping national policies.
As the final remarks of the Opening Ceremony, H.E. Luc Vandebon, Head of the EU Delegation to Malaysia, recalled the position of The European Union on the death penalty, which is one of the main objectives of its human rights policy worldwide as it considers it to be a cruel, inhuman and irreversible punishment and thus has made its abolition. He welcomed initiatives involving parliamentarians who should be at the forefront of abolition reforms in order to secure ownership and meaningful support to achieve the process.  
The first session, dedicated to the Situation of the mandatory death penalty in Malaysia, was chaired by Hon. Nazri and focused on the relevant legal framework, the impact of the mandatory death penalty, the challenges to abolition and the role and contribution of Parliamentarians.
Hon. Justice Datuk Mah Weng Kwai, a retired Judge of the Court of Appeal, first reminded all participants that the aims of justice should not be vengeance. He then proceeded with a comprehensive presentation of the legal framework of the capital punishment in Malaysia, including both mandatory and discretionary death penalty. Under Malaysian law, the death penalty is thus mandatory for treason (Article 12A, Penal Code), murder (Article 302, Penal Code), firearms offences (Articles 57(1) and 59  of the Internal Security Act, as well as Articles 3 and 3A of the Firearms (Increased Penalties) Act) and drug-trafficking (Article 39B, Dangerous Drugs Act).  He also presented the crimes punishable with discretionary death penalty, that is some offences linked to treason (Article 121, Penal Code), mutiny (Article 132, Penal Code), giving false evidence to procure conviction of a capital offence (Article 194, Penal Code), abetment of suicide (Article 305, Penal Code), offences resulting in death or with intent to kill (Articles 307(2), 364 and 376(4), Penal Code), gang-robbery with murder (Article 396, Penal Code) and trafficking in firearms (Article 7(1), Firearms Act). With regards to the impact of the mandatory death penalty in Malaysian courts, Hon. Justice Datuk Mah Weng Kwai stressed that as a recently retired Judge, his experience was that most judges are in support of the reintroduction of their powers to decide on the relevant sentence.
The subsequent presentation by Hon. Shamsul Iskandar Mohd Akin, MP (Malaysia) and PGA Member, stressed that the irrevocable character of the mandatory death penalty was a major issue considering the possibility for judicial mistakes, and declared that he personally did not believe that the mandatory death penalty had a deterrent effect. He thus recommended a Human Rights approach to the death penalty, while moving away from the idea of retribution and revenge.. He added that public policies should not be dictated by public opinion only and that it is the role of parliamentarians to act as visionaries and lead the society away from revenge and retaliation. Hon. Iskandar declared that he would support and promote the adoption of a bill abolishing the death penalty for drug-trafficking and firearms-related offences.
Lord Jeremy Purvis of Tweed, MP (United Kingdom) and Member of the UK All Parliamentary Group on the abolition of the death penalty, welcomed in his intervention the initiative to discuss the issue of the death penalty in the Parliament, underlining that it is the role of Parliamentarians to represent the best interests of the public, even when the issue seems to be contrary to the public opinion. He explained to all participants the abolition process in the United Kingdom, which was the result of long parliamentary campaigns, examining best practices and lessons learnt. He notably underlined that the process had been carried out in several stages, as discussed for Malaysia, and that abolition of the death penalty was achieved after a first reduction of the capital offences and two attempts in Parliament. Lord Purvis also recalled that at that time the public opinion was still in favour of retention and thus encouraged parliamentarians to focus on leading public opinion rather than following it.
Finally, Mr. Parvais Jabbar, Co-Executive Director of the Death penalty Project, emphasised that although there is a general trend to abolish the death penalty in Malaysia, the punishment still exists and there are many challenges to its abolition. He also mentioned the survey conducted in 2013 on the public opinion in Malaysia by the Death Penalty Project, with the support of the Malaysian Bar, SUHAKAM, HAKAM and the University of Malaya. Interestingly, he explained that when asking the question regarding the most effective way to deal with offences committed in Malaysia, the respondents generally put the death sentence as their last choice, after a better moral education and more effective policies.
The second session was entitled Towards the abolition of the mandatory death penalty for drug-related offences and chaired byHon. Kula Segaran, MP (Malaysia) and Secretary of PGA National Group.
Hon. Liew Chin Tong, MP (Malaysia) introduced the session by reaffirming his strong commitment to abolition of the death penalty in Malaysia. He underlined his concern regarding the lack of transparency on the number of convicted persons as well as on those in death row. As a parliamentarian he highlighted the necessity to use their prerogatives of parliamentary control of government to ask questions on the situation of the death penalty in Malaysia and encourage relevant reforms.
Mr. Philipp Hadorn, MP (Switzerland) gave a comprehensive presentation on the arguments generally invoked to retain the mandatory death penalty for drug-related offences, while presenting counter-arguments.He also presented a comparative analysis of drug-related offences and their punishment in South-Eastern Asia, revealing that the amount of drugs that established a presumption of drug-trafficking – and thus punishable with death penalty – was generally lower in Malaysia compared to the others countries.
The last intervention of this session was given by Datuk Dr. Khaw Lake Tee, Vice-Chairman of the Human Rights Commission of Malaysia (SUHAKAM), who reaffirmed the right of every individual to life, to be free from torture as well as from cruel and degrading treatment, in particular for those waiting for years to be executed. She presented the position of the SUHAKAM, which opposed the death penalty but as it is a long process, strongly advocates for the instatement of a moratorium on executions pending abolition of the death penalty. SUHAKAM has also requested the commutation of death sentences for prisoners that have been in death rows for more than 5 years, considering that it is in line with many international human rights guidelines, standards and instruments
The last session was chaired by Hon. Thomas Su, MP (Malaysia) and Treasurer of PGA National Group, and dedicated to the abolition of the mandatory death penalty for firearms offences.
