Is Death Penalty Punishment in Malaysia Against Human Rights?

Abstract

The fight between those who support capital punishment and those who oppose it is rather simple compared to many other debates. Those in support of capital punishment believe it deters crimes and, more often than not believe that certain crimes eliminate one’s right to life. Those who oppose capital punishment believe, that any person, including the government, has no right to take a life for any reason. They often believe that living with one’s crimes is a worse punishment than dying for them, and that the threat of capital punishment will not deter a person from committing a crime. They also believe that the risk of executing an innocent person is too high. The debate between these two sides is often heated, with both sides protesting with the NGOs and human rights activists as well as the victims’ relatives or the society in general. A writing on the perspective of Malaysians, the domestic framework as well as the international framework regarding death penalty.

Introduction

The death sentence or capital punishment has been commonly applied for centuries. The death sentence can be dated back to ancient history although no one can pinpoint where such an idea actually originated from. The death sentence is a punishment applied to a wide variety of offences ranging from the most severe cases to even petty theft. Capital punishment has been carried out through various methods and include, amongst others; the guillotine, crucifixion, boiling in oil, death by hanging, lethal injection, electric chair, shooting and stoning to death. In the last 50 years, however, the global society has started to move away from a pro-execution mindset to a new revolution of abolishing death sentencing. In Malaysia, capital punishment is carried out in the form of hanging until death.

Over the years, more activists and jurists around the world have voiced concerns against this brutal, ruthless and senseless sentencing and method of punishment. The main reason behind the success of abolishing the death sentence is when citizens around the globe become more aware of the importance of their constitutional rights in the country they reside in. Most of these constitutions have provisions such as “right to life” and other provisions that discourage death sentencing. However, capital punishment is yet to be abolished in Malaysia. In Malaysia, only the Yang Di- Pertuan Agong (the King) and Sultans of each state have the power to grant clemency to death row prisoners, through a pardons board, to commute their sentence to life imprisonment — in which the inmates will serve time for a minimum of 30 years.1

Background

There is a number of laws in Malaysia which carry a death penalty. The Penal Code (PC)2 lays down the crimes punishable by death in Malaysia. This includes murder punished with mandatory death penalty as provided by section 302 of the PC. Besides that, death penalty is also provided for offence of waging war against the Yang di-Pertuan Agong or Ruler or Yang di-Pertua Negeri as provided by section 121 of the PC. Furthermore, terrorism is also punishable by death if the act caused death as provided in section 130C of the PC. Section 364 of the PC provides death penalty for kidnapping or abducting in order to murder. Section 132 of the PC also state death penalty for abetting the mutiny committed by officers in the Malaysian Armed Forces.

Besides that, section 39B (2) of the Dangerous Drugs Act 1952 provides for mandatory death penalty for possession of prescribed drugs above a certain specified quantity. For example 15 grammes for heroin and 200 grammes for cannabis. On the other hand, section 3 of the Firearms (Increased Penalties) Act 1971 provides death penalty as the mandatory punishment for the discharge of a firearm with intent to kill or harm, whether or not any harm was caused, while involved in certain specified crimes, such as housebreaking.

It is arguable by many that the death penalty violated Article 5 (1) of the Federal Constitution that provides for the right to live. Death penalty also contravenes Article 5 of the Universal Declaration of Human Rights as well as Article 12 (2) of the Malaysian Human Rights Charter, which states: “No person shall be tortured or subjected to cruel or degrading treatment or punishment by individuals, police, military or any other state agency.”

Now, other countries have abolished death penalty pursuant to the European Charter of Human Rights (ECHR) implemented since 1950 by the Council of Europe, binding on countries in the European Union. Article 2 of the ECHR protects the right of every person to their life. Protocol 13 of the ECHR suggests abolishment of the death sentence completely. Almost all the countries, which are part of the European Union, have abolished the death sentence as they abide closely with the ECHR provision. One of the earliest countries to abolish the death sentence was Portugal in 1867. Similarly, the Canadian Charter of Rights and Freedom in 1982 provides that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except

in accordance with the principles of fundamental justice.” Hence, capital punishment was removed from the Canadian Criminal Code in 1976.3 It was replaced with a mandatory life sentence without possibility of parole for 25 years for all first-degree murders.4 In 1998, capital punishment was also removed from the Canadian National Defence Act, bringing Canadian military law in line with the civil law in Canada.4 The Supreme Court of Canada also ruled in United States v. Burns [2001] 1 SCR 283, that in extradition cases it is constitutionally required that “in all but exceptional cases” the Canadian government seek assurances that the death penalty will not be imposed, or if imposed not carried out.

