New PH government should no longer delay abolition of death penalty

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Graphic: amnestyusa.org

Malaysians Against Death Penalty and Torture (Madpet) is disappointed that there is still no abolition of the death penalty in Malaysia after almost three 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 individuals being meted the 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.

Madpet hopes 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 (further study and review needed) 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.

Thirty-five individuals were executed in the last ten years (2007–2017), and 1,267 people are on death row (or 2.7% of the prison population of about 60,000 people), as revealed by the deputy director (policy) of the Prisons Department, Supri Hashim (The Star, 29 June 2018).

Since the new government assumed power, there have been to date no known executions, but reasonably many still may have been sentenced to death in the past months.

On 29 June 2018, Deputy Prime Minister Dr Wan Azizah Wan Ismail said that the 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 June 2018)

The mandatory death penalty removes the judges’ ability 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 three branches of government – the executive (prime minister and cabinet), the judicial and the legislative (Parliament). Besides serving as a check and balance to the other two branches, each branch of government also has specific functions.

The mandatory sentence including the death penalty, is really 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 the ability to impose an appropriate just sentence, after considering all factors, including points submitted in mitigation 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 June 2018, when it struck down the mandatory death penalty on the grounds that it was unconstitutional.

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Among 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’” (Caribean 360, 27 June 2018).

Our Malaysian Constitution has similar provisions with Barbados and is also a democracy.

In a criminal trial, after conviction, the accused has 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 or 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

Although 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/Sharia law.

In Islam, there are also strict criminal procedural and evidential requirements that need to be fulfilled, which arguabl, are 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 emphasising on repentance and second chances rather than simply effecting revenge, punishment and even death.

Malaysia may also be partially responsible for its failings of government to provide for the wellbeing and welfare of its people – which may have been a factor that pushed many poor individuals to resort to crime for their and their families’ survival and livelihood.

Muslim politicians and parties in government or otherwise should there justly not resist the abolition of the 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 wellbeing of children. The execution of a father, mother, sibling or 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 has 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.

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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 two who have been convicted and sentenced with the mandatory death penalty. The two, Sirul Azhar Umar and Azilah Hadri, were at the time of the 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 the involvement of third parties is evident or suspected.

If the convicted are executed, it is becomes all the more likely that these other perpetrators of the 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, for 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 three stated clearly that the murder was committed with “one other still at large”.

Now that the three have been executed, that “one other still at large” will 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 whistleblowers 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, will reveal information needed to bring the 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.

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Commute death sentence rather than simply delaying executions

Dr Wan Azizah Wan Ismail reportedly said, “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 June 2018). This only means that their executions have been delayed. It should just be commuted to imprisonment

With regard to the offence of drug trafficking, all those on death row, especially the at least ten individuals who were sentenced to death (simply because of the then Barisan Nasional minister’s procrastination in putting the law into force by several months), should now have their death penalty commuted to imprisonment.

Celebrate historic ousting Umno-led government by commuting death sentence?

Given the historic success at the 9 May 2018 general election, which saw Malaysians ousting the Umno-led coalition that had been in government since independence on 31 August 1957, it may be the best time to celebrate by having the death sentence of all now on death row commuted to imprisonment.

There are many reasons why the death penalty needs to be abolished. It certainly does not serve as a deterrent. In Malaysia itself, it has been previously revealed in Parliament that there was an increase in 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, the Malaysian Bar, parliamentarians and many others. The Human Rights Commission of Malaysia (Suhakam) has also recently called on the new government to not delay in abolishing the death penalty (Bernama-Malay Mail, 2 July 2018).

Madpet calls on the new Malaysian government to 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 who were 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 for the judiciary to be restored the power to decide on the most appropriate and just sentence for each case. Parliament should perhaps stipulate the 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, which should be immediately abolished in 2018.

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

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