The 119 Nigerians on death row in Malaysia may be saved from the executioner if the country’s legislature passed a bill to abolish the death penalty as being proposed by the country’s law minister Liew Vui Keong.

The minister plans to table the bill in the March 2020 sitting of Dewan Rakyat, Malaysia’s Lower House of Parliament.

According to Amnesty’s latest report, Fatally Flawed: Why Malaysia must abolish the Death Penalty, 1,281 people are on death row as of February 2019.

Foreigners make up a significant 44 percent, 568 people, with Nigerians accounting for 119. They were sentenced to death for drug trafficking.

“Nationals from Nigeria made up 21 per cent of this group, with those from Indonesia (16%), Iran (15%), India (10%), Philippines (8%) and Thailand (6%) following suit”, Amnesty said.

“A significant 73 per cent of all those under sentence of death have been convicted of drug trafficking under Section 39(b) of the Dangerous of Drugs Act, 1952 — an extremely high figure for an offence that does not even meet the threshold of the ‘most serious crimes’ under international law and standards and for which the death penalty must not be imposed,” AI said in the report.

The Nigerians have not been executed because of a moratorium on executions in place since October 2018 as the government mulls law reform.

A special task force led by immediate past chief justice Richard Malanjum has also been set up to study alternative penalties for laws carrying mandatory capital punishment.

Amnesty report points at various flaws in the Malaysian legal system, including denial of complete legal aid to foreigners.

Amnesty also said that insufficient funding of legal aid also hinders Malaysians from accessing proper representation, especially those who live in rural areas and who are not able to afford a lawyer.

“It is further concerning that because of how legal aid is structured in the different schemes that provide no free legal representatives until the trial is due to start, many defendants are left awaiting trial without any legal assistance for significant periods that have extended from months to, in most cases, two to five years,” the report read.

For foreign nationals, the report noted delays of more than 24 hours to several days before their respective embassies were informed of their arrests. This is despite international law which states that prompt communication is necessary.

Amnesty, which campaigns to end to capital punishment worldwide, called for competent legal representation be made available to all defendants.

It also called upon the police to inform all detainees of their right to legal aid.

‘Secretive’ pardons, executions

Aside from the pre and post-trial stages, gaps in legal aid also affected the ability of inmates to acquire assistance when filing their pardon petitions, noted Amnesty.

When it was available, the report cited a lawyer’s testimony about how prison officials pre-selected inmates who would be able to receive legal aid, all of whom were Malaysians.

“The decision on who gets that support is not transparent and creates an additional degree of arbitrariness and discrimination in the death penalty system,” it said.

The NGO further urged the government to solve the delays and lack of transparency in clemency proceedings.

Pardons can only be granted by the Yang Di-Pertuan Agong and the state rulers after consulting the Pardons Board. However, clear procedures for them are not laid out in Malaysian law except for some guidelines in the Prison Regulations 2000.

In practice, the report noted that inmates are often informed of their right to clemency but not the criteria for pardon consideration.

Inmates and their families are often left without any news from the authorities for a long period after submitting their petition.

The report also noted instances of delays by prison authorities in communicating the result of a pardon petition to an inmate’s family.

In the case of rejected clemency petitions, Amnesty noted that families were not informed of the date and time of impending executions except that they would happen “soon”.

“Some of the letters handed over to the families were dated two weeks earlier, suggesting that the prison authorities had held on to this information until only days before the scheduled date of the hangings,” it said.

Amnesty urged Pardon Boards to disclose all relevant information to inmates to allow them to prepare adequately for the pardon petitions.

It also wanted the boards to promptly update inmates, their families and their lawyers on the progress of their applications.

Following objections to abolishing the death penalty in total, the Pakatan Harapan government is now looking at replacing the mandatory death penalty for 11 serious criminal offences to allow for judicial discretion.