ABOLITION OF CAPITAL PUNISHMENT: Malaysia should rethink holistically
and practically and take the lead and be the proponent in Asean countries to
implement this
THE death penalty is prescribed
for several offences, ie murder and waging war against the King (offences under
the Penal Code), kidnapping for ransom (an offence under The Kidnapping Act
1960 as opposed to simple kidnapping under the Penal Code), drug trafficking
(offences under the Dangerous Drugs Act
1952 and other related drug statutes),
certain scheduled offences for activities in relation to possession of
firearms and ammunition or explosives [offences under the Firearms (Increased
Penalties) Act 1971(FIPA)] and under the Internal Security Act 1960 (ISA) the latter of which was repealed
recently.
Most of the death penalties are
mandatory upon finding of guilt. This means the trial judge has no discretion
in sentencing to consider a range of possible sentences such as life imprisonment
or a prescribed jail sentence which could run up to the maximum sentence, being
the death penalty, which of those is most suited to be handed down on a
convicted person after considering the myriad circumstances in relation to the
commission of the offence and/or the offender.
The Malaysian legislature used to
entrust judges with this important discretionary function. For instance, we
used to give this sort of discretion to the High Court judges in drug
trafficking matters. But a previous attorney-general was frustrated with the
fact that judges were opting to sentence certain drug trafficking convicted
offenders to life imprisonment rather than mete out the death penalty.
Those judges had good reasons in
most cases for opting out of the death penalty. In any case, if the judges were
wrong there was always the appellate process which the prosecution could resort
to press their point for the capital sentence.
But immaturity and myopic
considerations seemed to have prevailed then. We have been stuck with this
knee-jerk culture of our legislature, a legislature that is not well advised by
the parliamentary draftsman and other relevant authorities. As a result
amendments made were jaundiced and lack cohesion with the general scheme of the
system.
Back in 2008 or so, the
secretary-general of the Foreign Affairs Ministry, in an important speech at
the United Nations said that the Malaysian government was considering steps to
abolish the death penalty. It would be done incrementally. I would have thought
that the first step was to return the discretionary power to the judges on all
offences, especially drug trafficking cases.
Singapore has just amended its
law to reflect this on drug trafficking cases and a category of murder cases
only and they apparently wanted to coordinate that important move for change
with Malaysia. As always, we allowed Singapore to steal the thunder from us
when we did nothing to implement that idea for the change although the
Attorney-General's Chambers claimed they had been toying with some connected
ideas and research about a year earlier.
Singapore now seems to have a
slightly more liberal and just sentencing principle in drug trafficking cases
than us! What an irony! My colleague, senior lawyer Roger Tan made this point
in his recent article.
Malaysia should rethink
holistically and practically the whole debate on the abolition of the capital
punishment and not merely on abolishment of the mandatory death penalty and
take the lead and be the proponent in Asean countries to implement this actively.
As a Malaysian representative in
the Asean Intergovernmental Commission on Human Rights, (AICHR), I have mooted
this idea on several occasions among my colleagues in AICHR for all the
10-member Asean countries to consider.
Not so long ago, the de facto law
minister had said Malaysia might not be ready to abolish capital punishment.
Apparently, according to him, the
majority of Malaysians are against such abolishment. Of late the minister is
proposing the idea of abolition of the mandatory death sentence in drug
trafficking cases.
This is the exact idea of the
current law in Singapore. Yet in our country, we take a longer time to consider
this obvious reform when we could have taken the lead.
Tan Sri Lee Lam Thye recently gave
a dampening view and advocated against
abolition of the death penalty. I have several issues with Lee's observations.
Firstly, and with all due respect,
I think that he may have
misunderstood the minister. He was not talking about
abolition of the capital punishment altogether. He was only referring to
removing the law on mandatory capital punishment and even then it was
restricted to drug offences only. While
I support the idea of immediately removing the mandatory capital punishment in
drug cases, I am proposing that this should be merely a beginning of the
migration of our laws towards the incremental and eventual total abolition of
the death penalty. I propose we consider the following steps.
As a preliminary step, an
immediate moratorium is granted in respect of all cases pending executions
until a wholesome decision has been arrived at by the relevant authorities to
be followed with the following measures:
FIRST, remove the mandatory death
sentence on drug trafficking cases;
SECOND, within a year of the
above, remove mandatory death sentence on all crimes without exception;
THIRD, Within three years from
the first step above, abolish capital punishment altogether in all cases except
for waging war against the King and kidnapping for ransom; and,
FOURTH, at an appropriate time
after the three years from the first step (but no longer than five years)
capital punishment should be removed even in the two offences of waging war
against the King and kidnapping for ransom. In other words , at the end of the
third year from the first step, only two types of cases continue to attract the
death penalty but on a non-mandatory status until further liberalisation as
suggested above.
The reason I attribute
seriousness to the two categories of cases is solely on grounds of public
revulsion and public policy and the heinous nature and the presence of the
element of extreme cruelty potentially surrounding the circumstances of such
crimes. These two crimes are normally executed in the coldest, calculated and
planned methods and have intimate nexus to violence.
It is almost always carried out
by gangs and syndicates normally associated with organised crimes or subversive
elements. Crimes associated with drug trafficking range from syndicated
organised crimes to mere individual carriers or mules and are solely driven for
profit.
The lack of distinction between
"hard" and "soft" drugs and between true traffickers and
mere mules' in the Malaysian law, doubles the complications in sentencing.
Reasons for abolition of capital
sentence: Among the common reasons advanced for the abolition of capital
punishment are:
IT is a cruel and inhumane
punishment;
IT is irreversible if a wrong
conviction occurs;
IT is contrary to human rights by
world standards;
THE retribution theory or
"an eye for an eye" is no
longer an acceptable theory in sentencing principles; and,
THE death penalty does not
reduce specific crimes such as drug
offences, murder etc.
All the above reasons are sound
and reasonable.
Datuk Sri Dr Muhammad Shafee Abdullah
The
writer is a former commissioner of Suhakam and currently the sole Malaysian
representative to the Asean Intergovernmental Commission on Human Rights. The
views he expressed herein are personal and not that of the institutions he is
associated with.
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