Media
statement by Member of Parliament for Batu Kawan, International Secretary for
Wanita DAP and member of the Parliamentary Special Select Committee for Human
Rights and Gender Equality Kasthuri Patto on Wednesday 9 October 2019 in
Parliament Malaysia, Kuala Lumpur.
Malaysia’s
move to abolish the mandatory death penalty is a valiant display of courage to
uphold restorative justice and to return discretionary judiciary powers back to
the courts as a breakthrough to fight crime and punish criminals instead of
ending lives.
10 October
2019 sees the 17th commemoration of the World Day Against the Death Penalty
and to date, 106 countries have abolished the death penalty and 56 countries
and territories are retentionist countries and still continue to execute,
including Malaysia where the last execution was carried out in January 2018. A
moratorium on all executions was signed by the Minister of Law in the Prime
Minister’s Department Datuk Liew Vui Keong last year after Pakatan Harapan
became the new Government in Malaysia.
Malaysia
has 33 crimes that warrant the death penalty from 8 different Acts. Only 11
crimes carry the mandatory death penalty from 2 separate Acts; 9 crimes from the
Penal Code and the 2 from Firearms (Increased Penalties)
To
date, the number of death row inmates stands at 1293 and more than half of the
inmates are Malaysians (55%) and the remainder are foreigners (45%). Ethnically
death row inmates are estimated at 49% Malays constituting 340 inmates, 24% Indians
making up 177 inmates, 168 inmates making up 23% of Chinese ethnicity, and
about 4% making up Sikhs, Bajaus, Ibans, Bidayuhs, Bugis, Dusun and Kadazans.
As for foreigners, the top 5 countries with the highest number of death row
inmates are from Nigeria, Indonesia, Iran, Philippines, Thailand out of 44
countries in total.
Of that
total Muslims make up the highest number of death row inmates at 50%, Christians
and Catholics at 20%, Hindus and Buddhists at 14% each and the balance profess
Sikhism, Bahai, Pagans and people of no religious belief.
The largest
proportion of people on death row are those who come from a low socio-economic
backgrounds with permanent jobs, those who don’t have a permanent jobs and those
who are jobless making up 86% of men and women on death row as ‘banduan
akhir’. This is evident enough that better economic opportunities, education,
adequate and fair wages, positioning in social strata is a definitive and a
huge influencing factor that drives a person to commit a crime or not. Apart
from that, access to drugs and alcohol is normally the last nail in the coffin
that pushes a person to the edge to break the law and commit heinous crimes.
Article
5 enshrined in the Federal Constitution protects the right to life stating “No person shall be deprived of his life
or personal liberty save in accordance with law.” Having said that,
while the right to life is protected and conserved in many religious beliefs,
let me state clearly and firmly that criminals MUST be punished, and there shall
not be an inkling of doubt about that. However, executing a person is out of the
question.
Countries that have abolished the death penalty
have visibly proven lower crime rates including that of murder and countries
that have the death penalty have numbers that inadvertently show an increase or
a status quo of crimes committed there. The death penalty is NOT a deterrent to
crime as the number of death row inmates in Malaysia is on an increase whereas
crime remains the same. So, the onus should be on enforcement and fighting
crime and not ending lives.
Apart from that, there are all the elements of a
miscarriage of justice that may happen from the moment a crime is committed to
the point of a verdict being delivered in court – worse when the hands of
judges are tied with the mandatory death penalty. The use of torture to extract
confessions, miscommunications with language being a barrier, corruption,
inefficiency in collecting and filing evidences, the sentiments of the
judiciary, perjury are all perfect miscarriages of justice. Again, make no
mistake, criminals must be punished but never by execution.
No legal system is perfect in the world. However,
the glaring elephant in the room is that the death penalty is a form of
punishment of no return. If an innocent man or woman is executed, is it not a forcible
violation of injustice of any Government and the people? Do we want to be part of
the execution team in taking the life of a person when there is an option of
imprisonment?
