Abolition of death penalty in Malaysia?
ABOLITION
of the death penalty will not come so soon in conservative Malaysia
despite efforts by a few to change the mindset of the public at large.
Public
opinion suggests that support for the mandatory death penalty as
punishment for murder is still strong despite arguments by abolitionists
that the death penalty brutalises society.
NO
TO DEATH PENALTY: Thiru (right) listening to queries from members of
the media. Also seen are (seated from left) Khaw, Lord Dubs, Charles and
Tuijn.
According to the Global Overview on the Death
Penalty for Drug Offences 2010, conducted by International Harm
Reduction Association, there remains 32 states which provide for the
death penalty for drug-related offences. Of these 32, 13 have the
mandatory death penalty. Malaysia is one of them.
Abolitionists
around the world have been quoting the late Gandhi that ‘An eye for an
eye will make the whole world go blind’ effectively in some countries
but not so in Malaysia.
The abolitionists argue that the death
penalty is never a superior deterrent because murder and drug
trafficking happen from time to time.
The worst case scenario is
that an innocent man may be executed and when that happens, the sentence
is irreversible, they point out.
The very few conservative
countries are adamant about keeping the death penalty, especially as
punishment for murder, drug trafficking and illegal possession of
firearms.
Discretionary approach
Malaysians
who support the abolitionists around the globe have suggested the
country can go slow in changing the mindset of the people and/or public
opinion by first urging the authorities to start making the death
penalty discretionary for judges presiding over drug trafficking cases.
Later, the judges may proceed to invoke their discretionary powers in murder cases.
Discretion, the abolitionists suggest, may call forth some kind of compassion.
However most Malaysians note that compassion can also come in the form of a pardon by the King.
Public
views must be taken into account on the proposal to abolish the death
penalty in the country, said Minister in the Prime Minister’s Department
Datuk Seri Nazri Aziz.
“Like the Internal Security Act (ISA) —
when a lot of the public wanting to abolish this law, we follow the
majority. Public opinion is very important to us. At the moment you
cannot really see whether or not the people are in favour of abolishing
the death penalty,” he told reporters after a public seminar to promote
the abolition of the death penalty in Malaysia in Kuala Lumpur.
Nazri
said although there was now no discussion on the immediate abolishment
of the death penalty in Malaysia despite calls from some quarters, the
government was committed to re-evaluate, re-think and review the capital
punishment.
114 death sentences
Malaysia
still practises the death penalty and as of last year, there were 114
death sentences with another 744 persons on death row while one
execution was reported.
Nazri, who is sometimes called the Law
Minister, opined that the death penalty review was timely and in line
with ongoing government efforts to review outdated laws and several
emergency ordinances and introduce new laws, complied with the
principles of human rights.
He said the government’s task was, therefore, to find the most humane mechanism to uphold justice for the people.
The seminar to promote the abolition of the death penalty in Malaysia was jointly organised by the European Union, the
Bar Council Malaysia and the Human Rights Commission of Malaysia in
conjunction with the International Day against the Death Penalty which
is held every October 10.
Apart from Nazri, those present were
ambassador Vincent Piket, head of the European Union (EU) delegation to
Malaysia; moderator Prof Datuk Dr Khaw Lake Tee, who is vice chairman of
Malaysian Human Rights Commission (Suhakam) and Steven Thiru, Malaysian
Bar Council treasurer as well as four panelists — Lord Alf Dubs of the
All Party Parliamentary Group on the Abolition of the Death Penalty
House of Lords UK; NicoTuijn, vice president of Court of Appeal,
Hertogenbosch in Netherlands; Charles Hector, lawyer and coordinator of
the Malaysians Against Death Penalty and Torture (Madpet) and Yohendra
Nadarajan, Amnesty International board member and Amnesty International
Human Rights education coordinator.
Malaysian Bar Council president Lim Chee Wee was also present.
Piket,
in his welcoming remarks, said the abolition of the death penalty
worldwide was one of the main objectives of the EU’s human rights
policy.
The Malaysian Bar also reiterated its call on the
Malaysian government to immediately abolish the death penalty, and for
an immediate moratorium on its use pending its abolition.
The Oct 13 seminar is the first in a long-term campaign to bring about the eventual abolition of the death penalty in Malaysia.
Life is sacred
In his closing remarks, Thiru said only God Almighty has the right to take away the life of a human being.
“We
hold to the belief that life is sacred and every individual has an
inherent right to life which is enshrined in Article 5 (1) of our
Federal Constitution. We take the view that the right to life is a
fundamental right which must be absolute, inalienable and universal,
irrespective of the crime committed by the accused person,” he added.
“There
is no empirical proof or data that irrefutably establishes that having
the death penalty is effective (as compared to other forms of
punishment) in deterring heinous and serious crimes.
“The
retentionists’ credo that the death penalty deters crime is unsupported
by compelling research. The retentionists, nevertheless, continue to
call for the imposition of the death penalty, especially in relation to
murder, rape and incest.
“However, the reality is that the death
penalty would have dire repercussions on the efforts to prosecute and
prevent the incidence of these crimes and the protection of rape
survivors, and also the reduction of victimisation of the survivors
under the legal process.
“For example, as the prosecution of
rapists depends on the existence of a complaint by a rape survivor, the
death penalty may discourage rape survivors from reporting the matter,
especially if the perpetrator is a family member.”
Moreover, Thiru
stressed, drug-related offences and addiction had been on the rise in
Malaysia since the 1983 amendment to the Dangerous Drugs Act 1952 which
imposed the mandatory death penalty.
“This weakens the case for
the death penalty because more than half of the known outstanding death
sentences are for drug offences (479 out of the 696 inmates on death row
as of Feb 22 this year), followed by murder (204) and illegal
possession of firearms (13).
The mandatory death penalty has obviously not had the desired effect intended by parliament.”
The little fish
The
vast majority of arrests for drug trafficking are those of non-violent
and low-ranking “little fish” in the drug market. The most recent report
of the Global Commission on Drug Policy observes that these “little
fish” are most visible and easy to catch, and do not have the means to
pay their way out of trouble because they cannot afford bribes or bail,
for example.
“The (end) result is that governments are filling
prisons with minor offenders and with no impact on the scale or
profitability of the market,” Thiru added.
“These minor offenders
are usually poor, young, desperate and/or very impressionable. This is
well illustrated by the much-publicised case of Yong Vui Kong who is on
death row in Singapore after being arrested and convicted for being in
possession of 47.26 grammes of diamorphine when he was just 18.
“He
(Yong) represents one of the many thousands of small fish (in an
elaborate international or domestic web) that are caught by governments
every year and a victim of the growing drug mule recruitment drive in
Southeast Asia and East Asia,” Thiru pointed out.
Furthermore,
both in Singapore and Malaysia, there is a legal presumption that the
accused who is in possession of drugs in excess of the proscribed weight
limit is guilty of trafficking, and that the accused is deemed to know
what he or she carries.
The burden is, therefore, on the accused to prove his or her innocence.
This
is the reversal of the universal legal standard of the prosecution
bearing the burden, which is described in the famous case of Woolmington
vs DPP as the golden thread in all criminal cases. Thus, it follows
that once a person is convicted for possession, the judge is compelled
to hand down the death sentence.
No legal system in the world is fail-proof or error-free, Thiru added.
Despite
the best efforts of all those involved in the judicial and legal
system, errors still abound due to human frailty. Groups such as the
Innocence Project in the US work to bring about post-conviction DNA
exonerations and to date, 273 people in the US have been exonerated by
DNA testing, including 16 who served time on death row.
Karthigesu case
In Malaysia, some may recall the famous 1970’s case of Karthigesu, who was wrongly convicted for murder and later acquitted.
“Needless
to say, the opportunity to right a wrong will not be available if the
death sentence had been meted out. Then, we, as a society, are
collectively responsible for having sent an innocent man or woman to
their death.
“It will be cold comfort to the deceased persons’
loved ones for us to hold that the system is not free from error and
that every now and then, there are those who fall in between the stools!
The burden of imposing a sentence of death is, therefore, great and
leaves no margin for natural human error,” he said.
The execution of human beings by the state is seen as an “example of barbarity” and legitimises the taking of human life.
In
the course of the on-going Save Yong Vui Kong campaign, Nazri had been
quoted as saying that now was time for Malaysia to abolish the death
penalty.
At the same time, he did add that Malaysia lacked the political will to change things.
As such, the Malaysian Bar Council believes it is time to generate that political will and fibre among our politicians.
In
this regard, the Malaysian Bar Council said it lauded the creation of a
cross-party caucus in parliament that seeks to promote support for the
abolition of the death penalty, and its decision on June 27, 2011, to
move a resolution in parliament to end the mandatory death penalty for
drug-related offences.
A few years back, there was a tale about
former prime minister Tun Dr Mahathir Mohamad ticking off a foreign
journalist whose fellow countryman was on death row in Malaysia for drug
trafficking.
The foreign journalist asked Dr Mahathir: “Sir, don’t you think that your law is barbaric?”
In response, Dr Mahathir was quoted as saying: “Don’t you tell that to me. Tell that to the drug traffickers.”
This
seems to be the attitude of most Malaysians at present. Apparently, the
abolitionists have to work harder to change public mind set. - Borneo Post, 30/10/2011
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