Author : Dr Dheeraj Bhar
Abolishing Capital Punishment in Malaysia
The capital punishment is by essence contrary to the human rights ideological background. It is however currently practiced in Malaysia and numerous countries all around the world.
What makes the Malaysian death sentence most interesting from a legal point of view, is the mandatory nature of the death penalty to a long list of capital crimes. This is the only punishment available to judges, when dealing with the unjustifiably large number of crimes carrying the capital punishment like murder, terrorist acts, treason, kidnapping, rape, armed robbery, burglary, military offences, drug trafficking and possession of arms. Namely, under Malaysian law the capital punishment by hanging, is the mandatory sentence for crimes such as: trafficking drugs (section 39B, Dangerous Drugs Act 1952)[1]; murder (section 302, Malaysian Penal Code)[2]; the discharge of a firearm, even if no harm is caused (section 3, Firearms (Increased Penalties) Act 1971)[3].
We should not omit to consider Article 5(1) of the Malaysian Constitution, which provides for the right to life of Malaysian citizens. This legal rule is essential for our comprehension of the debates around the topic of this article, given that it offers an essential statutory guard from the arbitrary deprivation of life. Consequently, due process can play a vital role in protecting Malaysian constitutional rights. The constitutionality of the compulsory death sentence in Malaysia, was questioned in the 1983 case of Lau Kee Hoo.[4] The court supported the ruling of this case as coherent with Article 5(1). In assuming this process the bench trailed the precedent created from the Singaporean case Ong Ah Chuan[5], which provides that automatic capital sentences were not unconstitutional. There have been many questions on the purposefulness of the mandatory death penalty in Malaysia, but the cases above have set the guiding rules in the legal practice up to date. One has to underline the word mandatory, because it is a key word in the problematic world of the death penalty in Malaysia. The mandatory element, which allows for no discretion on the part of the deciding judge, in capital crimes cases, is of crucial importance, since it has resulted in numerous miscarriages of justice, and unnecessary executions.
It has been proven through the legal practice for centuries that the mandatory death sentence is not a flawless method. The absolute need to allow some discretion to the courts, has been proven by a large body of case law from international courts. It has been proven that the death penalty becomes an arbitrary method of penalization, if flexibility on the decision-making body is missing. This flexibility required by justice, refers mainly in the option to reflect on the special circumstances of the wrongdoing and of the lawbreaker, in order to assess whether the severity of the particular crime calls for death penalty as the appropriate punishment.
International legal scholars claim that the mandatory capital punishment can amount to cruel or inhuman punishment, and it can become a method of arbitrary deprivation of life. The prohibition on cruel and unusual punishment is a well-established legal norm in customary international law.
It should also be highlighted that the continuous usage of a mandatory death sentence can under no circumstances be in agreement with international human rights law.
Most penal systems keeping the mandatory capital punishment in use, have acknowledged the ultra vires nature of such a legal constraint. Countries like India, or Singapore, which have great similarities with the Malaysian legal structure, advanced in an amendment of their criminal code, and included discretionary powers afforded to judges in cases of capital crimes. These countries have done the amendments on their penal systems partly due to international pressure and the UN’s recommendations. Also due to a great number of miscarriages of justice resulting to the execution of many innocent citizens. What is needed in the case of Malaysia is the design of a strategic plan and a legal committee to work directly with the re-assessment of the relevant laws. In doing so, it seems that by studying the course of action of other countries that have gone through this path in the past, this can be proven to be more than helpful. If the government and the legal authorities of Malaysia continue to avoid dealing with this problems, then the numbers of innocent people executed will most certainly rise, as well as the miscarriages of justice.
Interestingly, the findings of a recent study showed there would be little public opposition to the eradication of the mandatory death penalty in Malaysia. Public support for the death penalty for murder is also lower than is imaginably anticipated, and hence not to be thought as an explicit block to thorough abolition. Only 12% of the Malaysian population asked in a relevant survey responded that they were for the capital punishment for all of these crimes, 70% for one of them, and 30% said they were completely against it. [6] Undoubtedly, these numbers are demonstrating Malaysian society’s trend towards a future abolition of the capital punishment.