According
to Penang Institute, “high revision rates of 55% and 59% respectively for S39B
Dangerous Drugs Act cases occurred in years 2013 and 2016. The volatile nature
and inconsistency of judgment for death penalty cases is indeed worrying. The
conviction or sentencing of a person is ultimately decided by the Federal Court
but of the 20 Federal Court judgement cases 10 cases (50%) had their decisions
revised; three cases (15%) had their decisions reversed twice from the High
Court; and six suspects (30%) were freed from the gallows. This concludes that judicial
errors can occur at any level.
In Oct
2017, a Korean student who was charged under 39B for trafficking drugs had his
decision reversed and freed by the Seremban High Court when the Raiding Officer
who was also the main witness was found to have lied in court during cross
examination. The Raiding officer is said to have conducted over 20 other raids
in his lifetime. It is not spine chilling to think about the 20 other raids
that he had conducted? Had the counsel not grilled him enough, he may have walked
out of the court, a liar who could have sent an innocent person to be hanged.
That person could be your son or daughter, your grandchildren or your husband or
wife, father or mother.
Mainthan
Arumugam from Kuala Lumpur is on death row, entering his 15th year now.
His lawyers Sherrie and Amir Hamzah who are also human rights advocates query “Who is this victim that Mainthan had murdered?
The identity of the victim was raised at the first review application made by
Mainthan and it was dismissed. Subsequently, a person who claimed that he was
the only victim turned up in late 2016, but the new evidence was also dismissed
by the courts. A total of 19 different judges have heard Mainthan’s case since
2004.” The original charge
sheet listed the victim as "Manivanan a/l Vellasamy" even though he
held an Indian passport, as the term "a/l" should only apply to
Malaysians. This is
just one of the grave discrepancies in Mainthan’s case and he is still behind
bars. And the shocking thing is, the supposed victim, at this very minute is alive,
living and breathing the same air we all do.
In 2009, Sulkarnain bin Alias was charged with
the murder of a UiTM lecturer in 2002 having been on death row for 17 years.
His case is also one of discrepancies and loopholes. The main suspect was freed
and became the main witness. A farce because he is the only one who knew the
victim and was the alleged mastermind behind the crime. The sniffer dogs had
led the team to the main suspect but the courts had rejected it despite the
fact that the prosecutors themselves had raised ‘reasonable doubts” surrounding
these evidences, the date, time and place in the charge varied from the date,
time and place of the time of death.
From a religious point of argument, let us not
forget that Jesus was a victim of a gross mistrial, a miscarriage of justice, a
flawed public opinion, which led to him being a victim of the death penalty by crucifixion.
In Buddhism the First Precept stresses on abstinence from killing or
injuring any living creature and thus the death penalty is inconsistent with
Buddhist teachings advocating compassion for all. Hinduism advocates
ahimsa which is the principle of non-violence including opposing acts of
killing, violence and revenge.
According to the Mufti of Federal Territories “the philosophy of Islamic jurisprudence is based on five universal basic
requirements for the preservation of religion, life, aqal, posterity and
property for humanity. Muslims believe these five rights if properly preserved
and guaranteed will create a good life both in the world and in the hereafter.
We believe that the mandatory death penalty for murder offenses should be
reviewed with consideration of the deceased's family and the second chance for
the killer. This is a very important step to be read at the national level.
Whereas for other offenses provided for by mandatory sanctions by civil law but
not in Islamic Shariah, we also recommend that the re-examination of the
sentence be justified if the findings of research data made by the relevant
authorities indicate the level of effectiveness weak in execution.
These and many other cases of miscarriages of
justice are evident around us, but as a society, as a people, as a community
and as Malaysians, we must ensure that justice is served for the family of the deceased
and the family of the accused.
An eye for an eye will leave the whole world
blind and the move by the Malaysian government to abolish the mandatory death
penalty is a courageous step in the right direction that would advocate for
restorative justice and to give discretionary powers back to courts for the
judges to make a decision to mete out the death penalty or not.
There is no place in a new Malaysia for the death
penalty.
Kasthuri Patto
Member
of Parliament for Batu Kawan
International
Secretary for Wanita DAP
Member
of the Parliamentary Special Select Committee for Human Rights and Gender
Equality
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