Media Statement –
24/9/2016
MADPET SHOCKED AT THE EXECUTION OF AHMAD NAJIB ARIS WHEN ON THE VERGE OF
ABOLITION OF MANDATORY DEATH PENALTY.
MADPET (Malaysians Against Death
Penalty and Torture) is shocked to hear that Malaysia has executed one Ahmad
Najib Aris on Friday(23/9/2016), at a time when Malaysia is in the process of
abolishing the mandatory death penalty, and possibly the death penalty for some
offences.
Ahmad Najib Aris was found guilty
of murder (Section 302 Penal Code) of one Ong Lay Kian (also known as Canny Ong).
MANDATORY DEATH PENALTY – DENIES JUDGES DISCRETION IN SENTENCING
Section 302 provides the mandatory death penalty – which means that
once the judge finds the accused guilty of murder, the judge has no choice but
to sentence the convicted to the one and only available sentence - DEATH by hanging.
We recall that Attorney-General
Tan Sri Apandi Ali who is also the Public Prosecutor, said that ‘…mandatory
death sentences were a "paradox", as it robbed judges of their
discretion to impose sentences on convicted criminals….’ “If I had my way, I
would introduce the option for the judge in cases where it involves capital
punishment. Give the option to the judge
either to hang him or send him to prison. “Then we’re working towards a good
administration of criminal justice,”. (Malaysian
Insider, 13/11/2015). The Attorney General also said the he would
propose to the cabinet that the mandatory death penalty be abolished.
ONLY CIRCUMSTANTIAL EVIDENCE?
Ahmad Najib Aris was found guilty
of murder, for which he was sentenced to death, and also rape under section 327
Penal Code for which he was sentenced to twenty years imprisonment and ordered
to be given 20 strokes of the rottan (whipping). The evidence resulting in his
conviction were only circumstantial evidence.
It must be pointed out that one
of evidence adduced at trial, was that the car driven ‘after the alleged abduction’
by Ahmad Najib with Canny Ong seated in the passenger seat was stopped by two
police officers, who did asked for the identity cards of both the driver and
the passenger, which were given. They both also later confirmed their
identities to the police when asked. When later asked to step out of the
vehicle, the police officers allege that Ahmad Nazri drove off.
Of note also was the fact that
the alleged victim was not seen by the said police officers to be bound or
injured, and was seated in the passenger seat. The fact that Ahmad Nazri did
stop the car, when the police men on motorbikes asked him to do so also raises
doubts as such is generally not the conduct of one who is in the process of committing a
crime.
Now, it is important to note that
the credibility of the Malaysian police is in doubt. The Enforcement Agency
Integrity Commission (EAIC) in their inquiry surrounding the death in police
custody of one Dharmendran a/l Narayanasamy, in their press release dated
28/4/2016, did, amongst others state, ‘The
Commission found the police report on the death of the deceased lodged
by SP25, the D9 Lock-up Sentry made upon the instructions of the Deputy Head of
the Criminal Investigation Department of Intelligence and Operations IPK Kuala
Lumpur (SP60) and written by Sergeant Major Ali (D9 personnel) contained
false / misrepresentation of actual state surrounding the death of the
deceased.’ There was also finding by the EAIC that police made false entries
into the lock-up diary.
In October 2015, in another death
in custody inquiry, the EAIC also found that police had tampered with evidence
in the Syed Mohd Azlan bin Syed Mohamed Nur case. Then, we also recall the infamous
Anwar’s black eye, and how the police said one thing, and finally it was
revealed that it was the police that caused it.
Hence, the alleged perceived ‘odd’
conduct of Canny Ong that allegedly moved the police to ask Ahmad Najib and
Canny to step out of the car, which resulted in Ahmad Najib driving off raises
much questions. Was this observation of Canny Ong’s ‘odd’ gestures true? Did
Ahmad Najib really drive off to escape the police?
This Canny Ong’s case received
much media attention, soon after her ‘disappearance’ and there was much public
anger when she was later found murdered. There was much pressure on the police and
the authorities to find and convict the person/s responsible. Would this have ‘tainted’
the administration of justice?
Doubts however also did emerge as
to whether Ahmad Najib and Canny Ong had a personal relationship, and whether
he really was the person responsible for the murder of Canny Ong. The absence
of evidence of any struggle/protest at the alleged time of abduction, and her subsequent
conduct, even in the presence of the 2 police officers, also raises concern.
In any event, the High Court
found Ahmad Najib Aris guilty of both murder and rape, and both the Court of
Appeal and the Federal Court agreed.
At the High Court, when Defence
was called to present their case, Ahmad Najib Aris elected to be silent. It may
be simplistic to assume that this ‘silence’ indicates guilt, but there are
other possibilities. Was this silence a result of a threat by others on the
lives of loved ones, or maybe some ‘promises’?
ON THE VERGE OF THE ABOLITION OF THE MANDATORY DEATH PENALTY – THE RIGHT
TO HAVE A REVIEW OF SENTENCE?
When Singapore abolished the
mandatory death penalty for some types of murder, it also provided for
re-sentencing of persons previously convicted under the said offences and were facing
execution. These qualified cases were send back to the High Court, who looked
again at the facts and circumstances of the case, and mitigating/aggravating
factors in determining whether death sentence will be retained, or changed to a
more appropriate sentence of imprisonment.
Malaysia is in the process of possibly
abolishing the death penalty, starting probably with the abolition of the
mandatory death penalty. Nancy Shukri, Minister in the Prime Minister’s
Department and also the de facto Law Minister, was reported stating that the
proposal to amend laws to abolish the mandatory death sentence was to be tabled
in Parliament as early as March next year[2016].(Malay Mail, 17/11/2015).
In a Media Release dated 7/4/2016
by the ASEAN Parliamentarians for Human Rights, it was stated that ‘…in
November 2015, a roundtable discussion had been held in the Malaysian
Parliament by Parliamentarians for Global Action for the Abolition of the Death
Penalty on initiatives, commitments and particularly reforms on the state of
inmates on death row and the abolition of the mandatory death penalty. It was co-hosted by YB Mohd Nazri Aziz as the
Chair of the PGA National Group and also YB Nancy Shukri Minister Minister of
Law in the Prime Minister’s Department along with Luc Vandebon EU Ambassador to
Malaysia, Justice Dato Mah Weng Kwai, MPs from Malaysia, namely YB Kulasegaran,
YB Shamsul Iskandar, myself and international MPs as well.
The main outcome of the meeting
was that: (i) the Malaysian government pledged to introduce a bill aiming to
abolish the mandatory death penalty for all offences and a review of the existing
death row cases. (ii) the Malaysian
Government instate an official moratorium on executions pending the assessment
of the report on effectiveness of the death penalty;…’
As such, if the mandatory death
penalty is soon to be abolished in Malaysia, would not have Ahmad Najib Aris also
then be given the right for his current mandatory death sentence to be
reviewed. Would a re-sentencing court commute his sentence to imprisonment? Now,
that Ahmad Najib Aris is dead, we will not know.
Likewise Gunasegar Pitchaymuthu,
Ramesh Jayakumar and Sasivarnam Jayakumar who were suddenly executed earlier on
25 March 2016.
SUDDEN EXECUTIONS WITHOUT SUFFICIENT NOTICE DENIES ABILITY TO SAVE LIVES
It must be pointed out when there
is due notice of pending executions, the Minister, the Attorney General and the
Sultan of Johor, did previously acted in a praiseworthy manner in stopping
executions.
This happened in the case when Duli Yang Maha Mulia Sultan of Johor
in 2014 saved Chandran s/o Paskaran from being hanged. Likewise the de facto
law Minister, and the Attorney General,
did act and obtain a stay of execution in
the case of Osariakhi Ernest Obayangbon
(aka Philip Michael) in 2014.
As such, this sudden and
‘secretive’ execution of Ahmad Najib Aris should be condemned.
GLOBAL TREND TOWARDS ABOLITION OF DEATH PENALTY
On December 18, 2014, the UN
General Assembly (UNGA) reaffirmed for the fifth time since 2007 the call for a
stop of all executions. In 2014, 117 nation States voted in favour, 38 against,
34 abstention with 4 absentees. Every
time the said resolution had been adopted, the number of votes in favour has
been increasing. The global trend continues to be for abolition.
