Malaysian Bar Resolution on Royal Pardon and the Death Penalty

Resolutions Adopted at the 69th Annual General Meeting of the Malaysian Bar Held at Renaissance Kuala Lumpur Hotel (Saturday, 14 Mar 2015)  

Resolution 4

Motion on Royal Pardon and the Death Penalty”, proposed by Charles Hector Fernandez, dated 6 Mar 2015

Whereas:

(1)  Article 42(1) Federal Constitution provides that: ‘The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.’  

(2)  Article 42(3) Federal Constitution also states that, ‘Where an offence was committed wholly or partly outside the Federation or in more than one State or in circumstances which make it doubtful where it was committed, it shall be treated for the purposes of this Article as having been committed in the State in which it was tried….’

(3)  Anyone can move the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri of a State to exercise this power to grant pardons, reprieves and respites, including commuting the sentence of death.

(4)  Mindful that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable, and the other arguments that have been advanced for the abolition of the death penalty are good reasons why  the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri of a State to exercise their powers to commute the death sentence to one of imprisonment.

(5)  In Thailand, Royal Pardon has resulted in 90 percent or more persons sentenced to death having their sentence commuted to imprisonment.

(6)  Information about the whole process of application for pardon is not easily available to the public. Neither are the principles or the considerations that are relevant in making or considering such application.

(7)  It is known that Malaysia has commuted the death penalty for some foreign nationals, possibly on the application of foreign nation states, possibility by reason of some diplomatic consideration. If there are different standards applicable for the commuting of the death penalty, then this will be considered discriminatory against local Malaysian death row inmates and those from less influential nation states. The statistics of persons whose death sentence had been commuted need to be obtained, and the reasons for this need to be studied, analyzed and considered.

(8)  On 18/12/2014, the United Nations General Assembly (UNGA) adopted a Resolution to establish a moratorium on executions with a view to abolishing the death penalty. This is the fifth time this resolution has been tabled since the first in 2007. 117 member states voted in favour of the 2014 resolution, indicating the continuing growing global support for the abolition of the death penalty.

We hereby resolve:

That the Bar Council do the needful to study, and increase awareness about all aspects of the procedures relating to the application for pardon.

 

Source: Malaysian Bar Website