Hanging

31 March 2012

The Death Penalty

The speech by Steven Thiru, treasurer of the Malaysian Bar, at the Public Seminar on the Abolition of the Death Penalty in Malaysia at the KL Convention Centre is significant as it marks a change in the attitude of the Bar.

We have, for a considerable time, advocated the abolition of the death penalty. We hold to the belief that life is sacred and every individual has an inherent right to life, which is enshrined in Article 5(1) of our Federal Constitution. We take the view that the right to life is a fundamental right which must be absolute, inalienable and universal, irrespective of the crime committed by the accused person.

There is no empirical proof or data that irrefutably establishes that having the death penalty is effective (as compared to other forms of punishment) in deterring heinous and serious crimes. The retentionist credo that the death penalty deters crime is unsupported by compelling research. The retentionists nevertheless continue to call for the imposition of the death penalty, especially in relation to murder, rape and incest. However, the reality is that the death penalty would have dire repercussions on the efforts to prosecute and prevent the incidence of these crimes and the protection of rape survivors, and also the reduction of victimisation of the survivors under the legal process. For example, as the prosecution of rapists depends on the existence of a complaint by a rape survivor, the death penalty may discourage rape survivors from reporting the matter, especially if the perpetrator is a family member.

Moreover, drug-related offences and addiction have been on the rise in Malaysia since the 1983 amendment to the Dangerous Drugs Act 1952, which imposed the mandatory death penalty. This weakens the case for the death penalty, because more than half of the known outstanding death sentences are for drug offences (479 out of the 696 inmates on death row as of 22 February this year), followed by murder (204) and illegal possession of firearms (13). [Shaun Ho/The Star, June 28, 2011] The mandatory death penalty has obviously not had the desired effect intended by Parliament.

The vast majority of arrests for drug trafficking are that of non-violent and low-ranking “little fish” in the drug market. The most recent report of the Global Commission on Drug Policy observes that these “little fish” “…are most visible and easy to catch, and do not have the means to pay their way out of trouble. (They cannot afford bribes or bail, for example.) The result is that governments are filling prisons with minor offenders…and with no impact on the scale or profitability of the market.”

These “minor offenders” are usually poor, young, desperate and/or very impressionable. This is well illustrated by the much-publicised case of Yong Vui Kong who is on death row in Singapore after being arrested and convicted for being in possession of 47.26 grams of diamorphine when he was just 18. He represents one of the many thousands of small fish (in an elaborate international or domestic web) that are caught by governments every year and a victim of the growing drug mule recruitment drives in Southeast Asia and East Asia. [As stated by the International Narcotic Control Board (INCB)]

Further, both in Singapore as well as in Malaysia, there is a legal presumption that the accused who is in possession of drugs in excess of the proscribed weight limit is guilty of trafficking, and that the accused is deemed to know what he/she is carrying. The burden of proof is therefore on the accused to prove his innocence. This is a reversal of the universal legal standard of the prosecution bearing the burden, which is described in the famous case of Woolmington v DPP as the golden thread in all criminal cases. Thus, it follows that once a person is convicted for possession, the judge is compelled to hand down the death sentence.

No legal system in the world is fail-proof or error-free. Despite the best efforts of all those involved in the judicial and legal system, errors still abound due to human frailty. Groups such as the Innocence Project in the USA work to bring about post-conviction DNA exonerations, and to date 273 people in the United States have been exonerated by DNA testing, including 16 who served time on death row. In Malaysia, some of us will still recall the famous 1970s case of Karthigesu, who was wrongly convicted for murder and later acquitted. Needless to say, the opportunity to right a wrong will not be available if the death sentence had been meted out. Then, we as a society are collectively responsible for having sent an innocent man or woman to their death. It will be cold comfort to the deceased person’s loved ones for us to hold that the system is not free from error and that every now and then, there are those who fall in between the stools! The burden of imposing a sentence of death is therefore great and leaves no margin for natural human error.

The execution of human beings by the State is seen as an “example of barbarity” and legitimises the taking of human life. Geoffrey Robertson QC in his book “The Justice Game” observed: “The court approved death penalty is wrong. And a system which is committed to the righting of wrongs cannot be used to perpetuate it.” [at p. 103 (Chatto & Windus, London 1998)] Today, in all Commonwealth countries, except Malaysia and Singapore, the mandatory death penalty has been declared to be a “cruel and unusual punishment.” The US Supreme Court in the 1972 case of Furman v Georgia [408 US 238 (1972)] remarked that “Death sentences are cruel and unusual in the same way that being struck by lighting is cruel and unusual”. It is also now quite clear that there is a trend worldwide to abolish the death penalty. It is perhaps best exemplified by the admission made by Justice Blackmun, who was once a strong proponent of the death penalty, in the 1994 US Supreme Court case of Callins v Collins [510 US 1141]: “From this day forward, I no longer shall tinker with the machinery of death … I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”

The Global Overview on the Death Penalty for Drug Offences 2010, conducted by International Harm Reduction Association, found that there remains 32 states that provide for the death penalty for drug-related offences. Out of these 32, 13 have the mandatory death penalty. Malaysia is one of them.


In the course of the ongoing “Save Yong Vui Kong” campaign, Malaysia’s de facto Law Minister, Dato’ Seri Mohd Nazri Abdul Aziz, said that it was time for Malaysia to abolish the death penalty. At the same time, he did add that our country lacked the political will to change things. Perhaps it is time to generate that political will and fibre amongst our politicians. In this regard, the Malaysian Bar is pleased to note the creation of a cross-party caucus in Parliament that seeks to promote support for the abolition of the death penalty, and its decision on 27 June 2011 to move a resolution in Parliament to end the mandatory death penalty for drug-related offences. Where there is political will, there is a way.

The death penalty has no place in any society that values human rights predicated on the rule of law, justice and mercy. In the wake of the collapse of the apartheid regime in South Africa, Justice Ishmael Mahomed, the former Chief Justice of Constitutional Court said, “Death is different. The dignity of all of us, in a caring civilization, must not be compromised by the act of repeating, systematically and deliberately, albeit for a wholly different objective, what we find to be so repugnant in the conduct of the offender in the first place.” [The State v Makwanyane & Mchunur HRLJ 16 [1995] p. 195]

UCCA

The decision of the court of appeal that the University and University Colleges Act was unconstitutional was welcome indeed. Mr Justice Hishamudin quoted Justice Brandeis of the US Supreme Court: “... The greatest menace to freedom is an inert people; that public discussion is a political duty...”

THE IGP

says the rights groups are a threat to social norms; this human rights waves is a threat. Those promoting civil liberties were promoting a new religion. IGP forgets that he is not a colonial IGP but a civil servant and that the people are his boss.

THE “BLUE MANSION”

is now listed as one of the world’s top ten buildings. If that is so the first thing they must do is to get rid of the 1920's Italian floor tiles and restore the terracotta.

MAT REMPITS

Datuk Jasmin Mohamed an assemblyman has criticised the state government for not having provided recreational facilities for the young. He should have suggested that the Turf Club sets up a track running alongside the race course for the motor cycles to run on non race week-ends.

AN AFGHAN’S WORTH

RM150,000. That’s the US compensation for an Afghan killed by a US soldier