Abolition of death penalty in Malaysia?

ABOLITION of the death penalty will not come so soon in conservative Malaysia despite efforts by a few to change the mindset of the public at large.

Public opinion suggests that support for the mandatory death penalty as punishment for murder is still strong despite arguments by abolitionists that the death penalty brutalises society.

NO TO DEATH PENALTY: Thiru (right) listening to queries from members of the media. Also seen are (seated from left) Khaw, Lord Dubs, Charles and Tuijn.

According to the Global Overview on the Death Penalty for Drug Offences 2010, conducted by International Harm Reduction Association, there remains 32 states which provide for the death penalty for drug-related offences. Of these 32, 13 have the mandatory death penalty. Malaysia is one of them.

Abolitionists around the world have been quoting the late Gandhi that ‘An eye for an eye will make the whole world go blind’ effectively in some countries but not so in Malaysia.

The abolitionists argue that the death penalty is never a superior deterrent because murder and drug trafficking happen from time to time.

The worst case scenario is that an innocent man may be executed and when that happens, the sentence is irreversible, they point out.

The very few conservative countries are adamant about keeping the death penalty, especially as punishment for murder, drug trafficking and illegal possession of firearms.

Discretionary approach

Malaysians who support the abolitionists around the globe have suggested the country can go slow in changing the mindset of the people and/or public opinion by first urging the authorities to start making the death penalty discretionary for judges presiding over drug trafficking cases.

Later, the judges may proceed to invoke their discretionary powers in murder cases.

Discretion, the abolitionists suggest, may call forth some kind of compassion.

However most Malaysians note that compassion can also come in the form of a pardon by the King.

Public views must be taken into account on the proposal to abolish the death penalty in the country, said Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz.

“Like the Internal Security Act (ISA) — when a lot of the public wanting to abolish this law, we follow the majority. Public opinion is very important to us. At the moment you cannot really see whether or not the people are in favour of abolishing the death penalty,” he told reporters after a public seminar to promote the abolition of the death penalty in Malaysia in Kuala Lumpur.

Nazri said although there was now no discussion on the immediate abolishment of the death penalty in Malaysia despite calls from some quarters, the government was committed to re-evaluate, re-think and review the capital punishment.

114 death sentences

Malaysia still practises the death penalty and as of last year, there were 114 death sentences with another 744 persons on death row while one execution was reported.

Nazri, who is sometimes called the Law Minister, opined that the death penalty review was timely and in line with ongoing government efforts to review outdated laws and several emergency ordinances and introduce new laws, complied with the principles of human rights.

He said the government’s task was, therefore, to find the most humane mechanism to uphold justice for the people.

The seminar to promote the abolition of the death penalty in Malaysia was jointly organised by the European Union, the
Bar Council Malaysia and the Human Rights Commission of Malaysia in conjunction with the International Day against the Death Penalty which is held every October 10.

Apart from Nazri, those present were ambassador Vincent Piket, head of the European Union (EU) delegation to Malaysia; moderator Prof Datuk Dr Khaw Lake Tee, who is vice chairman of Malaysian Human Rights Commission (Suhakam) and Steven Thiru, Malaysian Bar Council treasurer as well as four panelists — Lord Alf Dubs of the All Party Parliamentary Group on the Abolition of the Death Penalty House of Lords UK; NicoTuijn, vice president of Court of Appeal, Hertogenbosch in Netherlands; Charles Hector, lawyer and coordinator of the Malaysians Against Death Penalty and Torture (Madpet) and Yohendra Nadarajan, Amnesty International board member and Amnesty International Human Rights education coordinator.

Malaysian Bar Council president Lim Chee Wee was also present.

Piket, in his welcoming remarks, said the abolition of the death penalty worldwide was one of the main objectives of the EU’s human rights policy.

The Malaysian Bar also reiterated its call on the Malaysian government to immediately abolish the death penalty, and for an immediate moratorium on its use pending its abolition.

The Oct 13 seminar is the first in a long-term campaign to bring about the eventual abolition of the death penalty in Malaysia.

Life is sacred

In his closing remarks, Thiru said only God Almighty has the right to take away the life of a human being.

“We hold to the belief that life is sacred and every individual has an inherent right to life which is enshrined in Article 5 (1) of our Federal Constitution. We take the view that the right to life is a fundamental right which must be absolute, inalienable and universal, irrespective of the crime committed by the accused person,” he added.

“There is no empirical proof or data that irrefutably establishes that having the death penalty is effective (as compared to other forms of punishment) in deterring heinous and serious crimes.

