Abolition a step in the right direction

I REFER to the report “45% against total abolition of death penalty” ( The Star, Oct 13) on a survey conducted by The Star in light of the Cabinet’s decision to approve the proposal to abolish the death penalty for all crimes.

It was reported that the survey revealed that almost half of Malaysians are against the Cabinet’s plan to abolish the death penalty.

The survey revealed that 45% of the pollsters “felt the death penalty was needed to keep hardcore criminals at bay” and that abolition would lead to an increase in crime.

There is no empirical study that supports the view that the death penalty acts as a deterrent above what could be achieved by a life sentence. Indeed, Malaysia’s experience in dealing with drug offences suggests that the death penalty does not deter the trafficking of drugs. In 1983, the government introduced Section 39B of the Dangerous Drugs Act 1952, which imposed a mandatory death sentence on those convicted of trafficking over a certain amount of drugs. This mandatory death penalty meant that judges did not have any discretion to give an appropri- ate sentence depending on the culpability of the offender or weighing any aggravating and mitigating factors. For this reason, it has been rejected in many countries as unfair and inhumane.

In Malaysia, drug-related offences continue to grow in spite of the mandatory death sentence. The then Home Minister Datuk Hishammuddin Hussein reported to Parliament that in 2009, 2010 and 2011, there were 2,955, 3,700 and 3,845 drug trafficking arrests respectively. Most of those arrested, and subsequently convicted, were low-ranking drug mules or couriers from poor and disadvantaged backgrounds. The drug lord or kingpin is rarely convicted.

Fortunately, the government recognised the ineffectiveness of the mandatory death sentence to combat drug trafficking, and amended Section 39B to allow the judge the option to impose a sentence of life imprisonment in lieu of a death sentence provided that certain conditions are met.

But the reforms did not go far enough, as reflected by the imposition of the death sentence on Muhammad Lukman on Aug 30 this year, upon conviction for processing, possessing and distributing cannabis oil. Lukman, who reportedly did not profit from his activity, provided the cannabis oil to patients who were suffering from sicknesses that could not be treated by conventional medicine. Clearly, he should not have been sentenced to death. With the complete abolition of the death penalty, he would not be executed.

The poll also does not take into account that many people’s opinions on the death penalty change when they are confronted with the realities of the punishment. Various studies have shown that the more people know about the administration of the death penalty, the less likely they are to be in favour of it. Research has also indicated that Malaysians are not well informed about the government’s use of the death penalty.

Wrongful convictions are not unusual in other countries that retain the death penalty. Since the United States reinstated the death penalty in 1976, it has been reported that 163 death-row inmates have been exonerated, many by DNA evidence. Indeed, it is reported that DNA was a substantial factor in establishing innocence in 20 cases.

For example, Earl Washington, Jr was convicted in 1982 for raping and murdering a young mother in the town of Culpeper, Virginia. He was a 22-year-old black farmhand and borderline intellectually disabled. He was on death row for 18 years. Nine days before he was scheduled for execution, he was exonerated by DNA tests. Washington was lucky to escape death, but there is no telling how many innocent individuals have been wrongly executed. There is a critical lesson to be learnt from the experiences of the US.

There is no doubt that all criminal justice systems, including ours, are imperfect and prone to errors. Errors can be deliberate or unintentional. The stakeholders of the criminal justice system – police officers, prosecutors, defence lawyers and judges – are human beings after all. Even an honest judge or witness can make mistakes.

There is always a risk that we may become the victim of a miscarriage of justice ourselves. The truth is we can only protect our own life by first protecting the lives of others. The new Cabinet must be lauded for showing leadership in deciding on this important issue. In South-East Asia, Malaysia will be the third country to abolish the death penalty.

The right to life of all Malaysians is upheld by Article 5 (1) of the Federal Constitution: “No person shall be deprived of his life or personal liberty save in accordance with law.” This right to life is a non-derogable fundamental right and the foundation of all rights. Without the right to life, all other rights will be rendered meaningless.

The declaration by the new Cabinet to abolish the death penalty is a formal recognition of the supremacy of the lives of all Malaysians and that the lives of all citizens will be protected. This will also signal that Malaysia will no longer participate in state-sanctioned killings.

The passing of the relevant laws to abolish the death penalty should take place in December 2018 as proposed. As we move towards a new Malaysia, we must recognise the evolving standards of decency and human dignity, and abolishing the death penalty is a move in the right direction.

ABDUL RASHID ISMAIL Past president, National Human Rights Society (Hakam)