MALAYSIANS Against Death Penalty and Torture (MADPET) is pleased with the recent announcement that mandatory death and mandatory whipping sentences would be abolished through 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 the mandatory death penalty in 2023.
It must be noted that 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 that this is 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 to assure Malaysians that this will happen before Parliament is dissolved and a new Government comes into being following the 15th General Elections (GE15).
Abolition of the mandatory death sentences for 11 offences is not enough as Malaysia must abolish totally the death penalty.
It is noteworthy that Malaysia, in 2018 and again in 2020, took the stand to have a moratorium on executions pending the abolition of the death penalty when they voted in favour of related UN General Assembly (UNGA) resolutions.
Don’t make the same mistake again
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 Mar 15, 2018, whereby the alternative sentence of life imprisonment was only available when certain rigid conditions were fulfilled, including one mandatory condition – namely 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 two appeals.
It is not right for the convicted, who may have pleaded not guilty, to now be forced to assist enforcement authorities 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 the mandatory death penalty never gave our judges full discretion when it comes to sentencing.
Parliament wrongly restricted what matters judges can consider when judges should be free to consider all mitigating or aggravating factors. This can be said to be a case of the legislative arm of Government encroaching into what should be the duties and responsibilities of the judicial arm.
Disclose report to review alternative sentences
The Special Committee to Review Alternative Sentences to the Mandatory Death Penalty, made up of former Federal Court judges, Attorney-General’s Chambers (AGC) officers, Prisons Department senior officers, representatives from the Bar Council and Human Rights Commission of Malaysia (SUHAKAM) as well as academics, criminologists and civil society organisations, submitted their report to the Government on July 17, 2020.
Sadly, to date, the report has still not been made available to the public. How then can Malaysians instruct their elected representatives in Parliament?
We wonder whether the recommendations of the special committee have even been adopted or ignored.
MPs represent their constituents in a democracy and are not “feudalistic” political masters. Hence, there must be transparency so the people can also discuss it 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 said that the mandatory death penalty will be abolished but failed to disclose what the alternative sentences will be.
Give full sentencing discretion to judges
MADPET will oppose it 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 suffers grievous injury when the crime is committed.
If a group of five went to a premise to rob, and suddenly one of them takes out a gun and fires, should all five be sentenced to death or to the same sentence?
To argue for a different sentence only if others can “prove that he had taken all reasonable steps to prevent the discharge” of the firearm is absurd.
Now, Section 3A of the Firearms (Increased Penalties) Act 1971, dealing with the penalty for accomplices in case of discharge of a firearm, 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, in exercising their discretion when it comes to sentencing, will take all matters into consideration for each and every person convicted, including age, the role played, whether they are a first-time offender and so on.
Therefore, the different convicts involved in the same crime may receive different sentences, with 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 that Parliament 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, 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.
We also reiterate our call for the total abolition of the death penalty and that Malaysia continues to impose the moratorium on execution pending abolition. – Sept 11, 2022
Malaysians Against Death Penalty and Torture (MADPET) is a movement for the abolition of the death penalty and torture.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
Main photo credit: Amnesty International Malaysia