Abolishing Death Penalty In Malaysia - Good Riddance of Bad Rubbish?

The death penalty in Malaysia is provided for three offences in the Penal Code, i.e murder under Section 302, secondly waging war against the Yang Di-Pertuan Agong (or any other Rulers and Yang Di-pertua Negeri) under Section 121, and thirdly offences against the the Yang Di-Pertuan Agong (or any other Rulers and Yang Di-pertua Negeri) under Section 121A. The death penalty is also provided for the offence of drug trafficking under Section 39B of the Dangerous Drugs Act 1952, and also for abduction, wrongful restraint or wrongful confinement for ransom of any person under Section 3 of the Kidnapping Act 1961, and under the Firearms (Increased Penalties) Act 1971.

The abolishment of the death penalty remains a rather controversial topic to be debated as while there are many who support the abolishment of the death penalty, there are however people who are also in favour of the death penalty. Sir William Blackstone, a famous English jurist, barrister and later judge who came up with the Blackstone’s formulation, stated that it is better that ten guilty persons escape than one innocent person suffers and this quote is famously linked to the implementation of the death penalty. Mandatory death penalty in offences such as murder means that the judges have their hands tied; they have no other options but to send the convicted man to the gallows upon his conviction. There can be no discretion to be exercised. Perhaps the key principle, in contrary to Blackstone’s principle is this – an eye for an eye. However, the golden question is still this – should we abolish the death penalty?

Those who are in favour of abolishing the death penalty are always of the view that it is an archaic and barbaric punishment, so much so that it now no longer owns a place in our modern society when human rights are so fiercely fought for and put on a pedestal. The irony is that, when a man is convicted for killing another man, he is condemned to the gallows for it. It provides a sense of justice being served and done, but then again two wrongs do not make a right. However, the old English aphorism that “justice must not only be done but it must also be seen to be done” which Lord Hewart CJ in the case of R v Sussex Justices, ex p McCarthy[1] famously uttered, speaks the mind of not only the judiciary in handing down punishments, but also the layperson. We now go back to the issue in hand. Death penalty is opposed because it is against the very fundamental notion of humanity – life. Death penalty essentially takes away a person’s life upon conviction of an offence. To begin with, Article 5 of the Federal Constitution guarantees a person’s right to life but it juxtaposed with also the right of Parliament to make laws containing the death penalty. From a constitutional point of view, it is not ultra vires the supreme law of the land. Morally speaking, the death penalty is opposed on the basis that it is not the right of another person to take the life of a man regardless of the atrocities this man has committed. Death penalty does not help constructively in reducing serious crimes. However, I am of the opinion that the death penalty must be maintained.

I stand on the unpopular side of the criminal justice spectrum, leaning in favour of the death penalty for the very simple reason that a man must pay for what he has done. The equation is simple; if you take a man’s life away, then you must face the consequences and pay it with your own life. To have any other punishment other than the capital punishment for a convicted murderer, after a lengthy trial and court proceedings, and more often than not, appeals to the appellate courts, would be tantamount to a miscarriage of justice and terribly disproportionate to the crime done, and if I would to put it in my own words, a mockery of the deceased person’s dignity. Ideally, the capital punishment is reserved for the most heinous of crimes. In Malaysia, the offence of drug trafficking under Section 39B of Dangerous Drugs Act 1952 is punishable by either, with the latest amendment passed by the August House, a life imprisonment sentence or, if deemed suitable upon the judge’s discretion, the death penalty. One may argue whether the offence of drug trafficking is indeed that despicable and deserved to be put on par with the offence of murder, and whether this said offence should be punished with the capital punishment, and I would answer that in the positive. One needs not be a rocket scientist to know that consuming dangerous and illegal drugs is bad, but to facilitate in the ‘business’ of dealing with dangerous and illegal drugs is beyond words, or if I may put it, a destruction of mankind. In handing down sentences the learned judge is guided by several principles as established in various case laws, notably by the Hashim Yeop Sani J (as his Lordship then was) in PP v Loh Choon Fatt[2] and one main principle is deterrence. To put it simply, a punishment is handed down to the convicted offender in hopes that it will deter him from doing any offences again, and also to deter the public from going down the same path. Would a person think twice before committing a murder, knowing full well that if proved and convicted by the Courts, he would go to the gallows? I am quite convinced that he would. But then again, I am, too, fully aware of the fact that people do still commit murder despite the so-called deterrence penalty that comes with it. Will there be a possibility of a convicted murderer, if not sent to the gallows, repeat his heinous actions once he is out of the prison bars? He may or he may not. But I would not want to take the risk. Again, it must be remembered, that an eye for an eye, a tooth for a tooth.

Opponents of death penalty regularly quote Blackstone’s famous words and may point to the very unlikely possibility of an innocent man being executed. In the Malaysian criminal justice system, a criminal trial will be presided by a fair and independent judge and in cases involving capital punishments, the accused person must be represented by a defence counsel. Therefore, it is safe to say that there are check and balance mechanisms on deciding the guilt or innocence of the accused person. A fair and independent judge must not simply sentence the accused person to death without evaluating the evidences adduced by both the Prosecution and the defence counsel at a maximum level of scrutiny. Therefore, it is also safe to say that when a learned judge is convinced beyond reasonable doubt that the accused person is indeed guilty of the offence charged, then only the appropriate sentence is handed down, i.e the death penalty.

I, therefore, conclude that I support the death penalty with reservations. Although the capital punishment is appropriate for various grave offences, it must be handed down by the learned judge after a maximum evaluation of the evidences adduced and being convinced beyond reasonable doubt that the accused person is indeed guilty of the offence said.

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