Migrants and minorities: strategies to

overcome challenges in capital cases

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Migrants et minorités: stratégies pour

surmonter les défis dans les cas de

condamnation à mort

Definitions

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Définitions

Migrants - International Organization for Migration (IOM) defines a migrant

as any person who is moving or has moved across an international border

or within a State away from his/her habitual place of residence, regardless of

(1) the person’s legal status; (2) whether the movement is voluntary or

involuntary; (3) what the causes for the movement are; or (4) what the

length of the stay is.

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Migrants - Au niveau international, il n'existe pas de définition

universellement acceptée du terme « migrant ». Ce terme s’applique

habituellement lorsque la décision d’émigrer est prise librement par l'individu

concerné, pour des raisons « de convenance personnelle » et sans

intervention d'un facteur contraignant externe. Ce terme s'applique donc aux

personnes se déplaçant vers un autre pays ou une autre région aux fins

d'améliorer leurs conditions matérielles et sociales, leurs perspectives

d’avenir ou celles de leur famille. (source, Organisation internationale pour

les migrations)

Migrant worker - “A person who is to be engaged, is

engaged or has been engaged in a remunerated

activity in a State of which he or she is not a national”

(source, International Organization for Migrations)

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Travailleur migrant - Migrant exerçant une profession

acquise par un enseignement et/ou une expérience de

haut niveau. (source, Organisation internationale

pour les migrations)

Minorities - There is no internationally agreed definition as to which groups constitute minorities. It

is often stressed that the existence of a minority is a question of fact and that any definition must

include both objective factors (such as the existence of a shared ethnicity, language or religion) and

subjective factors (including that individuals must identify themselves as members of a minority).

Adopted by consensus in 1992, the United Nations Minorities Declaration in its article 1 refers to

minorities as based on national or ethnic, cultural, religious and linguistic identity, and provides that

States should protect their existence. (source, OHCHR « Who are minorities under international

law? »)

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Minorités - Selon l’article 1 de la Déclaration des droits des personnes appartenant à des minorités

nationales ou ethniques, religieuses et linguistiques adoptée en 1992, les Etats protègent l'existence

et l'identité nationale ou ethnique, culturelle, religieuse ou linguistique des minorités, sur leurs

territoires respectifs, et favorisent l'instauration des conditions propres à promouvoir cette identité. Il

n'existe pas de définition universellement acceptée du terme « minorités ». Il est souvent souligné

que l’existence d’une minorité est une question de fait et que toute définition du terme doit inclure

des facteurs objectifs (par ex. l’existence d’une ethnicité, langue ou religion partagées) et des

facteurs subjectifs (incluant le fait d’avoir des individus s’identifiant eux-mêmes comme faisant

partie d’une minorité) (source OHCHR « Who are minorities under international law? » en anglais

non disponible en français)

PAKISTANI MIGRANTS FACING THE DEATH PENALTY IN GULF COUNTRIES

-Representing the poorest facing the harshest punishments-

WHO IS BEING EXECUTED?

• 96% of Pakistan’s total migrant population is concentrated in 6 Gulf Countries. 90% of which are in Saudi Arabia, UAE and Oman.

• 1.5 Million Pakistanis are working in Saudi Arabia, mostly for blue collar jobs such as construction labour, masonry, carpentry, electrician works etc.

Remittances for FY16 (USD) Percentage

Global 16,034.39 Million

Saudi Arabia 4,833.43 Million 30%

UAE 3545.31 Million 22%

Other GC Countries 1966.13 Million 12%

Collectively account for 64%

Pakistani Citizens Imprisoned Abroad ( MFA Statistics from 2014)

TOTAL

All countries 8,597

UAE 1800

Saudi Arabia 1509 (2393)*

Bahrain 96

Qatar 52

Oman 644

Kuwait 256

* Latest figure reported by Special Advisor on Foreign Affairs in the Senate in May 2016

EXECUTIONS OF PAKISTANI MIGRANTS IN SAUDI ARABIA

Year No. of Pakistanis executed

2014 13

2015 23

2016 03

PROFILE OF PRISONERS

• Blue collar workers from disadvantaged backgrounds and no history of criminal behaviour

• Trapped into smuggling narcotics by government-licensed agents/promoters

• Little to no knowledge of local language or the criminal justice system

• Limited contact with family and consular support

Ministry of Overseas Pakistanis and Human Resource Development

Bureau of Emigration and Overseas Employment

Oversees Employment Promoters (OEP’s)

ASMA SHAFI V. FEDERATION OF PAKISTAN • Strategic Public Interest Litigation filed on behalf of 10 Families of Pakistani citizens

wrongfully convicted and facing executions in Saudi Arabia at the Lahore High Court. [6 of the prisoners have been executed since the filing.]

