KUALA LUMPUR - In June last year, Malaysia announced its intention to abolish the mandatory death penalty for non-violent offences and give the courts discretion in sentencing but the road to achieving this is long and winding albeit with an end in sight.
With the new coalition government, led by Pakatan Harapan which first put the moratorium on the death penalty in 2018, in place, work on the necessary amendments to existing legislation has continued.
Deputy Minister in the Prime Minister’s Department (Law and Institutional Reforms) Ramkarpal Singh said in a statement on Jan 10 that they were re-examining and reviewing alternative sentences to the mandatory death penalty before tabling the amendments in the Dewan Rakyat next month.
The first reading of the amendments abolishing the death penalty was on Oct 6, 2022. In the first reading, the amendments proposed imprisonment for natural life as a replacement for the mandatory death penalty. There have not been any announcements of changes so far.
"(The only difference is) either you are executed and you will die or you end up being in prison for the rest of your life. But it is a substantial change ... to do away with the death penalty and give discretion to the judges,” said Datuk Seri M Ramachelvam, chairman of Bar Council Malaysia’s Law Reform and Special Areas Committee. Previously, the government had agreed to amend the related Acts to pave the way for the abolishment of the mandatory death sentence. At the first reading in the Dewan Rakyat in October last year, the amendments were presented via the following seven government Bills: the Penal Code (Amendment) Bill 2022, the Criminal Procedure Code (Amendment) Bill 2022, the Criminal Justice (Amendment) Bill 2022, the Kidnapping (Amendment) Bill 2022, the Firearms (Increased Penalties) (Amendment) Bill 2022, the Arms (Amendment) Bill 2022 and the Dangerous Drugs (Amendment) Bill 2022.
However, four days after the amendments were tabled, Parliament was dissolved to make way for the 15th general election. Now that work on the abolishment of the mandatory death penalty has resumed, lawyers and human rights activists are urging the government to consider more penal reforms, such as adding more alternative sentences in place of the mandatory death sentence and clarifying the fate of the current death row inmates.
They say Malaysia needs to join most of the world in having a more just system that not only deals with retribution but also allows for rehabilitation, reform and reintegration, in spite of the public which mostly supports capital punishment.
However, the focus in Malaysia has mostly been on retribution.
Abdul Rashid Ismail, former president of the National Human Rights Society (HAKAM), said the proposed amendments in their current iteration were not just.
"From my perspective, that (imprisonment for natural life) is a regressive type of penal sanction to be introduced in place of the death penalty. Simply for the simple reason that natural life does not accord with the principle that we want to rehabilitate or reform the individuals who have committed the wrong,” he said.
"We live in the year 2023. The concept of an eye for an eye is no longer relevant.” Nevertheless, that attitude, recorded in public opinion surveys conducted in the past decade or so, is still very much prevalent in Malaysian society.
MIXED PUBLIC SUPPORT
Poll after poll has found that most Malaysians are highly supportive of the death penalty. However, that support is complicated and not necessarily intransmutable.
A 2018 study by The Centre - a Kuala Lumpur-based centrist think tank - and a 2021 study by Associate Prof Dr Saralah Devi Mariamdaran Chethiyar and her team from Universiti Utara Malaysia found most people who support capital punishment considered it as a deterrent. Many also cited retribution for their support.
Other factors that influence support for and against the death penalty are cost and rehabilitation.
Bernama talked to several members of the public whose responses ran the whole gamut - from those who wanted to execute and forget to those who favoured execution for only violent and heinous crimes to no death penalty.
"I prefer to maintain the death penalty. If confirmed they are convicted (committed the crime), then why should we be keeping them around? They don’t benefit society,” said Anis, a 34-year-old financial analyst who only wanted to be identified by her first name.
When asked about cases of drug mules who are mostly poor and uneducated - such as the 55-year-old single mother from Sabah with nine children who was sentenced to death in 2021 for drug smuggling - Anis told Bernama she was sorry to hear of cases like that but added poverty was not an excuse.
She said the woman could have done something else to make a living. Others thought differently, with a few thinking the moratorium on the death penalty meant Malaysia had actually abolished the death penalty.
Marketing executive Yap Swe Lian, 35, said he was against sentencing people to death, with rare exceptions.
"For me (drug mules should) get prison, regardless of whether they know or they don’t know. Because some of them, they’re poor so they just do it. So for this one, can give a lighter sentence like 10 or 20 years but must still be punished,” he said.
He added murder with the intention to kill others, such as the recent bomb attack in Pandan Indah here that killed a 29-year-old waiter, should receive the death penalty.
As for newly-minted engineer Ahmad Arif Abu Zaimah, 26, he was against the death penalty as it was absolute. As such, he said there should be more options in sentencing to allow for rehabilitation.
"It’s better than death. Other sentences should be allowed to give people a (second) chance. (They) can still bring good things to others. (They) can still contribute to society,” he said, especially after hearing about Chu Tak Fai, a British-Hong Kong national who served 27 years in prison in Malaysia for smuggling heroin.
Chu had been sentenced to death but had his sentence commuted to natural life. While in prison, Chu converted to Islam and became a model prisoner. Bernama wrote about Chu’s journey in January 2021 after he received a pardon from the Sultan of Kedah a few months earlier. He has now returned to Hong Kong.
Abdul Rashid said not many people consider the rehabilitative aspect of the penal system or mitigating factors surrounding a case, which contribute to their support for the mandatory death penalty.
"Mandatory death penalty is an unfair punishment because you don’t take into account the personal circumstances of the individual. Take for example someone with mental health issues whose culpability may be in question. With the mandatory system, the court would not be able to take that into account,” he said.
He added educating the public on the nuances and various scenarios of capital cases would help the public understand the issue better.
Roger Hood in his 2013 Death Penalty Project on Malaysians’ attitudes regarding capital punishment found that when confronted with different scenarios, support for capital punishment halved.
The 2018 study by The Centre found that the older you were and the more money you made, the less likely you were to support the death penalty. Oddly enough, those with tertiary education were 45 percent more likely to support capital punishment.
The Malays least support the death penalty while the Chinese are 16 percent more likely and Indians most likely at 18 percent.
REMOVING LIMBO
There are other issues at play here. While the focus has mainly been on the abolishment of the mandatory death sentence, there has been little mention of what to do with the 1,327 inmates currently on death row, most of whom were convicted of drug offences, followed by murder.
Human rights activists are concerned that the amendments will not address them. Due to the moratorium, all have had their execution stayed but some or all may be at risk of being put to death once the amendments have passed.
Amnesty International Malaysia said there must be clarity in the law that the measures will be applied retroactively and all individuals on death row will have a chance to have their sentences reconsidered by the courts. Its executive director Katrina Jorene Maliamauv told Bernama the government has not addressed the issue so far.
"This is very concerning because the proposals from October (2022) do not contain provisions to commute the death sentences of the more than 1,300 people on death row in light of the changes, essentially extending the ‘limbo’ they have been in for potentially several years now. It also brings back the prospect that they might face execution and that is just plain cruel,” she said in an email.
"It is an opportunity to give a second chance and for judges to weigh in individually on all cases for all factors that they could not consider due to the mandatory death penalty and this opportunity must not be missed.”
She added any alternative punishments introduced in place of the death penalty must be consistent with international human rights principles.
Ramachelvam agreed, saying at the end of the day, there needed to be a holistic reform of sentencing processes in the court system and judicial criminal justice system.
One way is to set up a Sentencing Council to lay down guidelines on sentencing depending on the offence.
"Death sentence or sentence for natural life should be for the rarest of rare cases. It should not be mandatory across the board. It should not be technical and mechanical where you’re found with x amount of drugs, automatically you’d have to face natural life. I think from the moral point of view it’s abhorrent,” he said. - BERNAMA