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) Wan Junaidi Tuanku Jaafar also said Malaysia would no longer have the mandatory death penalty in 2023.
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 may be 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 this will happen before Parliament is dissolved and a new government comes into being following the coming general election.
The abolition of the mandatory death sentences for 11 offences is not enough as Malaysia must abolish totally the death penalty. Note also that Malaysia, since 2018 and again in 2020, has taken the stand to have a moratorium on executions pending the abolition of the death penalty when they voted in favour in UN General Assembly resolutions.
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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 March 2018: the alternative sentence of life imprisonment was only available when certain rigid conditions were 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 two 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 or she still will be sentenced to death.
That drug trafficking law amendment that abolished the mandatory death penalty never gave our judges full discretion in sentencing. Parliament wrongly restricted on what matters the judge could 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 on what should be the duties and responsibilities of the judicial arm of government.
Disclose special committee report
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, the Human Rights Commission of Malaysia, academics, criminologists and civil society organisations submitted their report to the government on 17 July 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 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 with their respective MPs. To think that MPs after they have been 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 the mandatory death penalty would be abolished, but he failed to disclose what the alternative sentences would be.
Full sentencing discretion to judges
Madpet would 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 suffering grievous injury when the crime is committed.
If a group of five went to premises 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 say that a different sentence [would be give] only if the others could prove they 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 in sentencing will take all matters into consideration for each and every person convicted including age, role played, whether first-time offender, etc. So the different convicts involved in the same crime may receive different sentences, and the one who actually discharged the firearm would receive the highest sentence. If someone was hurt, then a higher sentence [would be given]. If someone was killed, then maybe even a higher sentence [would be meted out].
Parliament and all in Malaysia should trust our judges, who are appointed by the King, to hand down a just sentence.
Therefore, Madpet calls for alternative sentences, not just life imprisonment, and Parliament should set a maximum prison sentence so that judges will have full discretion to impose the most just sentence to each person who has 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 the 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 with 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 executions pending the abolition.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture