By Lai Mun Onn, Senior Lecturer, Taylor’s Law School
On the 10th of June 2022, de facto law minister, Datuk Seri Wan Junaidi Tuanku Jaafar announced that the Malaysian government has agreed to abolish the mandatory death penalty and substitute a sentence at the discretion of the court.
Mandatory death sentence means that if an accused person is found by a judge to be guilty of any offence carrying the mandatory death sentence, the judge will have no choice but to sentence that person to death. In Malaysia, there are currently 11 offences carrying the mandatory death penalty such as the offence of murder, hostage taking resulting in death, and committing terrorist acts resulting in death.
By abolishing the mandatory death sentence, the judge will then have the discretion to impose a sentence based on the limits set by the law after taking into consideration the aggravating and/or mitigating factors.
There are three reasons why the abolishment of the mandatory death penalty should be a welcomed one.
Firstly, since no two cases can be said to be identical, judges should be given the opportunity to hear the case, see the accused person and other witnesses during the trial, and should be given the discretion to decide on what is a suitable and fair punishment to be imposed based on mitigating factors such as the accused persons’ backgrounds, their motives in committing the crime, and so on.
However, under the current law, a person who is guilty of murder, for example, will receive the mandatory death penalty under Section 302 of the Penal Code. The judge will have to impose the same sentence to all who are proven to have committed murder, whether or not if it was committed in a cruel, brutal manner, or if it was done in order to end the suffering of a loved one.
Furthermore, a judge cannot impose any other sentence even if there are strong mitigating factors. For example, on October 15, 2021, a single mother who had 9 children was sentenced to death as she was found guilty of possessing 113.9g (4 ounces) of methamphetamine, which carried the mandatory death sentence. There was an outcry by the public over this, but the judge had no choice but to impose the death sentence despite there being strong mitigating factors not to impose a heavy punishment. There was also an outcry in April this year when Singapore executed a Malaysian man for trafficking in drugs even though he is alleged to have been mentally impaired.
Therefore, to ensure that justice is done, mandatory death sentences should be abolished, and judges should be allowed to decide on what is the fairest sentence to be imposed.
Secondly, judges who are members of the government branch of the judiciary should be the ones who decide on sentences to be imposed. With Parliament passing laws on crimes that carry the mandatory death penalty, it is in effect Parliament who is deciding on the sentence of the accused persons.
Under the Constitutional Law doctrine of separation of powers, the three branches of government—namely the Parliament, the Executive and the Judiciary—should be separated for there to be proper checks and balances in the government. In Malaysia, with the supreme role of the constitution, the judiciary has the important added role to ensure that the laws passed by the Parliament are not unconstitutional.
With Parliament enacting laws that leave the members of the judiciary with no choice but to impose the death sentence, Parliament is clearly taking the role of the judiciary. With the abolishment of the mandatory death penalty, the decision on sentences to be imposed on a convicted accused person is rightly returned to the members of the judiciary.
Finally, the abolishment of the mandatory death penalty is a positive step that should lead to the ultimate abolishment of the death penalty.
With the abolishment of the mandatory death penalty, judges are still able to sentence a person to death if they are of the view that it is the right and fair decision to do so.
There are still those who are of the view that the death penalty should be maintained for certain particularly heinous criminals such as serial killers or serial child rapists. There are also some who disagree that tax-payers money should be used to keep some of these 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 death penalty 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, and these rights are not forfeited even if that person commits a crime.
The United Nations in December 2020 passed a General Assembly Resolution on a moratorium regarding the use of the death penalty. Malaysia voted in favour of it. Malaysia has since been elected to be part of the United Nations Human Rights Council. As such, a total abolishment of the death penalty will be consistent with the role that Malaysia is playing at the international level.