The court dismissed Shahril Jaafar’s review application to commute his death sentence to life imprisonment under the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023.
It must be noted that in most cases, the death sentence has been commuted to imprisonment plus whipping, and there has been no public outcry when this happened.
Despite the abolition of the mandatory death penalty when the Abolition of Mandatory Death Penalty Act 2023 came into force on July 4, 2023, the death penalty remains. All the Act did was to provide an alternative sentence to death - that being the sentence of long imprisonment and whipping.
Other examples in the revision of sentence cases - on Jan 4, the Federal Court also upheld the death sentence for a former guard who was convicted of two murders.
On March 5, the Federal Court upheld the death sentence against four men who caused the death of a 32-year-old Batu Kawa woman in 2007.
On May 15, the Federal Court upheld the death sentence of a Singaporean man for the murder of his eight-year-old Thai stepson in 2008.
Prejudice lies in the fact that these cases were defended on the basis that conviction carries the mandatory death penalty, as it would be different if the sentence could also be a prison sentence that had a range.
In cases where there are multiple accused, lawyers would have raised factors that would mitigate sentences and it is most unlikely that all would get the same sentence – death.
On March 14, the Court of Appeal upheld the death sentence of six men convicted of murdering deputy public prosecutor Kevin Morais nine years ago.
This was an appeal of a High Court decision made in 2020, before the mandatory death penalty was abolished. It is difficult to adduce new evidence during an appeal. After the mandatory death penalty was repealed, it is more likely that the “leader” may get the toughest sentence.
Languishing on death row
This puts Malaysia in a serious dilemma, considering that it had publicly committed to the abolition of the death penalty when it voted in favour of the United Nations General Assembly Resolution 73/175 of Dec 17, 2018; 75/183 of Dec 16, 2020; and 77/222 of Dec 15, 2022 to impose a moratorium on executions pending the abolition of the death penalty.
These resolutions were supported by the post-GE14 Pakatan Harapan government in 2018, the Perikatan Nasional government in 2020, and Prime Minister Anwar Ibrahim’s Pakatan Harapan-led coalition government in 2022.
This indicates that all major political parties in Malaysia have taken the stance that Malaysia will abolish the death penalty, and until then, no one will face the gallows.
However, when the Abolition of Mandatory Death Penalty Act came into force, it did not just abolish the mandatory death penalty, but also life imprisonment.
What will happen to persons still being sentenced to death by the courts? Will they be put on death row until they die? This goes contrary to the fact that Malaysia has abolished life imprisonment.
Now, for those who are on death row whose death sentence is upheld by the Federal Court during the review application, or those who may still be sentenced to death as the death penalty is still an available sentence in law for more than 30 offences, their death sentence can only be commuted to imprisonment if they get a royal pardon, or if they are successful in some subsequent application to the court.
Commitment to abolishing death penalty
Until and unless the death penalty is abolished, there will always be the possibility that some will remain on death row, and new persons will be sentenced to death. Blame will lie not with the courts and judges, but with Parliament.
Given the public stance taken by the government of the day and the Perikatan Nasional government when they voted in favour of the UN General Assembly Resolution in 2020, Madpet does not foresee any objections if laws are tabled now to abolish the death penalty.
Sadly, death sentence is available for offences that do not directly result in death or serious bodily injury to victims.
A person languishing in prison continues to be punished for years, with time to repent or reform, while a person once executed ceases to suffer for his/her crimes.
Madpet calls for the immediate repeal of the death penalty, and for the continued imposition of the moratorium on execution pending abolition of the death penalty.
MADPET also calls on Malaysia to accede to or ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, which was part of the UN General Assembly Resolutions and Human Rights Council Resolution that Malaysia supported. - Malaysiakini, 1/6/2024
See full statement -
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