The Malaysian government has taken the position that regardless of any violation of international law (including any egregious breach of right to a fair trial against its citizens in death penalty cases in foreign countries), it will not proceed to the International Court of Justice (which is an avenue open to Malaysia). This is unfortunate and deprives the rights guaranteed to all citizens under Article 5 of the Malaysian Federal Constitution that says that no one shall be deprived of his or her life or liberty, save in accordance with law. This imposes a duty upon the Malaysian government to consider all options (including the ICJ route) in order to take positive steps to ensure that its citizens facing death penalty in foreign countries are not deprived of their lives in the event of breach of customary international law (‘save in accordance with law’).
Mexico had taken the US to the ICJ in 2004 on the grounds of breach of fair under international law in relation to 5 Mexicans who were facing executions in the US. The ICJ granted an order to stay the executions. The emphasis here is about right to a fair trial before one is executed not about death penalty per se. The crux of the argument here is that before one is deprived of his life, there must be a strict adherence to due process, particularly the fairness of trial. This is the minimum that the death row inmates are seeking before they are executed. Is that too much to ask?
“The International Court of Justice has granted Mexico’s request for an order to stay the execution of five Mexican citizens on death row in the US. Mexico had requested the U.N.’s highest court, commonly referred to as the World Court, to intervene because the United States has failed to comply with an earlier ICJ judgment ordering a hearing to review the trials of the Mexican citizens. The World Court ruled in 2004 that the U.S. violated the 1963 Vienna Convention on Consular Relations because it had not provided the Mexican inmates access to their home country’s consular officials prior to their trials”.
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