‘Special Committee’ Another Excuse For Delay in Abolition of Mandatory Penalty? Delay Prejudices Many Accused Persons Whose Trial Commenced Before Abolition becomes Law

Media Statement -11/9/2019

‘Special Committee’  Another Excuse For Delay in Abolition of Mandatory Penalty?

Delay Prejudices Many Accused Persons Whose Trial Commenced Before Abolition becomes Law

MADPET Malaysians against Death Penalty and Torture) is tickled by the announcement now of the Malaysian Minister in the Prime Minister’s Department (Law) Datuk Liew Vui Keong that a special committee to look for alternatives to the mandatory death sentence will be set up (Malay Mail, 6/9/2019). Such a committee could have been established earlier in March, but to do so now a few weeks before the commencement of the October Parliamentary Session when the Bill/s to abolish mandatory death penalty was to be tabled is really disconcerting.

MADPET is also concerned whether it is just another attempt to further delay the decision to abolish the mandatory death penalty. Last October, the Cabinet decided to abolish death penalty, then in March this year, they changed their mind.

U-Turns - From Abolishing Death Penalty in 33 Offences to Abolishing Mandatory Death Penalty in 11 Offences

It was announced on October 10 2018 (being also the World Day Against the Death Penalty), that the Malaysian Cabinet had reached a consensus (a collective decision) that the death penalty for 33 offences as provided for under eight Acts of law would be abolished, and this was again reiterated several times(Straits Times, 13/11/2018).

Then on 13/3/2019, the Malaysian government made a "shocking" U-turn and said that only the mandatory death penalty would be axed. Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin said the mandatory death penalty was for nine offences under the Penal Code and two under the Firearms (Increased Penalties) Act 1971.( New Straits Times, 13/3/2019)

MANDATORY PENALTIES OUSTS JUDICIAL POWERS IN SENTENCING

A mandatory death penalty deprives judge’s sentencing discretion – the ability to order an appropriate just sentence, when a person is found guilty and convicted of the crime.

When there is a mandatory sentence, judges will have no choice but impose that one mandatory sentence provided by law. If there were no mandatory sentence, then when it comes to sentencing will consider all aggravating factors, mitigating factors and all the circumstances of the case, and give a just sentence to those found guilty.

Parliament should justly impose no mandatory sentence, though they may stipulate maximum or even minimum sentences that would be imposed on a person is found guilty of a particular crime. The sentenced to be imposed on every person found should always be in the hands of judges.

4 persons convicted of murder. Should not a higher sentenced be given for the person who killed, and maybe a lower sentence for a young man who came along but did not actually kill anyone? Should not a higher sentence be given for a repeat offender and a lesser sentence be given for a first time offender?

REPLACEMENT FOR MANDATORY DEATH PENALTY

When the mandatory death penalty is abolished, it is best that it is not replaced simply with just another mandatory sentence be it imprisonment for life or imprisonment for natural life (being in prison until one dies), This also would be wrong and unjust.

When the mandatory death penalty is abolished, the law would still provide that the sentence for the crime could be death, imprisonment for natural life, life imprisonment and/or imprisonment for a term not less than 10-15 years. Then, it will be up to the judge to impose a just and appropriate sentence, based on the facts and circumstances of a particular case. Remember, that if one is unhappy with the sentence, one can always appeal the sentence to the Court or Appeal, and even the Federal Court.

As such, there is really no reasonable or justifiable reason to set up any ‘special committee to look for alternatives to the mandatory death sentence’. We know the options, and the government, the Members of Parliament and Senators can decide.

MADPET hopes that this Malaysian government, who previously decided to abolish the death penalty, who then did a U-turn to now only abolish the mandatory death penalty will no more procrastinate BUT will speedily table the relevant Bills in Parliament in this upcoming October Parliamentary session.

DELAY IN ABOLITION OF MANDATORY DEATH PENALTY PREJUDICES ACCUSED WHOSE TRIAL HAVE STARTED.

It must be remembered that the delay of the previous Barisan National government in putting in force the Dangerous Drugs Amendment Act 2017, which abolished the mandatory death penalty for drug trafficking, by several months resulted in great injustice to at least 10 persons who were sentenced to death as judges still could not use the new law until it was in force.

Now, the Pakatan Harapan-led government’s delay in the abolition of the mandatory death penalty also greatly prejudices accused persons charged with mandatory death penalty offences, whose trial are starting, proceeding and/or will end before the amendment becomes law. Now, the prosecution and the defense are preparing and presenting their evidence and submissions in these trials on the basis that conviction results in the mandatory death penalty. If there is no mandatory death penalty, evidence tendered will also be evidence that would assist the Judge later in imposing a sentence other than the death sentence.