The session started with a presentation given by Mr. Steven Thiru, President of the Malaysian Bar. He started by mentioning the successive resolutions passed by the Malaysian Bar calling for the abolition of the death penalty, including mandatory. He then comprehensively explained the national legal framework on the death penalty for firearms offences, reminding that the capital punishment for firearms offences does not need them to result in death. He declared this fact unacceptable; as individuals can be convicted for offences where there was no intention to kill and that did not result in any death. Mr. Thiru thus called for, at least, the abolition of the mandatory death penalty so as to leave the appreciation of the facts to the discretion of the judges, even where there was intention to kill.  
Hon. Kasthuri Patto, MP (Malaysia), Secretary of the Women’s Caucus of the Malaysian Parliament and PGA Member, gave the last presentation and underlined the unfairness of the mandatory death penalty, stating it did not leave any space for justice and discussions in courts and adding that State-killing would never solve the problem of firearms offences. She welcomed Hon. Nazri’s commitment to ensure that the mandatory death penalty is abolished, and deplored the current status of the law, which provides for a very high burden of proof on the accused.
During the roundtable, the participants and panellist presented several argument in favour of abolition, namely the irreversibility of the punishment, the fact that it is contrary to shared human values of respect for human life, that it can be considered as torture and that the mandatory death penalty excludes all possibilities of redemption and rehabilitation. All panellists and most of the participants, in particular Hon. Tian Chang Chua, MP (Malaysia) thus called for a moratorium on executions, stating that it would otherwise be unfair for people to be executed while there were consensus and intentions among the Government, the Parliament and the public that the death penalty should be removed.
Similarly, they all declared that the issue of the public opinion was one of the main argument to retain the death penalty, but considered that there would actually  be no strong public objection to the removal of the mandatory death penalty, in particular in light of the Death Penalty Project’s Survey, which showed that respondents were prone to take mitigating and aggravating circumstances into account. In this regard, all participants recommended to raise awareness among the general public and educate the youth on the mandatory death penalty. They also strongly condemned the mandatory death sentence for firearms offences, considering that the mandatory death penalty for these offences was a formal preventive punishment, as people could be convicted without the actual commission of a crime and without established intention to commit such crime.
In general, during the roundtable, all participants agreed that the abolition of the death penalty altogether was the main objective, and that abolition of the mandatory death penalty for drug-related offences and firearms offences was only a first step that would start the abolition process in Malaysia. They considered that the failure to take into account different circumstances and characteristics of each case rendered the capital punishment arbitrary and disproportionate, whereas it was necessary to protect the individuals from the arbitrary deprivation of life, considering it would otherwise amount to a violation of due process. They thus all acknowledged the importance for the judges to exercise discretionary powers should the death penalty not be fully abolished, as well as the necessity to halt all executions of inmates currently on death row until a review of the mandatory death penalty was conducted and achieved. The necessity for discretionary sentencing was particularly highlighted, as they emphasised that the mandatory death penalty had strong impacts on vulnerable individuals such as women and migrant workers. The participants expressed as well their opinion that the death penalty was a cruel punishment – even more so when mandatory – contrary to international Human Rights standards, particularly considering that drug-related offences and firearms offences did not meet the threshold of the ‘most serious crimes’ as set out in the ICCPR.
The participants all acknowledged that the death penalty had no deterrent effect, whatever the crime, as there was no empirical evidence that it prevented the commission of crimes and that it was a stronger deterrent than imprisonment sentences. Furthermore, they added that it was costly for the criminal justice system, considering that there were additional expenses such as pre-trials and appeals, lengthy incarcerations, retrial and resentencing. They admitted that, as a leading country in the region, Malaysia should move away from it.
The participants thus highlighted the necessity for parliamentarians to act as leaders, use their political and legislative prerogatives to raise awareness, inform and educate on this issue to overcome the obstacles and challenges identified and to take the necessary measures to definitely abolish it.
As a result, during the Strategic Discussion on priority topics andAgreement on Strategies and Actions, a Declaration was adopted by the participants, including Pledges and an Action Plan was suggested as the way forward, which includes the following points:
  • To support the introduction by H.E. Hon. Nancy Shukri of a bill aiming at the abolition of the mandatory death penaltyfor all offences and maximum term of life for drug related offenses and to consider a review of existing death row cases which resulted from the imposition of the mandatory death penalty;
  • To create a working group under the leadership of the PGA National Group Chair in order to proactively engage with their fellow parliamentarians and other stakeholders to achieve national and multi-partisan consensus to remove the barriers towards abolition and ensure better standards for its use as well as to promote the drafting a study on the effectiveness of the death penalty;
  • To generate support and request our Government to instate an official moratorium on executions pending the assessment of the report on effectiveness of the death penalty;
  • To urge the Malaysian Government to ratify the International Covenant on Civil and Political Rights, in particular its Second Optional Protocol and to remove the reservation to the Convention on the Rights of the Child allowing for capital punishment for children to properly reflect the position of the law under the Child Act of 2001.
At the end of the roundtable, the situation of Mr. Kho Jabing, a Malaysian national sentenced to death in Singapore was presented by his legal representative and his family. Mr. Kho Jabing was to be executed on November 6 as his clemency petition was denied by the President but benefitted from a last minute postponement. His mother and sister, with the assistance of an MP from their constituency exposed their situation and exchanged with participants on the actions to be taken to save his life. Take action to stop his execution.

