By: Siti Nur Amani
Death penalty in Malaysia is a legal governmental practice whereby an offender is hanged to death for committing an offence punishable by death. This article is set to focus on the constitutionality of the mandatory death penalty in regards to the penalty being challenged as a deprivation to human rights especially rights to life and equality. The article will look on different perspective of the death penalty including the laws that governs death penalty and human rights in Malaysia, as well as the religious perspective.
Keywords: Death penalty punishment, Human rights, Religion perspective, Penal Code, Federal Constitution.
1. BACKGROUND ON DEATH PENALTY IN MALAYSIA
Death penalty, also commonly known as capital punishment, is a government sanctioned practice whereby a person is put to death by the state as a punishment for an offence he or she had committed. In Malaysia, the idea on the application of death penalty was developed from a mix between the common law system that Malaysia inherited during the British colonisation period and the authorisation of certain punishments from Islam including from hudud punishment (Novak, 2014).
Death penalty in Malaysia is a legal form of punishment which is carried out by hanging until death as provided in Section 281 of the Criminal Procedure Code. The jurisdiction to sentence someone to death lies on the hand of High Courts only. Thus, no other person or court may sentence another person to death.
Death penalty punishment carried out in Malaysia is used for a variety of offences. It is a mandatory punishment for murder, drug trafficking, treason, waging war against Yang di- Pertuan Agong and acts of terrorism. Since death penalty is a mandatory punishment, no Malaysian, not even foreigners are exempt from such punishment (New Straits Times, 2019).
Despite the fact that death penalty is considered a mandatory punishment to several offences in Malaysia, there are those who regards such act of killing the offenders to be a deprivation of human rights to life as enumerated in Article 5 of the Federal Constitution. Subsequently death sentences were regarded by most people as an arbitrary deprivation of life, due to it being labelled as cruel or inhuman, hence several countries have declared criminal laws or provision that imposed capital punishment as unconstitutional and have abolished such punishment (Hood, 2013). Nevertheless, there are still some countries that have not declared the criminal laws on death penalty as unconstitutional nor abolish them, and such countries includes Malaysia, Singapore, Brunei and many others.
Malaysia, though have not abolish death penalty, were repeatedly in a position where several Malaysian challenged the constitutionality of the laws on death penalty. What began the ongoing debate on the constitutionality of the mandatory death penalty in Malaysia was a landmark case from 37 years ago which is the Public Prosecutor v Lau Kee Hoo  1 MLJ 157 case. This case relates to the imposition of death penalty for the offence of having in possession a hand grenade under the 1960 Internal Security Act. The court held that death penalty under the 1960 Act was consistent with Article 5(1) of the Constitution and that capital
punishment is a matter for Parliament, hence it is not for judges to adjudicate whether the law prescribing it is validly made.
From there on, many have repeatedly challenged the application of the mandatory death penalty in Malaysia, alas, death penalty in Malaysia retained its position – unwavering by the voice of other that pleas for its abolishment.
2. ANALYSIS ON DEATH PENALTY IN MALAYSIA
In determining whether death penalty in Malaysia is a deprivation of human rights or a constitutional requirement, one must review the laws that provides for the capital punishment and whether such law impose death penalty to all Malaysian citizens or exclude certain class of people. In addition, it would also be ideal to review the death penalty from the religious perspective as to whether such punishment is against the teaching or belief of one’s religion on human rights.
2.1 Laws Governing Death Penalty and Human Rights in Malaysia
2.1.1 Laws on death penalty punishment in Malaysia
Malaysia had provided several legislation for the offences committed that are punishable by death. The main legislation providing the provisions on death penalty is the Malaysian Penal Code which enlists many offences that are punishable by death. Some of the notable provisions on the offences includes; Section 121A for the offences against the person of the Yang di- Pertuan Agong, Ruler or Yang di-Pertua Negeri, Section 130C for committing terrorist acts, Section 132 for the abetment of mutiny within Malaysian Armed Forces, Section 364 for kidnapping or abducting in order to murder, Section 376(4) for rape resulting in death, and Section 396 for committing gang-robbery with murder.
