Mandatory Death Penalty in Malaysia - Where Death Results and Where there is no death?

MANDATORY DEATH PENALTY simply means that when the court finds a person guilty of committing a particular offence, the law provides no option when it comes to sentencing but just the death penalty. There are at least 10 different offences that carry the mandatory death penalty (more if one is technical and wants to break down the different kinds of robbery, house breaking and kidnapping as listed in the Penal Code and/or Kidnapping Act]

There are several kinds of mandatory death penalty offences in Malaysia

a) Where death results; and 

b) Where no death results by reason of committing the said offence that carries the mandatory death penalty.

In the first category, where death results, there are really only 3 offences - 

a) Murder(sec. 302 Penal Code), 

b) Committing terrorist acts where the act results in death (sec. 130C (1)(a) ]; and 

c) Hostage taking where the act results in death (sec. 374(a) Penal Code)

In there second category, where death is not the result

a) Drug Trafficking (sec. 39B Dangerous Drugs Act 1952

AND, in certain listed offenses where a firearm is discharged, both the person who discharged the firearm and the accomplices will face the mandatory death penalty [Firearms (Increased Penalties Act 1971 - section 3 and 3A with reference to the Schedule in the Act]

1. Extortion 

2. Robbery.

3. The preventing or resisting by any person, of his own arrest or the arrest of another by a police officer or any other person lawfully empowered to make the arrest.

4. Escaping from lawful custody.

5. Abduction or kidnapping under sections 363 to 367 of the Penal Code and section 3 of the Kidnapping Act 1961 [Act 365].

6. House-breaking or house-trespass under sections 454 to 460 of the Penal Code.

* Now, we have listed here only the offences that carry the mandatory death penalty, but there are many other death penalty offences.

* On death row in Malaysia now are about 1,041 on death row as of 16/5/2016 [see MALAYSIA - 1,041 on Death Row - Government Undecided on Abolition of Death Penalty]

* In 2011, when there were about 696 on death row - 69% were for Drug Trafficking, 29% for Murder and 2 % for Firearms offences [ see 441 hanged to death since 1960, another 696 on death row as at 20/2/2011]

 

 

Relevant Provisions in law

PENAL CODE

302  Punishment for murder

Whoever commits murder shall be punished with death.

130C  Committing terrorist acts

(1) Whoever, by any means, directly or indirectly, commits a terrorist act shall be punished-

    (a) if the act results in death, with death; and

    (b) in any other case, with imprisonment for a term of not less than seven years but not exceeding thirty years, and shall also be liable to fine.

374A  Hostage-taking

Whoever seizes or detains and threatens to kill, to injure or to continue to detain another person ("the hostage") to compel the Government of Malaysia or the Government of any State in Malaysia, any other government, or any international organization or any other person or group of persons to do or refrain from doing any act as an explicit or implicit condition for the release of the hostage shall be punished-

    (a) if the act results in death, with death; and

    (b) in any other case, with imprisonment for a term of not less than seven years but not exceeding thirty years, and shall also be liable to fine.

DANGEROUS DRUGS ACT 1952 (REVISED 1980) ACT 234

39B  Trafficking in dangerous drug

(1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia-

    (a) traffic in a dangerous drug;

    (b) offer to traffic in a dangerous drug; or

    (c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.

(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death.

FIREARMS (INCREASED PENALTIES) ACT 1971 - ACT 37

3  Penalty for discharging a firearm in the commission of a scheduled offence.

Any person who at the time of his committing or attempting to commit or abetting the commission of a scheduled offence discharges a firearm with intent to cause death or hurt to any person, shall, notwithstanding that no hurt is caused thereby, be punished with death.

3A  Penalty for accomplices in case of discharge of firearm.

Where, with intent to cause death or hurt to any person, a firearm is discharged by any person at the time of his committing or attempting to commit or abetting the commission of a scheduled offence, each of his accomplices in respect of the offence present at the scene of the commission or attempted commission or abetment thereof who may reasonably be presumed to have known that such person was carrying or had in his possession or under his custody or control the firearm shall, notwithstanding that no hurt is caused by the discharge thereof, be punished with death, unless he proves that he had taken all reasonable steps to prevent the discharge.

SCHEDULE

[Section 2]

1. Extortion.

2. Robbery.

3. The preventing or resisting by any person, of his own arrest or the arrest of another by a police officer or any other person lawfully empowered to make the arrest.

4. Escaping from lawful custody.

5. Abduction or kidnapping under sections 363 to 367 of the Penal Code and section 3 of the Kidnapping Act 1961 [Act 365].

6. House-breaking or house-trespass under sections 454 to 460 of the Penal Code.

What Malaysia can do now to get rid of the MANDATORY DEATH PENALTY, is:-  

- to amend the relevant provisions that allow for death penalty, and replace with the following formulation - 'shall be punished with death or imprisonment for life, and if not sentenced to death shall also be liable to fine.'

- in fact, it may also be wise to consider repealing the  FIREARMS (INCREASED PENALTIES) ACT 1971 - ACT 37, and merely incorporate the offences in that Act into the Penal Code. 

# There are certainly other matters to be done - but that can come in a later amendment

WHAT ABOUT THOSE NOW ON DEATH ROW BY REASON OF MANDATORY DEATH PENALTY OFFENCES?

* Singapore enacted laws that provided for re-sentencing, but obviously found out that there are problems. Why? Both prosecution and/or the accused would not have tendered relevant evidence which would be material for sentencing during the trials - so, the Singapore re-sentencing do find difficulty finding the relevant material for a just re-sentencing - there is a lot of 'guessing' and in my, opinion, this causes injustice. Hence, save for a completely new trial - the best option would be the commuting of death sentence of all the said affected persons.

* For new cases, the new law will apply...

* In any event, until this question is resolved, it may be best to Malaysia to impose a moratorium on all executions...which will also be in compliance with UN General Assembly Resolutions.