LETTER | It is widely accepted that the death penalty is a qualitatively different sentence from any other sentence - it is irreversible and if an error is committed, there is no way to rectify the error.

Be that as it may, the sentence was upheld as constitutionally valid by the Constitutional Bench of the Supreme Court of India more than 40 years ago in the case of Bachan Singh v State of Punjab [1983] SC 957 by a majority (4:1).

It must be said, though, that the Indian apex court did say in no uncertain terms that only in the “rarest of the rare” cases that the death sentence could be imposed.

The Supreme Court also took the occasion to lay down some guidelines so that only in the “gravest cases of extreme culpability” should the death penalty be imposed.

The following circumstances have been suggested as circumstances justifying the death penalty:

(a) hen the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community;

(b) when the murder is committed for a motive which evinces total depravity and meanness; eg murder by hired assassin for money or reward; cold-blooded murder for gains of a person vis a vis whom the murderer is in a dominating position or in a position of trust or murder is committed in the course of betrayal of the motherland;

(c) when the crime is enormous in proportion for instance when multiple murders, say of all or almost all the members of a family; and

(d) when the victim of murder is an innocent child or a helpless woman, or old or infirm person, or a person vis a vis whom the murderer is in a dominating position or a public figure generally loved and respected by a community. (See Ratanlal & Dhirajlal’s Law of Crimes (26th Ed) at p 1635)

The above were referred to in a recent Malaysian case of Public Prosecutor v Arumugam a/l Sandanam & Anor [2023] MLJU 2304 where judicial commissioner Su Tiang Joo found them “helpful”.

Guided by the above, the learned judge found the facts of the case as falling into circumstances (a), (b) and (d) as the murder committed by the accused persons was “extremely brutal, grotesque, diabolical, revolting, or in a dastardly manner, hugely out of proportion, and by persons who are in a dominating position”.

Did the Court of Appeal in sentencing the six former Universiti Pertahanan Nasional Malaysia cadets to death for the murder of Zulfarhan Osman Zulkarnain refer to Bachan’s case and the guidelines above as well as the circumstances justifying the death penalty before sentencing them?

One has to read the full grounds of judgment, which are not publicly available, yet. However, media reports of the decision suggested that the appellate court referred to Bachan’s case.

Court of Appeal judge Hadhariah Syed Ismail, who led the three-judge panel, in delivering a 93-page judgment for over three hours, said that the case “is among the rarest of the rare, involving extreme cruelty that poses a grave danger to society and such inhumane acts must be stopped”.

The prosecution too had described the death of Zulfarhan as “rarest of the rare” - a phrase coined by the Indian Supreme Court in Bachan’s case.

Section 183 of the Criminal Procedure Code provides that if the accused person is convicted, “the court shall pass sentence according to law”.

Following the Abolition of Mandatory Death Penalty Act 2023 which abolishes the death penalty and in force since July 4, 2023, Section 302 of the Penal Code (on punishment for murder) reads as follows:

“Whoever commits murder shall be punished with death or imprisonment for a term of not less than 30 years but not exceeding 40 years and if not sentenced to death, shall also be punished with whipping of not less than 12 strokes.”

It is therefore not surprising that the Malaysian Crime Prevention Foundation considers the death sentence “appropriate and just”.

Accordingly, it disagrees with the objection raised by Suhakam regarding the death sentence imposed on the six former cadets.

Importantly, the sentence is according to law. The law is made by the legislature, not the courts whose duty is to apply the law. Suhakam’s grouses over the death sentence should be directed at the legislature, not the courts.

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