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PM and cabinet must have courage to totally abolish death penalty
LETTER | Malaysians against Death
Penalty and Torture (Madpet) is saddened by the alleged U-turn by Prime
Minister Dr Mahathir Mohamad and his cabinet members who had decided
earlier to abolish the death penalty, but now will apparently only
abolish the mandatory death penalty.
On March 13, Deputy
Minister in the Prime Minister’s Department Mohamed Hanipa Maidin was
reported as saying in Parliament that only the mandatory death penalty,
which is the penalty for nine offences under the Penal Code and two
under the Firearms (Increased Penalties) Act 1971, will be repealed.
It
must be noted that the cabinet under Mahathir had, at a meeting in
October 2018, decided to repeal not just the mandatory death penalty,
but the death penalty for 33 offences under eight acts.
“The
cabinet has decided to abolish the death penalty, and it will be tabled
in the next Parliament sitting, which will begin on Oct 15, said Liew
Vui Keong (Minister in charge of law in the Prime Minister’s
Department)… ‘All death penalties will be abolished. Full stop.’”
This
decision was applauded worldwide, and even celebrated at the recent 7th
World Congress Against the Death Penalty in Brussels, which also
highlighted the United Nations General Assembly’s seventh resolution for
the moratorium on executions pending abolition that was adopted on Dec
17, 2018, with 121 countries in favour of it, including Malaysia for the
very first time.
It is now disappointing that some
cabinet members and political parties in Pakatan Harapan may have
buckled, and this is maybe what led to a change in position. It must be
noted that, at the end of the day, it is the prime minister who chooses
his cabinet, and so the blame would really fall on the prime minister.
All
the cabinet had to do was to table the bill, or bills, to repeal the
death penalty, and leave it to Parliament. If Parliament defeats the
bill, then the blame lies with Parliament, not Mahathir and his cabinet.
Abolition long overdue
The
mandatory death penalty has already been declared unconstitutional in
about 12 jurisdictions, the last being in Kenya and, in June 2018, in
Barbados. There is currently a challenge at the Federal Court, seeking a
similar declaration that the mandatory death penalty is
unconstitutional, in a case represented by Gopal Sri Ram. The court may
most likely declare that mandatory death penalty is unconstitutional.
Mandatory
sentences are undemocratic and unconstitutional, as the legislature
infringes and takes away completely the power of the judiciary, when it
comes to the imposition of an appropriate and just sentence on a
convicted person. Parliament may fix minimum, and maybe, maximum
sentences, but it should never take away the judge’s discretion when it
comes to sentencing.
As such, the abolition of the
mandatory death penalty is long overdue, but it is really no great
achievement. Abolishing the death penalty, on the other hand, will be
something we can all be proud of, as Malaysia joins the majority of
nations. Every time someone is executed, every Malaysian is responsible
for the death.
The reason for the abolition of the death
penalty is clear. It has been shown in Malaysia that it is no deterrent
to crime. This is shown in drug trafficking, and we believe that the
number of murders have been increasing, a fact that cannot be shown ever
since the past government stopped giving actual statistics of crimes,
including for murder, since about 2014.
Now, we get a
crime index, which is a basket of several crimes, which hides whether
the number of murders, rapes, snatch thefts, robberies or any particular
crimes are actually increasing or decreasing. Malaysians deserve real
statistics for each and every crime.
Miscarriage of justice
The
risk of miscarriage of justice is very real, where an innocent man
could wrongly be executed – the flaws of the administration of justice
are real. Many believe that PKR president Anwar Ibrahim, who was
convicted and sentenced twice for sodomy, experienced such a
‘miscarriage of justice’. The police, prosecutors, lawyers and judges
can all make mistakes or commit wrongs. Anwar was lucky, as his sentence
was imprisonment, not death.
Spending
time in prison is adequate punishment, and there is really no
justification for putting anyone to death in this modern world. The
notion that justice will be done only by killing killers, raping those
who rape, beating up those who had assaulted others and such kind of
punishments is not the kind of justice that Malaysia should ever
advocate.
Without the total abolition of death penalty, Malaysia is most unlikely to bring back Sirul Azhar Umar (photo)
from Australia, and, as such, that may prejudice the investigation of
other perpetrators who may have been involved in ordering or paying for
the murder of Mongolian national Altantuya Shaariibuu.
In a
criminal trial, the accused person will usually elect to remain silent,
not pleading guilty or let alone say “I did it with so and so” or “I
did it because I was ordered or paid to do so by some other person”,
because any such statement will also be a personal admission of guilt.
It is also less likely for those sentenced to death, even after all
appeals and petitions are exhausted, to come forward and give
information about perpetrators yet to identified and/or prosecuted. What
is the use of this, as they will still be executed?
Remember
that there is always a possibility that those perpetrators, still free
and unidentified, may threaten the convicted to remain silent. If not,
their family members may be harmed. However, if the sentence is not
death, then there is a better chance of the convicted speaking up and
more perpetrators being brought to justice.
Malaysia,
being a Muslim-majority nation, should also not insist that the death
penalty, which does not comply with the evidential and procedural
requirement of Islam, be retained. Christians, and especially Catholics,
after Pope Francis’s clear position for the abolition of the death
penalty, also do not support the continued existence of the death
penalty. Likewise, the Buddhists, Hindus and Sikhs, who advocate the
sanctity of life should be against the death penalty.
The
Human Rights Commission (Suhakam), the Malaysian Bar, Parliamentarians
for Global Action(PGA) and so many others also want the death penalty
abolished in Malaysia.
It must be pointed out that even in
France, when the death penalty was abolished by the government, over 60
percent of the population were against its abolition.
The
prime minister and the parliamentarians must have the required
political will and courage to do the right and immediately abolish the
death penalty.
The worry of loss of popular support and
the impact on the next general election, in four years’ time, is a
deplorable reason not to completely abolish the death penalty now.
Madpet
urges Prime Minister Mahathir and his cabinet to bravely table the Bill
to abolish the death penalty for all offences and let Parliament decide
on it. Let the votes be transparent, so all will know how each and
every parliamentarian voted, which will also help people to later lobby
their MPs.
Madpet also calls for the continued moratorium on all executions pending the abolition of the death penalty.
Madpet
calls on the Malaysian political parties to come out and clearly state
their position on the death penalty. It is shameful to give the
impression in certain forums that a party is for the abolition of the
death penalty, only to see some of their leaders come out later taking
an opposite stance.
Madpet also calls for parliamentarians
in the opposition and backbenchers to also support the abolition of the
death penalty on principle and for justice, and not simply vote against
it just because it is a bill tabled by the government. - Malaysiakini, 15/3/2019
The
Malaysian Bar reiterates that we wholeheartedly welcome the decision of
the Cabinet to totally abolish the death penalty in Malaysia, as
announced by Minister in the Prime Minister’s Department (Law), YB Datuk
Liew Vui Keong, on 10 October 2018. The Cabinet decision is clearly
correct and conscionable, and we eagerly await the decision to be acted
upon. 
