ABSTRACT
The debate on the death penalty is endless. Some see the death penalty as a sentence that infringes fundamental norms of human rights, while others consider it as a form of retribution to the crime committed. This article provides empirical research on the exposition of the death penalty in Malaysia but also provides meta-analysis on the replacement of the death penalty that being imprisonment for life. The debate about the acceptability of life imprisonment is somewhat parochial. This article is to address the gaps in knowledge and analysis regarding both forms of punishment. In doing so, a philosophy of human rights is given. Many legal instruments, provisions of the Malaysian Federal Constitution, court decisions, and other relevant statutes are used to enrich the discussion. The study finds that the Malaysian Criminal Justice system requires adequate reform not only in regards to capital punishment but also its possible replacement, imprisonment for life. Thus, this study shows that without adequate reforms the imposition of the death penalty will continue to harm basic human rights of the most marginalized in society. Be that as it may, this study attempts to show in many ways both punishments carried out in Malaysia, infringes human rights.
INTRODUCTION
The death penalty remains one of the most controversial discourses in today’s world of criminal justice. Many countries are not unanimous on their stance on the death penalty. Amnesty International’s research shows that the trend towards the abolishment of the death penalty continues. [1] As of 2019, it was reported that 106 countries have abolished the death penalty for all crimes and 142 countries (more than two-thirds) have abolished the death penalty in law or practice. At the moment, there are no reliable statistics on the number of death penalties that have been executed. A study by Amnesty International recorded 657 executions in 20 countries in 2019, a decrease of 5% compared to 2018 (at least 690). The report shows further that most executions took place in China, Iran, Saudi Arabia, Iraq, and Egypt (in order from highest to lowest)[2].
Some countries retain the death penalty for the most heinous crimes like murder, rape, armed robbery, some countries have a long list of offences which carry the death penalty. In some countries, offences that carry the death penalty include blasphemy, adultery, corruption, homosexual acts, treason, economic offences, espionage, prostitution, premarital sex, and “crimes against the State”. Some of these offences carry the mandatory death penalty. For instance, in Malaysia, there are currently 17 crime offences that punishable with hanging ranging from mutiny to gang robbery with armed weapons. In 2019, the government decided to abolish the mandatory sentence for drug trafficking[3]. However, Amnesty International reports states that some countries executed persons below the age of 18, for instance, the United Kingdom, China, Congo, Saudi Arabia, and the USA. Although the manner and method of execution differ in each jurisdiction, the common one seems to be hanging and shooting by firing squad.
Against that backdrop, the death penalty always remains at the centre of human rights debates. Many jurisdictions including Malaysia have proposed replacing the death sentence with mandatory imprisonment for life. It is important to note that throughout this study a distinction made between life imprisonment and imprisonment for life. In the context of Malaysia, life imprisonment refers to a fixed term in prison which can amount up to 20 years whereas imprisonment for life is defined as imprisonment for the rest of your life. The complexity of life imprisonment makes it evaluating it against human rights far more challenging than evaluating the death penalty. The essence of the death penalty is clear. In the case of imprisonment for life, questions of justification are closely tied to what life imprisonment means in law and how is it implemented in practice. With that being said, the aim of this study is not to abolish the death penalty as its possible replacement will also be an infringement of human rights on an international level.
This article, therefore, makes an analytical exposition on the death penalty against human rights laws but also analyses how the alternative to the death penalty infringes on human rights. This study begins with a background of capital punishment in Malaysia. Then it discusses the philosophy of human rights and further analyses the inhumane nature of the death penalty and its juxtaposition against imprisonment for life as well as the urgency of prison reform in Malaysia to prevent prisoners from being treated in an inhumane and cruel way.
BACKGROUND
The death penalty has been a part of the Malaysian legal framework since its independence in 1957. In recent years, the death penalty has been imposed for murder and drug-trafficking and fewer firearms-related offences. Malaysia is amongst the 15 countries in the world where the death penalty is carried out for drug-related offences in 2018. [4] After 61 years, a new government was elected in Malaysia on the 9th of May 2018, Pakatan Harapan, and established itself with a new cabinet on the 2nd of July 2018. One of the electoral promises of Pakatan Harapan was to abolish the death penalty for all crimes. The positive momentum continued for a few subsequent months but received vehement opposition from families of crime victims and representatives of law enforcement agencies which adversely affected the movement. [5] Hence, Pakatan Harapan decided to repeal the mandatory death penalty for 11 offences under the Penal Code and Firearms (Increased Penalties) Act 1971 – a significant departure from their previous intention to abolish the death penalty completely. The death penalty remains mandatory for offences such as murder, armed robbery, and offences against the Yang di-Pertuan Agong.
Despite numerous setbacks, the global trend towards the abolishment of the death penalty is unanimous. The number of executing countries have been steadily declining in recent years. The United Nations and many other international bodies have set out safeguards in the execution of the death penalty. Among the restrictions, international human rights law states that, in countries that still carry out the death penalty, its imposition must only be limited to the “most heinous crimes”. The imposition of the mandatory death penalty is prohibited under international human rights law. In regards to this, Malaysia has also taken the step to abolish the mandatory death penalty which is considered a step in the right direction.[6] With that being said, after abolishing the mandatory death penalty for drug-related offences, Malaysia had sought to study appropriate alternative punishments for the 11 offences for which new sentencing discretion would be introduced. Thus, the previous government considered introducing life imprisonment for 10 to 30 years as an alternative to the mandatory death penalty for the offences under scrutiny. The previous government, Pakatan Harapan, also stated that prisoners sentenced to the death penalty will have their sentences commuted to life imprisonment depending on the seriousness of the crime. Offences such as murder, kidnapping, or acts of terrorism. After the fall of Pakatan Harapan led by Tun Dr Mahathir bin Mohamad, the current government has not made any further amendments to the law concerning the death penalty.
Taking into account that it is a commendable act, the government as well as law enforcement agencies have not properly analyzed the alternative to the mandatory death penalty and its correlation to human rights. From where we stand in the criminal justice system, it is fair to note that the abolishment of the mandatory death penalty is an effort to comply with human rights laws. Moreover, it is important to note that imprisonment for life invariably causes harm.[7] This is due to impoverished regimes that prisoners have to endure throughout their long sentences. Given the above, this article discusses the issue of capital punishment concerning human rights and whether there is any valid basis for its abolishment as well as emphasizes the harms of alternative punishment.
ANALYSIS
THE DEATH PENALTY
The death sentence is constitutional, as stated in Article 5 (1) of the Federal Constitutionthat no person shall be deprived of his life or personal liberty save following the law. In Public Prosecutor v Yee Kim Seng[8], it was argued that the mandatory death penalty under the Internal Security Act 1960was unconstitutional as it infringed inter alia, the above article of the Federal Constitution. However, the High Court dismissed the argument by stating that Article 5 (1) of the Federal Constitution was not infringed because the accused was not deprived of his life or personal liberty except under the law, for instance, the Internal Security Act 1960, a valid law passed by Parliament. The decision cited was approved by the Federal Court in Public Prosecutor v Lau Kee Hoo.[9] In Lau Kee Hoo’s case, the Federal Court stated, ‘capital punishment is unconstitutional per se. In their judicial capacities, judges are in no way concerned with arguments for or against capital punishment. Capital punishment is a matter for Parliament. It is not for judges to adjudicate upon its wisdom, or necessity if the law prescribing it is validly made.’
In Malaysia, there is a distinction between offences that carry the mandatory death penalty and offences where the death penalty is not mandatory and courts have the discretion to impose alternative punishments such as imprisonment for natural life with no prospect of release. Section 302 of the Penal Code states whoever commits murder shall be punished with death[10]. In contrast, Section 39B (2) of the Dangerous Drugs Act 1952 states any person who contravenes any of the provisions in subsection (1) shall be guilty of an offence against this act and shall be punished on conviction with death or imprisonment for life, if he is not sentenced to death, be punished with whipping not less than fifteen strokes. As a consequence, judges have the discretion to sentence a criminal to imprisonment for life or death if the law provides for it.
The death sentence can be imposed by the High Court when exercising its original criminal jurisdiction and by the Court of Appeal and Federal Court when acting under their appellate powers. [11] In most cases, a person sentenced to death will appeal against the sentence and, the execution of the sentence will remain until the appeal is finally determined. [12] Furthermore, it is also noteworthy that offences punishable by death have no prospect of release under Section 388(1) of the Criminal Procedure Code unless there exist “exceptional and special circumstances” that allow otherwise for example, when the accused is below the age of 16 years, a woman, a sick or infirm person i.e. an elderly or very old person. [13]
Certainly, there is no shortage of disagreement with the fact that the death penalty punishment infringes on human rights. It is often argued that the death sentence infringes human rights because it is not just for a state to take someone’s life against their will. However, the debate ends up being very shallow as the majority of parties against the death penalty only scrape the surface of the issue and fail to meta-analyze the crux of the injustice. There are also further points, however, that need to be considered. The real injustice of the death sentence lies within the process of imposition of the sentence as well as the repercussions that prisoners endure.