Thursday, November 19, 2015

‘Delay in joining ICC, Arms Trade Treaty insensible


Malaysia’s delay in signing on to the International Criminal Court (ICC) and the Arms Trade Treaty makes no sense in an evolving international schema in which the writ of the big powers can only be curtailed by transnational bodies flaunting international statutes.

DAP MP for Ipoh Barat M Kulasegaran, who is secretary of Malaysian chapter of Parliamentarians for Global Action, told Parliament that all the excuses trotted out by the government in explanation of its reluctance to sign on to the ICC and the Arms Trade Treaty have been dismissed as “unsustainable and insensible”.

“After the downing of MH17 in Ukraine in July last year our continued evasions on enlisting with the ICC and the Arms Trade Treaty are not just unsustainable and insensible, our refusal to join renders us prostrate before marauding big powers,” argued the lawyer-legislator.

“If we had been a member of the ICC as the government signalled it had wanted to do four years ago, the Russian veto of the move in the United Nations to set up an international tribunal would have availed us recourse to the ICC, which upon our application for such a move as a member would have instituted its own investigation,” he expatiated.

Kulasegaran (photo) said the argument that joining the ICC leaves exposed our Agong as Commander-in-Chief of the Armed Forces to prosecution in the event of a filing by a complainant-nation was threadbare because it was easily demonstrable that our monarch’s hold on the role is ceremonial, not substantive.

“Therefore our monarch would not be liable under the terms of the Rome Statute of the ICC,” he said.

Kulasegaran said the wisdom and pragmatism that has prompted 12 nations to sign up with the ICC is not negated by the refusal of the United States Russia and China to sign.

“They are the big powers that feel their militaries needed to be protected from complainant-member nations of the ICC. Malaysia is not in that league and in fact, our small size is better protected as an ICC member than from being outside its ambit,” he said.

He said joining the Arms Trade Treaty, which has been ratified by 78 countries, with another 54 signed on though not ratified, will provide Malaysia with protection from leakages in the trade in conventional weapons.

“These leakages pose a threat particularly in this era where non-state actors like the Islamic State are active and pushing for expansion of their reach and influence,” he noted.

“In these precarious times Malaysia must avail itself of the shields and protection provided by international conventions and treaties that have been formulated for precisely the protection of the small and marauding powers and lawless non-state actors,” he said.

Sunday, November 15, 2015

MPs’ roundtable to push for death penalty abolition

An international lobby composed of MPs will hold a roundtable discussion in Kuala Lumpur on Tuesday to push for the abolishment of the death penalty.

The discussions will be headed by Culture and Tourism Minister Mohamed Nazri Aziz, with de facto Law Minister Nancy Shukri and attorney-general Mohamed Apandi Ali participating in sessions pertaining to offences that carry the death penalty.

