The Inevitability of Error – Abdul Rashid Ismail

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EXCLUSIVE, published in collaboration with MMO
>> Read original article in Bahasa Malaysia 

BY ABDUL RASHID ISMAIL

The writer says the decision by the Government to abolish the mandatory death sentence for drugs offences is a clear recognition that the mandatory death regime does not act as a deterrent. — AFP pic

The writer says the decision by the Government to abolish the mandatory death sentence for drugs offences is a clear recognition that the mandatory death regime does not act as a deterrent. — AFP pic

OPINION, Dec 12 — Once a person has been executed by the state, it is irreversible. The occurrence of miscarriages of justice cannot be denied. It is inevitable that an innocent life may be taken away in a criminal justice system that is dependent on the integrity and honesty of those involved and vulnerable to human error.

Many have forgotten the wrongful conviction of S. Karthigesu who was charged, tried and convicted for the murder of Jean Perera Sinnappa which took place in 1979. Karthigesu was the only suspect. He was represented by R. Ponnudurai who was a well-respected criminal lawyer.

The murder trial took 38 days. The main prosecution witness was Bhandulananda Jayatilake. He testified that he witnessed Karthigesu exclaim that Jean “did not deserve to live”. The trial Judge regarded these words as an incriminating outburst. No evidence was ever found to directly identify the killer. The murder weapon was also never discovered despite an intensive search.

Karthigesu was given a mandatory death sentence by the trial Judge. He appealed to the Federal Court against his conviction and death sentence. Four days after Karthigesu’s conviction, Jayatilake who was the main prosecution witness came forward. He confessed that he had lied. He did not witness the alleged incriminating outburst implicating Karthigesu. According to the judgment of the Court, he had been asked to lie in order to secure Karthigesu’s conviction.

The Federal Court set aside Karthigesu’s conviction and mandatory death sentence. Jayatilake was then convicted of perjury and was sent to prison for 10 years.

Karthigesu was freed after having been on the death row for more than 2 years. He was indeed very lucky. Many others before and after him may have not been so lucky. Karthigesu was a victim of a miscarriage of justice.

The critical lesson from Jean’s case is that Karthigesu, even though represented by a competent criminal lawyer was not guaranteed that the dishonesty of the witness would be uncovered. The trial Judge believed the perjured evidence given by Jayatilake.

Our criminal justice system is clearly not perfect and is susceptible to errors. Errors can be deliberate as well as unintentional. Even an honest witness can get the evidence wrong.

Capital punishment has no place in a society that values and respects human lives. Article 5(1) of our Federal Constitution specifically mandates the Government to protect the citizens right to life.

The recent announcement by the Government through its de facto Law Minister, Honourable Nancy Shukri that the Government will be tabling an amendment to the law to abolish mandatory death sentence in relation to drugs offences is a move in the right direction.

The decision by the Government to abolish the mandatory death sentence for drugs offences is a clear recognition that the mandatory death regime does not act as a deterrent.

A startling revelation was made by Tun Hanif Omar the former Inspector General of Police about the introduction of the mandatory death sentence for drugs offences at a recent seminar on 17 November 2015 which was attended by Members of Parliament from both sides of the political divide. According to Tun Hanif, the Government’s decision in 1983 to impose the mandatory death sentence for drugs offences was made after a conversation between the former Prime Minister Tun Mahathir Mohamed and the then Attorney General Tan Sri Abu Talib Othman regarding the disparity in the imposition of the death sentence for drug offences.

Tun Mahathir was told that 2 High Court judges had openly declared that they would not impose the death sentence for drug related offences. The Government then decided to overcome the inconsistent punishments and “experimented” with the introduction of the mandatory death sentence regime for drug offences. If this is the case, the mandatory death sentence appears to have been introduced arbitrarily and without any empirical evidence that would support the belief that it would reduce the commission of drug offences.

This “experiment” failed miserably. In March 2012, Dato’ Seri Hishamuddin Hussein, who was then the Home Minister, admitted in Parliament that the introduction of the mandatory death sentence in 1983 had not reduced drug-related offences. He said that the drug trafficking arrests had in fact increased. Statistics provided by him showed that there were 2,999 arrests for drug trafficking offences in 2009 and in 2011 and these arrests went up to 3,845. This failed “experiment” clearly points to one conclusion —  a mandatory death sentence is not an effective deterrent for drug offences.

Malaysia is one of 13 countries in the world that still retains the mandatory death sentence. We currently have …. offences with mandatory death sentences in force. The effect of a mandatory death sentence is that upon a guilty verdict, the only punishment available to be meted out is death.

The problem with a mandatory death sentence is that the Judge does not have any discretion to take into account the individual circumstances of the convicted person. The Judge is prevented from taking into account any aggravating and/or mitigating factors available to the convicted person when deciding on the suitable punishment to be meted out against the convicted person. This limitation means that the sentence of death is arbitrary since it does not take into account the varying degrees or types of culpability.

International laws state that the mandatory death sentence is contrary to the right to life of each individual. The Government has a positive obligation to protect life as mandated by our Federal Constitution. Under international laws a judge should be given the discretion to mete out the appropriate sentence in capital punishment cases. In the Commonwealth countries, only 2 countries have mandatory death sentences. These 2 countries are Malaysia and Singapore.  Many courts in the commonwealth including Zimbabwe and Uganda have declared the mandatory death penalty as unconstitutional.

capital punishmentThe often quoted reason for not abolishing the mandatory death sentence is the notion that the public demands such a harsh punishment. A public opinion survey was carried out in Malaysia in 2013 by Roger Hood, Professor Emeritus of Criminology at the University of Oxford. The result of the survey showed that Malaysians generally do not support the imposition of the mandatory death penalty for drug trafficking, firearms offences and murder. We are in fact ready for change. With the support of the Malaysian public, the Government must now act to abolish the mandatory death sentence for all crimes. Ultimately, the Government should work towards progressively abolishing capital punishment for all offences.

We should not wait to admit to the imperfection of our criminal justice system. There is always a risk that we may become the victim of a miscarriage of justice ourselves. By then, it would be too late. The reality is that you can only protect your own life in this world by protecting the lives of others.

* Abdul Rashid Ismail is the Immediate Past President of the National Human Rights Society (HAKAM)

 

>> Read original article in Bahasa Malaysia 


HAKAM-MMO Human Rights Day 2015 project

Since 1950, the world marks December 10 as Human Rights Day. It is a day to create awareness to fundamental human rights set out in the Universal Declaration of Human Rights (UDHR) as the common standard of achievement for all peoples and all nations.

This year, the National Human Rights Society, in collaboration with Malay Mail Online, is publishing seven articles over seven days to bring attention to seven specific interest areas concerning human rights in Malaysia.