If mandatory death penalty is now abolished, justice would only be done for those sentenced to the mandatory death penalty may be by a re-trial, where all court records of the trial before are expunged and cannot be relied upon. Alternatively, a less just option, for trials yet to have ended, provisions be given for prosecution and defense to adduce new relevant evidence, including the recalling of witnesses, which will have a bearing on the sentence to be imposed if found guilty.

As such, the abolition of the mandatory death penalty should be not be delayed.

Other amendments to deal with cases where trials have already commenced or have ended by the time the abolition of mandatory death penalty had come into force can always be dealt with later, maybe in subsequent amendments tabled in Parliamentary sessions in 2020.

DEATH ROW PRISONERS – PARDON CAN COMMUTE DEATH SENTENCES

For those currently on death row, who are now more than 1,200 persons, the only way now is through the commutation of the death sentence to imprisonment, which can be done by Pardon by the King and the State Rulers.

In 1983, Datuk Mokhtar Hashim, then Culture, Youth and Sports Minister received the death penalty for the murder of Datuk Taha Talib, the state assemblyman for Tampin, In 1984 he received a ‘royal pardon’ when his death sentence was commuted to life imprisonment, and thereafter in 1991 another ‘royal pardon’ set him free from prison.

The power of pardon is exercisable by the King and/or the Ruler or Yang di- Pertua Negeri of a State (Article 42 Federal Constitution), and this how those on death row could be dealt with. The problem now is not just the frequency of Pardon Board meetings, but the lack of procedural and guidelines that these Pardon Boards need follow.

MADPET is of the opinion that all those currently on death law be pardoned and their sentences commuted to life imprisonment.

Besides royal pardon, the commutation of death sentence could also possibly be achieved through an enactment of a new law.

Alternatively, the right of death row inmates to apply to court for a review of their guilt and sentence could be clearly provided for in our laws. This should also include the ability to easily adduce new evidence, which may not have been adduced for whatever reason by their lawyers and/or prosecution. Why should the convicted be prejudiced for failings of even his/her own lawyer, as today the law makes it very difficult for the adducing of new evidence that already existed then but was not adduced and brought to attention of the court during trial? There are also many cases where prosecution and/or police, despite having relevant evidence, simply chose not bring it to the attention of the courts.

LAWS AND AMENDMENTS

The government can immediately amend the law to abolish the mandatory death penalty. Now, it could impose a natural life prison sentence.

Later, it can always again amend the law to even give greater discretion to judges maybe imprisonment not less than 15 years to natural life sentences, which it could do after this ‘special committee’ submits its conclusions maybe 3 – 6 months down the road.

The abolition of the mandatory death penalty must not be delayed simply because we are waiting for this ‘special committee’ to submit its final report.

The law could also later be amended to deal with persons whose trial has commenced and completed before the law abolishing mandatory death penalty comes into force.

It is sad that the government has been using all kinds of excuses to delay bringing about necessary repeal or amendment of draconian laws in Malaysian. For example, in June 19, it was reported The government will wait for the Federal Court to decide on a suit challenging the constitutionality of the death penalty for trafficking before it tables an amendments ( Malay Mail, 17/6/2019). Parliament makes laws and there is no need to wait to be told by Court whether a law is constitutional or bad.

The worry now is that in the near future, the Minister will come out and say that the mandatory death penalty will not be abolished until it receives the final report from this ‘special committee’ it set up weeks before the Bill to abolish death penalty is to be tabled.

THERFORE, MADPET 

-          Calls on the Malaysian government to no longer delay the abolition of the mandatory death penalty, which ought to be done in the upcoming Parliamentary session beginning October 

2019;

-          Call on the new Malaysian government, who have been power for more than 16 months, to no longer procrastinate in the abolition of other draconian laws like the Sedition Act, the Detention Without Trial laws and other draconian laws; and 

-          Reiterates the call for the abolition of the death penalty, and the commutation of all death sentences of persons on death row.

Charles Hector

For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)

Minister: Special committee to study alternative to mandatory death sentence

Published 4 days ago on 06 September 2019

Liew said in a statement today that the decision on the special committee was made by the Cabinet on August 29. — Picture by Shafwan Zaidon

PUTRAJAYA, Sept 6 — The government has agreed to set up a special committee to look for alternatives to the mandatory death sentence.

Minister in the Prime Minister’s Department (Law) Datuk Liew Vui Keong said in a statement today that the decision on the special committee was made by the Cabinet on August 29.