Apart from that there are others legislation which provide offences punishable by death. The Firearms (Increased Penalties) Act 1971 provides death penalty for offences committed under Section 3 for discharging a firearm in the commission of a scheduled offence, and Section 3A for being an accomplice in case of discharge of firearm. Then, Section 3(1) of the Kidnapping Act 1961 (Revised 1989) includes death punishment for the offence of abduction, wrongful restraint or wrongful confinement for ransom. Furthermore, Section 39B of the Dangerous
Drugs Act 1952 (Revised 1980) provides that any person involves in trafficking dangerous drug shall be punished on conviction with death. Whereas the Criminal Procedure Code under Section 281 provides the provisions for the execution of death sentences.
In addition, an example of case that illustrate Malaysia recent prosecution on an offence punishable by death is the case of Azaman Bin Aziz v Public Prosecutor  5 MLJ 510. The appellant had been involved in drug trafficking activities in Titi Serong, Kerian, Perak. He had smuggled a dangerous drug which was cannabis with a weight of 1793 gram and this is an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Revised 1980), punishable under section 3B9(2) of the same Act. For all the reasons given, the court dismissed the appellant’s appeal and affirmed the conviction and sentence handed down by the High Court. The appellant was sentenced to suffer the death penalty.
2.1.2 Laws on human rights in Malaysia
The laws on fundamental liberties or rights of Malaysian are highlighted in Article 5 until 13 of the Federal Constitution. However, this article will only be focusing on Article 5 and 8 of the Constitution.
Article 5(1) of the Constitution is a provision for the right to life, which guarantees the right of Malaysian citizens not to be deprived of his life or liberty save in accordance with law. While Article 8(1) of the Constitution provides that all person are equal before the law and entitled to the equal protection of the law. The combined effect of Articles 5(1) and 8(1) imposes and ensures procedural fairness whenever a person’s livelihood is adversely affected by a decision- maker.
2.2 Death Penalty from Religious Perspective
Taking a different angle in reviewing the death penalty, religious views are as much important as the enacted laws as they form parts of the rights and beliefs of a citizen. The religious perspectives will focus more on the views of each major religions in Malaysia regarding death penalty, along with the nature of each religion on the rights to life.
Before delving further into the religious perspective, it is ideal to first mention on the percentage of those religions who supported the execution of death penalty in Malaysia. A survey was
conducted through a face-to-face interviews with a number of 1,535 Malaysians in 2012 by the Ipsos Malaysia Company on the execution of death penalty on certain offences (Hood, 2013). From the data collected, death penalty for the offence relating to murder was more likely to be supported by 60% of Malaysians with Islamic faith, followed by 53% for Buddhists and Hindus combined, and 46% for Christians. As for smuggling heroin, death penalty was most likely to be supported by Christians with 31% who were in favour, followed by Hindus with 28%, Muslims with 25%, and Buddhists with 22%.
The data collected in the 2012 survey shows that some religions seems to support the idea of death penalty to be imposed for certain offences. However, there seemed to be a different view on death penalty provided by representatives from different groups of religious associations in the Roundtable Discussions organised by the Human Rights Commission of Malaysia (SUHAKAM) in 2015. In fact, most representatives from each groups does not justified the act of taking another human’s life, while some others deemed death penalty as an act against the nature of their religion and might cause more harm than good (Ann, 2018). A summary of each representative’s remarks is as follows.
For Muslims, the representative from Jabatan Kemajuan Islam Malaysia (JAKIM) emphasized the Maqasid Syariah principle which is intended to safeguard the five fundamental values (al daruriyyat al-khamsah) of human well-being which are “religion, life, lineage, intellect, and property”. According to the value of life, human especially Muslims are not permitted to kill other human beings regardless of their race or religion, whether they are Muslims or non- Muslims. Moreover, the representative highlighted that death sentence must be made in accordance with Islamic law which are based on the Al-Quran and Hadith. Furthermore, Islam only justifies killing or taking another human’s life in circumstances where a person acts in self-protection, fights for his rights and to defend his property from invasion. (Ann, 2018).