GROUNDS

A. The GOP has by failing to intercede on behalf of Pakistani citizens imprisoned, tortured, wrongfully convicted and executed failed in its obligation to its citizens under the Constitution of Pakistan and International Human Rights Law ( incl. UDHR and ICCPR)

B. The GOP has contributed to the arrest, wrongful conviction and ultimate execution of Pakistani Migrant workers by facilitating and regulating their emigration to GCC. The sheer number of migrants workers on death row points to a major lapse in regulation of OEPs.

C. The GOP under the Vienna Convention on Consular Relations 1963 failed to seek any information regarding the detained and executed prisoners or provided the same to the petitioners

D. That the GOP has failed to enter into any bilateral agreements to facilitate consular services to its detained citizen as agreed under the Treaty of Friendship between Saudi Arabia and Pakistan.

EXPLOITATION BY OVERSEAS EMPLOYMENT PROMOTERS (OEP)

LIAQAT ALI Pakistani migrant executed for drug trafficking in Saudi Arabia in 2015

“…….men put him in a car and told him that they are taking him to the airport, but instead they took him to somewhere in Khyber Pakhtunkhwa. Once they were there, the men threatened Liaqat at gunpoint that they would kill his family if he would not ingest some pills. Under severe duress and out of fear for his life and that of his family’s, Liaqat swallowed the pills.”

(Interview with Muhammad Ramzan, Liaqat’s brother in law)

“

LACK OF ACCESS TO LAWYERS AND COURT DOCUMENTS

MUHAMMAD IMRAN On death row for drug trafficking since 2011

SAFEER AHMAD On death row for drug trafficking since 2012

LACK OF ACCESS TO IMPARTIAL TRANSLATORS (TARJUMMAN)

“When I was shifted to jail after 30 days, they produced me before the court, and they had appointed a translator (tarjumman) of their own choice. I could speak and understand Arabic as I was living there for a long time. I realized that trajumman gave wrong statement before court which I didn’t tell him. The tarjumman was stating before court that the alleged accused told him that he brought these drugs from Pakistan and he is sorry for such act. At this, I directly addressed the judge in Arabic and told that the tarjumman was giving false statement.”

(MUHAMMAD KHALID, prisoner )

The Trial was conducted in Arabic and I was not provided with a translator. I could not understand the proceedings at all, and I was not provided with a lawyer either despite not being able to afford to pay for my lawyer”

( MUHAMMAD ARIF, prisoner on death row)

FORCED “CONFESSIONS”

“I was interrogated more than 20 times….. I told them my story and how I was forced to supply drugs. They tortured me and gave electric shocks and due to that my mental condition became worse…. The officials made me sign a paper during interrogation. I do not know if it was a confession letter or something else because I was given no time to read it. It was in Arabic..” (ABDUL QADIR, Prisoner on death row awaiting execution in Saudi Arabia)

DENIED RIGHT TO APPEAL

MUHAMMAD IRFAN, currently imprisoned for the past 7 years for drug trafficking

DENIED ACCESS TO FAMILIES

“I only found out about my son’s arrest, imprisonment and conviction when fellow inmates contacting his family through illegal means.The only mode of communication, all these years….has been through illegal channels. I ..have ever been provided with any official notification containing the details of Muhammad Altaf’s arrest, imprisonment, conviction and any legal proceedings from either the Saudi authorities or the Government of Pakistan.”

( Kulsoom Bibi, mother of MUHAMMAD ALTAF who was executed for drug trafficking)

EXECUTIONS WITHOUT NOTICE

“I have been told that my son was executed in January 2014, I however do not believe this news. I will not believe this until I can see for myself. If he is in reality been executed than why hasn’t his body been transferred… to us as customary in Islam.”

(Sameen Yasmin, mother of IBRAR – executed in January 2014)

LIMITED CONSULAR SUPPORT

“During the period of my detention, no one from the Pakistani embassy ever visited the jail. Even prisoners who had been in jail since a long time told me that people from Pakistani embassy never visited. Officials from Bangladesh, Sudan and even India used to come to the jail at least once a month. Even if they cannot help their prisoners, they at least provide prisoners with some courage.” ( ASAD ULLAH HABIB – former prisoner in Saudi Arabia) “ Who could I ask for help for appeal process? Our embassy doesn’t even come to see Pakistani citizens in the jail, why would they help us in appeal process, they just don’t have time’’. (NAVEED SHEHZAD – Death row prisoner awaiting execution)

LEGAL OUTCOMES • Formulation and Implementation of a unified Policy on Consular

Support for imprisoned Pakistanis and those facing execution. • Immediate and forceful representation on behalf of detained migrant

workers in GCC countries to secure access to due process and ensure extradition to Pakistan

• Review of existing regulatory framework for emigration of Pakistani migrant workers to minimise risks to citizens seeking employment opportunities abroad and accord adequate safeguards for protection of fundamental rights.

• Registration of Criminal Charges under the relevant domestic criminal laws against those responsible for entrapment and forced narcotics smuggling resulting in wrongful convictions and executions.

• Repatriation of bodies of Pakistani prisoners executed.

