Malaysians Against Death Penalty and Torture (Madpet) welcomes the tabling of the Abolition of Mandatory Death Penalty Bill 2023 in Parliament on 27 March.
This bill will finally bring about the abolition of the mandatory death penalty on 27 March. With mandatory death penalty offences, on conviction, judges had no choice but to sentence to death.
If the bill tabled becomes law, judges will finally have the option and discretion to impose the death penalty or “imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes”.
Madpet is against corporal punishment and calls for whipping to be removed.
With the mandatory death penalty, the accused are less likely to reveal who paid or ordered them to kill, as they will still be sentenced to death and hanged. This situation allowed for many accomplices including those that asked or paid them to kill to escape justice.
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We recall the Altantuya Shaariibuu case, in which many believed that the two policemen, Sirul Azhar and Azilah Hadri, who have been convicted of murder, had acted on the order or instructions of third parties.
With the mandatory death penalty, the disclosure of information or evidence which could lead to the one who ordered or ‘paid’ for the killing Altantuya being identified and prosecuted, would not save the two from being hanged.
With the amendments, where there is the possibility of sentences other than death, the chances of accused persons revealing evidence of accomplices increases – as such coorperation with law enforcement would be likely to mitigate the sentence, and they may then evade the death penalty.
This will end situations where the one who paid or ordered someone to be killed escapes.
Therefore, Madpet urges the government to consider amending the lower limit of imprisonment of 30 years to maybe 15-20 years, as this may assist the prosecution and increase the chances of all involved in the murder being brought to justice.
Madpet also believes that the death penalty should be restricted to offences that actually directly caused the death of the victim. The actual killer may be imposed a higher sentence, but other accomplices who did not actually kill should be given a lower sentence. Of course, the person who ordered or ‘paid’ for a person to be killed should be given the highest sentence – for if not for the action of that person, no one would have beene killed.
Madpet opposes the death penalty as there is a serious risk of miscarriage of justice. Judges are human and not infallible. There are so many other reasons to support abolition. Malaysia had in 2018, 2020 and 2022 also voted in favour of the UN General Assembly Resolution towards abolition of the death penalty.
In 2009 the High Court found Sirul and Azilah guilty of murder.
Then, in 2013, a three-member panel of the Court of Appeal unanimously decided that the conviction of the two had been unsafe and acquitted them. The Court of Appeal said that certain evidence was not considered and was also concerned that motive was never established.
Then, in 2015, the Federal Court overturned that Court of Appeal decision and reinstated the High Court’s conviction and mandatory death sentence.
Then, on 8 December 2020, the Federal Court dismissed Azilah’s application for a retrial and review of his 2015 conviction over Altantuya’s 2006 murder, saying his own suppression of alleged instructions to carry out the murder did not lead to an exceptional situation warranting a review. One of the new issues raised was the alleged instructions from a “third party” to conduct murder.
However, there the Federal Court stressed “the importance of finality of decisions for the administration of justice’” The court apparently stated: “Now it must be emphasised that he kept silent about this so-called new evidence during his investigation, during trial in High Court and appeals at Court of Appeal and also Federal Court.”
Madpet is concerned that the accused may have kept silent because of threats or ‘promises’ to himself and his family. Further, revelations that you killed because you were given instructions to kill by some other will not save you from conviction and the mandatory death penalty.
Further, many a lawyer would advise clients in criminal trials to remain silent, and the law acknowledges this right even in police questioning, where a “person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture” (Section 112(2), Criminal Procedure Code).
If the death penalty is abolished, and there is a flexibility of sentences and no more just a mandatory death penalty or a death penalty or a mandatory life imprisonment, then accused persons will more likely cooperate and reveal accomplices so that their sentences can be reduced.
Hence, is there still doubt on the guilt of Sirul and Azilah’s case? Was there a miscarriage of justice? A miscarriage of justice happens also when the ‘guilty’ escapes prosecution.
Madpet also believes that applications for retrial, reviews and even submissions of additional evidence need to be made easier to ensure that justice is done. That is more important than the finality of decisions.
In the Altantuya matter, we also note that the High Court in a civil matter found that, besides Sirul and Azilah, political analyst Abdul Razak Baginda was also found liable to a claim of unlawful killing of the deceased (Altantuya). The government was also vicariously liable as Sirul and Azilah were then police officers. They were ordered to pay “RM5 million in general, aggravated and exemplary damages to the deceased’s family”.
It is a sad situation that very few victims of crime in Malaysia commence civil suits against perpetrators of crime. For murder victims’ families, a civil suit, which would allow them to get monetary compensation, will bring about some justice for family members and dependents. They should not just be satisfied with the death penalty, a prison sentence, whipping or fines imposed on the convicted.
Madpet welcomes the tabling of the Abolition of Mandatory Death Penalty Bill, but calls for the death penalty to be abolished.
Madpet also calls for the abolition of the corporal punishment of whipping and calls on the government to amend the bill and remove whipping. Whipping in Malaysia is torture and inhumane and could even result in long-term physical and psychological damage. It is very different from the whipping as practised in Sharia law.
Madpet reiterates the call for the speedy passing and putting in force of this law, for until then, all those who commit mandatory death penalty offences will still face the mandatory death penalty. Providing for retrospective effect of laws may not work.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture
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