Although there has been a noticeable effort by the Government to publicly release information on the use of the death penalty in Malaysia, there is still a lack of transparency that has made it difficult to monitor the implementation of the death penalty and fully understand the impact of this punishment over the years. Given that Malaysian authorities have occasionally released limited information does not fulfil the duty to be transparent in the use of the death penalty. International human rights law has emphasized the importance of making information public on criminal matters and protect the rights to seek, receive, and impart information. Malaysian authorities must release accurate information on the usage of the death penalty so that it is possible to assess their practices against human rights law and standards. Publicly available information would also hold authorities accountable for cases of wrongful execution, the unfairness of trials, and the extent to which the death penalty disproportionately affects individuals living in poverty or with mental disabilities. Access to adequate information particularly in the context of ongoing reforms, to ensure a meaningful debate on the death penalty.
As mentioned earlier, the death sentence severely affects individuals living in poverty and this includes foreign workers in the country. In 2019, the majority of those on death row were convicted of drug-related offences and that a disproportionate number of those on death row – 44% of the total- are foreign nationals. [14] The overrepresentation of foreign nationals on death row is worsened when the majority convicted are females. According to reports, 86% of all women sentenced to death are foreign nationals. [15] In cases involving Malaysian nationals, ethnic minorities are over-represented on death row. The limited information of persons on death row suggests that a large majority of them are from disadvantaged socio-economic backgrounds, which is particularly relevant in a criminal justice system where safeguards against the death penalty are lacking, for foreign nationals.
The vast majority of those on death row were convicted before March 2018, where new legislative amendments came into effect. Those convicted have not been able to benefit from these legislative changes. Taken together, the lack of safeguards has led to numerous violations of the right to a fair trial, which leaves the defendants vulnerable to the imposition of the death penalty. In many cases, defendants are held without access to legal counsel and failure to enable foreign nationals access to counsel. Article 5 (3) of the Federal Constitution guarantees the right of a person to be defended by a legal practitioner. However, there are gaps in which legislation and practical barriers have undermined the realization of this right, particularly for those from disadvantaged socio-economic groups. [16] Due to the lack of legal representation, defendants are subjected to the risk of ill-treatment and self-incriminating statements. Torture and ill-treatment in police stations is a prominent concern in Malaysia, although there has only been limited reporting on these violations. [17] Unlike other jurisdictions, Malaysian law lacks procedure to reopen concluded cases in the light os new evidence. [18] Although, in the light of new evidence, there is a possibility to reopen concluded cases. However, it essential to have clear procedures when new evidence emerges as a guaranteed safeguard especially in cases of death sentences.
Law enforcement agencies have suggested replacing the death penalty with a life sentence. On the surface, this may seem like a reasonable option to replace the infamous death sentence. However, imposing life imprisonment without the prospect of release can never be just. In Malaysia, this sentence is labelled as imprisonment for natural life. Further analysis shows that imprisonment for life is another form of the death penalty. Instead of instant execution, prisoners die one day at a time. This is worsened by impoverishing regimes in prison that directly harm the mental capacity of prisoners. Besides, studies have shown that prisoners who are incorrigible and receive long sentences are subject to ill-treatment such as solitary confinement, penal labour, and other severe conditions that have a dehumanizing effect of prisoners. Moreover, prisoners convicted for heavier crimes are exposed to the risk of more punitive and harsher conditions than other prisoners. [19] Due to the lack of health care in prisons, over 600 prison deaths were recorded in 2016. The majority of them were foreign nationals. The main cause of these deaths was due to the spread of diseases such as HIV, cancer, and tuberculosis. [20] Given that prisons in Malaysia are overcrowded, the abolishment of the death penalty will open floodgates to more individuals being convicted for life sentences. This is because, on the surface, imprisonment for life is seen as a sentence that is less harsh than the death sentence. However, when meta-analyzed, both are not in line with human rights and directly harms individuals subject to them – especially from disadvantaged social groups.
