HAKAM has always stood for the abolition of the death penalty. The death penalty is by its nature : ultimate, irreversible and unduly harsh. It offers no room for rehabilitation or remorse. Further, it has been shown in many other jurisdictions that the judicial process involved in death row cases are prone to human errors. Death Penalty is a breach of human rights.
Why abolish the Death Penalty?
(source: The International Commission Against Death Penalty)
1. The risk of executing innocent people exists in any justice system
There have been and always will be cases of executions of innocent people. No matter how developed a justice system is, it will always remain susceptible to human failure. Unlike prison sentences, the death penalty is irreversible and irreparable.
2. The arbitrary application of the death penalty can never be ruled out
The death penalty is often used in a disproportional manner against the poor, minorities and members of racial, ethnic, political and religious groups.
3. The death penalty is incompatible with human rights and human dignity
The death penalty violates the right to life which happens to be the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Furthermore, the death penalty undermines human dignity which is inherent to every human being.
4. The death penalty does not deter crime effectively
The death penalty lacks the deterrent effect which is commonly referred to by its advocates. As recently stated by the General Assembly of the United Nations, “there is no conclusive evidence of the deterrent value of the death penalty” (UNGA Resolution 65/206). It is noteworthy that in many retentionist states, the effectiveness of the death penalty in order to prevent crime is being seriously questioned by a continuously increasing number of law enforcement professionals.
5. Public opinion is not a major stumbling block for abolition
Public support for the death penalty does not necessarily mean that taking away the life of a human being by the state is right. There are undisputed historical precedences where gross human rights violations had had the support of a majority of the people, but which were condemned vigorously later on. It is the job of leading figures and politicians to underline the incompatibility of capital punishment with human rights and human dignity. It needs to be pointed out that public support for the death penalty is inextricably linked to the desire of the people to be free from crime. However, there exist more effective ways to prevent crime.
As change is to be effected by incremental steps, HAKAM had started with the first step of advocating for the abolishment of the mandatory death sentence, in particular for drug trafficking offences. Once the mandatory death sentence is abolished for drug trafficking offences, HAKAM hopes it will eventually lead to the abolishment of the mandatory death penalty for other offences and ultimately thereafter to the final end to the use of death penalty as a punishment for crimes.
The international human rights law jurisprudence rejects the notion of a mandatory death sentence, i.e. that the convicted person is not entitled to mitigation on sentencing. The principle of the arbitrary deprivation of life comes into play because the imposition of death penalty without considering personal circumstances is arbitrary. The United Nations’ Human Rights Committee had consistently prohibited the imposition of mandatory death penalties.
Besides the international community, even at home we have been moving gradually towards a more civilized and compassionate society by opening avenues to discuss abolishing mandatory death sentencing for drug trafficking.
In 2009 Malaysia’s representative in Geneva told the UN Human Rights Council that Malaysia was considering replacing the death penalty with life imprisonment. These initiatives were supported by the then Minister in the Prime Minister’s Office in charge of legal and parliamentary affairs Dato’ Seri Nazri Aziz. He had spoken out against the death penalty but in 2011, but made it clear that in his view this cannot be achieved without the support from the public.
In reviewing the law, even the Attorney General noted that courts and international rights bodies, including the UN Human Rights Committee, have held that the mandatory death penalty is a breach of human rights.
The policy of abolishing the mandatory death penalty at least as far as the drug mules are concerned, has also been championed by the press, notably by the New Straits Times. Various UN bodies too, such as the UN High Commissioner for Human Rights, UN Human Rights Committee, UN Special Rapporteur for extrajudicial, summary or arbitrary executions killings and the UN Office on Drugs and Crime, have consistently asserted that drug offences do not meet the threshold of “the most serious crimes” to which the death penalty may lawfully be applied.
In March 2014, the International Narcotics Control Board, the independent and quasi-judicial body for monitoring government compliance with the three international drug control conventions encouraged states to abolish the death penalty for drug-related offences.
The social concern is amplified considering the number of prisoners on death row today. Statistics shows that there is a total of 930 death row prisoners in jails as of 31 August 2012 awaiting execution. While there seems to be an unofficial moratorium on carrying out executions, there is an urgent need to reach a more certain state.
