Media Statement 8/9/2022
Minister must disclose alternative sentences government proposing when mandatory death penalty abolished
Make Public Special Committee To Review Alternative Sentences To The Mandatory Death Penalty Report/Recommendations
MADPET(Malaysians Against Death Penalty and Torture) is pleased with the recent announcement that mandatory death and mandatory whipping sentences would be abolished vide amendments that will be tabled in Parliament in October. Minister in the Prime Minister’s Department (Parliament and Law Datuk Seri Dr Wan Junaidi Tuanku Jaafar also said that Malaysia will no longer have mandatory death penalty in 2023.[Straits Times 6/9/2022, Malay Mail 6/9/2022]
It must be noted that the Malaysian governments have been promising the abolition of the death penalty, and later only the abolition of the mandatory death penalty, for some time now, hence the concern by many is that this again maybe simply a ‘false promise’, and Malaysians may be once again disappointed with yet another U-turn, or maybe a long delay. It is best that the Prime Minister speaks up assuring Malaysians that this will happen before Parliament is dissolved and a new government comes into being following next General Elections.
Abolition of the mandatory death sentences for 11 offences is not enough as Malaysia must abolish totally the death penalty, noting also that Malaysia, since 2018 and again in 2020, taken the stand to have a moratorium on executions pending the abolition of the death penalty when they voted in favour in the United Nations General Assembly (UNGA) Resolutions.
Do not make the same mistake when mandatory death penalty abolished in 2018
It is also hoped that Malaysia will not repeat the mistake made when it abolished the mandatory death penalty for the offence of drug trafficking which came into force on 15/3/2018, whereby the alternative sentence of life imprisonment was only available when certain rigid conditions was fulfilled, including that one mandatory condition ‘…(d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia…’.
This was an affront to the right to a fair trial, which includes the right to 2 appeals. It is not right for the convicted, who may have pleaded not guilty, to now be forced to assist enforcement simply to avoid the death sentence. Further, an innocent person wrongly convicted will never be able to assist in any way, and so he still will be sentenced to death.
That drug trafficking law amendment that abolished mandatory death penalty NEVER gave our judges full discretion when it comes to sentencing. Parliament wrongly restricted on what matters the judge can consider, when judges should be free to consider all mitigating or aggravating factors. This can be said a case of the Legislative arm of government encroaching into what should be the duties and responsibilities of the Judicial arm of government.
Disclose Report of Special Committee To Review Alternative Sentences To The Mandatory Death Penalty
The special committee to review alternative sentences to the mandatory death penalty, made up of former Federal Court judges, former Attorney General’s Chambers officers, former Prisons Department senior officers, the Bar Council, Human Rights Commission of Malaysia, academics, criminologists and civil society organizations submitted their report to the government on 17/7/2020 but sadly to date the report is still not made available to the public. How then can Malaysians instruct their elected representatives in Parliament? We wonder whether the recommendations of the Special Committee has even been adopted or ignored.
Members of Parliament (MP) represent their constituents in a democracy, and are not ‘feudalistic’ political masters. Hence, there must be transparency so the people can also discuss with their respective MPs. To think that MPs after being elected can do as they please is absurd if Malaysia is truly a democracy. Hence, transparency requires the immediate disclosure of that Special Committee’s report.
The Minister also just said that mandatory death penalty will be abolished, but he failed to disclose what the alternative sentences will be.
Alternative sentence not just one – Full Sentencing Discretion To Judges
MADPET will oppose if there is just one alternative sentence of life imprisonment. It must be noted that many of the offences that now carry the mandatory death penalty are crimes where no one ends up dead or suffering grievous injury when the crime is committed.
If a group of 5 went to a premise to rob, and suddenly one of them takes out a gun and fires, should all 5 be sentenced to death, or to the same sentence. To say that a different sentence only if others can ‘…proves that he had taken all reasonable steps to prevent the discharge…’ of the firearm is absurd.
Now, Section 3A (Penalty for accomplices in case of discharge of firearm) of the Firearms (Increased Penalties) Act 1971 states, ‘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.’
In criminal trials, judges when exercising their discretion when it comes to sentencing will take all matters into consideration for each and every person convicted including age, role played, whether first time offender, etc and so the different convicts involved in the same crime may receive different sentences, and the one who actually discharged the firearm receiving the highest sentence. If someone was hurt, then a higher sentence. If someone was killed, then maybe even a higher sentence. Parliament and all in Malaysia should trust our Judges, who are appointed by the King, to hand down a just sentence.
Therefore, MADPET urges that the alternative sentences not be just life imprisonment, and Parliament just sets a maximum prison sentence so that judges will have the full discretion to impose the most just sentence to all each persons who committed offences that now carry the mandatory death penalty. There must be no restrictions or conditions imposed on judges that limit their discretion.