The Singapore Experience

Migrants and Minorities: Strategies to overcome challenges in capital cases

Presented by M.Ravi

Singapore

• The last 10 years have seen the number of executions in Singapore reduced since the decade before

• Detailed information, beyond the number on death row, is not easily accessible in Singapore

• Since 1973, the death penalty has been institutionalized as a deterrent to drugs

• Singapore has recently undergone its second Universal Periodic Review in January 2016– death penalty highlighted

Introduction

• Prosecutorial discretion: lack of transparency

• Presumption of guilt

• ‘Serious crimes’ interpretation

• Singapore has not signed the International Covenant on Civil and Political Rights (ICCPR)

Singapore Law

Trial before only 1 Judge

Loss of Privy Council Appeal

Mandatory Sentence

No Jury. No right to silence. Unreasonable delays in access to counsel.

Lack of multi-party representation

Singapore Law

Local & Regional Activist groups and organizations

• Amnesty International’s 2004 report on Singapore suggested that 25% to 50% of those on death row in Singapore are foreigners

• Many of these migrants are foreign workers who are poorly educated

• Death Penalty Research Project: de‘A prisoner’s economic status and level of education directly affects their inability to effectively participate in the criminal justice system and claim their fair trial rights.’

Migrants and Minorities

• Misunderstanding of police direction or questioning

• Signing statements problematic

• Singapore has 4 official languages: English, Malay, Tamil, Chinese

• No legal requirement for independent interpreter

• Police often interpret and translate to English themselves

Strategy: Introduce requirements for independent interpreters

Challenge 1: Language

Migrant are often unaware of basic rights when arrested. In Singapore these include:

1. The privilege against self incrimination (no right to remain silent in Singapore)

2. The right to counsel

a. No right to immediate access to counsel, which can be delayed up to 21 days

b. Misuse of Drugs Act, Section 33- taking of statement

Strategy: lawyers to communicate to police to delay taking of accused’s statements, until they have access to counsel and advised on their rights.

Challenge 2: Legal Representation

• Some migrant witnesses are fearful to testify

• Some migrant witnesses are transient and difficult to reach

• Similar language barriers arise with witnesses

Strategy: work across borders with assistance from a network of lawyers

Challenge 3: Defense and Witnesses

• Migrants do not have family in Singapore

• Familiar connections are vital for emotional and sometimes financial support

• Singapore Death Penalty Committee in Singapore strives to address this challenge through informal outreach and support

Challenge 4: Lack of Support Network

Vicknes Moorthi

• Family wanted private lawyers feeling that the state appointed counsel would be in favor of the state.

• All their money was used to fund private lawyers, including selling their house.

• Breach of right of choice to counsel

• Language issue: Mystery on the meaning of ‘stone’

• Lack of procedural fairness: innocent man can be hanged

• Post execution treatment

Vignes Mourti

Iwuchukwu Amara Tochi

• 19 Year old Nigerian national convicted of drug trafficking

• Judge in the case: “There was no direct evidence that [Tochi] knew the capsules contained diamorphine. There was nothing to suggest that Smith [the mastermind] had told him they contained diamorphine, or that he had found that out on his own.”

• Prosecution in the case: ‘Ignorance is a defense only when there is no reason for suspicion or no right or opportunity of examination.’

• International campaign launched

Iwuchukwu Amara Tochi

An International Campaign

• Parliamentary and presidential action;

• Legal action against the Nigerian Attorney General to compel the government to intervene;

• Referral of the matter to the International Court of Justice;

• Nigerian President Olesegun Obasanjo appealed to the President of Singapore

• Bringing a Nigerian NCLO lawyer to Singapore to continue the fight there.

Strategies in Iwuchukwu Amara Tochi Case

Iwuchukwu Amara Tochi

Died alone. No support network in Singapore and denied access to Nigerian lawyer

Yong Vui Kong

• 19 year old Malaysian national convicted for trafficking heroin (47g)

• Presumption of guilt arising from Misuse of Drugs Act

• Various constitutional challenges mounted

• Local and international Campaign appealed to Malaysian government

• Strategy to reach the International Court of Justice

• Death sentence commuted to life imprisonment due to amendment to Misuse of Drugs Act

Yong Vui Kong

Yong Vui Kong

The young man and the campaign to abolish the

Mandatory Death Penalty in Singapore

Changes to the Mandatory Death Penalty

• Statute of the International Court of Justice Article 38 1(b) • Customary International Law application?

• Vienna Convention on the Law of Treaties article 38 treaty can become binding on non-signatories (such as Singapore)

• Consular Relations requirements of Vienna Convention

• Human Rights Council and advisory opinion submission

International Appeals Strategies

• Divergent cases– importance of international support • Early Intervention by German Government leading to capital offense

reduced to non-capital offense • Involvement of German authorities • Late involvement of Australian government. Eventual death sentence. • Potential political undercurrents?

Julia Bohl and Van Tong Nguyen

CHALLENGING THE DEATH PENALTY IN SINGAPORE

M. Ravi Thank You For Your Kind Attention