In support of human rights

ON June 10, 2022, de facto Law Minister Datuk Seri Wan Junaidi Tuanku Jaafar announced that the Malaysian government had agreed to abolish the mandatory death penalty and that it would be substituted with other punishment at the discretion of the courts.

In Malaysia, there are currently 11 offences carrying the mandatory death penalty upon conviction. These include murder, hostage-taking resulting in death, and committing terrorist acts resulting in death.

There are three reasons why the abolition of the mandatory death penalty should be welcomed.

Firstly, since no two cases can be said to be identical, judges would have the discretion to decide on what is a suitable and fair punishment based on mitigating factors such as the accused persons’ background, their motives in committing the crime, and so on.

Under the current law, a person who is convicted of murder, for example, will get the mandatory death penalty under Section 302 of the Penal Code. The judge will have to impose the sentence on all who are convicted of murder irrespective of whether the act was committed in a cruel and brutal manner or if it was done to end the suffering of a loved one.

In October 15, 2021, a single mother of nine was sentenced to death after being found guilty of possessing 113.9g of methamphetamine. The judge had no choice but to impose the death penalty despite public outcry over the decision and also the existence of strong mitigating circumstances in the case.

There was also a public outcry in April this year when Singapore went ahead and executed a Malaysian man for trafficking in drugs even though he was reported to be mentally impaired.

Secondly, abolition of the mandatory death sentence would allow judges to make sentencing decisions based on their own evaluation but guided by the principles of law. With Parliament enacting laws that leave the members of the Judiciary with no options but to impose them, including the death sentence, Parliament is clearly taking on the role of the Judiciary.

Finally, the abolition of the mandatory death penalty is a positive step that should lead to the ultimate abolition of capital punishment.

There are still many who support the mandatory death penalty for particularly heinous criminals such as serial killers or serial child rapists. There are also some who believe that taxpayers’ money should not be used to keep heinous criminals alive for the rest of their lives.

However, it is recognised today that the death penalty has not been successful in deterring people from committing serious crimes. There is also the concern of sending an innocent person to death, as mistakes can be made.

It is also recognised that capital punishment is a violation of the human rights of the individual. According to the Universal Declaration of Human Rights, everyone has a right to life and no one shall be subjected to torture, or to cruel, inhuman and degrading treatment. All humans are entitled to these rights, which are not forfeited even if that person commits a crime.

The United Nations in December 2020 passed a General Assembly Resolution calling for a moratorium on capital punishment worldwide. Malaysia was one of the 104 member states who voted in favour of the resolution.

Malaysia has since been elected to the United Nations Human Rights Council. As such, a total abolition of the death penalty will be consistent with the role that Malaysia is playing at the international level.

LAI MUN ONN

Senior lecturer,

Taylor’s Law School

Subang Jaya