However, it is important to note that in order to protect life, the Shariah has enacted severe punishment for those who kill others. The punishment for those who kills innocent human beings is the death penalty in Islam which includes Qisas. Al-Qisas (the law of equality in punishment) is mentioned in the surah Al-Baqarah, verse 178-179 where death punishment is prescribed as the punishment for murder case. Although one life is killed, it may lead to saving many more lives as the punishment will deter others from committing such crime. (Laldin, 2006).
Hence, from the Islamic perspective, Islam allows killing through death penalty. The Al-Quran and Hadith had also mentioned death punishment for certain cases, for instance, Qisas had prescribes the death penalty for intentional murder. Alas, death penalty should only be imposed in accordance to Islamic law and for the purpose to safeguard a life.
Next, for the Christian faith, the representative from the Christian Federation of Malaysia had indicated that death penalty, taken from the main Christian tradition, is based on the “life for a life” principle. Christian death penalty was imposed on offences against religion, life, adultery and humanity. Nevertheless, many Christian movements nowadays believed that death penalty may cause more harm rather than good.
As for Buddhist faith, the representative from the Persatuan Buddhist Kuala Lumpur & Selangor remarks that Buddhism does not support the application of death penalty as it is inconsistent with their beliefs and teachings. In principle, Buddhism respect human rights and the gift of life, thus they maintains a strict prohibition against taking life. Hence, the representative supported the abolition of the death penalty as they believe that the offenders should be given another chance to change themselves.
Afterwards, for Hindu faith, the representative from the Malaysia Hindu Sangam noted that there are Hindu scriptures that allowed death penalty in certain cases, but there are also some religious texts that forbids the imposition of death penalty. Hinduism, in line with the principle of ahimsa (non-violence), opposed to killing and violence. Thus, although death penalty is permitted under Hinduism, the death punishment will only be imposed in extreme cases only.
In addition, those of the faith of Daoism, or Taoism was represented by the Persekutuan Agama Tao Malaysia. The representative noted that life is sacred in Taoism, and only God is empower to take the life of a human being. For that reason, the concept of death penalty does not exist in Taoism.
From the remarks made by each representative’s, it shows that although some of the religions allows death penalty, it is only to be executed in extreme cases only. In fact, nowadays, they viewed the act of taking the life of another through death penalty as an act against the human rights to life as death penalty itself does not deter the number of cases on murder, drug trafficking, or kidnapping in Malaysia.
2.3 Death Penalty in Malaysia is Not a Deprivation to Human Rights
Although society deemed death penalty as a harsh and inhumane punishment towards offenders, it should be noted that there are limits to death penalty where an offender may not be sentenced to death or might as well ‘escape’ death penalty.
Death penalty does not deprive a person rights to life as there exist laws in Malaysia that prohibit death punishment on a certain class of person. In fact, there are no deprivation of human rights to life for pregnant women and children as they cannot be sentenced to death. Section 275 of the Criminal Procedure Code made it clear that death penalty shall not be imposed on a pregnant woman for an offence she had committed, instead, she shall be sentence of imprisonment for life. Meanwhile, Section 97(1) and (2) of the Child Act 2001 provided that a child shall not be punished with death for an offence he or she had committed and shall instead be detained in prison
Moreover, death penalty is not a deprivation to the right to life and right to equal protection of the law as an offender may avoid serving death sentence either by making an appeal or getting the Royal pardon. An offender may appeal the decision by the High Court to a higher court which would be the Court of Appeal following Article 121 (1B) of the Constitution, and if the offender cannot escape death penalty there, he or she still have the chance to appeal to the Federal Court. Another way for the offender to avoid death penalty is by getting the Royal pardon whereby the Yang di-Pertuan Agong or the State rulers (Sultans) will exercise their ability to grant forgiveness to the offender, hence the sentence is either reduce to life imprisonment or being able to fully escape liability (Arjun, 2018). Additionally, in terms of right to equal protection of the law, all offenders on death row committed by different races in Malaysia, are allow to request for an appeal or Royal pardon. There are no discrimination towards races nor the level of offences committed including those punishable by death.
