Malaysians Against Death Penalty and Torture (Madpet) acknowledges the desire of the families and friends of murder victims for justice, which reasonably should be that murderers and hopefully the persons who ordered and paid for the killing of their loved ones, be identified, investigated, prosecuted and accorded a fair trial. If convicted, they ought to be punished.
However, Madpet disagrees that the death penalty ought to be retained to ensure justice.
The families of the late deputy public prosecutor Kevin Morias, millionaire Sosilawati Lawiya, bank manager Stephen Wong Jing Kui, university student Chee Gaik Yap, Annie Kok, one-year-old Muhammad Hafiz Idris and his four-year-old sister Nurulhanim Idris were reported to have met with the Select Committee for the Abolition of the Death Penalty chaired by former Chief Justice Richard Malanjum at Parliament on 14 January 2020 to call for the retention of the death penalty (Malay Mail, 14 January 2020; New Straits Times, 14 January 2020).
No one wants an innocent person to be executed
Madpet also believes that no one, including the family and dependents of murder victims, wants anyone to be wrongly convicted or executed.
We recall one recent case in Asia where an innocent man was wrongly executed: in January 2011, 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.
“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?” – Nazri Abdul Aziz, the then Minister in the Malaysian Prime Minister’s Department.
Risk of miscarriage of justice in Malaysia is real
In Malaysia, the risk of this miscarriage of justice is high. In our system of administration of justice, the police, prosecutors, lawyers, judges and even witnesses can make mistakes that may lead to the conviction and execution of innocent persons. It can also lead to the real perpetrators and masterminds evading justice.
In the case of the murder of Bill Kayong, a human rights defender, four persons were jointly tried: one was charged with murder and the other three were charged with abetment of murder.
At the close of the prosecution case, the High Court acquitted three of them because the prosecution failed to adduce sufficient evidence to prove the charge. Only one Mohd Fitri Pauz was convicted and sentenced to death by the High Court in August 2018. A perusal of the judgment points towards a possible failure of the prosecution to adduce sufficient evidence, even circumstantial evidence, to even satisfy the judge to ask the three abettors to enter their defence. The three were acquitted.
In the murder case of N Dharmendran, who was killed in police custody, all four police officers were acquitted. For a crime that happened in police custody, it is odd that there was no evidence linking those who had been charged to the torture and/or killing of the victim.
Attention also must be drawn to the inquiry findings of the Enforcement Agency Integrity Commission (EAIC) into the death of Syed Mohd Azlan Syed Mohamed Nur that concluded that the police caused the death and worse that the police also tampered and/or removed evidence.
In both the cases of Dharmendran and Syed Mohd Azlan, recently the High Court, following civil suits initiated by the families, awarded compensation to the families, but sadly none of the police officers who allegedly tortured and killed seems to have been convicted.
Then, we have the case of Wang Kelian, where more than 150 remains of foreigners, believed to be human trafficking victims, were exhumed from shallow, unmarked graves.
We recall that an exhaustive, two-year investigation by a New Straits Times special probes team into the mass killings in Wang Kelian in 2015 suggested a massive, coordinated cover-up. “One of the biggest revelations was that the human trafficking death camps had been discovered months earlier, but police only announced the discovery on May 25…Another huge question mark was why did police order the destruction of these camps, which were potential crime scenes, before they could be processed by forensics personnel?…” (New Straits Times, 20 December 2017).
We recall also how the former attorney general/public prosecutor decided not to proceed with charging anyone for the IMDB and/or SRC cases.
All these and many other cases raise many questions about the state of the administration of justice in Malaysia and, more importantly, escalates the possibility of miscarriage of justice, which may result in the wrongful conviction of innocent persons, which may also result in wrongful executions if the death penalty was retained in Malaysia.
Justice demands a comprehensive honest investigation by the police, enforcement agencies and the prosecution and, where sufficient evidence is obtained, a prosecution of accused persons and a fair trial by competent judges.
The government must no longer tolerate incompetence and wrongdoings of the police, enforcement officers, prosecutors and judges. It ought to remove ‘bad apples’ in our administration of justice and not merely subject them to disciplinary action.
How many investigation of cases of murder have not even resulted in identification of alleged perpetrators and/or a trial in Malaysia?
During the rule of the Barisan Nasional, the government stopped providing Malaysians with clear statistics on the actual number of murders, rape and other crimes.
It is Madpet’s hope that the new Pakatan Harapan government will now start to disclose actual figures of crime including murder, together with the status of investigation and prosecution.
A crime index which lumps several offences together does not tell us how many murders have occurred and how many such murder cases remain unsolved. Justice demands thorough investigations followed by proper prosecution.
For murder, it is not just the actual killer that needs to be identified and prosecuted but also all others who paid the killer to kill or ordered the killing. The abolition of the mandatory death penalty, coupled with the possibility of reduced sentences for information and evidence of those who ordered or paid another to kill, will bring about greater justice and reduce the possibility of the guilty escaping justice.
It is hoped that our new Pakatan Harapan government will do what is necessary to improve our administration of justice to ensure that justice is truly done.
Additional justice for family of victims and victims of crime – compensation
The families of murder victims today cannot even rely on the fact that the perpetrators have already been found guilty and convicted of murder by court in a civil suit seeking damages and/or compensation from the perpetrator.
This is because Section 43 of the Evidence Act does not allow this. “The family of Mongolian model Altantuya Shaariibuu will have to prove her brutal killing all over again as the civil High Court has ruled that evidence from the murder case, which found two police officers guilty, cannot be used in the civil case” (The Star, 2 October 2018).
This section ought to be amended so that families of victims or victims of crimes, ought to be able to use these convictions as proof of the alleged crime rather than being forced to prove all over again in a new court case the fact that the perpetrator killed, raped or committed a crime against the victim.
In criminal cases, the courts should also order the perpetrators to pay victims adequate damages and/or compensation.
Families were merely objecting to removal of death penalty for murder?
It must be noted that these were families of victims that were murdered or killed, but in Malaysia there are many offences that carry the death penalty – and some even the mandatory death penalty – for offences that do not even directly result in the death or injury of the victim.
Some offences that now have the mandatory death penalty for crimes that do not result in the death of victims include drug trafficking and certain listed offences under Sections 3 and 3A of the Firearms (Increased Penalties Act 1971): where a firearm is discharged, both the person who discharged the firearm and the accomplices will face the mandatory death penalty, when committing the following six crimes
- the preventing or resisting by any person of his own arrest or the arrest of another by a police officer or any other person lawfully empowered to make the arrest
- escaping from lawful custody
- abduction or kidnapping under Sections 363 to 367 of the Penal Code and Section 3 of the Kidnapping Act 1961 [Act 365]
- house-breaking or house-trespass under sections 454 to 460 of the Penal Code
The offences that carry the mandatory death penalty that result in death of the victim other than murder (Section 302 of the Penal Code) are:
- committing terrorist acts where the act results in death – Section 130C (1)(a)
- hostage taking where the act results in death – Section 374(a) of the Penal Code
Whilst the views of these family of murder victims ought to be considered, justice demands that Malaysia ought to abolish the death penalty without any more delay. It must be acknowledged that there are also many family members of murder victims that are strong advocates for the abolition of the death penalty.
The risk of miscarriage of justice demands that we do not wrongly extinguish the life of a fellow human being, and the only real solution is the total abolition of the death penalty.
Perpetrators of crime must be punished but never put to death. We do not cut off the hand of a criminal who by his crime resulted in a victim losing an arm. Likewise, we should not kill someone who killed another.
Madpet reiterates its call for the total abolition of the death penalty.
Madpet urges the government to not procrastinate and promptly abolish the mandatory death penalty in the upcoming parliamentary session, which hopefully will soon follow with the total abolition of the death penalty.
Madpet also calls for the improvement of the administration of justice in Malaysia – especially in the quality of the police, enforcement officers and the prosecution – to ensure that justice is done.
Madpet also calls for the provision of compensation and/or damages to murder victims and victims of crime and for an amendment of Section 43 of the Evidence Act 1950 to allow victims to use the fact of conviction as proof of the liability of the perpetrators in their claims for compensation and damages in court.
Madpet also calls on the government to abolish detention-without-trial laws and all unjust laws speedily.
Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture