Stay executions of Rames, Suthar Batumalai; introduce immediate moratorium

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Graphic: amnestyusa.org

Malaysians Against Death Penalty and Torture (Madpet) is appalled that Malaysia may be very soon hanging 44-year-old Rames and 39-year-old Suthar Batumalai, when Malaysia may be on the verge of the abolition of the death penalty.

In November 2015, Nancy Shukri, the then minister in charge, stated that the proposed amendments would be tabled in March 2016, which may have had the affect of abolishing the mandatory death penalty for murder. If the law had been amended then, Rames and Suthar would most likely not be facing execution now.

They were both convicted for murder that carries the mandatory death penalty. Hence, it may rightly be suggested that it is the failure of the Malaysian government to act promptly and speedily bring about changes in law, abolishing the mandatory death penalty that has caused this unacceptable situation today, which may result in the death of these two persons.

If not for government delay, risk of being hanged will not exist

Nancy Shukri did say that she hoped to take her proposal to amend the Penal Code and abolish the mandatory death sentence to the Dewan Rakyat as early as March 2016 (Malay Mail, 17 November 2015).

A few days before that, Attorney General Apandi Ali reportedly said he would propose to the cabinet that the mandatory death penalty be scrapped, so that judges are given the option to choose between sentencing a person to jail or the gallows (Malaysian Insider, 13 November 2015).

Nancy, the de facto law minister, also told the Sixth World Congress Against the Death Penalty in Oslo (Norway) in June 2016 that a government-backed study on the death penalty had been completed and a paper was being readied by the Attorney General’s Chambers (The Star, 22 June 2016).

The study was said to reveal that Malaysians were in favour of the abolition of the death penalty, especially the mandatory death penalty. But, apparently when it was finally submitted to the cabinet, the decision was that there was a need for further studies.

Minister in the Prime Minister’s Department Azalina Othman, the new de facto law minister, during the parliamentary session on 2 November 2016 clarified that Malaysia was not just looking at the mandatory death penalty, but all death penalties. They were considering possibly replacing the death penalty with life imprisonment.

It was indicated that further studies were to be done, and at “the decision on the implementation of the death penalty in this country, either be repealed or maintained, is a policy matter to be decided by the government based on the results of the study” (theSun, 3 November2016)

Moratorium on executions pending final decision on death penalty

As such, while the government is considering whether the death penalty should be abolished, it is only just and reasonable that a moratorium on executions be put in place until a final decision be made. A moratorium is simply a stay of execution, not a revocation of the sentence.

If the cabinet, and thereafter Parliament, ultimately decides to not abolish the death penalty and/or the mandatory death penalty, executions can still be carried out. It is most reasonable that there be a moratorium now.

Unjustifiable to have moratorium on certain offences that carry the mandatory death penalty but not all

At present, apparently there is a moratorium on executions for drug trafficking, which carries the mandatory death penalty, as mentioned by Edmund Bon Tai Soon, Malaysia’s Asean Intergovernmental Commission on Human Rights representative, who was reported as saying, “Malaysia’s moratorium, I understand, is only for drug trafficking cases” (The Star, 10 July 2016).

There is no justification to have a moratorium on certain offences that carry the mandatory death penalty, but not others. Malaysia needs to be consistent, and impose a moratorium on executions for all offences that currently provide for the mandatory death penalty.

If judges had the discretion on deciding appropriate sentences, even for murder, they may in some cases decide that a more appropriate sentence given the facts and circumstances may just be imprisonment – not death. But alas, with an offence that provides just one mandatory sentence, judges have been deprived of their choice of the most appropriate sentence for each case.

When Malaysian laws are finally amended, resulting in the abolition of the mandatory death penalty and/or even the death penalty, it will only be just for the courts to review the sentences of those previously sentenced to death – to determine what the appropriate sentence should be. This was done in Singapore, where the affected death row inmates had their sentences reconsidered by the courts, for even the offence of murder.

The Human Rights Commission of Malaysia (Suhakam) reiterated on 29 March 2016 their recommendation that a moratorium on the use of the death penalty be put in place in Malaysia. Many others, including the Malaysian Bar and Madpet have also called for a moratorium on executions.

UN resolution on moratorium on the use of the death penalty

When Malaysia should have abstained, it was disappointing that Malaysia voted against the United Nations General Assembly resolution for a moratorium on the use of the death penalty on 19 December 2016, given the fact that Malaysia is currently in the process of studying and evaluating the future of the death penalty in Malaysia.

It must also be noted that the majority of the 57 members of the Organisation of Islamic Countries (OIC) voted for the resolution and/or abstained: 24 OIC member nations voted in favour, 13 abstained and only 18 voted against.

Malaysia, Singapore and Brunei were the only three Asean member nations that voted against this resolution. Even Indonesia abstained.

The 2016 UN resolution was adopted with 117 votes in favour, 40 abstentions and 31 votes against. Since the first UN resolution on the moratorium and death penalty in 2007, the number of votes in favour has been increasing. The global trend is towards abolition.

In this case of Rames and Suthar Batumalai, there are allegedly other concerns including the deprivation of the right for their clemency petition to be properly considered and determined. Rames and Suthar had submitted a clemency application through their lawyers to the Negri Sembilan Pardons Board (The Star, 23 February 2017).

The Malaysian Bar has also urged the government not to proceed with the execution until the clemency proceedings are completed.

Prime Minister Najib and Malaysia’s cabinet must listen to the Malaysian people, including Malaysia’s attorney general and Suhakam. Even Pas president Hadi Awang and Malaysian Muslims would be for the abolition of the death penalty, more so when it is provided for by laws other than the Sharia law. In the recent proposed amendments to Act 355, Hadi Awang’s motion clearly excluded the death penalty.

Therefore, Madpet:

  • calls on Malaysia to stay the execution of Rames and Suthar Batumalai until their clemency petition is duly considered and decided upon;
  • calls on Malaysia, given the fact that Malaysia is currently in the process of studying and considering the possibility of abolishing not just the mandatory death penalty, but also all death penalties, to introduce a moratorium on all executions until a final decision is made about the death penalty in Malaysia;
  • calls on Malaysia to tabled the require amendments and/or law in the upcoming parliamentary session that will bring about the abolition of the death penalty and restore discretion in sentencing back to the judges; and
  • calls on Malaysia to abolish the death penalty.

Charles Hector released this statement for and on behalf of Malaysians against Death Penalty and Torture.

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