Malaysians against Death Penalty and Torture (Madpet) is saddened by the alleged U-turn by Prime Minister Dr Mahathir Mohamad and his cabinet who had decided earlier to abolish the death penalty, but now will apparently only abolish the mandatory death penalty.
On 13 March 2019 Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin was reported as saying in Parliament that only the mandatory death penalty will be repealed ie the mandatory death penalty for nine offences under the Penal Code and two under the Firearms (Increased Penalties) Act 1971 (Malay Mail, 13 March 2019).
It must be noted that the cabinet under Mahathir had at a meeting in October 2018 decided to repeal not just the mandatory death, but the death penalty for 33 offences under eight acts.
“The Cabinet has decided to abolish the death penalty, and it will be tabled in the next Parliament sitting, which will begin on October 15, said Datuk Liew Vui Keong [Minister in charge of law in the Prime Minister’s Department] … “All death penalty will be abolished. Full stop.” (Malay Mail, 10 October 2018)
This decision was applauded worldwide and even celebrated at the recent 7th World Congress Against the Death Penalty in Brussels on 26 February 2019 to 1 March 2019, which also highlighted the United Nations General Assembly 7th Resolution for the moratorium of executions pending abolition. This was adopted on 17 December 2018, with 121 in favour (including Malaysia for the very first time), 35 against and 32 abstentions.
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It is now disappointing that some cabinet members and political parties in Pakatan Harapan may have buckled. This may be what led to a change in position. But ultimately, it is the prime minister who chooses his cabinet, and so blame would really fall on the prime minister.
All the cabinet had to do was to table the bill(s) to repeal the death penalty, and leave it to Parliament. If Parliament defeats the bill, then blame lies with Parliament not Mahathir and his cabinet.
The mandatory death penalty has already been declared unconstitutional in about 12 jurisdictions, the last being in Kenya and in June 2018, in Barbados. There is currently a challenge at the Federal Court, seeking a similar declaration that the mandatory death penalty is unconstitutional, in a case represented by Gopal Sri Ram (The Star, 6 March 2019).
Mandatory sentences are undemocratic and unconstitutional as the legislature infringes and takes away completely the power of the judiciary, when it comes to the imposition of an appropriate and just sentence on a convicted person.
Parliament could fix minimum and maybe maximum sentences but it should never take away a judge’s discretion when it comes to sentencing.
As such, the abolition of the mandatory death penalty is long overdue, but it would be really no great achievement. Abolishing the death penalty, on the other hand, would be something we can all be proud of, as Malaysia joins the majority of nations. Everytime someone is executed, every Malaysian is responsible for the death.
The reason for the abolition of the death penalty is clear. It has been shown in Malaysia that it is no deterrent to crime. It has been shown for drug trafficking.
And we believe that the number of murders has been increasing, a fact that cannot be shown ever since the past government stopped giving actual statistics of crimes, including murder since about 2014.
Now, we get a crime index, which is a basket of several crimes. This hides the fact whether the numbers of murders, rape cases, snatch thefts, robberies or any particular crimes are actually increasing or decreasing. Malaysians deserve real statistics of each and every crime.
The risk of miscarriage of justice is real: an innocent man could wrongly be executed – the flaws in the administration of justice are real.
Spending time in prison is adequate punishment, and there is really no justification for putting anyone to death in this modern world. The notion that justice will be done only by killing killers, raping those who rape, beating up those who had assaulted others and such kind of punishments is not the kind of justice that Malaysia should ever advocate.
Without the total abolition of the death penalty, Malaysia is most unlikely to bring back Sirul Azhar from Australia, and as such that may prejudice the investigation of other perpetrators who may have been involved in ordering or paying for the Altantuya Shaariibuu murder.
In a criminal trial, the accused person will usually elect to remain silence, not pleading guilty. The accused would be unlikely to say, “I did it with so and so” or “I did it because I was ordered or paid to do so by some other person” because any such statement would also be a personal admission of guilt.
It is also less likely for those sentenced to death, even after all appeals and petitions are exhausted, to come forward and give information about perpetrators yet to be identified or prosecuted. What is the use, as they will still be executed.
Remember there is always a possibility that those perpetrators, still free and unidentified, may threaten the convicted to remain silent, if not their family members may be harmed.
But if the sentence is not death, there is a better chance of the convicted speaking up and of more perpetrators being brought to justice.
Malaysia, being a Muslim-majority nation, should also not insist on the death penalty, now in secular laws (not Islamic laws) that do not comply with the evidential and procedural requirement of Islam, to be retained.
Christians, and especially Catholics, after Pope Francis’s clear position for the abolition of the death penalty, also do not support the continued existence of the death penalty. Likewise, Buddhist, Hindus and Sikhs, who advocate the sanctity of life, should be against the death penalty.
The Human Rights Commission of Malaysia (Suhakam), the Malaysian Bar, Parliamentarians for Global Action (PGA) and many others also want the death penalty abolished in Malaysia.
Even in France, when the death penalty was abolished by the government, over 60% of the population were against the abolition. The prime minister and parliamentarians must have the required political will and courage to do the right and just thing and immediately abolish the death penalty.
The worry of loss of popular support and the impact on the next general election, on four years’ time, is a deplorable reason not to completely abolish the death penalty now.
Madpet urges Mahathir and his cabinet to bravely table the bill to abolish the death penalty for all offences, and let Parliament decide on it. Let the votes be transparent so all will know how each and every parliamentarian voted, which will also help in people to later lobby their MPs.
Madpet also calls for a continued moratorium on all executions pending the abolition of the death penalty.
Madpet calls on Malaysian political parties to come out and clearly state their position on the death penalty. It is shameful to give the impression in certain forums that they are for the abolition of the death penalty, only to see some of their leaders come out later taking an opposite stance.
Madpet also calls for parliamentarians in the Opposition and backbenchers to also support the abolition of the death penalty on principle and for justice, and not simply vote against it just because it is a bill tabled by the government.
Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture.