Yesterday was the World Day Against the Death Penalty.
Every year, on this day, focus is given to a specific issue, and in 2023, the theme was “Torture and the death penalty”.
It highlights, among others, the use of torture – whether physical, psychological or sexual – during investigations before one is charged and tried.
The other focus includes torture suffered by those on death row awaiting execution – known as the death row phenomenon, and torture during executions due to the methods used.
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Lastly, it highlights the torture suffered by the families and children of those on death row and when they executed – noting that they are a category of innocent persons who are also severely affected by the death penalty.
Stop torture during investigations
In Malaysia, even though torture is prohibited by law, it still is [allegedly] being used by the police, other law enforcement and even the prosecution in some cases, allegedly for the purpose of securing ‘necessary evidence’. This is an unacceptable justification, and the use of torture must end.
Allegations of torture by police and law enforcement are extremely difficult to prove by the accused, more so when there is no CCTV with recording capacity in all places of the station or that will be able to confirm no torture by police from the point of arrest.
Getting suspects to confess was perceived as the main reason behind torture in police custody. Parliament in Malaysia since 2007 has amended the Criminal Procedure Code that now does not allow the prosecution to use any statements made by an accused during the course of a police investigation like a confession.
Section 113(1) of the Criminal Procedure Code states that “no statement made by any person to a police officer in the course of a police investigation made under this Chapter shall be used in evidence…” Only the accused can use such statements in court.
However, the problem remains that other statements, not confessions, could still be used to recover other evidence other than confessions.
In the case of the murder Altantuya Shaariibuu in 2006, … the accused in an offence that then carried the mandatory death penalty “had also independently led the police to the scene of crime which was a remote and isolated place up in the hills”.
Why would anyone lead the police to evidence for an offence that would result in their being executed? Was there torture used? Were there ‘other promises’?
Most suspects reasonably will keep quiet, and most lawyers will advise them against doing anything that will assist the police to get evidence needed to convict.
Malaysia and death penalty
In 2018, on the World Day Against Death Penalty, it was announced that Malaysia’s cabinet had reached a consensus that the death penalty for 33 offences as provided for under eight acts of law should be abolished.
However, on 13 March 2019 the Malaysian cabinet did a U-turn on abolishing the death penalty for all 33 offences, and instead agreed to only abolish the mandatory death penalty for all 11 mandatory death penalty offences.
Pakatan Harapan then lacked the political will and courage to abolish the death penalty.
The bill to abolish mandatory death penalty was finally tabled in October 2022, by the then Perikatan Nasional government during the prime ministership of Ismail Sabri Yaakob. After that, Parliament was dissolved, and there was a general election and a change of government.
Then, the new PH “unity government” or coalition government tabled the law to abolish the mandatory death penalty and life imprisonment. The Abolition Mandatory Death Penalty Act 2023 came into force on 4 July, but the sister act that would allow those on death row to apply to court to review their death sentence was delayed.
The Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 finally came into force on 12 September. It would allow about 1,020 prisoners (of whom about 850 on death row had been handed the mandatory death penalty or the rest serving life imprisonment sentences) to now file applications in court to review these sentences.
The result of the abolition of the mandatory death penalty now means that judges now have a choice in imposing sentences other than just the death penalty – but the reality is that the death penalty remains for about 33 offences.
Courts continue to hand down death sentences
Despite the abolition of the mandatory death penalty, it is disturbing that the courts are still handing down the death penalty. As examples, on 1 August 2023, two men charged with murdering a woman were sentenced to death by the High Court; and on 2 August, the Court of Appeal in Putrajaya upheld the death sentence imposed on a businessman for trafficking in 9.5kg of cannabis.
Number of death penalty offence remains the same
(Malaysians Against Death Penalty and Torture (Madpet) notes that things will remain the same, as the death sentence is still available for about 33 offences, many of which do not even result in any death or grievous bodily harm of any victim whatsoever. For as long as the death penalty is not abolished, people will continue to be sentenced to death by the courts.
Even after the revision of the death sentence of the about 850 on death row, it is likely that many will still end up with the death sentence. Not all will receive the alternative sentence of imprisonment plus whipping. So death row will still have people waiting to be hanged.
The courts cannot be blamed for sentencing people to death for so long as the death penalty remains in the law. Only the government, now Anwar Ibrahim’s PH-led unity government can totally abolish the death penalty in law.
Malaysia’s position – which had been declared to the world when Malaysia voted in favour of the UN General Assembly resolution in 2018, 2020 and 2022 – has been than Malaysia will abolish the death penalty.
Malaysia committed to a moratorium on executions pending abolition.
Will the Anwar-led government have the courage and political will to abolish the death penalty?
In Indonesia, at the end of 2022, the revised Criminal Code introduced an automatic 10-year probation for convicts on death row to demonstrate good behaviour for the possibility of having their sentences commuted.
The global trend has been towards abolition – as countries no longer believe in ‘murdering’ the convicted, but imposing a punishment that will allow for repentance, rehabilitation and a second chance.
Madpet reiterates the call for the total abolition of the death penalty in Malaysia and a moratorium on executions pending abolition.
Madpet urges judges to consider not sentencing any person to death at the risk of a miscarriage of justice, noting that the innocent can be wrongly executed – like what happened in the case of Chiang Kuo-ching, who was executed in Taiwan in 1997 after being convicted of sexually abusing and murdering a five-year-old girl. After his death, in 2011 Taiwan’s Ministry of Justice admitted that Chiang had been executed in error.
Madpet calls for the abolition of torture, especially by the police and law enforcement, and urged for the speedy installation of CCTV with recording capacity to be installed at all areas of the police station and for bodycams to be mandatory for police and other law enforcement. From the point of arrest until a suspect is charged, there must be evidence that no torture or wrongdoings were committed by the police or law enforcers in violation of the law and in violation of a suspect’s rights and justice.
Noting that the death penalty cannot be abolished other than by law, Madpet calls on Prime Minister Anwar, the executive and Parliament to speedily amend laws that will effectively abolish the death penalty in all laws. If not, the courts that are bound to follow the written law may continue sentencing persons to death when convicted for any of the about 33 offences that still carry the death penalty. – Madpet
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)