The defenders of the death penalty in Malaysia, use the alleged ‘deterrent effect on crime’ argument, while in practice just as Ex Home Minister Dato’ Seri Hishammuddin Hussein revealed in Parliament in 2012, this sentence has been unsuccessful as a deterrent. While, data demonstrated that the numbers of related capital crimes have increased: in 2009, 2,955 were arrested; in 2010, 3,700 persons, whilst in 2011, 3,845.[7]
Many organizations, groups of people and NGOs, have called for the abolition of the death penalty. Like the Malaysian Bar on behalf of 14,000 lawyers; the Human Rights Commission of Malaysia (SUHAKAM); or the Association for the Promotion of Human Rights (PROHAM) which officially said on 2012 that it ‘… recognizes that society has a moral obligation to protect human life and not to take it. As such the death penalty is the ultimate irreversible denial of human rights. The death penalty is unjust. By abolishing the death penalty it affirms our condemnation of cruelty and affirms the value of human life …’[8]. Worth mentioning is the fact that the Anti Death Penalty Asia Network (ADPAN) joined 78 organizations on 2012, like Amnesty International Malaysia, the Catholic Lawyers Society Malaysia, the Malaysians Against Death Penalty and Torture (MADPET), and called for the ‘abolition of the death penalty in Malaysia, for an immediate moratorium on all executions pending abolition and for the commutation of the sentences of all persons currently on death row …’.[9]
It seems an important fault of any legal system to not allow judges some basic discretionary powers when reviewing a case in their courtrooms. The discretion to decide whether or not to choose the death penalty according to the circumstances of a case, is of crucial importance for administrating justice. Human rights regime are explicitly against the death penalty and campaigns for substituting it with life imprisonment. The opponents of the capital punishment claim that this form of punishment has failed as a deterrent in any country that has been used, because at the end of the day crimes such as murder will always happen.
While it is fair to argue that one innocent citizen condemned to death wrongfully is one too much. There is no compensation available to neither the sentenced nor their family, and obviously the verdict’s effect on life is irrevocable. Like in the case of Chiang Kuo-ching[10], who was executed in Taiwan in 1997 after being sentenced for rape and murder. Yet in 2011 Taiwan confessed that Chiang was in reality innocent and was executed wrongfully.[11]
The global tendency on the matters moves steadily towards ending the absurd treatment of certain offences as fixed capital crimes. Undeniably the trend towards abolishing the death penalty completely is gaining ground day by day. Public opinion largely offers support for the eradication of the this practice and this backing can become a helping hand in passing modifications to the relevant legal rules. Eventually the legal amendments could offer laws in agreement with the international human rights values.
The General Assembly of the United Nations[12] fourth resolution on the use of the death penalty, concluded with 111 countries voting[13] in favor of the abolition of this punishment, while it is interesting to consider that in Asia 17 nations have eradicated the capital punishment, while 14 states with Malaysia included continue enforcing it. While it is noteworthy, that even Malaysian government officials are stating in their official capacity that there is a need to amend the law for a more humane world.[14]
The cases of innocent people sentenced to death, as well as miscarriages of justice are numerous and common in any legal system around the world. Death is irreversible, and no possible restoration of justice is available.[15] The death penalty is violating the most fundamental human rights of all, the right to life, and is a barbaric legal practice that belongs to the legal history books and not in the current legal practices. The need for the abolition capital punishment is absolute and urgent, while the necessity for amending the relevant law, enjoys the appropriate support by the citizens of Malaysia, meaning that the country is in the right point of time and history in order to make these greatly required legal changes, for an improved and more efficient justice system.
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REFERENCES
Olin, John M., ‘The Ultimate Punishment: A Defense’, Harvard Law Re
“Rethinking . . . the death penalty is part of the government’s effort to move ahead with the times for a more humane world,” at the seminar: “The Abolition of the Death Penalty in Malaysia,” held in Kuala Lumpur by the Malaysian Bar Council together with the Delegation of the EU to Malaysia and the Human Rights Commission of Malaysia.
http://www.handsoffcain.info/bancadati/schedastato.php?idstato=17000510 (Accessed Dec. 2013).)
[15] ‘The law is the law but I wish Parliament would abolish the death sentence because if a mistake is made, it would be irreversible. There are other ways of dealing with heinous crimes’, Datuk K.C. Vohrah, former Court of Appeal judge. See: www.thestar.com.my/story.aspx?file=%2F2010%2F8%2F29%2Fnation%2F6893246 (Accessed on Dec 2013).
