By Wong Sue Ann

The Human Rights Commission of Malaysia (“SUHAKAM”) and the Asia Pacific Forum Project jointly organised the National Conference on the Death Penalty (“National Conference”) at Premiera Hotel Kuala Lumpur on 28th June 2018. Dato’ Mah Weng Kwai, Commissioner of SUHAKAM and Advisor of the Asia Pacific Forum Project delivered the welcoming remarks at the National Conference. Among the honoured guests present were YB Kasthuriaani Patto, Member of Parliament for Batu Kawan and H.E. Andrew John Lech Goledzinowski, Australian High Commissioner to Malaysia. Other participants at the National Conference included representatives from the relevant Government agencies, Members of Parliament, diplomatic corps, religious bodies, non-governmental organisations (NGOs), legal practitioners, academics and students.

Dato’ Mah Weng Kwai stated that the objectives of the National Conference were as follows:

  1. To maximise awareness on the issue of the death penalty and the right to life among the participants;
  2. To facilitate the Government’s efforts in abolishing the mandatory death penalty and to enlighten the public on the concept of the death penalty according to religious perspectives; and
  3. To assist the Government in taking positive action towards legislating effective yet humane sentences under the Malaysian criminal justice system.

Dato’ Mah Weng Kwai in his welcoming remarks mentioned that before the 14th Malaysian General Elections held on 9.5.2018, Pakatan Harapan had in Promise No.27 of its Manifesto pledged to abolish the mandatory death penalty imposed under all laws in Malaysia. This promise was reiterated by the new Prime Minister, Tun Dr. Mahathir Mohamad in his speech published in The Star on 3.4.2018 and by the new Home Affairs Minister, Tan Sri Muhyiddin Yassin in his speech published in The Sun on 23.5.2018.

Dato’ Mah remarked that post 9.5.2018, Malaysians are now witnessing the “dawn of a new era for Malaysia – a New Malaysia or Malaysia Baru” and this would mean new developments and a new direction for human rights in Malaysia. The law as it stands today provides that the death penalty shall be mandatorily imposed by the Courts upon conviction in 12 offences while it is a discretionary sentence in 10 offences. In December 2017, in an amendment to section 39B of the Dangerous Drugs Act 1952, the Courts were given the discretionary power to impose a sentence of death penalty or life imprisonment in cases involving transporting, carrying, sending or delivering a dangerous drug upon the Public Prosecutor certifying in writing to the Court that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside the country.

According to the statistics of the Royal Malaysian Police, from January 2014 until October 2017, a total of 702,319 individuals were detained for trafficking and possessing drugs. During the same period, 21,371 arrests were made under section 39B of the Dangerous Drugs Act 1952. Of these, 1,7843 cases involved schoolchildren and 1,953 involved college and university students.

And according to the Prisons Department of Malaysia, as at February 2017, a total of 799 prisoners were incarcerated in death row upon their convictions for drug trafficking under section 39B of the Dangerous Drugs Act 1952. Of the total number of death row prisoners, 383 are Malaysians and 416 are foreign nationals.

Dato’ Mah highlighted that many groups including the Malaysian Bar Council and SUHAKAM have advocated for the total abolition of the death penalty since 1986. Dato’ Mah said that the right to life is the most fundamental of all human rights and it is enshrined in The Universal Declaration of Human Rights 1948 (UDHR),  International Covenant on Civil and Political Rights (ICCPR) and Article 5(1) of our Federal Constitution. Although Malaysia is not a State Party to ICCPR, Malaysia is bound to uphold the principles enshrined in the UDHR and the Federal Constitution.

In 1996, the United Nations Economic and Social Council passed a resolution entitled “Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty”, intending to limit the use of the death penalty and to protect those facing extensive suffering. It sets out 9 principles:

  1. Capital Punishment may be imposed only for the most serious crimes, it being understood that the scope should not go beyond intentional crimes with lethal or other extremely grave consequences. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions defined serious crimes as “cases where it can be shown that there was an intention to kill, which resulted in the loss of life”.
  2. Capital punishment may be imposed only for crimes for which the death penalty is prescribed by law at the time of its commission. If subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
  3. Persons below the age of 18 at the time of commission of the crime, pregnant women, new mothers or those certified insane should not be sentenced to death.
  4. Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.
  5. Capital punishment may only be carried out pursuant to a final judgment rendered by a competent court after due legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the ICCPR.
  6. Anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals shall become mandatory.
  7. Anyone sentenced to death shall have the right to seek pardon or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment.
  8. Capital punishment shall not be carried out pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence.
  9. Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering.

