Abolition of mandatory death penalty should happen in this parliamentary session ― Charles Hector

OCTOBER 10 ― On the occasion of the World Day Against the Death Penalty, which falls on October 10, MADPET (Malaysians Against Death Penalty and Torture) notes sadly that Malaysia has yet to abolish the death penalty, let alone the mandatory death penalty.

In 2018, on the World Day Against Death Penalty, it was announced that the Malaysian Cabinet had decided to abolish the death penalty not just the mandatory death penalty.

This abolition would have facilitated the return of Sirul Azhar Umar, now in Australia, an abolitionist nation, that refuse to repatriate him back to Malaysia as he faces the risk of execution. Sirul was seen by many as an important witness that may lead to the identification and prosecution of the other persons who were behind the murder of Altantuya Shaariibuu, the Mongolian mother of two. 

The abolition of the death penalty would also eliminate the possibility of execution of innocent persons ― miscarriage of justice. The police, prosecutors, judges and even lawyers of the accused, all being human beings, are not infallible and could cause the wrongful execution of persons. We recall the case when in January 2011, when Taiwan’s Ministry of Justice admitted that Chiang Kuo-ching, a private in the Air Force, had been executed in error in 1997 for a murder committed 15 years previously.

In Malaysia, it has also been shown that death penalty, even the mandatory death penalty has not deterred crime. In 2017, it was revealed in Parliament that there was an increase of drug cases every year despite the drastic measures taken by the police, which we could take as including the fact of the existence of the mandatory death penalty for section 39B DDA 1952 – drug trafficking. It may be same for murder, but it is difficult as Malaysia stopped revealing actual statistics under the previous government.

The failure of government resulting in poverty may also be the cause of many crimes including those that now carry the death penalty.

On October 10, 2019, the 17th World Day Against the Death Penalty aims at raising awareness on the rights of children whose parents have been sentenced to death or executed. Malaysia, a party of the Child Rights Convention, now should have the best interest of the child a major concern. The execution of a parent, sibling or relative of any child is certainly never in the best interest of the child.

The abolition of the death penalty is also consistent with the Malaysian policy with crime and sentencing. We believe in second chances. When one pleads guilty, the sentence is reduced by a third. For those in prison, good behaviour and rehabilitation will lead to remission of sentence and early release. All these values and principles cannot apply when one is sentenced to death or mandatory death penalty.

U-turn on decision to abolish death penalty

However, on March 13, 2019, Malaysian cabinet did a U-turn on abolishing the death penalty for all 33 offences, and instead agreed to only abolish the mandatory death penalty for all 11 mandatory death penalty offences.

Since the Pakatan Harapan is a coalition government made up of four to five parties, it would be interesting to know which party changed its position on abolition and why. Through its MPs, we believe that DAP was an abolitionist party, but its current position now is a mystery.

Sadly, we have yet to see any tabling any Bills in Parliament to date that will effectively abolish the mandatory death penalty. The earlier indication was that these Bill/s will be tabled in the current Parliamentary session which began in October 2019.

MADPET was concerned about the recent setting up of a special committee in September 2019 to look into alternatives to the death sentence which may end up just being yet another excuse to delay abolition of the mandatory death penalty. Such committees or task force could have been set up last year since the decision to abolish the death penalty. It could have been even earlier, for the abolition of the mandatory death penalty was an election promise of Pakatan Harapan.

We reiterate that the mandatory death penalty could be immediately abolished, which will mean that judges will then have the discretion to sentence people to imprisonment or death. For the time being, it could simply be life imprisonment or natural life imprisonment. Later, if a better “alternative sentence” comes from this or that “committee”, “task force”  or consultations, the Act can always be further amended later.

The abolition of the mandatory death penalty should not be further delayed by the government.

Accused persons now on trial or whose trial starts before the abolition will be greatly prejudiced as both prosecution and defence lawyers may be adducing evidence only towards finding of guilt or innocence. They will not be adducing evidence as to why a person should receive a lesser sentence since the courts have no discretion as to sentence when they can only provide the one mandatory sentence.

MADPET is also against all mandatory sentences, as it removes judicial discretion when it comes to sentencing. Laws should only provide for maybe maximum sentences, and trust in our judges to impose a just sentence on each and every convicted after taking all facts and circumstances into consideration.

Malaysia created history in December 2018, when it voted in favour of the United Nations General Assembly Resolution on the abolition of the death penalty.

MADPET hopes that the abolition of the mandatory death penalty is just the first step, towards a total abolition of the death penalty which we hope will happen soon, certainly before the next general elections.

MADPET calls for the immediate tabling of the Bill/s to abolish the mandatory death penalty in this current Parliamentary session, for any other additional amendments could very easily be brought in by subsequent amendments later on;

MADPET calls for the passing of an Act of Parliament that will have the effect of commuting the death sentence of about 1,200 on death row, especially those that have exhausted their appeals in court;

MADPET also calls for further amendment to the Dangerous Drugs Act 1952, where mandatory death penalty has already been abolished, to allow judges to consider all mitigating and aggravating circumstances and remove the limitations/conditions now in that law;

MADPET calls for a moratorium on all executions, pending the total abolition of the death penalty in Malaysia.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

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