CONCLUSION
In conclusion, it can be proven that the imposition of the death sentence infringes on human rights. However, this issue cannot be solved by the abolishment of the death penalty as alternative punishment is not better. Hence, Malaysia needs to move forward to a full criminal justice reform to ensure that prisoners are not treated in a cruel and inhumane way. If Malaysia were to abolish the death penalty, authorities have to ensure that the prison system emphasizes access to education, healthcare, and rehabilitation of prisoners to allow them to cope with the prison environment in a conducive way. The process of the imposition of the death penalty should also be reformed by ensuring that all individuals – including marginalized societies – are provided access to competent legal assistance from the moment they are arrested.
REFERENCES
An overview of concerns relating to the Malaysian criminal justice process is outlined in the International Centre for Law and Legal Studies (ICeLLS), “Justice Audit Malaysia”, http://malaysia.justiceaudit.org/?page_id=34
Courts of Judicature Act 1964
“Chapter 7; Doing Life.” Life Imprisonment: a Global Human Rights Analysis, by Zyl Smit Dirk Van and Catherine Appleton, Harvard University Press, 2019, pp. 169–204.
Editorial. “600 People Died in Malaysian Prisons in the Last 2 Years. But Not Because They Were Executed.”, 15 Nov. 2017, cilisos.my/600-people-died-in-Malaysian-prisons-in-the-last-2-years-but-not-because-they-were-executed/.
“Fatally Flawed; Why Malaysia Should Abolish the Death Penalty?” Amnesty International, 2019, www.amnesty.org/en/documents/act50/1078/2019/en/.
High Court. Public Prosecutor v Yee Kim Seng. 2018 MLJU [879], [2018] 1 LNS 930.
Human Rights Watch, No Answers, No Apology – Police Abuses and Accountability in Malaysia, 2014, www.hrw.org/report/2014/04/01/no-answers-no-apology/police-abuses-and-accountability-malaysia#4ab8e3
International Covenant on Civil and Political Rights. www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
RE KS Menon. MLJ 49, 1946.
R v Ooi Ah Kow. MLJ 95, 1952.
[1] Amnesty International, Facts and Figures on the Death Penalty (as of 21 April 2020), accessed June 7 2020, http://www.amnesty.org/en/library/info/ACT50/002/2007
[2] ibid
[3] See Dangerous Drugs Act 1952
[4] “Fatally Flawed ; Why Malaysia Should Abolish the Death Penalty?” Amnesty International, 2019, www.amnesty.org/en/documents/act50/1078/2019/en/.
[5] Ibid
[6] Ibid
[7] “Chapter 7 ; Doing Life.” Life Imprisonment: a Global Human Rights Analysis, by Zyl Smit Dirk Van and Catherine Appleton, Harvard University Press, 2019, pp. 169–204.
[8] [1983] 1 MLJ 252.
[9] [1983] 1 MLJ 157, FC.
[10] See Malaysian Penal Code [ Act 574]
[11] See the Courts of Judicature Act 1964 ss22 (2), 60 (2) and 92(2), respectively
[12] See Courts of Judicature Act 1964 ss 57 (3) and 89(3)
[13] See RE KS Menon [1946] MLJ 49 ; R v Ooi Ah Kow [1952] MLJ 95
[14] Fatally Flawed ; Why Malaysia Should Abolish the Death Penalty?” Amnesty International, 2019, www.amnesty.org/en/documents/act50/1078/2019/en/.
[15] ibid
[16] An overview of concerns relating to the Malaysian criminal justice process is outlined in International Centre for Law and Legal Studies (ICeLLS), “Justice Audit Malaysia”, http://malaysia.justiceaudit.org/?page_id=34
[17] See, for example, Human Rights Watch, No Answers, No Apology – Police Abuses and Accountability in Malaysia, 2014, www.hrw.org/report/2014/04/01/no-answers-no-apology/police-abuses-and-accountability-malaysia#4ab8e3
[18] Article 84(1) of the ICC Statute; Article 2(3) of the ICCPR
[19] “Chapter 7 ; Doing Life.” Life Imprisonment: a Global Human Rights Analysis, by Zyl Smit Dirk Van and Catherine Appleton, Harvard University Press, Cambridge, MA, 2019, pp. 169–204.
[20] Editorial. “600 People Died in Malaysian Prisons in the Last 2 Years. But Not Because They Were Executed.” CILISOS, 15 Nov. 2017, cilisos.my/600-people-died-in-malaysian-prisons-in-the-last-2-years-but-not-because-they-were-executed/.