Malaysia: Wrongful conviction makes the case for death penalty repeal

| September 11, 2017 |
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Execution scene from "Apprentice" by Junfeng Boo (2016)
The case of a young Thai woman who is on death row demonstrates why the death penalty should be repealed in Malaysia, says a lawyer with the National Legal Aid Foundation.

In a report by the Asian Correspondent, Samantha Chong spoke about how the Thai national was in Malaysia, and was waiting at a bus station platform and her friend had left a bag beside her.

She happened to be then questioned by police who asked her if the bag was hers, and she had replied that it was not.

"Despite her denial, she was arrested and charged with drug trafficking after the bag was found to contain heroin.

"During the trial, the defendant claimed that her statement had allegedly been falsified by police to say she claimed ownership of the bag," Chong was quoted as saying.

Chong added that the defendant's lawyer had not properly presented her defence in court and as a result, she was convicted and sentenced to death.

According to Chong, this is not an uncommon incident, and that all the "finding of facts" decided in the trial at the High Court is normally "not disturbed" when the case is heard on appeal.

"If you are convicted at the High Court, your fate is almost sealed. The Federal Court's judgement is simple, 'You should have presented this new argument at the High Court' and so they will disallow it.

"As the process of law stands, if the defence wants to challenge facts, the lawyer must ask the questions during cross examination in the 1st trial, and not present new facts on appeal," Chong said in calling for an end to capital punishment as there could be other cases of wrongful conviction leading to an innocent person facing the gallows.

Speaking at the Freedom Film Festival in Kuala Lumpur recently, Chong also said many of those convicted do not understand their rights and, in some cases, don't even know what they are being arrested for.

"Many people on death row do not have good legal representation," Chong was quoted as as saying by Asian Correspondent.

"Around 50% of them are migrants which raises immediate issues with language. In a lot of cases, defendants don't even know what is happening when they are arrested and are not allowed to see a lawyer until sometimes 6 or 7 months after arrest."

Calling them the "silent group", Chong said their cases are often out of the media spotlight and they are left alone to defend themselves against the word of the police.

"In most death penalty cases the witnesses are the police. There are many good policemen but there are some bad apples. So, if the courts only have the word of the police against the word of the suspect, who are they going to believe?" Chong told the festival audience.

Cabinet approval for court discretion


The issue of the mandatory death penalty has long been a contentious one in Malaysia with not just the law, but many people too supporting such punishment for those convicted of murder, drug trafficking, treason and waging war against the King.

However, the mandatory death sentence for the drug offence may soon be a thing of the past.

It was reported last month that the Cabinet had unanimously agreed to allow judges to impose an appropriate penalty on drug traffickers instead of the mandatory death sentence under an amendment to Section 39B of the Dangerous Drugs Act 1952.

Minister in the Prime Minister's Department Azalina Othman Said told the Dewan Rakyat at the last parliamentary sitting that the relevant ministries and agencies would prepare a memorandum to be handed over to the Cabinet for approval.

She said research on the issue had been carried out through the International Centre for Law and Legal Studies (I-CeLLS) and presented to the cabinet on March 1.

"The cabinet unanimously agreed to the amendment to Section 39B of the Dangerous Drugs Act," she had said.

Azalina was responding to a question from Bukit Gelugor MP Ramkarpal Singh, who had asked for updates on the government's move to review the mandatory death sentence.

In response, the Malaysian Bar called for the government to table a bill soonest possible to put an end to the mandatory death penalty, declare an official moratorium on the use of the punishment, stay any pending executions and commute every death sentence to one of life imprisonment.

Last year, Malaysia executed 9 people. This was an increase from the 1 sentence carried out in 2015.

This places Malaysia at number 9 among the 23 countries that still have the death penalty, according to Amnesty International.

Source: freemalaysiatoday.co, Sept. 11, 2017


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