The political concern is the need to live up to international standards and practices. Abolishing the mandatory death sentence through law reform will prove the government’s commitment towards progressive nation building. It is important for the government to keep abreast with modern and progressive law reforms especially after our recent election to the United Nations Security Council.
From the Report for The Death Penalty Project written by Prof. Roger Hood, titled, “The Death Penalty in Malaysia: Public opinion on the Mandatory death penalty for drug trafficking, murder and firearm” the Malaysian public has proven to be more reluctant to sentence a person to death. HAKAM’s Past President Abdul Rashid Ismail was part of Prof Roger Hood’s research team for that Report.
Under the survey heading titled “Support when judging drug trafficking scenarios” the report found that there appears to be a low level of support for inflicting a mandatory death sentence on such common types of drug trafficking cases or even for applying the death penalty at all.
The same survey reported under the survey heading “Deterrence and support for the death penalty” the proportion in favour of death penalty fell from 75% to 43% for drug trafficking when the respondents were asked their opinion on how would they view the subject matter if there is new scientific evidence that showed that the mandatory death penalty was not a better deterrent for drug trafficking.
It is therefore evident that the current position of the law under the Dangerous Drugs Act 1952 is not reflective of the will of the people. The Malaysian public has indicated that the threshold to sentence a person to his death should be higher.
What is wrong with maintaining the mandatory death sentence within the country’s legal framework? Why is it unfair?
Article 5 of our Federal Constitution provides that “No person shall be deprived of his life … save in accordance with the law”. The relevant provisions of the Dangerous Drugs Act 1952 fail to afford fundamental rights of due process in the imposition of the death sentence and result in the arbitrary imposition of the death penalty.
The provision of mandatory death sentences deprives the courts of the discretion to weigh the evidence in capital cases in order to consider mitigating circumstances. This may result in decisions which are both arbitrary and disproportionate to the circumstances of the case. The relevant provisions also contain presumptions of guilt and this may erode the right to a fair trial.
Judges are best placed to decide the appropriate punishment for the offender. Mandatory death penalty ties the hand of the judges. Unlike in normal criminal trials, where judges are able to take into account aggravating and mitigating factors when deciding on the appropriate punishment, they cannot do so under the mandatory death penalty because the death sentence is the only punishment they can impose.
The amendment introducing the mandatory death penalty to the Dangerous Drugs Act 1952 in the year 1983 was primarily to act as a stern deterrent. The question is however, what if the mandatory death penalty is not acting as a deterrent? What if it is not serving its purpose?
In March 2012, it was revealed in Parliament by then Home Minister Hishamuddin Hussein that the mandatory death penalty has been shown to have failed to act as a deterrent. Police statistics for the arrests of drug dealers under Section 39B of the Dangerous Drugs Act 1952, which carries the mandatory death penalty from 2009 to 2011 have shown an increase. In 2009, there were 2,955 arrested under this section. In 2010, 3,700 people were arrested whilst in 2011 there were 3,845 arrests.
The arrest rates shows an increase in drug trafficking activities in Malaysia despite the threat of a mandatory death sentence.
Professor Jeffrey Fagan, a professor of law at Columbia University, US, who appeared as expert witness for Mr. Chan and Mr. Sukumaran in an unsuccessful appeal in 2007 in Indonesia (the Bali nine case), said,
there was “no credible scientific evidence that the death penalty deters criminal behaviour”. – Prof. Jeffrey Fagan, Columbia University
Indonesian law expert Professor Tim Lindsey from the University of Melbourne says the research is conclusive i.e…
“there is next to no evidence anywhere in the world that the death penalty effectively deters crime of any kind”. – Prof. Tim Lindsey, University of Melbourne
Former Judge Maruarar Siahaan, a panelist in the constitutional court that heard the 2007 appeal of Mr. Chan and Mr. Sukumaran in Indonesia said,
“It isn’t effective in law enforcement, it’s a fact. When the opportunity to escape detection is high, the threat of the death penalty would not scare those who are in the business of drug.” – Former Judge Maruarar Siahaan
According to the 2013 annual report of Indonesia’s National Narcotics Agency (BNN), there were 260 drug traffickers arrested in 2013, an increase from 157 people in 2011 and 202 people in 2012. These numbers suggest that while the death penalty is continuously imposed and executions are carried out, the crime of drug trafficking shows no sign of abating. Even if these figures cannot constitute conclusive evidence as to dismiss the mandatory death sentences as an effective deterrent, it is certainly reason enough to review the current position as we are in actual fact weighing the question of life.
According to paper titled “Executions, Deterrence and Homicide: A tale of Two Cities” published in the Journal of Empirical Legal Studies, Vol 7, a paper that compared two countries i.e. Hong Kong and Singapore said that there is no scientific evidence to show that the death penalty is an effective deterrent for homicide or drug crimes.
Another report in Singapore titled “Report on the Changes to the Mandatory Death Penalty in the Penal Code (Amendment) Bill and the Misuse of Drugs Act (Amendment) Bill 2012” by the organization We Believe In Second Chances quoted the same paper by saying that, “We respectfully submit that, on the available evidence, the supposed causal connection between our low capital crime rates and the presence of the death sentence is inadequately demonstrated, and cannot be employed to justify either the continued use of the death penalty, or at the very least, the mandatory application thereof.”
Many studies and reports have also cited incidences where more often than not those who are arrested perform a lesser role in the drug syndicate. The drug mules are the ones who are arrested not the drug lords. This leads to further injustice.
In July 2012, the Deputy Prime Minister of Singapore and Minister of Home Affairs Teo Chee Hean said in Parliament that,
“The mandatory death penalty was originally designed to deter drug syndicates from operating in and into Singapore. Syndicates have responded to this by having their illegal operations offshore, making use of the mules to carry out operations within Singapore whilst leaders maintain control remotely. The leaders always try to avoid direct contact with the drugs or avoid being involved in activities which may give rise to their arrests. They therefore target and exploit vulnerable groups for their purposes and it is therefore the mules that take the bulk of the risk burden.” – Deputy Prime Minister of Singapore and Minister of Home Affairs Teo Chee Hean
Singapore had amended its law to allow the courts an alternative to the mandatory death sentence. The change took place in its Misuse of Drugs (Amendment) Act 2012 which took effect in 2013. It is to be noted that the changes to the law were also applied retrospectively, allowing death row inmates who were sentenced to death before the amendments, to have their sentences reviewed under the new laws and to be re-sentenced should they fall under the stipulated requirements.
It is timely to work towards a proposal paper that will consist of a detailed analysis of opinion from relevant stakeholders as to the shortcomings existing in our system today and reform the mandatory death penalty regime by abolishing it.
Amendment to laws on mandatory death sentences
1. Past Advocacy
In 2002, former HAKAM President Raja Aziz Addruse urged the Government to amend mandatory death penalty laws to give judges the option whether or not to pass the death sentence. Speaking at an Amnesty International workshop on The Death Penalty, he said that at present, the imposition of the death penalty was not a choice for the presiding judge in cases involving murder and drug trafficking. He said the mandatory death sentences under the penal code for murder and drug offences meant that anyone found guilt would automatically join death row.
2. Forensic Psychiatry Training
In October 2013, in association with Bar Council Malaysia, HAKAM and Newcastle University Medicine Malaysia held a forensic psychiatry training workshop in Kuala Lumpur for mental health and legal professionals involved in capital cases in Malaysia.
3. Death Penalty Project (Malaysia)
HAKAM through its Past President Abdul Rashid Ismail participated in the Death Penalty Project (Malaysia) through which it is found that 108 people were sentenced to death in 2011, about two-thirds for drug-related offences. By September 2012, it appeared that there were 924 people under sentence of death on ‘death row’ in Malaysia, 648 of them having been sentenced for drug-trafficking. In the same project, Roger Hood, Professor Emeritus of Criminology at the University of Oxford, was commissioned to present a new report on the complexities of public attitudes towards the death penalty in Malaysia. The title of the report is “The Death Penalty in Malaysia: Public Opinion on the Mandatory Death Penalty for Drug Trafficking, Murder and Firearms Offences”.
4. Forum on Death Penalty
As part of the Abolishment of the Death Penalty Project, HAKAM, partnering with the Bar Council Malaysia organised a forum on the death penalty, in conjunction with Human Rights Week from 8 -12 December 2014. Three human rights lawyers — Abdul Rashid Ismail, Edmund Bon and Amer Hamzah — together with Amnesty International Malaysia Campaigner, Gwen Lee Chee Yeng, presented their views and drew from their experience and expertise to discuss:
(1) issues surrounding the mandatory death penalty;
(2) relevant international laws;
(3) constitutional considerations;
(4) how capital punishment is being used in Malaysia;
(5) death penalty practices around the world; and
(6) efforts to abolish the mandatory death penalty.
The Speakers and their topics were as follows:
- Is it Constitutional within the Malaysian Perspective? by Edmund Bon and Joshua Tay
- Mandatory Death Penalty and International Human Rights Laws by Abdul Rashid Ismail, Immediate Past President, HAKAM
- Current Problems by Amer Hamzah Arshad, Messrs Nizam, Amer and Sharizad
- Death Penalty: Around the World by Gwen Lee Chee Yeng, Campaigner, Amnesty International Malaysia
Related Articles / Soundbites from Speakers
- Abdul Rashid Ismail: ‘Abolish mandatory death penalty’ [14 Dec 2014]
“Since the mandatory death penalty does not consider the circumstances of its offences, it violates the basic right to life, as enshrined in international human rights laws.”
Citing past cases in Malaysia, Abdul Rashid, who is also Hakam’s immediate presiding president, pointed out that most nations retaining the death penalty have done away with its mandatory nature, reserving it for serious and extraordinary crimes.
Highlighting Article 6 of the International Covenant on Civil and Political Rights (ICCPR), he stated it contravenes the mandatory death penalty as the ICCPR is customary international law and should therefore be a part of Malaysian law.
He was also careful to stress that the ICCPR does not abolish the death penalty itself but only removes its mandatory nature.
“For offences such as drug trafficking, the mandatory sentence is automatic and indisputable. This is unjust as most individuals sentenced for drug trafficking are commonly duped low-ranking mules while the kingpins often escape the net,” said Abdul Rashid. — Abdul Rashid Ismail
- Amer Hamzah Arshad: ‘Mandatory death sentence takes away more than life’ [14 Dec 2014]
“At the investigation stage, the families of the suspect are so desperate to save a life that they become victims of unscrupulous individuals who exploit and exhort them by promising to get the charges reduced for a huge sum of money,” he said at the recently concluded death penalty forum 2014.
He added that this scenario is why 80% of such cases did not make it to court.
“Besides that, there are also issues such as corrupted police witnesses who lie in court, individuals who fabricate or withhold critical evidence, use underhanded tactics to secure an involuntary admission and others who exploit legal loopholes all in the name of prosecuting a suspect.”
“In the criminal court, if custody or control of drugs can be established, it is pre assumed that the suspect had knowledge of the crime and will be prosecuted accordingly. There is no room for circumstances.”
“The death sentence takes away all hope as they see the end of their lives before them.” — Amer Hamzah Arshad
Meanwhile, Amnesty International campaigner Gwee Lee said Malaysia voted against the resolution of the Global Moratorium on Death Penalty recently at the United Nations General Assembly 2014.
She said the number of countries global wide which are against the death penalty have been increasing over the years but Malaysia is not one of them.
She added that as of last year, 22 countries still practised the death penalty and a total of 778 executions were carried out, excluding China where details of executions are a State secret.
“A huge majority of the executions are from Iran, Iraq and Saudi Arabia for offences such as blasphemy, adultery, drug offences and others. In North Korea, the death sentence is served for offences like watching banned videos, corruption and pornography”.
She emphasised that the death penalty is cruel and infringed on the basis of human rights which is the right to live. — Gwee Lee
HAKAM will be writing a paper for the consideration of the authorities and other organisations as part of its advocacy towards the abolishment of mandatory death sentence. HAKAM plans to have consultative meetings with members of Parliament, representatives from the Attorney general’s office, members of the Judiciary especially judges who are in the criminal division, prison authorities and various other stakeholders to hasten the law reform towards abolishment of the mandatory death sentence.
HAKAM is seeking volunteers and interns who are interested to work with us on this Project. Please contact us by email to info[at]hakam.org.my!
In the planning stage subject to funding received:
1. Law reform activity: To lobby for legislative amendments to the Dangerous Drugs Act 1952. HAKAM will endeavour to prepare a proposal paper to be used for lobbying for amendments to Section 39B(2) of the Dangerous Drugs Act 1952. The proposal paper may contain alternatives to replace the mandatory death penalty. A thorough study needs to be conducted to ascertain a sustainable alternative. The legal framework HAKAM anticipates will be extensive and in depth analysis is needed to formulate a legal position that is fair, just and comprehensive.
After analyzing the Singapore experience, merely amending the law is insufficient. The workings of the drug syndicates must be understood. The roles of different types of units contribute differently to the adversity of the drug problem. When a person is arrested for drug trafficking his role must first be determined before he is charged and sentenced.
United Kingdom has abolished the death penalty in 1998. United Kingdom has a comprehensive legal framework recognizing the various different factors to consider before meting out a sentence. In its guideline titled “Drug Offences, Definitive Guideline” by the Sentencing Council UK, various situations are provided for in which offences may occur, likely factors involve including mitigating and aggravating factors, the classification of roles played according to job description and assistance to prosecution and category of harm by looking at the quantity of drug concerned.
2. Research, Surveys etc: In order to achieve any law reform, HAKAM will need the resources to seek the assistance of experts in the subject matter. A nationwide gathering of statistics on convicted offenders facing death row, those who have been acquitted and those who have been executed in the past years may be necessary. Renowned criminologists and lawyers may be needed to formulate a solid proposal paper – especially to obtain the views of various stakeholders as to the inherent problems in the system and the possible solutions to it.
This must be done via a structured survey and interview. HAKAM will partner with an Opinion Research Firm to produce a detailed analysis. That analysis in turn will help HAKAM to prepare a holistic proposal paper.
HAKAM will also need to work closely with other relevant stakeholders such as the Attorney General’s Chambers, Putrajaya, the judiciary and prison authorities, elected representatives and inmates currently in death row in order to investigate, inquire and research the problems which the system carries and the after effect of the proposed amendments. This is also in preparation for the eventual presentation of the substantial proposal paper.
3. Creating awareness and education: This includes conducting seminars and public forums. HAKAM will collaborate with other civil societies to lead series of forums, discussions, educational courses on the subject matter at hand. Simultaneously a nationwide roadshow will be conducted as an awareness drive by HAKAM to garner support from the general public by helping them understand the repercussions involved when a legal system provides for the mandatory death penalty and to also obtain their feedback.
4. Providing discussions or training (if necessary) to equip members of the judiciary, prison authorities and all other stakeholders with a significant role to play, the necessary knowledge and platform to ensure the alternative sentencing provisions are implemented rightfully. Adequate and comprehensive programs must be designed to ensure all relevant stakeholders understand the new legal framework.
Targeted Outcome: Law reform & its Benefits.
The policy behind the law reform is towards better human rights protection in the country. Malaysia is a country that respects the sanctity of life and the right to life is guaranteed in the Federal Constitution. A change in the right direction will ensure a positive change in Malaysia’s stand and reputation. Malaysia’s reputation as a nation that respects the right to life will be enhanced and augmented. Malaysia will join the ranks of the progressive nations that protect the sanctity of the human life. Whereas Malaysia’s counterparts in Asia like Cambodia, Hong Kong, Nepal, East Timor, Philippines (all of which have abolished the death penalty), Thailand (classified as low application states) and India, Bangladesh, Myanmar, Sri Lanka, Brunei were classified as symbolic application (symbolic application indicates that the legal framework provides for death sentences but it is has not been used for at least 10 years) have adopted more progressive legal framework by abolishing the death sentence.
Malaysia’s relationships with the countries where their citizens are facing death sentence in Malaysia will also improve or enhance once the death sentence is commuted to life imprisonment. Malaysia’s reputation will improve with such a project, aside from cementing our commitment to reinforce our respect for the sanctity of life.
Backgrounders & Related Articles
- Worldwide executions highest since 1989: Amnesty [6 Apr 2016]
- The death penalty: unsupported by the facts, law – Leong Tsu Quin [19 Jun 2015]
- Fact check: No proof the death penalty prevents crime [4 May 2015]
- Death penalty: Little deterrent — Rory Asyari [28 Apr 2015]
- Suhakam hopes Malaysia will abolish death penalty [15 Apr 2015]
- Death penalty doesn’t deter crime, watchdog says after 38 lined up for gallows [7 Apr 2015]
- Amnesty International Malaysia kecam hukuman mati, ‘samaran’ untuk keadilan [7 Apr 2015]
- Key figures about the death penalty in the world