Malaysians Against Death Penalty and Torture (Madpet) celebrates the putting into force on 4 July by Azalina Othman Said, the minister for law and institutional reform, the Abolition of Mandatory Death Penalty Act 2023, which was gazetted after receiving royal assent on 16 June.
This ends the era where judges had no choice but to sentence to death any person found guilty of some 11 offences that had the mandatory death penalty.
Enforce act to revise sentences
Madpet urges for the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction Of The Federal Court) Act 2023, which was also gazetted on 16 June, to be immediately put into force so that the act will come into operation.
This is most important for the about 850 of about 1,324 persons on death row, who have exhausted all appeals that now qualify for applications for a revision of sentence. He or she “who is sentenced to death may make an application in writing to the Federal Court within ninety days from the date of coming into operation of this Act… (2) Upon receiving an application under subsection (1), the Federal Court shall review the sentence of death” – Sections 3(1) and (2) of the revision of sentence act.
Only after it is in force, can the many persons “serving a sentence of imprisonment for natural life may make an application in writing to the Federal Court within ninety days from the date of coming into operation of this Act. (2) Upon receiving an application under subsection (1), the Federal Court shall review the sentence of imprisonment of natural life” – Sections 5(1) and (2).
Government should assist
Given that there will be possibly about a thousand or more review of sentence applications filed and having to be heard by the already busy Federal Court, it is important that the state also plays an active part in assisting those who have become entitled to make a review of sentence applications to ensure justice is done, and the objects of these new laws are given full effect speedily. This will also need assistance from the Prisons Departments, the public prosecutor, the courts and others.
Madpet also calls on the Malaysian Bar, which has been a strong advocate for abolition, since the passing of the Bar resolution calling for an abolition of the death penalty in 2006, to step up and assist in the review of sentence process.
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Malaysia clearly for abolition
Madpet hopes that the court, on hearing these sentence review applications will note that Malaysia has long adopted the position of moving towards the abolition of the death penalty in line with the global trend. In 2007 there were 104 nation states in favour of abolition. That number in favour has been systematically growing over the years. In 2008 it was 106. In 2010 it was 108. In 2012 it jumped to 111, and in 2016 it was 117, and in 2022 it was 125, which meant more than two-thirds of UN member states are for abolition.
On 15 December 2022, Malaysia was proudly amongst the 125 countries that voted in favor of the UN General Assembly’s “Moratorium on the use of the death penalty with a view to abolishing the death penalty” resolution.
Malaysia, under the Pakatan Harapan-plus government, voted for the first time in favour of this resolution in 2018. The Perikatan Nasional (Bersatu, Pas included) and the BN-plus government again vote in favour the resolution in 2020.
Both sides moving towards abolition
On 6 October 2022 the Perikatan Nasional government under Prime Minister Ismail Sabri Yaakob tabled seven bills that would abolish the mandatory death penalty, and this was the first concrete action by the government.
After last November’s general election, the new bills were tabled, and now the Abolition of Mandatory Death Penalty Act 2023 abolishes not just the mandatory death penalty but also natural life imprisonment. The Pakatan Harapan-led government also tabled the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of The Federal Court) Act 2023, which is still not in force. The act allows those on death row and those under life imprisonment to apply to court for a review of their sentences.
In short, both the current government and the opposition parties have now adopted the position of moving towards the abolition of the death penalty.
Justice demands court’s understanding and flexibility
Noting that in all cases that carried the mandatory death penalty, both the prosecution and lawyers representing the accused would have failed to adduce evidence that would have convinced the court to sentence the convicted to a lower sentence because it was of no use as the courts could only impose one sentence – the death penalty.
In these cases, which then carried the mandatory death penalty, there would have also been no submission of aggravating and mitigating factors that judges could consider before passing sentence, as there was only one sentence available – the death penalty.
As such, when it comes to the review of sentence for those on death now, there may be a need for a serious re-evaluation of the court records and the facts, and justice may require the introduction of material new evidence, where it is hope that the court would be flexible in this extraordinary special situation.
Whilst the Abolition of Mandatory Death Penalty Act would give judges the discretion on conviction to impose the death penalty or alternatively prison terms of between 30 and 40 years as well as no fewer than 12 strokes of the cane or whipping, Madpet calls for the abolition of whipping and for the granting of greater discretion in sentencing – maybe jail [terms of] between 10 and 40 years.
Now, that Malaysia has abolished the mandatory death penalty, Madpet reiterates its call for Malaysia to totally abolish the death penalty. Maybe, the next step towards total abolition is the abolition of the death penalty for offences where there is no victim who is killed or seriously injured by the perpetrator.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture