LETTER | Malaysians against Death Penalty and Torture (Madpet) is saddened by the alleged U-turn by Prime Minister Dr Mahathir Mohamad and his cabinet members who had decided earlier to abolish the death penalty, but now will apparently only abolish the mandatory death penalty.

On March 13, Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin was reported as saying in Parliament that only the mandatory death penalty, which is the penalty for nine offences under the Penal Code and two under the Firearms (Increased Penalties) Act 1971, will be repealed.

It must be noted that the cabinet under Mahathir had, at a meeting in October 2018, decided to repeal not just the mandatory death penalty, 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 Oct 15, said Liew Vui Keong (Minister in charge of law in the Prime Minister’s Department)… ‘All death penalties will be abolished. Full stop.’”

This decision was applauded worldwide, and even celebrated at the recent 7th World Congress Against the Death Penalty in Brussels, which also highlighted the United Nations General Assembly’s seventh resolution for the moratorium on executions pending abolition that was adopted on Dec 17, 2018, with 121 countries in favour of it, including Malaysia for the very first time.

It is now disappointing that some cabinet members and political parties in Pakatan Harapan may have buckled, and this is maybe what led to a change in position. It must be noted that, at the end of the day, it is the prime minister who chooses his cabinet, and so the blame would really fall on the prime minister.

All the cabinet had to do was to table the bill, or bills, to repeal the death penalty, and leave it to Parliament. If Parliament defeats the bill, then the blame lies with Parliament, not Mahathir and his cabinet.

Abolition long overdue

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 court may most likely declare that mandatory death penalty is unconstitutional.

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 may fix minimum, and maybe, maximum sentences, but it should never take away the judge’s discretion when it comes to sentencing.

As such, the abolition of the mandatory death penalty is long overdue, but it is really no great achievement. Abolishing the death penalty, on the other hand, will be something we can all be proud of, as Malaysia joins the majority of nations. Every time 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. This is shown in drug trafficking, and we believe that the number of murders have been increasing, a fact that cannot be shown ever since the past government stopped giving actual statistics of crimes, including for murder, since about 2014.

Now, we get a crime index, which is a basket of several crimes, which hides whether the number of murders, rapes, snatch thefts, robberies or any particular crimes are actually increasing or decreasing. Malaysians deserve real statistics for each and every crime.

Miscarriage of justice

The risk of miscarriage of justice is very real, where an innocent man could wrongly be executed – the flaws of the administration of justice are real. Many believe that PKR president Anwar Ibrahim, who was convicted and sentenced twice for sodomy, experienced such a ‘miscarriage of justice’. The police, prosecutors, lawyers and judges can all make mistakes or commit wrongs. Anwar was lucky, as his sentence was imprisonment, not death.

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 death penalty, Malaysia is most unlikely to bring back Sirul Azhar Umar (photo) from Australia, and, as such, that may prejudice the investigation of other perpetrators who may have been involved in ordering or paying for the murder of Mongolian national Altantuya Shaariibuu.

In a criminal trial, the accused person will usually elect to remain silent, not pleading guilty or let alone 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 will 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 identified and/or prosecuted. What is the use of this, as they will still be executed?

Remember that 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. However, if the sentence is not death, then there is a better chance of the convicted speaking up and more perpetrators being brought to justice.

Malaysia, being a Muslim-majority nation, should also not insist that the death penalty, which does not comply with the evidential and procedural requirement of Islam, 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, the Buddhists, Hindus and Sikhs, who advocate the sanctity of life should be against the death penalty.

The Human Rights Commission (Suhakam), the Malaysian Bar, Parliamentarians for Global Action(PGA) and so many others also want the death penalty abolished in Malaysia.

It must be pointed out that even in France, when the death penalty was abolished by the government, over 60 percent of the population were against its abolition.

The prime minister and the parliamentarians must have the required political will and courage to do the right and immediately abolish the death penalty.

The worry of loss of popular support and the impact on the next general election, in four years’ time, is a deplorable reason not to completely abolish the death penalty now.

Madpet urges Prime Minister 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 people to later lobby their MPs.

Madpet also calls for the continued moratorium on all executions pending the abolition of the death penalty.

Madpet calls on the 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 a party is 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.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.