LETTER | No change after abolishment of mandatory death penalty

LETTER | Oct 10 is the World Day Against the Death Penalty. Every year, on this day, focus is given to a specific issue, and in 2023, the theme is Torture and the Death Penalty.

It highlights, amongst others, the use of torture - be it physical, psychological, or sexual - during investigations before one is charged and tried.

Other focuses include torture suffered by those on death row awaiting execution - known as the death row phenomenon - and torture during execution due to methods used.

Lastly, it highlights the torture suffered by the families and children of persons on death row, noting this a category where innocent persons are also severely affected by the death penalty.

Torture during investigation must end

In Malaysia, even though torture is prohibited by law, it still is being used by the police, other law enforcement, and even the prosecution in some cases, allegedly for the purpose of securing “necessary evidence”.

This is an unacceptable justification and the use of torture must end.

Allegations of torture by police and law enforcement are extremely difficult to prove by the accused, more so when there is no CCTV with recording capacity in the places of detention or any other methods that are able to confirm that there has been no torture by police from the point of arrest.

Getting suspects to confess was perceived as the main reason behind torture in police custody and the Malaysian Parliament since 2007 has amended the Criminal Procedure Code that now does not allow the prosecution to use any statements made by the accused during the course of a police investigation like confessions.

Section 113(1) of the Criminal Procedure Code states that “…no statement made by any person to a police officer in the course of a police investigation made under this Chapter shall be used in evidence…”. Only the accused can use such statements in court.

However, the problem remains that other statements, not confessions, could still be used to recover other evidence other than confessions.

In the murder of Altantuya Shaariibuu in 2006, the fact that the accused for an offence that then carried the mandatory death penalty “… had also independently led the police to the scene of the crime, which was a remote and isolated place up in the hills…” was suspicious.

Why would anyone lead the police to evidence for an offence that will result in their being executed? Was there torture used? Were there “other promises”?

Most suspects would reasonably have kept quiet and most lawyers would have advised against doing anything that would assist the police in getting the needed evidence to convict.

Malaysia and the death penalty

In 2018, on World Day Against Death Penalty, it was announced that “Malaysia’s cabinet has reached a consensus that the death penalty for 33 offences as provided for under eight Acts of law should be abolished…” (Bernama/Straits Times 13/11/2018).

However, on March 13, 2019, the Malaysian cabinet did a U-turn on abolishing the death penalty for all 33 offences and instead agreed to abolish the mandatory death penalty for all 11 mandatory death penalty offences. Pakatan Harapan then lacked the political will and courage to abolish the death penalty.

The bill to abolish the mandatory death penalty was finally tabled in October 2022 by the then Perikatan Nasional government during the administration of Ismail Sabri Yaakob. After that, Parliament was dissolved and there was a general election and a change of government.

Then, the new Harapan-led coalition government tabled the law to abolish the mandatory death penalty and life imprisonment.

The Abolition Of Mandatory Death Penalty Act 2023 came into force on July 4, 2023, but a sister Act that would allow those on death row to apply to the court to review their death sentence was delayed.

The Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 finally came into force on Sept 12, 2023, now allowing about 1,020 prisoners (of which about 850 on death row who had been handed mandatory death penalty) or the rest serving life imprisonment sentences to now file applications in court to review these sentences.

The result of the abolition of the mandatory death penalty now means that judges now have a choice in sentence other than just the death penalty, but the reality is that the death penalty still remains in all the 33 offences.

Courts continue to hand down death sentences

Despite the abolition of the mandatory death penalty, it is disturbing that the courts are still handing down the death penalty.

For example, on Aug 1, 2023, two men charged with murdering a woman were sentenced to death by the High Court and on Aug 2, 2023, the Court of Appeal in Putrajaya upheld the death sentence imposed on a businessperson for trafficking in 9.528kg of cannabis.

Offences that carry death sentence remain the same

Madpet (Malaysians Against Death Penalty and Torture) notes that things will still remain the same as the death sentence is still available for 33 offences, many of which do not even result in any death or grievous bodily harm of any victim whatsoever.

For so long, as the death penalty is not abolished, people will still continue to be sentenced to death by the courts.

Even after the revision of the death sentence of about 850 on death row, it is likely that many will still end up with the death sentence. Not all will receive the alternative sentence of imprisonment plus whipping.

So, death row will still have people waiting to be hanged, and the courts cannot be blamed for sentencing people to death for so long as the death penalty remains in the law.

Only the government, now Anwar Ibrahim’s Harapan-led coalition government can totally abolish the death penalty.

Malaysia’s position which had been declared to the world, when Malaysia voted in favour of the UN General Assembly Resolution in 2018, 2020 and 2022 has been that Malaysia will abolish the death penalty.

Malaysia then committed itself to a moratorium on execution pending abolition. Will Anwar’s government have the courage and political will to abolish the death penalty?

In Indonesia, at the end of 2022, the revised Criminal Code introduced an automatic 10-year probation for convicts on death row to demonstrate good behaviour for the possibility of having their sentences commuted.

The global trend has been towards abolition as countries no longer believe in “murdering” the convicted, instead imposing a punishment that will allow for repentance, rehabilitation, and a second chance.

Madpet reiterates the call for the total abolition of the death penalty in Malaysia and a moratorium on execution pending abolition.

Madpet also urges judges to consider not sentencing any person to death at the risk of miscarriage of justice, noting that the innocent can be wrongly executed just like what happened in the case of Chiang Kuo-ching, who was executed in Taiwan in 1997 after being convicted of sexually abusing and murdering a five-year-old girl.

After his death, in 2011, Taiwan’s Ministry of Justice admitted that Chiang had been executed in error.

Madpet calls for the abolition of torture, especially by the police and law enforcement, and urges the speedy installation of CCTV with recording capacity in all holding areas, and body-cams be mandatory for police and other law enforcement.

From the point of arrest until he/she is charged, there must be evidence that no torture or wrongdoings were committed by the police or law enforcers in violation of the law, in violation of a suspect’s rights and justice.

Noting that the death penalty cannot be abolished unless by law, Madpet calls on Prime Minister Anwar, the executive, and Parliament to speedily amend laws that will effectively abolish the death penalty.

If not, the courts that are bound to follow the written law may continue sentencing persons to death when convicted for any of the about 33 offences that still carry the death penalty.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.