Malaysians Against Death Penalty and Torture (Madpet) is shocked to hear that Malaysia has executed one Ahmad Najib Aris on Friday (Sept 23, 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 of the Penal Code provides for 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 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.” (The Malaysian Insider, Nov 13, 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 of the Penal Code for which he was sentenced to twenty years imprisonment and ordered to be given 20 strokes of the rotan (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 ask 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 policemen 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 April 28, 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 were 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 Syed Mohamed Nur case. Then, we also recall the infamous Anwar Ibrahim’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?
The Canny Ong case has 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 two 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 the 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’?
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 sent back to the High Court, who looked again at the facts and circumstances of the case, and mitigating/aggravating factors in determining whether the 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 . (The Malay Mail, Nov 17, 2015).
In a media release dated April 7, 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 (PGA) 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 Mah Weng Kwai; MPs from Malaysia, namely YB M Kulasegaran, YB Shamsul Iskandar Akin, 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 March 25, 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 act 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 Dec 18, 2014, the UN General Assembly (UNGA) reaffirmed for the fifth time since 2007 the urging for a stop of all executions. In 2014, 117 nation States voted in favour, 38 against, 34 abstention with four 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 May 16, 2016, there are 1,041 persons on death row.
Moratorium on executions
The Malaysian Human Rights Commission (Suhakam), the 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 March 29, 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 urges 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 urgings for Malaysia to abolish the death penalty.
CHARLES HECTOR is coordinator for Malaysians Against Death Penalty and Torture (Madpet).