PETALING JAYA: The decision of the Federal Court that the abolition of the mandatory death penalty should be dealt with by Parliament should not be the end to the discussion of the matter, says Human Rights Commission of Malaysia (Suhakam) commissioner Datuk Mah Weng Kwai.
The former Court of Appeal judge said since the apex court has made such a ruling, the issue of the proposed abolition of mandatory death penalty should be brought to Parliament by the government for a decision.
Mah also said there is a report prepared by a special task force on abolition of death penalty which has been submitted to the Minister of Law.
Mah was one of the experts in the special taskforce set up last year by the Pakatan Harapan government to study the alternative forms of punishment to capital punishment offences.
"The next step is for the Parliament to consider and debate the report which was handed over early this year.
"It is important that the report is considered as it discusses what death penalty is about and the consequences of the abolition of the mandatory death penalty.
"There is public apprehension and misconception that if mandatory death penalty is abolished, all the 1,324 prisoners now on death row will walk out free. It is not so.
"They will have to go through a resentencing process to determine a fit and proper alternative sentence to be imposed by the court," explained Mah when contacted.
He was commenting on the Federal Court's 8-1 majority decision on Aug 14 which ruled that only Parliament can decide on the punishment for criminal offences, including the death penalty.
Chief Judge of Malaya Tan Sri Azahar Mohamed said since the legislature made laws for offences, the measure of punishment was the prerogative of the Parliament.
Four appellants – P Pubalan, Peruvian national Jorge Crespo Gomes and South Africans Letitia Bosman and Benjamin William Hawkes – had challenged the constitutionality of the mandatory death penalty.
Mah further stated that in offences carrying the mandatory death penalty, the judge does not have discretion when passing sentence.
"In cases of murder, the death penalty should only be imposed in the rarest of rare cases.
"Suhakam is an advocate for the abolition of the death penalty and the narrative is with civil society," said Mah.
Senior human rights lawyer N Surendran said that the verdict was "a big disappointment" as mandatory death penalty causes grave injustice and contravenes the international human rights norms.
"Sentencing is under the purview of the courts and not Parliament.
"It is for the courts to decide whether the accused is sentenced to death or imprisonment. Each case must be decided on its facts and circumstances, not a blanket mandatory sentence of death
"If there's a miscarriage of justice, the death penalty once carried out is irreversible. It is an unanswerable point. Proponents of the death penalty block their minds to the very real possibility of an innocent man being hung," said Surendran, who is against death penalty.
Senior criminal lawyer A. Srimurugan said that while the Dangerous Drugs Act has been amended to allow "a very small" discretion of judges in imposing the mandatory death penalty, murder cases tend to differ.
"This ruling by the Federal Court to throw it back to the Parliament has allowed for encroachment of the Parliament into the realm of the judicial powers.
"I am not against death penalty but against the mandatory death penalty where the judges have no discretion to impose a life sentence or put the person to death," said Srimurugan, adding that his experience showed judges are usually very reluctant to impose the death penalty.
He said that Malaysia should emulate India's judiciary where the legislature is left entirely to the judges.
"Life imprisonment should be the rule and death sentence should be the exception," said Srimurugan
In July 2018, the Pakatan Harapan government established an immediate moratorium on executions. Eleven offences under the Penal Code and Firearms (Increased Penalties) Act, 1971, currently carry the mandatory death penalty.
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