Malaysia’s new government should no longer delay abolition of death penalty — MADPET
AUG 5 — MADPET(Malaysians
Against Death Penalty and Torture) is disappointed that there is still
no abolition of the death penalty in Malaysia after almost 3 months
since the new Pakatan Harapan led government came into power.
The former UMNO-BN
government did abolish the mandatory death penalty for drug trafficking
in 2017, but alas the delay of putting the new law in force for months
resulted in at least 10 persons being sentenced to mandatory death
penalty. Currently in Malaysia, the death penalty is mandatory for about
12 offences, while about 20 other offences are punishable by a
discretionary death penalty. Many of these offences do not even result
in grievous injury and/or death to victims.
It is MADPET’s hope that the new PH-led government will
act justly, and expedite the abolition of the death penalty, especially
the mandatory death penalty and not just procrastinate using lame
reasons of further study and review as was the case with the past
government. The greater the delay, more will be sentenced to death and
may even continue to be executed in Malaysia. When in Opposition, many
of the parties and their parliamentarians, who are now in the new
government, were committed to the abolition of the death penalty. The
time to walk the talk is now.
35
persons were executed in the last ten years(2007 – 2017), and 1,267
people on death row or 2.7% of the prison population of about 60,000
people, as revealed by deputy director (policy) of the Prisons
Department, Supri Hashim recently(Star, 29/6/2018). Since the new
government assumed power, there is to date no known executions, but
reasonably many still may have been sentenced to death in the past
months.
On
29/7/2018, Deputy Prime Minister Datuk Seri Dr Wan Azizah Wan Ismail
said that government is looking into the need to make amendments to do
away with the mandatory death penalty in legislation pertaining to
criminal offences.(Malay Mail, 29/6/2018)
Mandatory death penalty
removes the ability of judges to impose the most just and appropriate
sentence, as Parliament by law forces them to impose just the one
sentence of death once a person is convicted of the relevant crime.
Mandatory death penalty is undemocratic
In a democracy, there are
3 branches of government – the Executive (Prime Minister and Cabinet),
the Judiciary and the Legislative(Parliament). Besides serving as a
check and balance to the other 2 branches, each branch of government
also do have specific functions.
The mandatory sentence
including the death penalty, is really is a trespass by the Legislature
into what must be the duties/functions of the Judiciary. We should
really trust the Judiciary in Malaysia to provide every person with the
right to a fair trial, including also the ability to impose the
appropriate just sentence, after considering all factors, including
points submitted in mitigations and arguments for a harsher sentence.
Mandatory death penalty is unconstitutional
The existence of the
mandatory death penalty may be unconstitutional, which was also the
recent finding of the Caribbean Court of Justice (CCJ), Barbados’s
highest court, on 27/6/2018, which struck down the mandatory death
penalty on the grounds that it is unconstitutional. Amongst others, it
said that ‘ the Constitution, which gives the right to protection of the
law, was enforceable, and that the mandatory death penalty breached
that right as it deprived a court of the opportunity to exercise the
quintessential judicial function of tailoring the punishment to fit the
crime ’. One of the judges also stated ‘ that the judicial monopoly on
the power to sentence, which is protected by the separation of powers
principle, is consistent with “ensuring respect for, and adherence to,
the ongoing evolution in the protection of human rights”. (Caribean360,
27/6/2018)
Our Malaysian Constitution has similar provisions with Barbados, and is also a democracy.
In a criminal trial,
after conviction, the accused have the right to raise mitigating factors
for the courts to consider when deciding on a just sentence. When an
offence provides for a mandatory sentence, the convicted person is
denied this fundamental right, and as such, it may be said that he/she
is denied the guaranteed ‘equal protection of the law’ and the right to a
just sentence.
Death penalty in malaysia not in accordance with islam must be abolished
Whilst, some Muslims have
supported the death penalty on the basis that it is provided for in
their religious teachings and/or faith, it must be pointed out that in
Malaysia, all the offences that provide for the death penalty are not
offences under the Islamic/Syariah law. In Islam, there are also strict
criminal procedural and evidential requirements that need to be
fulfilled, which arguably is not fulfilled in Malaysia’s present
administration of criminal justice system that now allows for the death
penalty. As such, the argument that Malaysia should retain the death
penalty because Islam allows for it is weak, and possibly even baseless
or flawed.
Being a caring nation,
Malaysia needs to do justice to all – including also emphasizing on
repentance and second chances rather than simply effecting revenge,
punishment and even death. It must be noted, that Malaysia, may also be
partially responsible for its failings of government to provide for the
well-being and welfare of its people, may have been a factor that pushed
many a poor persons to resort to crime for the survival and livelihood
of themselves and their families.
Therefore, Muslim
politicians and parties, in government or otherwise, should justly not
resist the abolition of death penalty, for fear of losing the support of
Muslim Malaysian voters.
Death penalty not in the ‘best interest’ of a child
Malaysia, having ratified the Convention on the Rights of the Child (CRC) in 1995, must
uphold its commitment to the protection and well-being of children. The
execution of a father/mother/sibling/relative of a child is really not
in the ‘best interest of the child’.
This concern for the
child is already reflected even in our present Malaysian criminal laws,
where a pregnant woman will not be sentenced to death, not when she is
pregnant nor even many years after she had given birth. The underlying
value and principle could only be our concern for the child and the
importance of a living parent to a child’s wellbeing. This care and
concern now needs to be expanded by the abolition of the death penalty.