There are also statistics to counter-argue that life imprisonment cost a lot more than capital punishments. In Kansas, defense costs for death penalty trials averaged $400,000 each. In contrast, the defense cost for non-capital trial cases averages just $100,000. In Oklahoma, the average capital case costs 3.2 times more than the average non-capital case. In California, the death penalty has cost more than $4 billion since 1978. That includes the costs of trials, appeals, and incarceration on death row. In 2019, the California governor issued a moratorium on the death penalty. In Florida, enforcing the death penalty costs $51 million a year more than it would have to give all first-degree murderers life in prison without parole. In North Carolina, death penalty cases cost $2.16 million per execution more than sentencing murderers to life imprisonment.5

Analysis

Now, this is not the case in Malaysia. There are also those who supported death penalty as the penalty serves as a retribution for the crime committed. In a survey done by Ipsos Malaysia for the Death Penalty Project, it was found that respondents who were in favour of death penalty were of the opinion that there can be no excuses for committing the said crime, so anyone found guilty deserves to die. Some on the other hand, supported death penalty because unless the punishment is certain, with no exceptions, it will not be a powerful deterrent to these crimes.6 It can be concluded from the survey that Malaysians tend to support death penalty for the reason of retribution and deterrence. This is further  supported  in  Christin  Nirmal  v  Public  Prosecutor [2018] 6 MLJ 21, the court state that the primary object of death penalties in a drug trafficking  offence   is   that   society   regards   the   offence   with   particular   abhorrence.   The death penalties should act as a deterrent, particularly where the offence is one that is committed for profit by an offender who is prepared to take a calculated risk.

Malaysians’ view of death penalty is in lign with Professor Ernest Van den Haag’s view in conducting studies on the correlation of the death penalty to deterrence, that capital punishment is likely to deter more than other punishments because people fear death more than anything else. He reinstated that “They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most”.

It can be argued that the reason why Malaysians think that capital punishment acts as a deterrence or retribution is because Malaysians are heavily influenced by the religion, especially Islam. This is because Malaysia is a Muslim dominated country. This can be seen in the Quran Surah Maidah verse 45 stated that “And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation for him. And whoever does not judge by what Allah has revealed – then it is those who are the wrongdoers.

This is also supported by the statistics that show cases such as drugs trafficking has yet to decline in certain states.7 Thus, if the cruelest and harshest punishment (death penalty)8 has not curb the said crime, certainly, other form of punishment will not eliminate or at least reduce the said crime.

In addition, there is no provision under international law or treaty that prohibits the death penalty’s imposition. For example, Article 6 (1) of the International Covenant on Civil and Political Rights (ICCPR) provides that every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. By interpreting the said provision, everyone is entitled to have his or her right to life protected by law and should not be arbitrarily deprived of life. However, there are circumstances, where the authority has the power to deprive his or her life lawfully.

The ICCPR provides limitations for a country that retains the imposition of the death penalty to follow. The limitations include that the death penalty must be limited to only the most serious crimes. For example, homicide or murder. Death penalty cannot be imposed if a fair trial has not to be granted, or other ICCPR rights have been violated, or if the offender is a minor under the age of 18, or if the offender is pregnant. Furthermore, the punishment of the death penalty should not be imposed for certain crimes such as drug-related offenses, economic crimes, and actions relating to moral values including adultery, prostitution, and sexual orientation as provided by the UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary.

Conclusion

To sum up the discussion above, the punishment of the death penalty does not breach any international law since there is no absolute prohibition on the death penalty’s imposition. However, as discussed above, a country that retains the punishment of the death penalty is bound to follow the limitation provided under ICCPR and must make sure the fairness of the court proceeding to prevent from killing an innocent person. If the justice system of the country is unsatisfactory, then the abolishment of the death penalty will be the best solution to avoid injustice. Malaysia certainly did not follow the limitation as death penalty is still imposed on drug related offence. Thus, it is suggested that Malaysia review the mandatory death penalty and replaced it with mandatory life sentence without possibility of parole as in Canada or improve the law enforcers instead.

(2005 words)

  1. Amnesty International. (n.d.). death penalty abolition. Retrieved June 30, 2020, from https://www.amnesty.my/abolish-death-penalty/ []
  2. Act 574 []
  3. Munroe, Susan. (2020, February 11). History of Capital Punishment in Canada. Retrieved from https://www.thoughtco.com/history-of-capital-punishment-in-canada-508141 []
  4. ibid at 2 [] []
  5. Susquehanna University. “The Death Penalty vs. Life Incarceration: A Financial Analysis,” Retrieved from https://scholarlycommons.susqu.edu/cgi/viewcontent.cgi?article=1026&context=supr Accessed July. 29, 2020. []
  6. Roger Hood (Ed.). (2013). The Death Penalty in Malaysia Public opinion on the mandatory death penalty for drug trafficking, murder and firearms offences. The Death Penalty Project. https://www.deathpenaltyproject.org/wp- content/uploads/2018/02/Malaysia-report.pdf []
  7. Department of Statistics Malaysia. (2019, November 27). crime statistics, 2019- Department of Statistics Malaysia . Crime Statistics 2019. https://www.dosm.gov.my/v1/index.php/index.php?r=column/cthemeByCat&cat=455&bul_id=MEs4QzNxWkNZZ DEyM08yM0Jsd05vQT09&menu_id=U3VPMldoYUxzVzFaYmNkWXZteGduZz09 []
  8. Ibid at 1 []