Friday, November 27, 2015

Abolish the mandatory death penalty and restore judicial discretion in sentencing — Bar associations of Malaysia(Malay Mail)

Tuesday November 24, 2015
08:02 PM GMT+8

NOVEMBER 24 — The Malaysian Bar, Advocates’ Association of Sarawak and Sabah Law Association are heartened by the reported remarks of the Attorney General, Tan Sri Dato’ Sri Haji Mohamed Apandi, that he will propose to the Cabinet that the mandatory death penalty for drug-related offences be abolished.

The three Bar associations of Malaysia also welcome Minister in the Prime Minister’s Department YB Puan Hajah Nancy Shukri’s reported statement that she hopes to table legislative amendments next year for such abolition.

There is great wisdom in leaving the decision on punishment for such offences to the discretion of the Judiciary.  With the abolition of the mandatory death penalty, the Judiciary will have the discretion to sentence a convicted person to either death or imprisonment.  However, concrete action on this issue is long overdue.

At the recent meeting held in conjunction with the Tripartite Bar Games in Miri from November 19 to 21, 2015, the Malaysian Bar, Advocates’ Association of Sarawak and Sabah Law Association resolved to jointly urge the Government to give real meaning to the statements it has made, on at least four other occasions over the last five years, regarding its willingness to review the mandatory death penalty.  It has been two years since the Government and the Attorney General’s Chambers informed those present at a dialogue, with Members of Parliament, on discretionary sentencing for capital punishment on November 14, 2013, that they were in the midst of such a review.

Sentencing is part of the cardinal principle of judicial independence, and should always be left to our Judges.  Judges use their experience in hearing cases, take into account the peculiar facts and circumstances of each case, and consider the case comprehensively before meting out punishment.  

Apart from serious questions relating to the efficacy and effectiveness of mandatory death sentences as a means of deterrence, the resort to mandatory sentences is an unnecessary fetter on judicial discretion, and an unwarranted impediment to the administration of justice.

The mandatory death penalty, including for drug-related offences, has no place in a society that values human life, justice and mercy. The abolition of this extreme, degrading and inhumane form of punishment is consonant with the belief that every individual has an inherent right to life. This right is absolute, universal and inalienable, irrespective of any crimes that may have been committed.

Moreover, there appears to be no significant reduction in the crimes for which the death penalty is currently mandatory. Further, a major survey on the mandatory death penalty in Malaysia in July 2013, found that there is very little public support in Malaysia for the mandatory death penalty for drug-related offences.

In light of the impending review of the mandatory death penalty for drug-related offences, the Government should, in the interest of justice, declare and implement an immediate official moratorium on any and all executions in such cases. All of these sentences should be stayed pending the results of the review. It is unfair and unjust to carry out the death sentence when there is currently a possibility of reform which, if effected, should apply retrospectively.

The Malaysian Bar, Advocates’ Association of Sarawak and Sabah Law Association are also extremely concerned over the case of Kho Jabing, a Sarawakian currently on death row in Singapore. 

The Singapore courts had initially imposed the mandatory death penalty on him, for murder. However, pursuant to amendments to the law in Singapore that abolished the mandatory death penalty for murder (with retrospective effect), he was resentenced by the High Court to life imprisonment and whipping (24 strokes). The prosecution appealed, and the Court of Appeal, by a slim 3-2 majority, reinstated the death penalty.

Kho Jabing was scheduled to be executed on November 6, 2015, after his petition to the President of Singapore for clemency failed. However, the execution has been temporarily stayed pending the hearing and disposal of his application to review and set aside the sentence. In the event the application fails and the death sentence on Kho Jabing is maintained, the Malaysian Bar, Advocates’ Association of Sarawak and Sabah Law Association call on the Malaysian Government to support any further application for clemency, and urge it to do its utmost to intercede with the Singaporean authorities to commute Kho Jabing’s death sentence to one of life imprisonment.

The Malaysian Bar, Advocates’ Association of Sarawak and Sabah Law Association support all efforts by the Malaysian Government towards abolishing the mandatory death penalty. In this regard, the immortal words of the late Justice Ishmael Mohamed, the former Chief Justice of the Constitutional Court of South Africa, should not be forgotten:

Death is different. The dignity of all of us, in a caring civilisation, must not be compromised by the act of repeating, albeit for a wholly different objective, what we find to be so repugnant in the conduct of the offender in the first place.

* Issued on behalf of the respective Bar associations of Malaysia by Steven Thiru, President, Malaysian Bar; Leonard Shim, President, Advocates’ Association of Sarawak; and Brenndon Soh,President, Sabah Law Association.

** This is the personal opinion of the writers and/or the organisations in whose name they represent and does not necessarily represent the view of Malay Mail Online.
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