A deeper impact beyond the gallows
DRUG CASES: Removing death penalty could lead to reduction in corruption
There is global pressure on countries that practise the capital and corporal punishment system
THE
law minister, however, had advanced an ingenious reason for the
abolition of a mandatory death sentence . He said it would be difficult
for Malaysia to ask for assistance from foreign countries to treat
Malaysians sentenced to death leniently for drug offences if we continue
to have capital punishment. But that argument surely bites more if the
minister is arguing for a total abolition of the death penalty rather
than merely the abolition of the mandatory death sentence.
What would the minister do if a Malaysian court handed down a death
sentence on a foreigner in a non-mandatory death sentence in a
drug-related case? We cannot be resorting to the Pardons Board merely to
please a foreign government as this would be offensive to the equality
concept provided under the Constitution if Malaysian convicts are
treated more harshly over foreigners in matters that are not
substantively distinguishable on the factual matrix.
It is, therefore, better to use the minister's argument to justify
total abolition of capital punishment in drug-trafficking cases.
But consider seriously the following non-traditional reasons supporting the abolition of capital punishment:
FIRSTLY, in matters of extradition (governed under the Extradition Act
1992 ) and/or mutual assistance [governed under the Mutual Assistance in
Criminal Matters Act 2002 (MACMA)] if the Malaysian government (as a
requesting country) were to make requisition either of persons (in an
extradition situation) or evidence as under the MACMA), the requested
countries in most situations would require Malaysia to give an
undertaking that our laws do not have either capital or corporal
punishment (the latter refers to caning or rotan) in respect of the
relevant offence/subject matter of the extradition or mutual assistance,
otherwise, the requested country will not entertain the Malaysian
request. This is the global pressure most countries (especially European
countries) are exerting on countries with the capital and corporal
punishments system;
SECONDLY, and perhaps this is the most important reason, namely, every
country practising the capital punishment inevitably faces the problem
of double jeopardy unfairly and adversely affecting the condemned
prisoner. Due to our criminal justice system, a trial with at least two
levels of appeal rights would inevitably incur a minimum period of
about six years. Added to this is the further delay of the pardons
system. It is usual even in the speediest system that a delay will occur
of between seven to eight years. Normally, the delay is about nine
years or more.
Translating this remand period prior to execution is equivalent to the
condemned man having undergone 13.5 years of imprisonment (taking into
consideration the automatic one-third remission on all imprisonment
sentences). What this means is that the condemned man is to be executed
by hanging after he had served an imprisonment of at least 13.5 years
while waiting to be executed. This is what I mean by double jeopardy,
suffering two punishments for a single crime.
But this is the rosiest picture I have painted on double jeopardy on
the condemned persons. It is not unheard of for condemned men to be
waiting in actual terms, without considering the one-third remission for
periods in excess of 16 years and above. Some waited for 20, 25 and
some even for 38 years! Think about this. It is no longer double
jeopardy. It is triple jeopardy when we consider a normal life
imprisonment is only 20 years (and the prisoner serves only 14 years
after remission in such life imprisonment cases).
Are we seriously disputing this gross injustice and lack of basic human
rights and dignity on these condemned persons, and what kind of society
are we living in?
Many political leaders (government and opposition alike) do not want to
take the lead in this call for reform for fear of being unpopular and
would often blame the general public as wanting to retain this unjust
capital punishment system. - New Straits Times, 2/11/2012, Columnist , A deeper impact beyond the gallows
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