Furthermore, an offender is not deprive of his right to equality before the law as the law does not discriminate anybody who was similarly sentenced with death penalty. The Federal Court in Public Prosecutor v Lau Kee Hoo  1 MLJ 157 case held that equality before the law and equal protection of the law requires that like should be compared with like. In other words, Article 8(1) of the Constitution assures to the individual the right to equal treatment with other individuals in similar circumstances. Hence, everyone who was charged for an offence
punishable by death is liable to the same punishment and therefore there are no discrimination in terms of treatment.
In conclusion, the mandatory death penalty is constitutional in the sense that that it does not deprive a human rights to life and equal protection to the law. Death penalty has a set of limits that there are certain people that can escape death sentence and that the punishment be reduced to imprisonment instead. An offender also have the right to escape death row where he may appeal the decision of High Court on the death penalty to a higher court, or he may ask for Royal pardon from the Yang di-Pertuan Agong or state’s Sultans. Moreover, it should be noted that there are only a few offences in Malaysia that offers death penalty as a way of punishment to the offenders. Those offences also have procedure on determining the level of seriousness to amount to death penalty.
Although most religions nowadays does not agree to the imposition of death penalty, some religions especially Islam, does not forbade death penalty instead the imposition of death penalty have been inscribed in the Al-Quran and Hadith as a way to punish a murderer. Alas, most religions agrees that death penalty in the present days might be against the human rights, hence it might as well be abolish.
Looking at a different perspective, if death penalty is abolish, will life imprisonment, imprisonment for life, or whipping be sufficient for the seriousness of offence that was committed? If so, an offender or murderer is punished to life imprisonment, meaning he will spends his whole life in prison, would that not be suffering and mentally distressing? Death penalty will give time to the offenders to repent before their time comes, and if their appeal or Royal pardon is successful they might escape death sentence.
It is true that although death penalty does not deter crime, it is still a requisite needs in Malaysia. Death penalty is a constitutional requirement to Malaysia due to the fact that if it is abolished, Malaysia might not have any harsher punishment to replace with. In fact, do not even try to count the implementation of hudud punishment as many have opposed to it due to the lack of knowledge on such punishment.
- Ann, W.S. (2018). National Conference on Death Penalty SUHAKAM. MahWengKwai & Associates: Advocates and Solicitors. Retrieved from https://mahwengkwai.com/national- conference-on-death-penalty-suhakam/
- Arjun (2018). 5 beliefs Malaysians have about the death penalty…that are wrong. AskLegal.MY. Retrieved from https://asklegal.my/p/death-penalty-hanging-prison- sentence-criminal-abolish-malaysia
- Child Act 2001
- Criminal Procedure Code
- Dangerous Drugs Act 1952 (Revised 1980)
- Federal Constitution
- Firearms (Increased Penalties) Act 1971
- Hood, R. (2013). The Death Penalty in Malaysia: Public opinion on the mandatory death penalty for drug trafficking, murder and firearms offences. The Death Penalty Project. Retrieved from https://www.deathpenaltyproject.org/wp- content/uploads/2018/02/Malaysia-report.pdf
- Kidnapping Act 1961 (Revised 1989)
- Laldin, M.A (2006). Islamic Law: An Introduction (1sted.). Research Center of International Islamic University Malaysia. Page 20.
- Novak, A. (2014). Global Decline of Mandatory Death Penalty: Constitutional Jurisprudence and Legislative Reform in Africa, Asia and the Caribbean. Page 76. Retrieved from http://happiness.care/wp-content/uploads/2017/12/Andrew-Novak-The- Global-Decline-of-the-Mandatory-Death-Penalty-Constitutional-Jurisprudence-and- Legislative-Reform-in-Africa-Asia-and-the-Caribbean.pdf
- Penal Code
- Reuters (2019). Foreigners make up 44pct of 1,281 death row inmates in Msia. New Straits Times. Retrieved from https://www.nst.com.my/news/nation/2019/10/528835/foreigners- make-44pct-1281-death-row-inmates-msia