When other co-perpetrators not yet arrested, tried or brought to justice
There is suspicion that
in the Mongolian model Altantuya Shaariibuu murder case, there may be
others involved besides the 2 who have been convicted and now sentenced
to mandatory death penalty. The two, Sirul Azhar Umar and Azilah Hadri,
were at the time of the said murder part of former Prime Minister
Najib’s personal security detail.
This may be the case also
for many other murders and death penalty crimes, especially those cases
where the prosecution in the charge sheet clearly stated that the crime
was done together with others not named, and in other such cases where
involvement of third parties are evident or suspected. If the convicted
are executed, it is becomes all the more unlikely that these other
perpetrators of crime may never be identified, arrested and brought to
justice.
Now, Malaysia is
considering the abolition of the death penalty with the hope that the
convicted and those sentenced to death, will cooperate in making sure
other perpetrators are also brought to justice – this is an additional
reason for the abolition of the death penalty. It will surely make it
more probable to bring to justice those in the shadows, including those
who may have ordered or facilitated such murders and crimes.
In Japan, it was
customary that the convicted were not executed until all those involved
were brought to justice. In Malaysia, sadly this may not be the case.
Even in cases that the
prosecution knows there are others still at large, as an example in the
case of Gunasegar Pitchaymuthu(35), Ramesh Jayakumar(34), and
Sasivarnam Jayakumar(37) who were executed for murder in March 2016. The
charge levied against the 3 stated clearly that the murder was
committed with ‘one other still at large’. Now that the 3 have been
executed, that ‘one other still at large’ would most probably never be
brought to justice, more so since crucial witnesses being the
accomplices are now dead. Justice may not be done.
Everyone would want all
perpetrators of crimes, including the ‘big bosses’, ‘kingpins’ and
others that ordered or assisted in the crime to be brought to justice.
Hence, the execution of possible ‘whistle blowers’ and crucial
witnesses prior to the arrest and trial of all other perpetrators is
foolish, and certainly yet another reason for the abolition of the death
penalty.
Now, if there is no
mandatory death penalty, better still no death penalty, it is more
likely that the convicted, especially after they had been unsuccessful
in their final appeal, to reveal information needed to bring other
remaining perpetrators to justice possibly with an assurance that there
will be reduction in their own sentences. A person, who is guilty of
murder or any crime, is likely not to reveal any information about the
involvement of others until after their final appeal – for any earlier
disclosure will not help them in their own trial, and will more likely
result in their own conviction.
Commute death sentence rather than simply delaying executions
Dr Wan Azizah was
reported saying that “The last Cabinet meeting resolved to implement the
government decision to defer the death penalty imposed on 17 people
convicted of drug offences .” (Malay Mail, 29/6/2018). This only means
that their execution has been delayed. It should just be commuted to
imprisonment
With regards to the
offence of drug trafficking, all those on death row, especially the at
least 10 persons who were sentenced to death, simply because of the then
Barisan Nasional’s Minister’s procrastination in putting the law into
force by several months, should really now have their death penalty
commuted to imprisonment.
In fact, it is just that all those on death
row for drug trafficking should have their death sentence commuted to
imprisonment.
Historic success of ousting umno-led government celebrated with commutation of death sentence?
Given the historic
success at the last General Elections on 10/5/2018, which saw Malaysians
ousting the UMNO-led coalition who had been government since
independence on 31/8/1957, it may be the best time to celebrate by
having the death sentence of all on death row at this time be commuted
to imprisonment possibly on the occasion of the upcoming Merdeka
celebration at the end of this month on 31/8/2018.
There are many reasons
why the death penalty needs to be abolished. It certainly does not serve
as a deterrent, as in Malaysia itself, it has been previously revealed
in Parliament that there was an increase of drug trafficking despite the
existence of the mandatory death penalty.
The police, prosecution
and the courts are certainly not infallible, and innocent people can
sometimes wrongly be found guilty and even sentenced to death. This risk
of miscarriage of justice itself is sufficient reason for the abolition
of the death penalty.
The call for the
abolition of the death penalty in Malaysia has been made for far too
long by civil society, Malaysian Bar, Parliamentarians and many others.
The Human Rights Commission of Malaysia (SUHAKAM) has also recently
called on this new government to not delay in abolition of death
penalty,(2/7/2018, Bernama-Malay Mail)
MADPET calls on the new
Malaysian government to forthwith impose a moratorium on all executions
pending the abolition of the death penalty.
MADPET calls on the
Malaysian government to immediately commute the death sentence of all on
death row, especially those on death row by reason of being sentenced
to death for drug trafficking, when that offence still carried the
mandatory death penalty.
MADPET calls for the
abolition of the mandatory death penalty and all other mandatory
sentences, and restore to the Judiciary the power to decide on the most
appropriate and just sentence for each case. Parliament should maybe
simply stipulate maximum and/or minimum sentences, and return to the
Judiciary ‘the judicial monopoly on the power to sentence’ as should be
the case in a true Democracy.
MADPET calls for Malaysia
to no longer delay the abolition of the death penalty, and to abolish
the death penalty immediately in 2018.
See media statement with relevant links -
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