Saturday, November 10, 2012
A deeper impact beyond the gallows (NST-Column)
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