Malaysians Against Death Penalty and Torture (Madpet) is disappointed that the Federal Court on 15 January 2018 (as reported in Malaysiakini-Bernama) decided to uphold the Court of Appeal decision to sentence to death nine Filipino men for waging war against the Yang di-Pertuan Agong in relation to the Lahad Datu intrusion about four years ago.
The Court of Appeal, earlier on February 2017, overturned the natural life sentence meted out by the Kota Kinabalu High Court on 26 July 2016 on these nine men and sentenced them to death.
Md Raus Sharif continuing to be Federal Court judge and Chief Justice being challenged in court
Madpet is also shocked that Chief Justice Md Raus Sharif chaired this Federal Court five-judge panel who heard and decided on this appeal. The validity of Chief Justice Md Raus continuing to be a Federal Court judge and Chief Justice past 3 August 2017, the day his term in office came to an end when he achieved the age of 66 years and six months, is currently being challenged in court, by among others the Malaysian Bar, as being unconstitutional (The Malay Mail, 17 October 2017).
As such, Madpet is of the view that he should have not sat in any panel of the Federal Court and decided on any cases until this matter is finally resolved by the courts. If the courts later decide that his extended appointment as Federal Court judge and/or chief justice is unconstitutional, null and void, then all decisions of the Federal Court of which he was part will reasonably be considered invalid.
Madpet is also of the opinion that when Chief Justice Md Raus’ appointment was extended beyond his last date in office, it was also a violation of the principle of security of tenure, which is a safeguard to guarantee the independence of the judiciary.
If the term of judges can be extended beyond the fixed retirement age by the actions of the prime minister, the King and/or some other, the very intention behind the security of tenure principle is violated.
Lahad Datu incursion 11 February 2013 – 11 March 2013
This Lahad Datu case is in connection with what happened in February-March 2013, when a group, comprising over a hundred people, who were allegedly followers of the self-proclaimed Sultan of Sulu, Jamalul Kiram III, entered Sabah allegedly on a mission to ‘reclaim’ part of Borneo as their ancestral land.
The Lahad Datu situation reportedly saw a total of 68 deaths – 56 from the Sulu sultanate, nine from the Malaysian authorities and six civilians (Astro Awani, 30 December 2013).
At the High Court in 2016, the court of first instance where the trial was conducted, Judge Stephen Chung, at the Kota Kinabalu High Court after hearing the case, having the benefit of hearing the witnesses and considering the evidence elected to not sentence the nine to death, but to life imprisonment.
…In his judgment, Chung said there was no evidence that the accused were directly involved in the skirmishes that occurred during the intrusion, nor was there proof that they had killed any member of the security force in cold blood or injured anybody. He noted that the key persons in the intrusion, such as Datu Agbimuddin Kiram and ‘General Musa’ were not brought to justice. “It is indeed an odious task to pass the appropriate sentence for the accused convicted under Section 121 of the Penal Code. “The offence had badly affected the lives of the residents of Kampung Tanduo and those who resided in the nearby villages, as well as the families of the deceased security personnel,” he said… (Malaysian Digest/Bernama 26 July 2016).
The nine individuals were as such sentenced not to death, but to life imprisonment by the High Court.
It was also reported that the lawyer representing these accused persons who pleaded guilty also “told the court that his clients had been promised jobs and identity cards by their leader, General Musa, the chief of staff of Datu Agbimuddin Kiram who was a brother of the self-styled Sulu Sultan” (The Star, 24 February 2016).
It was also reported that “although they admitted to being members of a terror group known as the Royal Sulu Force (RSF), they were not involved in its militant activities. He said this was consistent with their statements recorded individually before a Sessions Court judge in Lahad Datu shortly after their arrests sometime in March 2013…”
As such, Madpet is of the opinion that these nine individuals were certainly not deserving of the death penalty.
‘Prisoner of war’ or ordinary criminals?
Further, with a perusal of the history and background of the whole conflict, as reported in the media, questions arise as to whether this should have been considered to be a ‘war’ and, if so, whether it is proper in such cases to sentence ‘prisoners of war’ to death.
This seems to be not a simple case of a group of criminals ‘waging war against the Yang di-Pertuan Agong (the King)’.
It was reported also that the reason for the incursion was for the purpose of ‘reclaiming’ part of Borneo as their ancestral land, that they claimed belonged to the Sulu Sultanate that was “….seized by the British from their government”.
It was also reported in the media that Malaysia had been paying annual sums to the heirs of the Sultan of Sulu, which was considered by them as ‘rent’ (Astro Awani, 30 December 2013).
Determining finally the very nature of that intrusion that lasted about a month (11 February 2013 – 11 March 2013) is material in determining whether the arrested (or the captured) were prisoners of war or simple criminals.
As such, Madpet urges that a moratorium on executions be imposed for these nine and that it be best that their death sentence be commuted to imprisonment.
Madpet also urges that the Sabah dispute concerning the Sulu Sultanate and Malaysia be finally resolved.
Madpet also calls on Chief Justice Md Raus to not be part of any Federal Court panel deciding on any cases, especially death penalty cases, until the question of the validity of his position as Federal Court judge and Chief Justice beyond 3 August 2017 is finally resolved.
Madpet reiterates the call for Malaysia to impose a moratorium on all executions, commute all death sentences, and abolish the death penalty in Malaysia.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).