“The retentionists’ credo that the death penalty deters crime is unsupported by compelling research. The retentionists, nevertheless, continue to call for the imposition of the death penalty, especially in relation to murder, rape and incest.

“However, the reality is that the death penalty would have dire repercussions on the efforts to prosecute and prevent the incidence of these crimes and the protection of rape survivors, and also the reduction of victimisation of the survivors under the legal process.

“For example, as the prosecution of rapists depends on the existence of a complaint by a rape survivor, the death penalty may discourage rape survivors from reporting the matter, especially if the perpetrator is a family member.”

Moreover, Thiru stressed, drug-related offences and addiction had been on the rise in Malaysia since the 1983 amendment to the Dangerous Drugs Act 1952 which imposed the mandatory death penalty.

“This weakens the case for the death penalty because more than half of the known outstanding death sentences are for drug offences (479 out of the 696 inmates on death row as of Feb 22 this year), followed by murder (204) and illegal possession of firearms (13).

The mandatory death penalty has obviously not had the desired effect intended by parliament.”

The little fish

The vast majority of arrests for drug trafficking are those of non-violent and low-ranking “little fish” in the drug market. The most recent report of the Global Commission on Drug Policy observes that these “little fish” are most visible and easy to catch, and do not have the means to pay their way out of trouble because they cannot afford bribes or bail, for example.

“The (end) result is that governments are filling prisons with minor offenders and with no impact on the scale or profitability of the market,” Thiru added.

“These minor offenders are usually poor, young, desperate and/or very impressionable. This is well illustrated by the much-publicised case of Yong Vui Kong who is on death row in Singapore after being arrested and convicted for being in possession of 47.26 grammes of diamorphine when he was just 18.

“He (Yong) represents one of the many thousands of small fish (in an elaborate international or domestic web) that are caught by governments every year and a victim of the growing drug mule recruitment drive in Southeast Asia and East Asia,” Thiru pointed out.

Furthermore, both in Singapore and Malaysia, there is a legal presumption that the accused who is in possession of drugs in excess of the proscribed weight limit is guilty of trafficking, and that the accused is deemed to know what he or she carries.

The burden is, therefore, on the accused to prove his or her innocence.

This is the reversal of the universal legal standard of the prosecution bearing the burden, which is described in the famous case of Woolmington vs DPP as the golden thread in all criminal cases. Thus, it follows that once a person is convicted for possession, the judge is compelled to hand down the death sentence.

No legal system in the world is fail-proof or error-free, Thiru added.

Despite the best efforts of all those involved in the judicial and legal system, errors still abound due to human frailty. Groups such as the Innocence Project in the US work to bring about post-conviction DNA exonerations and to date, 273 people in the US have been exonerated by DNA testing, including 16 who served time on death row.

Karthigesu case

In Malaysia, some may recall the famous 1970’s case of Karthigesu, who was wrongly convicted for murder and later acquitted.

“Needless to say, the opportunity to right a wrong will not be available if the death sentence had been meted out. Then, we, as a society, are collectively responsible for having sent an innocent man or woman to their death.

“It will be cold comfort to the deceased persons’ loved ones for us to hold that the system is not free from error and that every now and then, there are those who fall in between the stools! The burden of imposing a sentence of death is, therefore, great and leaves no margin for natural human error,” he said.

The execution of human beings by the state is seen as an “example of barbarity” and legitimises the taking of human life.

In the course of the on-going Save Yong Vui Kong campaign, Nazri had been quoted as saying that now was time for Malaysia to abolish the death penalty.

At the same time, he did add that Malaysia lacked the political will to change things.

As such, the Malaysian Bar Council believes it is time to generate that political will and fibre among our politicians.

In this regard, the Malaysian Bar Council said it lauded the creation of a cross-party caucus in parliament that seeks to promote support for the abolition of the death penalty, and its decision on June 27, 2011, to move a resolution in parliament to end the mandatory death penalty for drug-related offences.

A few years back, there was a tale about former prime minister Tun Dr Mahathir Mohamad ticking off a foreign journalist whose fellow countryman was on death row in Malaysia for drug trafficking.

The foreign journalist asked Dr Mahathir: “Sir, don’t you think that your law is barbaric?”

In response, Dr Mahathir was quoted as saying: “Don’t you tell that to me. Tell that to the drug traffickers.”

This seems to be the attitude of most Malaysians at present. Apparently, the abolitionists have to work harder to change public mind set.

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