He said the special committee will be chaired by a former Chief Justice of Malaysia.

Its members will comprise former Federal Court judges, former Attorney General Chambers officers, former senior officers of the Prisons Department as well as representatives of the Bar Council, Human Rights Commission of Malaysia (Suhakam), academics, criminologists, and civil society organisations.

“The government is taking a pro-active and cautious step by setting up this special committee to ensure that an alternative sentence which is commensurate with the criminal offence is imposed, taking into account the implications on and welfare of the victim,” Liew said.

He said the repeal of the mandatory death sentence will give the judge discretion to impose a death sentence or an alternative sentence, based on the facts of the case.

Liew said the proposal to repeal the mandatory death sentence was in line with the 27 pledges in the Pakatan Harapan manifesto. — Bernama - Malay Mail, 6/9/2019

Abolishing of death penalty is collective decision by Cabinet, says Liew

Nation
Wednesday, 14 Nov 2018 9:58 AM MYT

By RASHVINJEET S. BEDI

Read more at https://www.thestar.com.my/news/nation/2018/11/14/liew-death-penalty-abolition-was-a-collection-cabinet-decision#S3aaU5bGx0x8bTZo.99

Malaysia's Cabinet decides to end death penalty for 33 offences

Published

Nov 13, 2018, 2:01 pm SGT

KUALA LUMPUR (BERNAMA) - Malaysia's Cabinet has reached a consensus that the death penalty for 33 offences as provided for under eight Acts of law should be abolished,  including Section 302 of the Penal Code, which pertains to murder, Minister in the Prime Minister's Department Liew Vui Keong said on Tuesday (Nov 13).

He said the decision, which was reached collectively, also encompassed the Firearms (Heavier Penalties) Act, 1971; Firearms Act, 1960; Kidnapping Act, 1961; and Armed Forces Act, 1972.

Death penalties also provided for under the Water Services Industries Act, 2006; Strategic Trade Act, 2010; and Dangerous Drugs Act, 1952, are also to be abolished.

"Following the Cabinet decision,  a Cabinet memorandum has been circulated to the relevant ministries for their comments and to get public feedback on it," Datuk Liew said during a question-and-answer session in the Dewan Rakyat.

He was replying to a question from  Dr Kelvin Yii Lee Wuen, the Pakatan Harapan MP from Bandar Kuching, who wanted to know the government's position on abolishing the death penalty, in particular with respect to whether there will be exceptions for extremely cruel crimes,

Mr Liew also told the House that the Bill on the Independent Police Complaints and Misconduct Commission (IPCMC) was expected to be tabled at the next sitting of Parliament after all issues and policies were finalised.

He said follow-up meetings on the setting up of the commission had agreed that it should be truly independent, effective and have the power to tackle problems involving  the police force.

"The framework takes into consideration powers that are more holistic and in line with existing laws and are currently in force," he said in reply to a question from Ms Maria Chin Abdullah, the Pakatan Harapan MP representing Petaling Jaya.

Mr Liew said the police's rights would also be assured as enshrined in Article 10 of the Federal Constitution.

In September 2018, the government announced the setting up of the IPCMC to replace the Enforcement Agency Integrity Commission. - Straits Times, 13/11/2018

Mandatory death penalty to be repealed for 11 criminal offences

(Stock image for illustration purposes) “We have made a decision. The government will only repeal the mandatory death penalty. We will make the amendments. This is in keeping with the 27th pledge in the Pakatan Harapan (election) manifesto.”

By Bernama - March 13, 2019 @ 3:07pm

KUALA LUMPUR: The mandatory death penalty for 11 criminal offences are to be repealed and substituted with death penalty imposed at the discretion of the court, the Dewan Rakyat was told.

Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin said the mandatory death penalty was for nine offences under the Penal Code and two under the Firearms (Increased Penalties) Act 1971.

“We have made a decision. The government will only repeal the mandatory death penalty. We will make the amendments. This is in keeping with the 27th pledge in the Pakatan Harapan (election) manifesto,” he said when replying to a question from Datuk Che Abdullah Mat Nawi (Pas-Tumpat) during Question Time.

Replying to a supplementary question from Che Abdullah on whether the government intends to set up a parliamentary select committee to discuss the repeal of the death penalty before tabling the amendment bill, Hanipa said he would forward the suggestion to the government.

The cabinet, at a meeting in October 2018, decided to repeal the mandatory death penalty for 33 offences under eight acts. – Bernama - New Straits Times, 13/3/2019