‘Special Committee’ Another Excuse
For Delay in Abolition of Mandatory Penalty?
Delay Prejudices Many Accused Persons Whose Trial Commenced Before
Abolition becomes Law
MADPET (Malaysians against Death
Penalty and Torture) is tickled by the announcement now of the Malaysian
Minister in the Prime Minister’s Department (Law) Datuk Liew Vui Keong that a special committee to look for alternatives
to the mandatory death sentence will be set up (Malay Mail, 6/9/2019). Such
a committee could have been established earlier in March, but to do so now, a
few weeks before the commencement of the October Parliamentary Session, when the
Bill/s to abolish mandatory death penalty was to be tabled is really
disconcerting.
MADPET is also concerned whether
it is just another attempt to further delay the decision to abolish the
mandatory death penalty. Last October, the Cabinet decided to abolish death
penalty, then in March this year, they changed their mind.
U-Turns - From Abolishing Death Penalty in 33 Offences to Abolishing
Mandatory Death Penalty in 11 Offences
It was announced on October 10
2018 (being also the World Day Against the Death Penalty), that the Malaysian
Cabinet had reached a consensus (a collective decision) that the death penalty
for 33 offences as provided for under eight Acts of law would be abolished, and
this was again reiterated several times(Straits Times, 13/11/2018).
Then on 13/3/2019, the Malaysian
government made a "shocking" U-turn and said that only the mandatory
death penalty would be axed. Deputy Minister in the Prime Minister’s Department
Mohamed Hanipa Maidin said the mandatory death penalty was for nine offences
under the Penal Code and two under the Firearms (Increased Penalties) Act 1971.(
New Straits Times, 13/3/2019)
MANDATORY PENALTIES OUSTS JUDICIAL POWERS IN SENTENCING
A mandatory death penalty
deprives judge’s sentencing discretion – the ability to order an appropriate
just sentence, when a person is found guilty and convicted of the crime.
When there is a mandatory
sentence, judges will have no choice but impose that one mandatory sentence
provided by law. If there were no mandatory sentence, then when it comes to
sentencing will consider all aggravating factors, mitigating factors and all
the circumstances of the case, and give a just sentence to those found guilty.
Parliament should justly impose
no mandatory sentence, though they may stipulate maximum or even minimum sentences
that would be imposed on a person is found guilty of a particular crime. The sentenced
to be imposed on every person found should always be in the hands of judges.
4 persons convicted of murder.
Should not a higher sentenced be given for the person who killed, and maybe a
lower sentence for a young man who came along but did not actually kill anyone?
Should not a higher sentence be given for a repeat offender and a lesser
sentence be given for a first time offender?
REPLACEMENT FOR MANDATORY DEATH PENALTY
When the mandatory death penalty
is abolished, it is best that it is not replaced simply with just another
mandatory sentence be it imprisonment for life or imprisonment for natural life
(being in prison until one dies), This also would be wrong and unjust.
When the mandatory death penalty
is abolished, the law would still provide that the sentence for the crime could
be death, imprisonment for natural life, life imprisonment and/or imprisonment for
a term not less than 10-15 years. Then, it will be up to the judge to impose a
just and appropriate sentence, based on the facts and circumstances of a
particular case. Remember, that if one is unhappy with the sentence, one can always
appeal the sentence to the Court or Appeal, and even the Federal Court.
As such, there is really no reasonable
or justifiable reason to set up any ‘special committee to look for alternatives
to the mandatory death sentence’. We know the options, and the government, the
Members of Parliament and Senators can decide.
MADPET hopes that this Malaysian
government, who previously decided to abolish the death penalty, who then did a
U-turn to now only abolish the mandatory death penalty will no more
procrastinate BUT will speedily table the relevant Bills in Parliament in this
upcoming October Parliamentary session.
DELAY IN ABOLITION OF MANDATORY DEATH PENALTY PREJUDICES ACCUSED WHOSE
TRIAL HAVE STARTED.
It must be remembered that the
delay of the previous Barisan National government in putting in force the
Dangerous Drugs Amendment Act 2017, which abolished the mandatory death penalty
for drug trafficking, by several months resulted in great injustice to at least
10 persons who were sentenced to death as judges still could not use the new
law until it was in force.
Now, the Pakatan Harapan-led
government’s delay in the abolition of the mandatory death penalty also greatly
prejudices accused persons charged with mandatory death penalty offences, whose
trial are starting, proceeding and/or will end before the amendment becomes
law. Now, the prosecution and the defense are preparing and presenting their
evidence and submissions in these trials on the basis that conviction results
in the mandatory death penalty. If there is no mandatory death penalty,
evidence tendered will also be evidence that would assist the Judge later in
imposing a sentence other than the death sentence.