Secretary of the Parliamentarians for Global Action (PGA) Malaysia Group, M Kulasegaran, MP for Ipoh Barat, told Malaysiakini yesterday the roundtable was being held at an opportune moment because of the opinion aired by Apandi that the government is thinking of abolishing the mandatory death penalty requirement for offences such as murder, certain firearm offences, drug trafficking, and treason.

PGA is a network of more than 1,100 parliamentarians from 140 Parliaments across the world, who in their personal capacity, support international justice, rule of law, democracy, and human rights.

“PGA welcomes the intention of the AG to shift to discretionary the current mandatory stipulation on judges that they impose the death penalty with respect to certain offences,” said the Perak barrister.

“The roundtable will seek to fortify opinion that he should go the full distance and abolish capital punishment altogether,” he added.

Kulasegaran said that previous roundtables held by PGA, with Nazri Aziz in attendance, had obtained a consensus that Malaysia is headed towards abolishment of the death penalty.

“But there have been doubts about the advisability of this measure from sundry quarters within the country which of course is at variance to the thrust of global opinion which tends to regard capital punishment as obsolete and cruel,” he opined.

The roundtable discussions will see the participation of MPs from both sides of the political divide in Malaysia.

Also participating would be retired Court of Appeal Judge Mah Weng Kwai, president of the Malaysian Bar Steven Thiru, and Suhakam deputy chairperson Khaw Lake Tee.

Also, MPs from Australia, Britain and Switzerland will bring their expertise to bear, with the head of the European Union delegation to Malaysia, Luc Vandebon, also taking part.

Parvais Jabbar, the death penalty expert in the PGA project to abolish capital punishment, will render a global overview of the initiative.

Kulasegaran said past PGA-organised roundtables on the International Criminal Court and the Arms Trade Treaty in Malaysia have succeeded in raising public consciousness on the need for Malaysia to accede to both initiatives so that the country can be more fully integrated into the comity of nations for the rule of law and peace.

Friday, November 13, 2015

Case regarding human trafficking

Today's matter at the Sessions Court went on with the 7th witness a doctor where the trial was regarding anti~trafficking. A girl was charged with trafficking. Unfortunately at that material time, the girl was working in the premises. The girl was charged together with the owner. Another material witness was also supposed to attend court today but since the witness failed to attend court therefore the hearing had to be postponed after hearing the doctor's formal testimony.

Tuesday, November 3, 2015

PAS being led by presidential whim, says DAP leader


PAS is being led by presidential whim and fancy, not by ideology and principle, said DAP national vice-chair M Kulasegaran.

The MP for Ipoh Barat said the announcement by president Abdul Hadi Awang that PAS MPs will not vote down Budget 2016 was the latest in a series of declarations by the chief that was at odds with positions intimated by lesser lights in the party.

“By now this variance has happened often enough and on issues grave enough to raise questions on what is it that has been making the PAS positions on issues of national importance a guessing game for others,” queried the federal legislator.

He observed that a consensus was firming up among opposition MPs that the best way to remove Prime Minister Najib Abdul Razak was to vote down the Budget he has tabled for 2016.

“This is being contemplated on the reasoned assumption that since the Budget is silent on the RM2.5 billion donation to his personal accounts, there is a lacuna too big for the opposition to ignore and therefore it has to be voted down,” rationalised Kulasegaran.

“Further, the speaker is not likely to make space for the tabling of the no-confidence motion against the PM that the opposition leader has filed and so a vote against the Budget is an imperative recourse for MPs opposed to the shenanigans surrounding 1MDB,” he argued.

Kulasegaran said it was sad that an opposition party of PAS’ durability and standing has reduced its positions and policy making to a guessing game in which the lesser lights of the party intimate that it will go one way, only for the president to interpose for a change of tack.

“We can understad if the issues before the country are hazy and a blur and on that score, there is doubt and hesitation at what the proper position to be adopted should be.

“But when the basic issues - of corruption and mismanagement - are the same and that only their forms and manifestations are different, position and policy making by a major politcal party cannot be a guessing game without casuing the same party suffer in the eyes of its appraisers,” he expatiated.

Kulasegaran said he was puzzled why PAS was allowing such a situation to develop when the instincts of politicians in the second tier of its leadership were consonant with the general thrust of opinions among the rest of the opposition.

“This situation diminishes confidence rather than builds it, so why this is not troubling to the party is a question that is extremely puzzling.

“The party has got to wake up to the reality that its governance by presidential whim and fancy is inviting public mistrust and suspicion,” said the lawyer-legislator.