In 2007, the first resolution entitled “Moratorium on the application of death penalty” was introduced during the UN General Assembly where it called upon member nations with the death penalty still in force to impose a moratorium on its use with the ultimate goal of abolishing it. This was later reaffirmed by other resolutions reiterating the same spirit in 2008, 2010, 2012, 2014 and 2016 respectively. However, Malaysia voted against all the above resolutions.

For those who oppose the death penalty,  abolition is crucial. This is because of the irreversibility of the death sentence, upon execution, the lengthy due process and the inhuman, cruel and degrading nature of the punishment. On the other hand, supporters of the death penalty hold fast to the notion that the death penalty is an effective means to deter crimes from being committed.

Dato’ Mah Weng Kwai expressed his reservation on the effectiveness of the death penalty as a means to deter crimes in Malaysia. This is because Malaysia still records high number of crimes being committed. According to a report published by the United Nations Office on Drugs and Crime (UNODC)(2013), Malaysia recorded an average crime rate of 2.13% from 2003 to 2010.

SUHAKAM has organised two Roundtable Discussions with different groups of religious associations in 2015 in order to obtain their views on the use of the death penalty under Malaysia’s criminal justice system. A summary of the remarks from the representatives are as follows:

  1. The representative from Jabatan Kemajuan Islam Malaysia (JAKIM), highlighted the principle of Islamic Maqasid or known as Maqasid Syariah which is intended to safeguard the “soul, religion, dignity, property and descendants”. According to this principle, human beings are not permitted to kill fellow human beings regardless of their race or religion. Further, the imposition of the death sentence must be in accordance with Islamic law (based on the Al-Quran and Hadith by Prophet Muhammad). The procedures to be followed before an execution takes place are very meticulous and the sentence may be commuted if the victim’s family forgave the perpetrator. In Islam, killing is only justified in a situation where a person acts in self-protection, fights for his rights and to defend his property from invasion.
  2. The representative from the Persatuan Buddhist Kuala Lumpur & Selangor supported the abolition of the death penalty as they believe that perpetrators should be given a second chance and the opportunity to change themselves. In principle, Buddhism does not support the imposition of the death penalty as it is in conflict with the teachings of Buddhism to revere life and no one is allowed to take another one’s life.
  3. The representative from the Christian Federation of Malaysia indicated that the death penalty in the main Christian tradition is based on the “life for a life” principle. The death penalty was imposed on crimes against religion, life, adultery and humanity. Now however, many of the Christian movements believe that the death penalty may cause more harm than good in the long term.
  4. The representative from the Malaysia Hindu Sangam noted that there are Hindu scriptures where the death penalty is allowed in certain instances but there are also several religious texts which forbid the imposition of the death penalty. Even though the death penalty is permitted under Hinduism, the death sentence will only be implemented in the most extreme cases. The ultimate aim of Hinduism is to achieve Moksya which means ‘not to be reborn to correct their wrongdoing’.
  5. The representative from the Persekutuan Agama Tao Malaysia highlighted that in Taoism, life is sacred and only God has the power to take the life of a being. Therefore the concept of the death penalty does not exist in Taoism.

Dato’ Mah Weng Kwai also noted that the Institutional Reforms Committee (“IRC”), established by the Prime Minister in May 2018 post GE-14, has reviewed the issue of the death penalty and recommendations to the Government will be made accordingly.

Lastly, Dato’ Mah Weng Kwai invited the participants to consider the information gathered at the National Conference and to develop and form their own opinions on whether the death penalty should be abolished and if the death penalty is to be abolished, whether it  should be a total abolition for all offences or limited abolition to some offences, which would necessarily mean to be imposed only for the most serious of offences.

By Wong Sue Ann


Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.