If mandatory death penalty is now
abolished, justice would only be done for those sentenced to the mandatory
death penalty may be by a re-trial, where all court records of the trial before
are expunged and cannot be relied upon. Alternatively, a less just option, for
trials yet to have ended, provisions be given for prosecution and defense to
adduce new relevant evidence, including the recalling of witnesses, which will
have a bearing on the sentence to be imposed if found guilty.
As such, the abolition of the
mandatory death penalty should be not be delayed.
Other amendments to deal with
cases where trials have already commenced or have ended by the time the
abolition of mandatory death penalty had come into force can always be dealt
with later, maybe in subsequent amendments tabled in Parliamentary sessions in
2020.
DEATH ROW PRISONERS – PARDON CAN COMMUTE DEATH SENTENCES
For those currently on death row,
who are now more than 1,200 persons, the only way now is through the
commutation of the death sentence to imprisonment, which can be done by Pardon
by the King and the State Rulers.
In 1983, Datuk Mokhtar Hashim,
then Culture, Youth and Sports Minister received the death penalty for the
murder of Datuk Taha Talib, the state assemblyman for Tampin, In 1984 he
received a ‘royal pardon’ when his death sentence was commuted to life
imprisonment, and thereafter in 1991 another ‘royal pardon’ set him free from
prison.
The power of pardon is
exercisable by the King and/or the Ruler or Yang di- Pertua Negeri of a State
(Article 42 Federal Constitution), and this how those on death row could be
dealt with. The problem now is not just the frequency of Pardon Board meetings,
but the lack of procedural and guidelines that these Pardon Boards need follow.
MADPET is of the opinion that all
those currently on death law be pardoned and their sentences commuted to life
imprisonment.
Besides royal pardon, the
commutation of death sentence could also possibly be achieved through an
enactment of a new law.
Alternatively, the right of death
row inmates to apply to court for a review of their guilt and sentence could be
clearly provided for in our laws. This should also include the ability to easily
adduce new evidence, which may not have been adduced for whatever reason by their
lawyers and/or prosecution. Why should the convicted be prejudiced for failings
of even his/her own lawyer, as today the law makes it very difficult for the
adducing of new evidence that already existed then but was not adduced and
brought to attention of the court during trial? There are also many cases where
prosecution and/or police, despite having relevant evidence, simply chose not
bring it to the attention of the courts.
LAWS AND AMENDMENTS
The government can immediately
amend the law to abolish the mandatory death penalty. Now, it could impose a
natural life prison sentence.
Later, it can always again amend
the law to even give greater discretion to judges maybe imprisonment not less
than 15 years to natural life sentences, which it could do after this ‘special
committee’ submits its conclusions maybe 3 – 6 months down the road.
The abolition of the mandatory death
penalty must not be delayed simply because we are waiting for this ‘special
committee’ to submit its final report.
The law could also later be
amended to deal with persons whose trial has commenced and completed before the
law abolishing mandatory death penalty comes into force.
It is sad that the government has
been using all kinds of excuses to delay bringing about necessary repeal or
amendment of draconian laws in Malaysian. For example, in June 19, it was
reported The government will wait for the Federal Court to decide on a suit
challenging the constitutionality of the death penalty for trafficking before
it tables an amendments ( Malay
Mail, 17/6/2019). Parliament makes laws and there is no need to wait
to be told by Court whether a law is constitutional or bad.
The worry now is that in the near
future, the Minister will come out and say that the mandatory death penalty
will not be abolished until it receives the final report from this ‘special
committee’ it set up weeks before the Bill to abolish death penalty is to be
tabled.
THERFORE, MADPET
-
Calls on the Malaysian government to no longer
delay the abolition of the mandatory death penalty, which ought to be done in
the upcoming Parliamentary session beginning October
2019;
-
Call on the new Malaysian government, who have
been power for more than 16 months, to no longer procrastinate in the abolition
of other draconian laws like the Sedition Act, the Detention Without Trial laws
and other draconian laws; and
-
Reiterates the call for the abolition of the
death penalty, and the commutation of all death sentences of persons on death
row.
Charles Hector
For and on behalf of MADPET
(Malaysians Against Death Penalty and Torture)
Death penalty - ‘special committee’ another excuse for abolition delay?
LETTER | Malaysians against Death
Penalty and Torture (Madpet) is tickled by the announcement of Minister
in the Prime Minister’s Department (Law) Liew Vui Keong that a special
committee to look for alternatives to the mandatory death sentence will
be set up.
Such a committee could have been established earlier
in March, but to do so now a few weeks before the commencement of the
October parliamentary session when the bill to abolish the mandatory
death penalty is to be tabled is really disconcerting.
