Total abolition not necessary
IS Malaysia ready for a complete abolition of the death penalty?
Having spent the last couple of months conducting research on the death penalty in Malaysia and interviewing a number of experts from the legal and academic fraternity, I believe we are not ready for a complete abolition of the death penalty just yet.
There are two types of death sentences in Malaysia – the mandatory death sentence, which gives no discretion to the judge in meting out the sentence; and the discretionary death sentence, which gives the judge the allowance to decide between a death sentence or, in most cases, life imprisonment.
There are currently 23 offences punishable by death in Malaysia, out of which 11 are mandatory. Offences punishable by a mandatory death sentence include murder, treason, terrorism and organised crime (if the act results in death), hostage taking (if the act results in death) and discharging of a firearm (for both offender and accomplice notwithstanding that no hurt is caused).
Drug trafficking was punishable by mandatory death sentence until late 2017 when it was replaced with a discretionary death sentence.
I am of the view that Malaysia should retain the discretionary death sentence for the most serious crimes, and crimes where there is intentional killing of persons in line with the United Nations International Covenant on Civil and Political Rights (ICCPR).
Crimes such as treason, murder and drug trafficking are considered to be serious and put the sovereignty and security of the nation in jeopardy.
The mandatory death sentence should be abolished altogether as it does not give judges the discretion to consider mitigating circumstances and facts of the case before meting out the sentence. In some cases, for example discharging of a firearm, the offence may not have been carried out intentionally. Moreover, if no hurt is caused, there is no reason for a death sentence. Judges should be able to weigh all the facts before meting out a sentence.
A review of the offences punishable by death needs to be done. Offences which do not involve the intentional killing of persons, such as discharging a firearm, abduction for ransom and abetment of suicide, are not worthy of a death sentence. A term of imprisonment is sufficient.
The death penalty should not be abolished solely because other countries are abolishing it; the society and nature of crimes in each country are different.
The Malaysian government should also review and amend the drug laws, particularly the Dangerous Drugs Act (DDA) 1952. Certain sections of this Act are seen to be against the principles of criminal jurisprudence, in particular Section 36, which states that the burden of proof for any offence under the Act lies on the accused. It should actually lie on the prosecution according to the general principles of criminal law.
The statutory presumptions under Section 37 presumes one to be guilty until proven innocent when in actual fact, an individual should be presumed innocent until proven guilty. As at 2017, 71% of prisoners on death row were drug traffickers. However, many of those arrested and sentenced were mere transporters of the drug or mules. These weaknesses in the DDA are unfair to the accused, increase the chances of convictions and could be a possible reason for drug trafficking being the offence with the highest number of death sentences.
While human rights advocates may argue that the death penalty is a violation of human rights and a deprivation of an individual’s right to live, the rights of the victims of heinous crimes are often overlooked. Many may remember the case of politician Datuk Mazlan Idris who was murdered and dismembered in 1993, and Canny Ong who was brutally abducted and murdered in 2003. They, too, were violated of their rights to live due to acts of cruelty by inhumane individuals.
In my recent interview with associate professor Dr P. Sundaramoorthy, a criminologist from Universiti Sains Malaysia, he stressed that the needs of society and the victims of heinous crimes must be addressed.
Abolitionists may also argue that the death penalty has failed to act as a deterrent to crime. Actually, the number of drug cases in the coun- try is increasing and there has been no reduction in the number of murder cases either. However, the increase in these crimes cannot be said to be due solely to the failure of the death penalty to act as a deterrent. There are many other factors at play, such as poor socioeconomic conditions, lack of border control (drugs and firearms) and lack of education. Corruption in law enforcement is another factor that cannot be discounted.
Existing laws where the death sentence (mandatory and discretionary) are prescribed must be revised with the view to:
1. Abolish the mandatory death sentence for all offences and replacing it with a discretionary death sentence;
2. Reduce the number of capital offences in the country; and
3. Limit the use of the death penalty to rare, exceptional cases which involve very serious crimes such as treason (where the safety and security of the country is compromised), murder (intentional killing) and drug trafficking (for those who delve into it intentionally and not including mere transporters or mules).
I am by no means an advocate for the killing of people and I wish that no one has to go through the agony of being executed. However, those who choose to break the law and carry out heinous crimes against humanity on their own will must face the consequences of the law. Executions are by no means a primary method of crime eradication in any criminal justice system but they are meant to uphold justice for the victim and prevent further crimes from occurring.
I hope the government considers all facts and figures before making a decision. Politicians, both in government and the opposition, must discuss the issue fairly, thoroughly and objectively in Parliament and base their decision not on political mileage or to fulfil an electoral promise. Whatever the outcome, the final decision should be in the interest of the safety and security of the public and nation.