Abolish mandatory death penalty in current parliamentary session

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Graphic: amnestyusa.org

On the World Day Against the Death Penalty on 10 October, Malaysians Against Death Penalty and Torture (Madpet) notes sadly that Malaysia has not yet abolished the death penalty, let alone the mandatory death penalty.

In 2018, on the World Day Against Death Penalty, it was announced that the Malaysian cabinet had decided to abolish the death penalty, not just the mandatory death penalty.

This abolition would have facilitated the return of Sirul Azhar Umar, now in Australia, an abolitionist nation that refuses to repatriate him back to Malaysia as he faces the risk of execution.

Sirul was seen by many as an important witness who may lead to the identification and prosecution of the other persons who were behind the murder of Altantuya Shaariibuu, the Mongolian mother of two.

The abolition of the death penalty would also eliminate the possibility of execution of innocent persons – a miscarriage of justice. The police, prosecutors, judges and even lawyers of the accused, all of whom human beings, are not infallible and could cause the wrongful execution of persons.

We recall the case when in January 2011, when Taiwan’s Ministry of Justice admitted that Chiang Kuo-ching, an air force private, had been executed in error in 1997 for a murder committed 15 years earlier.

In Malaysia, it has also been shown that the death penalty, even the mandatory death penalty, has not deterred crime. In 2017 it was revealed in Parliament that drug cases had increased every year despite the drastic measures taken by the police, which we could take as including the fact of the existence of the mandatory death penalty under Section 39B on drug trafficking of the Dangerous Drugs Act 1952. It may be the same for murder, but it is difficult to know as Malaysia stopped revealing actual statistics under the previous government.

The failure of government resulting in poverty may also be the cause of many crimes including those that now carry the death penalty.

The 2019 17th World Day Against the Death Penalty aimed at raising awareness of the rights of children whose parents had been sentenced to death or executed.

Malaysia, a party of the Child Rights Convention, now should have the best interests of the child as a major concern. The execution of a parent, sibling or relative of any child is certainly never in the best interest of that child.

The abolition of the death penalty would also be consistent with the Malaysian policy on crime and sentencing. We believe in second chances. When one pleads guilty, the sentence is reduced by a third. For those in prison, good behaviour and rehabilitation will lead to remission of sentence and early release. All these values and principles cannot apply when a person is sentenced to death or faces the mandatory death penalty.

U-turn on death penalty abolition

But on 13 March 2019, the Malaysian cabinet made a U-turn on abolishing the death penalty for all 33 offences and instead agreed to abolish the mandatory death penalty for all 11 mandatory death penalty offences.

Since the Pakatan Harapan is a coalition government made up of four or five parties, it would be interesting to know which party changed its position on abolition and why. Through its MPs, we believe that the DAP was an abolitionist party, but its current position is a mystery.

Sadly, we have not yet seen any tabling any bills being tabled in Parliament to effectively abolish the mandatory death penalty. The earlier indication was that these bills would be tabled in the the current parliamentary session, which began in October 2019.

Madpet was concerned about the setting up of a special committee in September 2019 to look into alternatives to the death sentence – which would be just be another excuse to delay the abolition of the mandatory death penalty.

Such a committee or taskforce could have been set up last year after the decision to abolish the death penalty. It could have been even earlier – for the abolition of the mandatory death penalty was a Pakatan Harapan election promise.

We reiterate that the mandatory death penalty could be immediately abolished, which would mean that judges would then have the discretion whether to sentence people to imprisonment or death.

For the time being, it could simply be life imprisonment or natural life imprisonment. Later, if a better ‘alternative sentence’ comes from this or that ‘committee’, ‘taskforce’ or consultations, the act could always be further amended.

The government should not further delay the abolition of the mandatory death penalty.

Those accused who are now on trial or whose trial starts before the abolition will be greatly prejudiced as both the prosecution and defence lawyers may be adducing evidence only towards finding of guilt or innocence. They will not be adducing evidence as to why a person should receive a lesser sentence since the courts have no discretion as to sentence when they can only provide the one mandatory sentence.

Madpet is also against all mandatory sentences, as it removes judicial discretion when it comes to sentencing. Laws should only provide for maybe maximum sentences and trust our judges to impose a just sentence on each convicted person after taking all facts and circumstances into account.

Malaysia created history in December 2018 when it voted in favour of a United Nations General Assembly resolution on the abolition of the death penalty.

Madpet hopes that the abolition of the mandatory death penalty is just the first step towards the total abolition of the death penalty, which we hope will happen soon, certainly before the next general election.

Madpet calls for the immediate tabling of the bill(s) to abolish the mandatory death penalty in this current parliamentary session; any other changes can easily be brought in through subsequent amendments.

Madpet calls for the passing of an act of Parliament that will have the effect of commuting the death sentence of about 1,200 on death row, especially those who have exhausted their appeals in court.

Madpet also calls for a further amendment to the Dangerous Drugs Act 1952, where the mandatory death penalty has already been abolished, to allow judges to consider all mitigating and aggravating circumstances and remove the limitations and conditions now in that law.

Madpet calls for a moratorium on all executions, pending the total abolition of the death penalty in Malaysia.

Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).

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