Madpet is
also concerned whether it is just another attempt to further delay the
decision to abolish the mandatory death penalty. Last October, the
cabinet decided to abolish the death penalty, then in March this year,
they changed their mind.
It was announced on Oct 10, 2018
(being also the World Day Against the Death Penalty), that the cabinet
had reached a consensus that the death penalty for 33 offences as
provided for under eight acts of law would be abolished and this was
again reiterated several times.
Then
on March 13 this year, the Malaysian government made a shocking U-turn
and said that only the mandatory death penalty would be axed. Deputy
Minister in the Prime Minister’s Department Mohamed Hanipa Maidin said
the mandatory death penalty was for nine offences under the Penal Code
and two under the Firearms (Increased Penalties) Act 1971.
A
mandatory death penalty deprives a judge’s sentencing discretion – the
ability to order an appropriate just sentence when a person is found
guilty and convicted of the crime.
Madpet hopes that the
government, who previously decided to abolish the death penalty, who
then did a U-turn to now only abolish the mandatory death penalty will
no more procrastinate but will speedily table the relevant bills in
Parliament in this upcoming parliamentary session.
It
must be remembered that the delay of several months by the previous BN
government in putting in force the Dangerous Drugs Amendment Act 2017
which abolished the mandatory death penalty for drug trafficking
resulted in great injustice to at least 10 persons who were sentenced to
death as judges still could not use the new law until it was in force.
Now,
the Pakatan Harapan-led government’s delay in the abolition of the
mandatory death penalty also greatly prejudices accused persons charged
with mandatory death penalty offences, whose trials are starting,
proceeding and/or will end before the amendment becomes law.
Now,
the prosecution and the defence are preparing and presenting their
evidence and submissions in these trials on the basis that conviction
results in the mandatory death penalty. If there is no mandatory death
penalty, evidence tendered will also be evidence that would assist the
judge later in imposing a sentence other than the death sentence.
If
the mandatory death penalty is now abolished, justice would only be
done for those sentenced to the mandatory death penalty maybe by a
re-trial where all court records of the trial before are expunged and
cannot be relied upon. Alternatively, a less just option, for trials yet
to have ended, provisions be given for prosecution and defense to
adduce new relevant evidence, including the recalling of witnesses,
which will have a bearing on the sentence to be imposed if found guilty.
As such, the abolition of the mandatory death penalty should be not be delayed.
Other
amendments to deal with cases where trials have already commenced or
have ended by the time the abolition of the mandatory death penalty had
come into force can always be dealt with later, maybe in subsequent
amendments tabled in Parliamentary sessions in 2020.
The
government can immediately amend the law to abolish the mandatory death
penalty and can impose a natural life prison sentence.
Later, it
can always again amend the law to even give greater discretion to
judges, maybe imprisonment not less than 15 years to natural life
sentences, which it could do after this "special committee" submits its
conclusions maybe three to six months down the road.
The abolition
of the mandatory death penalty must not be delayed simply because we
are waiting for this "special committee" to submit its final report.
The
law could also later be amended to deal with persons whose trial have
commenced and completed before the law abolishing mandatory death
penalty comes into force.
It is sad that the government has been
using all kinds of excuses to delay bringing about necessary repeal or
amendment of draconian laws in Malaysia. For example, on June 19, it was
reported that the government will wait for the Federal Court to decide
on a suit challenging the constitutionality of the death penalty for
trafficking before it tables an amendment. Parliament makes laws and
there is no need for it to wait to be told by a court whether a law is
constitutional or bad.
The worry now is that in the near future,
the minister will come out and say that the mandatory death penalty will
not be abolished until it receives the final report from this "special
committee" it set up just weeks before the bill to abolish the death
penalty is to be tabled.
Therefore, Madpet
- Calls
on the Malaysian government to no longer delay the abolition of the
mandatory death penalty which ought to be done in the upcoming
Parliamentary session beginning October 2019;
- Call on
the new government, which has been power for more than 16 months, to no
longer procrastinate on the abolition of other draconian laws like the
Sedition Act, detention without trial laws and other draconian laws; and
- Reiterates the call for the abolition of the death penalty and the commutation of all death sentences of persons on death row.- Malaysiakini, 12/9/2019
Minister: Special committee to study alternative to mandatory death sentence
PUTRAJAYA, Sept 6 — The government has agreed to set up a special
committee to look for alternatives to the mandatory death sentence.
Minister in the Prime Minister’s Department (Law) Datuk Liew Vui
Keong said in a statement today that the decision on the special
committee was made by the Cabinet on August 29.
He said the special committee will be chaired by a former Chief Justice of Malaysia.