It is sad to note that there are still 1,342 convicts on death row as of June 2022.
MADPET also demands the immediate full disclosure of the report and recommendations of Special Committee To Review Alternative Sentences To The Mandatory Death Penalty;
MADPET also calls on the government and/or the Minister to inform Malaysians about the alternative sentences that the government intends to propose to Parliament;
MADPET, while being pleased for the abolition of the mandatory whipping sentence, calls for the total abolition of the sentence of whipping, which is an inhumane corporal punishment.
MADPET reiterates its call for the total abolition of the death penalty. Malaysia must continue to impose the moratorium on execution pending abolition.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
Report: Malaysia to end mandatory death and whipping sentences by 2023, says law minister
Kuala Lumpur, Sept 6 — Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar said that Malaysia will abolish the mandatory death and whipping sentences by next year, with amendments to the laws to be tabled in Parliament next month.
Wan Junaidi told English daily The Star that judges will be given the discretion to hand down the two sentences instead if the amendments are passed.
“If everything goes well and there are no disruptions to the coming Budget session, we will no longer have the mandatory death sentence in 2023,” said Datuk Seri Wan Junaidi.
“This will also apply to whipping as it will be left to the discretion of the judges,” he added.
Wan Junaidi said he intended to table the proposed amendments during the Parliament meeting that begins on October 3.
“The amendments on the mandatory death sentences will cover amendments to 33 sections under the law and involve mandatory death sentences for 11 offences,” he added.
It is understood that the 11 offences comprise nine under the Penal Code and two under the Firearms (Increased Penalties) Act.
On whipping, Wan Junaidi said the proposed amendments would not do away with the punishment, but again give judges the discretion on whether to impose it.
“Personally, I view whipping as very brutal and violent and simply inhumane.
“This is why I am suggesting that judges have the discretion to impose the punishment,” he said, adding that most offenders suffer open wounds with many fainting after three strokes.
With discretion given, judges can weigh the gravity of the harm committed by offenders on their victims before imposing the punishment, he added.
Wan Junaidi added that he would meet the Attorney General’s Chambers (AGC) soon to discuss the matter before seeking Cabinet approval to table the amendments.
When asked about those who are currently on death row, he said that the government was still mulling its options.
According to The Star, there are still 1,342 convicts facing the gallows as of June 2022.
The
abolition of the mandatory death sentence was first raised by the
Pakatan Harapan administration in 2018 and a moratorium on execution was
then implemented. - Malay Mail, 6/9/2022
Malaysia may soon do away with mandatory death sentence: Minister
Instead, judges will have the discretion to hand down the two sentences.
"If everything goes well and there are no disruptions to the coming budget session, we will no longer have the mandatory death sentence in 2023," said Datuk Seri Dr Wan Junaidi Tuanku Jaafar.
"This will also apply to whipping as it will be left to the discretion of the judges," he told The Star in an interview on Monday.
The Minister in the Prime Minister's Department (Parliament and Law) said he intended to table the proposed amendments during the Parliament meeting starting on Oct 3.
"The amendments on the mandatory death sentences will cover amendments to 33 sections under the law and involve mandatory death sentences for 11 offences," he said.
The 11 offences comprise nine under the Penal Code and two under the Firearms (Increased Penalties) Act.
On the fate of those now on death row, Dr Wan Junaidi said the government was still mulling over its options.
In June, it was reported that there were 1,342 death row inmates who were in limbo as to their fate.
Of the number, over 900 were convicted for drug trafficking while the remaining were for murder.
Of the total, 844 are Malaysians and 498 are foreigners from 40 countries.
The abolition of the mandatory death sentence was first raised by the Pakatan Harapan administration in 2018.
A moratorium on execution was then implemented.
On whipping, Dr Wan Junaidi said the proposed amendments would not do away with the punishment but again give judges the discretion on whether to impose it.
"Personally, I view whipping as very brutal and violent and simply inhumane.
"That is why I am suggesting that judges have the discretion to impose the punishment," he said, adding that most offenders suffer open wounds with many fainting after three strokes.
With discretion given, judges can weigh the gravity of the harm committed by offenders on their victims before imposing the punishment.
He said there might be instances where a judge might say no to whipping in some cases, but impose it on "sadistic" offenders who cause hurt to their victims.
Dr Wan Junaidi said he would meet the Attorney-General's Chambers soon to discuss the matter before seeking Cabinet approval to table the amendments.
On a separate matter, he said the recently passed anti-hopping law
was expected to be enforced this month. THE STAR/ASIA NEWS NETWORK - Straits Times, 6/9/2022
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