It must also be pointed out that
the death penalty in Malaysia is not pursuant to some Islamic law, or subject
to Islamic evidential and procedural requirements.
Research has also demonstrated
that most Malaysians are in favour of abolition of the death penalty.
Currently in Malaysia, the death
penalty is mandatory for 12 offences, while about 20 other offences are
punishable by a discretionary death penalty. As of 16/5/2016, there are 1,041 persons
on death row.
MORATORIUM ON EXECUTIONS
The Malaysian Human Rights
Commission(SUHAKAM), Malaysian Bar and many others have recommended that a moratorium on the use of
the death penalty be put in place pending abolition of the death penalty.
SUHAKAM, vide statement dated
29/3/2016, also cautions ‘…that any miscarriage or failure of justice in the
implementation of the death penalty is irreversible and irreparable. Further, the rationale that the death penalty
acts as a deterrent has been discredited and dismissed on several occasions….’
Therefore,
MADPET calls for the imposition
of an immediate moratorium on all executions pending abolition of the death
penalty, or at the very least pending
the tabling of the amendments that would most likely see the abolition of the
mandatory death penalty, and abolition of death penalty for some offences. This
also would justly result in a review of the death sentence of persons now on
death row by reason of being convicted of offences with the mandatory death
penalty.
MADPET also urges that the said
laws and/or amendments to the law that will result in the abolition of the
mandatory death penalty and/or death penalty be tabled forthwith at the
upcoming session in Parliament in October 2016.
MADPET also urges Malaysia to
vote in favour of the upcoming United Nations General Assembly Resolution
calling for a moratorium of executions pending abolition of the Death Penalty,
or at the very least record a vote of abstention.
MADPET reiterates its calls for Malaysia to abolish the
death penalty.
Charles Hector
For and on behalf of
MADPET (Malaysians Against Death Penalty and Torture)
******************
Relevant Posts:-AHMAD NAJIB ARIS v. PP, FEDERAL COURT JUDGMENT, 27 MARCH 2009
An extract from the Federal Court judgment -
'[5] On the same day, at about 11.15pm L/Cpl. Ravichandran a/l Subramaniam (PW4), a police officer together with a colleague were on crime prevention patrol duty at the Taman Perindustrian Jaya, Kelana Jaya area near Subang. There, PW4 noticed that a car had stopped beside the roadside. Half an hour later, PW4 and his colleague passed the same route again and noticed that the car P145 was still there. PW4 and his colleague stopped their motorcycle. PW4 then knocked on the glass window on the driver's side of the car P145. When the glass window was lowered, PW4 saw that the driver was a male Malay and on the passenger seat was a female Chinese. PW4 shone his flashlight towards both of them and introduced himself as a police officer and showed them his authority card. PW4 then asked for the identity cards of the driver and the passenger. When the driver gave his identity card (P12), PW4 shone his flashlight at the identity card and asked the driver for his name. The driver answered that his name was Ahmad Najib bin Aris. PW4 then looked at the identity card (P11) given by the passenger and asked "awak Ong Lay Kian?" ("You are Ong Lay Kian?"). The passenger only nodded. At that time, the driver was wearing a cap. PW4 asked him to remove his cap. After the driver had removed his cap, PW4 compared the driver's face with the photograph in the driver's identity card and found them to be the same. PW4 identified the driver as the appellant and the female Chinese as the deceased. PW4 then asked the appellant to get out of the car but the appellant refused.
[6] Meanwhile, PW4 saw the deceased gesture to him by pressing both her palms together to her chest with the palms outwards facing the appellant and then making a prayer-like gesture. The deceased made this gesture when the appellant was looking at PW4 but when the appellant turned towards the deceased, the deceased stopped her gesture. When the appellant refused to get out of the car, PW4 tried to open the door of the car but at that time, the appellant sped off. PW4 fired two shots at the tyres of the car. PW4 and his colleague also attempted to pursue the car with their motorcycles but failed. The car seen by PW4 was similar to the photographs of the car P145 which are P7A and P7B which were shown to PW4. The appellant's identity card P12 and the deceased's identity card P11 were still with PW4 when the appellant sped off in the car. PW4 then lodged a police report (P13) about the incident.'
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