Home Civil Society Voices Parliament should not take away judges’ power and discretion in sentencing

Parliament should not take away judges’ power and discretion in sentencing

Graphic: amnestyusa.org

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Malaysians Against Death Penalty and Torture (Madpet), in light of the recent conviction for murder and the sentencing to death of six persons to death in the Kevin Morais case on 10 July 2020, reiterates the call for the immediate abolition of the mandatory death penalty, which deprives the trial judge the discretion to sentence persons convicted of murder justly.

They may be all involved in the murder, but all the six may certainly not deserve the same sentence of death.

The person who paid or ordered the murder ought to receive the highest sentence. Maybe the person who did the actual killing deserves a high sentence, but the rest of them, depending on their involvement and participation, ought to sentenced accordingly by the judge based on the facts and circumstances of the case.

By imposing a mandatory sentence, Parliament removes the judge’s discretion in sentencing, which is a power that should be left with the judiciary. The judge now has no choice but to impose the mandatory sentence provided by the law, as enacted by Parliament.

A mandatory death penalty also reduces the possibility of persons charged helping the authorities identify and prosecute the ‘kingpin’, the person who ordered or paid for others to kill the victim; and/or other persons involved in the murder.

In the Altantuya Shaariibuu murder case, for example, there have been allegations that there may be others involved, possibly also someone who ordered or paid the persons who did the actual killing.

Assistance provided by accused persons to help bring others involved in a crime, must be a mitigating factor, which may result in a reduction of sentence – but this is not possible, when for murder in Malaysia, the current law provides just one mandatory sentence – the death penalty. As such, mandatory sentences may end up defeating Justice, when it helps other guilty persons evade investigation, prosecution and punishment.

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Likewise, in the Kevin Morais case, there may be still doubts whether the person who ordered or paid others to kill, or others involved have all been identified, investigated and charged in court. No one wants the guilty to escape.

When there is but one mandatory death penalty, many an accused will elect to be silent until all appeals are exhausted because it matters not since they will still be hanged to death if convicted. Further, there is that possibility that they may be also be subjected to threats to the lives of their loved ones by the persons who ordered or paid them to kill if they do speak up and reveal the truth.

Malaysia must abolish all mandatory sentences, not just the death penalty, and leave it to the judges and the courts to decide on the appropriate sentence for the crime in each and every case.

It may be acceptable for Parliament to set the maximum sentence. Other than that, we should trust our judges, courts and the judiciary to impose an appropriate and just sentence depending on the facts and circumstances of each individual case, after also taking into consideration all mitigating and aggravating factors. There is, in Malaysia, also the right to two appeals, a needed check and balance, that gives the opportunity to higher appellate courts to correct errors made by lower courts, including varying the sentences imposed.

The previous Barisan Nasional government was looking towards the abolition of the death penalty, which would bring Malaysia in line with the global trend where the death penalty has been abolished. At the end of 2019, 142 countries, which is more than two-thirds, had abolished the death penalty in law or practice.

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The immediate past Pakatan Harapan-plus government also wanted to abolish the death penalty, but then later they backtracked to just the abolition of the mandatory death penalty.

Many in the new government since March 2020, who left the previous Pakatan Harapan coalition and/or parties, including current Prime Minister Muhyiddin Yasin, must remember their personal commitment and abolish the mandatory death penalty at the very least.

Every day the mandatory death penalty remains in Malaysian law, everyone who committed the crime of murder, including those being tried today, will be automatically sentenced to death if found guilty. This will affect also current trials, where prosecution and defence lawyers will certainly proceed differently if the sentence for murder was not the mandatory death penalty.

Parliament must respect the Judiciary and restore sentencing discretion to the courts. All mandatory sentences ought to be abolished.

Mandatory sentences also is a violation of one’s right to a fair trial, as it removes the sentencing power of judges, who can and will decide on just and appropriate sentences based on all the facts and circumstances of a particular case, after also considering all mitigating and aggravating factors.

The death penalty has been shown to have failed in deterring crime. It is also an irreversible punishment, and mistakes can happen. The death penalty also violates the rights and best interest of a child when parents and/or siblings are hanged by the state.

The abolition of the mandatory death penalty will not extinguish the death sentence, which will still be an available sentence for the worst criminal.

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Therefore, Madpet:

  • Calls for the speedy abolition of the mandatory death penalty, as the first step towards ultimately a total abolition of the death penalty
  • Calls on Malaysia to abolish all mandatory sentences in law and return to judges and courts sentencing discretion for all crimes
  • Calls on Malaysia to respect the right to a fair trial, whereby a fair trial includes also the sentencing procedure that takes into consideration mitigating and aggravating factors before the court decides on an appropriate just sentence
  • Calls on the Malaysian Executive and Legislative branch of government to respect the Malaysian Judiciary, and not remove or diminish the judiciary’s role and function in the administration of justice, which includes trying all alleged law breakers to confirm guilt, and also the imposition of a just sentence
  • Reiterates the call for the total abolition of the death penalty and a moratorium on all executions pending abolition

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

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