Its members will comprise former Federal Court judges, former
Attorney General Chambers officers, former senior officers of the
Prisons Department as well as representatives of the Bar Council, Human
Rights Commission of Malaysia (Suhakam), academics, criminologists, and
civil society organisations.
“The government is taking a pro-active and cautious step by setting
up this special committee to ensure that an alternative sentence which
is commensurate with the criminal offence is imposed, taking into
account the implications on and welfare of the victim,” Liew said.
He said the repeal of the mandatory death sentence will give the
judge discretion to impose a death sentence or an alternative sentence,
based on the facts of the case.
Liew said the proposal to repeal the mandatory death sentence was in
line with the 27 pledges in the Pakatan Harapan manifesto. — Bernama - Malay Mail, 6/9/2019
Abolishing of death penalty is collective decision by Cabinet, says Liew
Nation
Wednesday, 14 Nov 2018 9:58 AM MYT
By RASHVINJEET S. BEDI
Read more at https://www.thestar.com.my/news/nation/2018/11/14/liew-death-penalty-abolition-was-a-collection-cabinet-decision#S3aaU5bGx0x8bTZo.99
Nation
Wednesday, 14 Nov 2018 9:58 AM MYT
By RASHVINJEET S. BEDI
Read more at https://www.thestar.com.my/news/nation/2018/11/14/liew-death-penalty-abolition-was-a-collection-cabinet-decision#S3aaU5bGx0x8bTZo.99
Malaysia's Cabinet decides to end death penalty for 33 offences
KUALA LUMPUR (BERNAMA) - Malaysia's Cabinet has reached a
consensus that the death penalty for 33 offences as provided for under
eight Acts of law should be abolished, including Section 302 of the
Penal Code, which pertains to murder, Minister in the Prime Minister's
Department Liew Vui Keong said on Tuesday (Nov 13).
He said the decision, which was reached collectively, also
encompassed the Firearms (Heavier Penalties) Act, 1971; Firearms
Act, 1960; Kidnapping Act, 1961; and Armed Forces Act, 1972.
Death penalties also provided for under the Water Services
Industries Act, 2006; Strategic Trade Act, 2010; and Dangerous Drugs
Act, 1952, are also to be abolished.
"Following the Cabinet decision, a Cabinet memorandum has
been circulated to the relevant ministries for their comments and to get
public feedback on it," Datuk Liew said during a question-and-answer
session in the Dewan Rakyat.
He was replying to a question from Dr Kelvin Yii Lee Wuen,
the Pakatan Harapan MP from Bandar Kuching, who wanted to know the
government's position on abolishing the death penalty, in particular
with respect to whether there will be exceptions for extremely cruel
crimes,
Mr Liew also told the House that the Bill on the Independent
Police Complaints and Misconduct Commission (IPCMC) was expected to be
tabled at the next sitting of Parliament after all issues and policies
were finalised.
He said follow-up meetings on the setting up of the
commission had agreed that it should be truly independent, effective and
have the power to tackle problems involving the police force.
"The
framework takes into consideration powers that are more holistic and in
line with existing laws and are currently in force," he said in reply
to a question from Ms Maria Chin Abdullah, the Pakatan Harapan MP
representing Petaling Jaya.
Mr Liew said the police's rights would also be assured as enshrined in Article 10 of the Federal Constitution.
In
September 2018, the government announced the setting up of the IPCMC to
replace the Enforcement Agency Integrity Commission. - Straits Times, 13/11/2018
Mandatory death penalty to be repealed for 11 criminal offences
(Stock
image for illustration purposes) “We have made a decision. The
government will only repeal the mandatory death penalty. We will make
the amendments. This is in keeping with the 27th pledge in the Pakatan
Harapan (election) manifesto.”
KUALA
LUMPUR: The mandatory death penalty for 11 criminal offences are to be
repealed and substituted with death penalty imposed at the discretion of
the court, the Dewan Rakyat was told.
Deputy Minister in the
Prime Minister’s Department Mohamed Hanipa Maidin said the mandatory
death penalty was for nine offences under the Penal Code and two under
the Firearms (Increased Penalties) Act 1971.
“We have made a
decision. The government will only repeal the mandatory death penalty.
We will make the amendments. This is in keeping with the 27th pledge in
the Pakatan Harapan (election) manifesto,” he said when replying to a
question from Datuk Che Abdullah Mat Nawi (Pas-Tumpat) during Question
Time.
Replying to a supplementary question from Che Abdullah on
whether the government intends to set up a parliamentary select
committee to discuss the repeal of the death penalty before tabling the
amendment bill, Hanipa said he would forward the suggestion to the
government.
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