Malaysians against Death Penalty and Torture (Madept) is tickled by Minister in the Prime Minister’s Department (Law) Liew Vui Keong’s announcement that a special committee to look for alternatives to the mandatory death sentence would be set up (Malay Mail, 6 September 2019).
Such a committee could have been established earlier in March, but to do so now a few weeks before the commencement of the October parliamentary session when the bill(s) to abolish the mandatory death penalty is to be tabled is disconcerting.
Madpet is also concerned whether it is just another attempt to further delay the decision to abolish the mandatory death penalty. Last October, the cabinet decided to abolish the death penalty; then in March this year, they changed their mind.
U-turns – from abolishing death penalty for 33 offences to abolishing mandatory death penalty in 11 offences
It was announced on 10 October 2018 (the World Day Against the Death Penalty), that the cabinet had reached a consensus (a collective decision) that the death penalty for offences as provided for under eight act of law would be abolished. This was reiterated several times (Straits Times, 13 November 2018).
Then, on 13 March 2019, the Malaysian government made a shocking U-turn and said that only the mandatory death penalty would be axed. Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin said the mandatory death penalty was for nine offences under the Penal Code and two under the Firearms (Increased Penalties) Act 1971 (New Straits Times, 13 March 2019).
Mandatory penalties ousts judicial powers in sentencing
A mandatory death penalty deprives a judge of sentencing discretion – the ability to order an appropriate just sentence, when a person is found guilty and convicted of a crime.
When there is a mandatory sentence, the judge has no choice but to impose that one mandatory sentence provided by law. If there was no mandatory sentence, then when it comes to sentencing, the judge will consider all aggravating factors, mitigating factors and all the circumstances of the case, and give a just sentence to those found guilty.
Parliament should justly impose no mandatory sentence, though they may stipulate a maximum or even minimum sentence that would be imposed on a person if found guilty of a particular crime. The sentenced to be imposed on every person found should always be in the hands of judges.
4 persons convicted of murder. Should not a higher sentenced be given for the person who killed, and maybe a lower sentence for a young man who came along but did not actually kill anyone? Should not a higher sentence be given for a repeat offender and a lower sentence be given for a first-time offender?
Replacement for mandatory death penalty
When the mandatory death penalty is abolished, it is best that it is not replaced simply with just another mandatory sentence be it imprisonment for life or imprisonment for natural life (being in prison until one dies). This also would be wrong and unjust.
When the mandatory death penalty is abolished, the law would still provide that the sentence for the crime could be death, imprisonment for natural life, life imprisonment and/or imprisonment for a term not less than 10-15 years.
Then, it will be up to the judge to impose a just and appropriate sentence, based on the facts and circumstances of a particular case. Remember, if one is unhappy with the sentence, one can always appeal the sentence to the Court of Appeal and even the Federal Court.
As such, there is really no reasonable or justifiable reason to set up any “special committee to look for alternatives to the mandatory death sentence”. We know the options, and the government, the members of Parliament and senators can decide.
Madpet hopes that this Malaysian government, which previously decided to abolish the death penalty but then did a U-turn to now only abolish the mandatory death penalty, will no more procrastinate but speedily table the relevant bills in Parliament in the coming October parliamentary session.
Delay in abolition of mandatory death penalty prejudices accused whose trial have started
It must be remembered that the delay by the previous Barisan National government in putting in force the Dangerous Drugs Amendment Act 2017, which abolished the mandatory death penalty for drug trafficking, by several months resulted in great injustice to at least 10 people: they were sentenced to death as judges still could not use the new law until it was in force.
Now, the Pakatan Harapan-led government’s delay in the abolition of the mandatory death penalty also greatly prejudices accused persons charged with offences carrying the mandatory death penalty, whose trials are starting, proceeding and/or will end before the amendment becomes law.
Now, the prosecution and the defence are preparing and presenting their evidence and submissions in these trials on the basis that the convictions will result in the mandatory death penalty. If there is no mandatory death penalty, evidence tendered would also be evidence that would assist the judge later in imposing a sentence other than the death sentence.
If the mandatory death penalty is now abolished, justice would only be done for those sentenced to the mandatory death penalty – maybe by a re-trial, where all court records of the trial earlier are expunged and cannot be relied upon.
Alternatively, a less just option, for trials not yet ended, would be provisions given for the prosecution and defence to adduce new relevant evidence, including the recalling of witnesses, which will have a bearing on the sentence to be imposed if found guilty.
As such, the abolition of the mandatory death penalty should be not be delayed.
Other amendments to deal with cases where trials have already commenced or have ended by the time the abolition of mandatory death penalty had come into force can always be dealt with later – maybe in subsequent amendments tabled in parliamentary sessions in 2020.
Death row prisoners – pardon can commute death sentences
For those currently on death row – now numbering more than 1,200 persons – the only way out now is through the commutation of the death sentence to imprisonment, which can be done by pardon by the king and state rulers.
In 1983 Mokhtar Hashim, 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, and then in 1991 another ‘royal pardon’ set him free from prison.
The power of pardon is exercisable by the king and/or the ruler or the Yang di- Pertua Negeri of a state (Article 42 of the Federal Constitution), and this is how those on death row could be dealt with. The problem now is not just the frequency of Pardons Board meetings, but the lack of procedural guidelines that these Pardon Boards need to follow.
Madpet believes all those currently on death law should be pardoned and their sentences commuted to life imprisonment.
Besides a royal pardon, the commutation of death sentences could also be achieved through the enactment of a new law.
Alternatively, the right of death row inmates to apply to court for a review of their guilt and sentence could be clearly provided for in our laws. This should include the ability to easily adduce new evidence, which may not have been adduced for whatever reason, by their lawyers and/or prosecution.
Why should the convicted be prejudiced for failings of even their own lawyers, as today the law makes it very difficult for the adducing of new evidence that already existed then but was not adduced and brought to the attention of the court during trial? There are also many cases where the prosecution and/or the police, despite having relevant evidence, simply chose not to bring it to the attention of the courts.
Laws and amendments
The government can immediately amend the law to abolish the mandatory death penalty. Now, it could impose a natural life prison sentence.
Later, it can always again amend the law to even give greater discretion to judges – maybe imprisonment not less than 15 years to natural life sentences – which it could do after this ‘special committee’ submits its conclusions maybe three to six months down the road.
The abolition of the mandatory death penalty must not be delayed simply because we are waiting for this ‘special committee’ to submit its final report.
The law could also later be amended to deal with persons whose trial has commenced and been completed before the law the abolishing mandatory death penalty comes into force.
It is sad that the government has been using all kinds of excuses to delay bringing about the necessary repeal or amendment of draconian laws in Malaysian. For example, in June 2019, it was reported the government would wait for the Federal Court to decide on a suit challenging the constitutionality of the death penalty for trafficking before it tables amendments (Malay Mail, 17 June 2019).
Parliament makes laws and there is no need to wait to be told by the court whether a law is constitutional or bad.
The worry now is that in the near future, the minister will come out and say that the mandatory death penalty will not be abolished until it receives the final report from this ‘special committee’ it set up weeks before the bill to abolish the death penalty is to be tabled.
- calls on the Malaysian government to no longer delay the abolition of the mandatory death penalty, which ought to be done in the upcoming parliamentary session beginning October 2019
- call on the new Malaysian government, which has been in power for more than 16 months, to no longer procrastinate over the abolition of other draconian laws like the Sedition Act and detention without trial laws
- reiterates the call for the abolition of the death penalty and the commutation of all death sentences for those on death row.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).