On the recent occasion of World Day Against the Death Penalty (10 October), Malaysians Against Death Penalty and Torture (Madpet) notes positively the change in the Malaysian position to now be inclined towards the abolition of the death penalty.
On 16 December 2020, Malaysia voted in support of the resolution calling for a moratorium on the use of the death penalty at the United Nations General Assembly. The General Assembly adopted the resolution with 123 votes in favour, 38 against and 24 abstentions. The global trend indicates growing support for abolition.
During Barisan Nasional rule under then Prime Minister Najib Razak, then Minister in the Prime Minister’s Department Azalina Othman Said, the de facto law minister, during the parliamentary session on 2 November 2016 clarified that Malaysia was not just looking at abolishing just the mandatory death penalty, but the whole death penalty.
The BN government then acted to remove the absolute mandatory death penalty for the offence of drug trafficking through an amendment of the Dangerous Drugs Act 1952, which came into force on 15 March 2018. Now, judges could sentence those convicted to death or to imprisonment for life (plus whipping of not less than fifteen strokes).
However, the alternative to the death penalty was available only if limited conditions were fulfilled, one of which was “that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia”. This draconian condition undermines also one’s right to a fair trial, which include the right to two appeals. Full judicial discretion when it comes to sentencing is still being curtailed, but it was better than before when there was only the death penalty upon conviction of drug trafficking.
During Pakatan Harapan-plus rule, there was first talk about the abolition of the death penalty, and later about the abolition of just the mandatory death penalty.
But at the end of their time in power, sadly, there was not even a bill tabled towards the abolition of the death penalty.
It was announced on 10 October 2018 (World Day Against the Death Penalty), that the cabinet had reached a consensus (a collective decision) that the death penalty for 33 offences as provided for under eight acts of law would be abolished, and this was again reiterated several times (Straits Times, 13 November 2018).
However, on 13 March 2019, it was reported that Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin said in Parliament that the “the government will only repeal the mandatory death penalty” for 11 criminal offences (New Straits Times, 13 March 2019).
The change in position from total abolition of the death penalty to abolishing just the mandatory death penalty may have sadly been due to a kneejerk response to political actions initiated by the then opposition. For example, the “MCA Youth against Abolition of the Death Penalty campaign started on 20 November 2018.
It is disturbing when a government’s principled position or promises can be so easily changed simply because of a questionable worry of possible loss of political support that may affect future elections.
When the French National Assembly voted to abolish the death penalty 40 years ago, over 60% of the population still backed capital punishment. But then President François Mitterrand and the government stood by their position, no matter the political cost.
After the Perikatan Nasional-Barisan Nasional-plus came into power, to date there are still no bills tabled to bring about the abolition of the death penalty or even just the mandatory death penalty.
Malaysia, under this government, continued to vote in favour of the UN General Assembly resolution calling for a moratorium on executions pending abolition of the death penalty.
Now, we have a new Umno prime minister, heading a BN-PN-Gabungan Parti Sarawak-plus coalition government, and we hope that this government finally does what is necessary to abolish the death penalty and until then continues to maintain a moratorium on executions.
Malaysia has a very large number of persons on death row. An Amnesty International report disclosed that in early 2019, there were 1,281 persons on death row, including 141 women. Today, the number will be even higher.
Getting statistics from government is difficult, and the normal method is if a member of Parliament or senator asks a parliamentary question. Madpet calls on the Malaysian government to be transparent and reveal the statistics of death row prisoners and even crimes committed at least once every quarter.
The then amendment to the Dangerous Drugs Act 1952 that abolished the mandatory death penalty failed to address the issue of persons who committed the offence before the amendment came into force and those who were on death row.
Note that the amendment came about after a realisation that most on death row are mules, not the kingpins of the drug trafficking trade; as such, ‘mules’ or those persons conned should justly not be sentenced to death.
The position that led to the amendment of the Dangerous Drugs Act should have resulted in the pardons of many on death row, commuting their death sentence to imprisonment.
Pardon powers with King and state rulers
In Malaysia, the King has the power to pardon if the offence was committed in the federal territories only. With regard to offences committed in the states, then the “Ruler or Yang di- Pertua Negeri of a State has power to grant pardons”.
As many of the states are ruled by the opposition, the question is why these state governments failed to move the state rulers to pardon and commute death sentences to prison terms for those on death row for offences committed in his state.
Lack of transparency makes it difficult to find out the numbers of death row inmates for offences committed in a particular state, even the number of death row inmates that have applied for pardon, and the number who had been successful or otherwise.
In 1983, the late Mokhtar Hashim, the then culture, youth and sports minister, received the death penalty for the murder of Taha Talib, the state assembly member for Tampin. In 1984, he received a royal pardon, when his death sentence was commuted to life imprisonment. In 1991, another royal pardon set him free from prison.
We hope that pardons and commutation of sentences are available to all, not simply certain politicians.
Madept calls on the federal and state governments to move to get persons on death row pardoned and their sentences commuted. Malaysia must be against the taking of lives; it must be for repentance and rehabilitation, for second chances, and for reintegration into society for the reformed criminal.
Abolish extrajudicial killings and executions
When the state or government through police or other law enforcement personnel, instead of arresting and according a person a fair trial, ends up killing a suspect or some other, there must be an independent inquiry to determine whether it was an indirect ‘death penalty’ by the state or its agents.
This could be done through inquests. As a matter of policy and law, the government can decide that all such ‘police killing’ incidents should be inquired into by an independent coroner (a magistrate or judge).
The abolition of the death penalty has many often stated reasons, including the risk of a miscarriage of justice and the negative impact on the family and children of the executed or those persons on death row. The death penalty has been shown not to be a deterrent against crime.
Madpet reiterates its call for the abolition of the death penalty, including extrajudicial killings, and that Malaysia continues to impose a moratorium on executions pending the abolition of the death penalty.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture