AS a punishment, the death penalty continues to capture the public interest in a morbid and unique way. The Asean region has proven resistant to a growing worldwide movement away from the death penalty, with 142 countries having abolished it in law or practice. The only countries in the region to have abolished capital punishment are Cambodia in 1989 and the Philippines in 2007.
Previously, Thailand was also considered as having abolished the death penalty in practice but that changed when Thai authorities executed a 26-year-old man, convicted of murder, by lethal injection in June 2018, the country’s first execution since 2009.
As to be expected, the Malaysian government’s move to impose a moratorium on the death penalty, with a view to abolish it, last July has provoked strong reactions from both sides of the aisle. While human rights activists have lauded the progressive step, others, including the families of high-profile murder victims, have come forward to denounce the move. Some have cited religious justifications in support of this punishment, whilst others cited the proverbial “an eye for an eye” argument, that the death penalty serves as equivalent retribution for the heinous crimes committed.
In Malaysia, most death row prisoners are those convicted of drug trafficking offences. As of October 2018, there were 1,279 prisoners on death row, of whom 932 were convicted for drug trafficking. It doesn’t take a large quantity of drugs to be sentenced to death – only 15g (or more) of heroin, 200g of cannabis and 50g of methamphetamine (more commonly known as syabu) to trigger the presumption of trafficking under our harsh drug laws.
While there is no doubting the destructive nature of “hard drugs” on society, can we truly say that for possession of only 200g of cannabis – a type of “soft drug” that is decriminalised or even legal in other parts of the world – that these drug offenders ought to be killed by the State? Such an outcome would seem highly unjust and disproportionate – and yet, that is the law in Malaysia.
It is a common argument that the death penalty serves as an effective deterrent to crime. This deterrent myth is more grounded in gut feeling than reality, as there is no empirical evidence to show that this is in fact the case in anywhere in the world. A study carried out by the International Centre for Law and Legal Studies of Malaysia (I-CeLLs), under the auspices of the Attorney-General’s Chambers, has concluded that the death penalty is not a deterrent to crime. Public concern about the supposed increase of murder, robbery, rape and other violent crimes without the death penalty is misplaced. Individuals who typically commit these types of offences do not engage in a cost-benefit analysis of their crimes, unlike white-collar criminals. Therefore, what is required to combat violent crimes is effective law enforcement and addressing the root causes of such violent behaviour. Extensive studies have shown that criminals are deterred more by an increase in their likelihood of capture than by an increase in the severity of their punishment, the knowledge that crime does not pay, and justice will be swift.
Another concern about the death penalty is that it disproportionately affects those who are unable to afford top-tier legal representation and without competent legal representation, they are more likely to be convicted.
These issues are compounded when considering the potential for innocent persons to be convicted. Judges are human and prone to social and personal biases; mistakes can and do occur from time to time, and verdicts get overturned all the time from the trial at the High Court up to the Federal Court. The same can be said of the police conducting the investigations and the public prosecutors pressing charges against the accused. Are we truly prepared to accept the premise that it is worth ending the lives of a few innocent people for the mythical ‘deterrent effect’ of the death penalty?
The argument that the death penalty is the only punishment, a fitting retribution, in cases involving murder and other heinous crimes fails to consider long term imprisonment as a proportionate punishment. Long term imprisonment achieves the same outcome of punishing offenders whilst also protecting the wider public without requiring the State to kill another person.
Malaysia’s criminal sentencing aims must move beyond deterrence and retribution. While there are rehabilitative efforts in our prisons, such an aim remains largely minimal. We must look at the success some European countries have had by pursuing rehabilitation and job training in order to reduce recidivism.
The right to life must be afforded to everyone, including those who have been convicted of serious crimes. Considering the risks to innocent people who may be wrongly convicted, the ineffective nature of the sentence as a deterrent, and the need to consider rehabilitation over mere retribution, there is no reason for this government to retain the death penalty in any form. The government must have the political will to totally abolish the death penalty. Removing the mandatory nature of the sentence or retaining the punishment for only particularly heinous crimes are insufficient as these limited reforms can entrench further the punishment in Malaysia.
The death penalty is the ultimate human rights violation, a state-sanctioned killing, unique in its cruelty and finality. The gravity of executing a human life should not be lost on us. The punishment serves only to satisfy the urge for vengeance and has no place in any society that values human rights, justice and mercy.
If there is a chance that a person can be redeemed and reintegrated safely into society, that is a chance that ought to be taken. It has been said that the greatness of a nation can be judged by how it treats its weakest member; while we often think of people with disabilities, the elderly, poor and impoverished as that weakest member, we ought also to recognise that the way in which we treat our prisoners reflects the type of society that we are.
The government’s final decision on the abolition of the death penalty looms on the horizon. The death penalty is on trial in Malaysia and so are reform efforts in Malaysia Baharu. We await whether in a twist of poetic justice, the final nail will be driven into the coffin of the death penalty.
Eric Paulsen is Malaysia’s Representative to the Asean Intergovernmental Commission of Human Rights (AICHR).