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Government must fulfil promise to abolish ‘mandatory death by hanging in all acts’

Graphic: amnestyusa.org

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On 10 October 2018, the 16th World Day Against the Death Penalty, Malaysians Against Death Penalty and Torture (Madpet) wants to remind the Malaysian government that it has not yet made good its promise to abolish the mandatory death penalty in Malaysia.

The Pakatan Harapan manifesto clearly stated: “The Pakatan Harapan Government will revoke the following laws: Sedition Act, Prevention of Crime Act 1959…Mandatory Death by Hanging in all Acts…”

Currently in Malaysia, the death penalty is mandatory for about 12 offences, while about 20 other offences are punishable by a discretionary death penalty. Murder and drug trafficking carry the mandatory death penalty. Many of these mandatory death penalty offences do not even involve any death or grievous injuries to victims.

The effect of abolishing the mandatory death penalty will restore judicial discretion when it comes to sentencing. Judges, will thereafter, be able to evaluate each and every convicted person and determine what the just and fair sentence should be, after taking into account all factors and circumstances.

The mandatory death penalty is undemocratic as it violates the democratic principle of separation of powers. The legislature (Parliament) has robbed the judiciary of its rightful role and power when it comes to sentencing.

When a law provides for just one mandatory sentence, in this case death, judges on finding a person guilty of an offence under that law, have no choice but to sentence the convicted to death, even if convicte justly does not deserve to be hanged to death.

Many of the politicians and political parties that are now in power, previously in opposition, were always for the abolition of the death penalty. But now when in power, it is disappointing to see that they are procrastinating.

Further, it must be reminded that they have not yet made good their election promise to repeal all laws that provide for “mandatory death by hanging”, which was a decision and commitment of all the four Pakatan Harapan parties.

As of end-June, there were 1,267 people on death row or 2.7% of the prison population of about 60,000 people (The Star, 28 June 2018); 35 executions took place from 2007 to 2017.

The death penalty in Malaysia currently is provided for in secular or ordinary laws, not in Islamic law. As such, there is no reasonable justification for any Muslim in Malaysia to oppose the abolition of the death penalty on the grounds that Islam allows the death penalty for certain specified offences. In Islam, there is a strict requirement to comply with Islamic criminal procedure and evidential requirements. Even then, in Islam, for example, in the case of murder, there are ways that the death penalty can be avoided.

As the acts that now provide for the death penalty in Malaysia are in the secular law, Muslim politicians and their parties that use the argument that Islam allows for the death penalty, so they oppose the abolition, are very wrong. They need to demonstrate leadership not fear.

The best interest of the child is certainly best served by the incarceration of a parent, sibling or relative rather than having them hanged to death by the state. Malaysia, which has ratified the Child Rights Convention, has an obligation to do what is in the best interest of the child, and as such this is yet another reason why the death penalty must be abolished.

The possibility of a miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable and is yet another reason why the death penalty needs to be abolished. We recall the words of the then Malaysian Minister in the Prime Minister’s Department, Nazri Abdul Aziz, who said “No criminal justice system is perfect. You take a man’s life and years later, you find out that another person did the crime. What can you do?” (The Star, 29 August 2010, ‘Abolish death penalty, it’s incorrect to take someone’s life, says Nazri’).

In the Malaysian context today, it would have been great injustice if the two convicted for the murder of Altantuya Shaariibuu had been hanged – for then it would have resulted in others involved escaping justice. Likewise, in other cases where there may be other perpetrators of the crime still at large, yet to be arrested, charged and tried.

The abolition of the death penalty is an ineluctable global trend: 106 countries had abolished the death penalty in law for all crimes by the end of 2017, and 142 countries had abolished the death penalty in law or practice. Malaysia embarrassingly is amongst the few countries that still retains the outdated death penalty and carries out executions.

In 2018, Malaysia, under Umno-BN, brought into effect the abolition of the mandatory death penalty for drug trafficking.

It has been about five months since the new Pakatan Harapan-led government won power, but we have yet to see bills being tabled that will lead to the abolition of the death penalty. Our hope is that we will see this happening in the current parliamentary session or at least by the end of the year.

Being a reformist administration, the PH government needs to make rehabilitation and second chances the principal consideration in sentencing.

Madpet calls for:

  • the immediate abolition of the “mandatory death by hanging in all acts” as promised in Pakatan Harapan’s Buku Harapan: Rebuilding Our Nation, Rebuilding Our Hopes
  • the abolition of the death penalty
  • an immediate moratorium on all executions pending abolition

Charles Hector issued this statement for and on behalf of Malaysians Against Death Penalty and Torture (Madpet).

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