As of 15 August 2020, 1,324 prisoners are on death row in Malaysia.[1] One of them is Arokiasamy Alphonso, who was sentenced to death under section 302 of the Penal Code for murdering his sister-in-law in 2012.[2] Eight years later, he still awaits his fate and today, the question plagues his mind, is the Grim Reaper lurking around the corner or would he even be facing the gallows?
His life, hanging by a thin thread, was saved in the nick of time, following an immediate moratorium on executions established by the Pakatan Harapan government in July 2018.[3] A result of years’ of discussions and debates encircling capital punishments by the Malaysian government, it garnered the attention of the public, some exclaiming horror and others sighing in relief.
In 2013, the Malaysian Parliament and press discussed a report by Emeritus Professor Roger Hood, commissioned and published by The Death Penalty Project, titled The Death Penalty in Malaysia: Public opinion on the mandatory death penalty for drug trafficking, murder and firearms offences.
The study, launched at the Bar Council of Malaysia and embodying a representative sample of 1,535 Malaysian citizens from all over the country, as the co-executive directors of The Death Penalty Project, Saul Lehrfreund and Parvais Jabbar proclaimed, “for the first time, provides unique data from a large scale and detailed analysis of the views of the general public on the mandatory death penalty in Malaysia. The findings suggest that there would be little public opposition to abolition of the mandatory death penalty, in particular for drug trafficking, murder and firearms offences. We hope that this evidence will urge the Malaysian government to consider legislative reform – in line with both public sentiment and international human rights standards.” [4]
In the survey, only a minority (12% – 15%) ranked ‘greater number of executions’ as the most effective policy likely to reduce very violent crimes leading to death or drug trafficking whilst the majority favoured better moral education and more effective policing. Simply put, preventive means are preferred over excessive punitive measures.[5]
It was also denoted that there is a relatively low lack of interest, concern and knowledge of the subject, depicting that the presumed deterrent message that a mandatory death penalty is surmised to impart had not been taken note by more than half the representative sample of Malaysians interviewed for this survey.[6]
Conclusively, if the existence of a death penalty is to serve solely as an impediment, it is definitely not living up to its intended purpose, when Malaysians, in general, are not aware of the crimes imposed with death sentences.
Should one of the major arguments in favour of the capital punishment fall short and defeat its purpose, another common reasoning ought to be taken under consideration and scrutinised: is it in line with the spirit of the supreme laws of the land? This has transpired a need for a review of the constitutionality of the death penalty.
On 9 June 2020, in response to the death penalty challenge filed by four accused persons who were convicted under section 39B of the Dangerous Drugs Act and murder under section 302 of the Penal Code, the Federal Court held that amendments to make the death penalty mandatory for cases involving drug trafficking and murder were constitutional.
DPP Nik Suhaimi submitted that it is within the legislature’s power to enact or amend laws they deem appropriate, whilst courts are involved in the process of sentencing after finding an accused person guilty. As he was quoted saying, “the mandatory death penalty does not run afoul of the Federal Constitution, our Article 5(1) says that the right to life and personal liberty is not absolute and can be taken away”.
On the other hand, defense lawyer Gopal Sri Ram contended the removal of the court’s discretion in passing sentences amounted to an interference of judicial function, and the legislature’s response with regards to drug trafficking was disproportionate.[7]
As Emeritus Professor Shad Saleem Faruqi once remarked: “a judge must have the right to tailor the penalty to suit the crime and to temper justice with mercy in extenuating circumstances. Mandatory punishments compel courts to treat all convicts as similarly situated even though there may be substantial differences in the facts of the case. Even if total abolition is not seen as desirable because of the age of terrorism we are living in, a narrowing down of the offences for which the death penalty is imposed should be considered. The mandatory nature of the penalty should be lifted, and judicial discretion restored.”[8]
Mandatory sentences are a violation of one’s right to a fair trial, as it constitutes the removal of the sentencing power of judges, who can and will decide on just and appropriate sentences based on all the facts and circumstances of a particular case, after also considering all mitigating and aggravating factors.[9] The third principle of A. V. Dicey’s rule of law, the results of juridical decisions determining the rights of private persons, must be upheld.[10]
Besides the right to a fair trial, the death penalty should be treated as a fundamental violation of universal human rights, not only the right to life but the right to be free from excessive, repressive, and torturous punishments. It is a form of psychological torture as prisoners are killed ‘emotionally’ even before the death sentence as the period between sentencing and execution may take years due to the appeal process. Henceforth, if capital punishment cannot cease to exist, it is pivotal that the sentence is discretionary on case-to-case basis and not be a blanket verdict.
At present, eleven offences under the Penal Code and Firearms (Increased Penalties) Act 1971 carry the mandatory death penalty and the bill to abolish the capital punishment was expected to be tabled earlier this year in March but, it was delayed by the change in government.[11]
As the sun sets and dips beneath the horizon, could the death row prisoners be assured they would no longer face the fear of their nightmares and instead, be promised of more tomorrows? Only time will tell, but there is much reason for hope, indefinitely.
Notes:
[1] https://www.thestar.com.my/news/nation/2020/08/15/court039s-decision-to-abolish-death-penalty-should-be-dealt-by-parliament-says-suhakam-commissioner
[2] PP v Arokiasamy a/l Alphonso [2012]
[3] https://www.thestar.com.my/news/nation/2020/08/15/court039s-decision-to-abolish-death-penalty-should-be-dealt-by-parliament-says-suhakam-commissioner
[4] https://www.deathpenaltyproject.org/knowledge/the-death-penalty-in-malaysia/
[5] https://www.law.ox.ac.uk/centres-institutes/centre-criminology/blog/2013/12/death-penalty-malaysia
[6] https://www.deathpenaltyproject.org/wp-content/uploads/2018/02/Malaysia-report.pdf
[7] https://www.freemalaysiatoday.com/category/nation/2020/06/09/death-penalty-is-constitutional-federal-court-told/
[8] http://hakam.org.my/wp/2015/11/26/catching-flies-while-hornets-fly-free/
[9] https://www.malaymail.com/news/what-you-think/2020/07/17/abolish-the-mandatory-death-penalty-parliament-should-not-take-away-judges/1885480
[10] https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15115.htm#:~:text=Dicey’s%20third%20principle%20was%20that,flowed%20from%20a%20written%20constitution
[11] https://www.freemalaysiatoday.com/category/nation/2020/10/10/malaysian-bar-renew-calls-to-abolish-death-penalty/