Malaysia: Weighing the death penalty

Malaysia's efforts to seek clemency for Yong Vui Kong, who is on death row in Singapore for a drug trafficking offence, have raised questions about maintaining capital punishment in the country.

SINCE he was arrested for drug trafficking in Singapore 3 years ago, Yong Vui Kong has turned over a new leaf. He has taken to Buddhism and is always meditating, says his lawyer M. Ravi. He has shaved his head and is also teaching his fellow prisoners the precepts of Buddhism.

"The guards say they have never seen anyone as caring as Yong," adds Ravi. Yong, now 22, was sentenced to death on Jan 7 last year for the crime he committed when he was 18. He is now on death row. Last week, the Singapore Prisons Department extended the deadline for him to file a plea for presidential clemency. The deadline was initially set for last Wednesday.

Yong's case has attracted a lot of attention and there is a Save Vui Kong campaign to petition for his life to be spared. Even the Malaysian government, through the Foreign Ministry, has sent a letter to the Singapore government pleading clemency for Yong.

There is a hint of irony in Malaysia's efforts to seek clemency for Yong, however, as the death penalty or capital punishment is also used in this country.

In Malaysia, the death penalty carried out by hanging is mandatory for crimes such as murder, possession of firearms, waging war against the King and drug trafficking.

Recently, there have been suggestions that even those involved in baby dumping, ending in the death of the baby, should be tried for murder.

But human rights practitioners have maintained that the death sentence is the ultimate denial of human rights and should be abolished entirely.

According to Amnesty International, 18 countries were known to have carried out executions in 2009, ending the life of at least 714 people.

(This figure does not include the thousands of executions that were likely to have taken place in China, which refuses to divulge figures on its use of the death penalty.)

In 2007, the United Nations General Assembly (UNGA) called on states which maintain the death penalty to establish a moratorium with a view to abolition and in the meantime, restrict the number of offences for which it punishes and to respect the rights of those on death row. It also called on states which have abolished the death penalty not to reintroduce it.

In Malaysia, those who support the abolition of the death penalty include Minister in the Prime Minister’s Department, Datuk Seri Nazri Abdul Aziz.

"If it is wrong to take someone's life, then the Government should not do the same. It's ironic and not correct," he tells Sunday Star.

Some countries would not extradite a wanted person if it is known that the person would be facing a death sentence if he was sent over, Nazri says.

Inhumane act

Another anti-death penalty advocate is Nora Murat, director of Amnesty International Malaysia, who insists that it is time to do away with this punishment. It is cruel, inhumane and degrading, among others, she says.

"People say no to stoning but say yes to the death penalty. If we value life, there is no way we can condone murder," she stresses.

Human rights lawyer Edmund Bon says most countries are now moving away from capital punishment.

In 1977, only 16 countries had abolished the death penalty for all crimes. As of December 2009, that figure stood at 95. Of the 58 countries that have retained it, only 18 are known to have carried out executions in 2009.

"The criminal justice system is not perfect. We shouldn’t be playing God. We must be consistent with international human rights standards," says Bon.

But whenever there is a spate of heinous crimes such as the rape of children, there will always be someone suggesting the death penalty.

In fact, even lawyer Karpal Singh who is known to be against it shockingly called for the death penalty to be introduced for child rape a few weeks ago.

The general public usually feels the same way for such crimes.

Even in Switzerland, there are campaigners who want murder involving sexual abuse, particularly of children, to be punishable by death. (Switzerland abolished the death penalty 70 years ago.)

"It is very natural for people to feel outraged by such crimes. This response involves anger towards the perpetrator," says psychologist Dr Goh Chee Leong of Help University.

Retired Court of Appeal judge Datuk Mahadev Shankar believes the death penalty should be repealed for offences that are out of sync with the public conscience and where it has proven to be ineffective as a deterrent.

He cites examples of drug offences, where the possessor is a proven addict, and certain firearms cases.

But for heinous crimes, he is all for capital punishment.

"In outrageous cases like the Canny Ong murder where there were absolutely no mitigating circumstances, it would be a mistake to abolish the death sentence which must deter even if it contains an element of retribution," he says in an e-mail interview.

But Nora says that no crime, no matter how heinous, warrants the death penalty.

"Politicians will say that the rakyat (people) want it, but they should be able to make hard decisions," she says.

But what about the families of the victims who were murdered? Wouldn't they want the death penalty on the convicted perpetrator?

"Human beings are emotional," says Bon.

"If their child or friend was accused of such a crime they wouldn't be saying such a thing. They would be fighting hard to release their family member."

Nora, who believes that the concept of forgiveness is much larger than revenge, says there are other forms of punishment such as life imprisonment.

"I can understand their feelings but you can’t condone murder especially if you have just lost someone yourself," she says.

Lawyers for Liberty’s N.Surendran adds that the death of the perpetrator would not ease the grieving process.

In fact, he says, there are many cases worldwide where families of murder victims do not want the convicted perpetrator to be executed.

Bon also points out that in Malaysia, any form of murder carries a mandatory death sentence. There are no mitigating factors (such as a crime of passion or killing done while blinded by rage) to reduce the sentence, he says.

"This is a breach of fair trial rights and the judges' hands are tied," says Bon, adding that an Indian court ruled a similar mandatory provision to be unconstitutional in 1983.

It is the same for drug trafficking where the act specifies a mandatory death sentence if the perpetrator is found to have more than a prescribed limit in his possession. For example, those caught in possession of 200g of marijuana or 15g of heroin are automatically handed the death sentence.

"We are hanging people based on presumptions (that they are trafficking)," says Bon.

This may be one of the reasons why the conviction rate for drug trafficking crimes is relatively low, says a well-placed source.

He explains that judges are generally reluctant to send someone to the gallows and would use the slightest doubt to throw away the case (such as not knowing the contents of the package).

"If there was no mandatory death sentencing, then maybe the conviction rate would be higher," he argues.

Mahadev admits that in drug cases where the margin of the quantity exceeded the maximum permissible, the mandatory death penalty did not sit easy with the judicial conscience. This is especially so where the offenders were mules or addicts themselves.

Former High Court and Court of Appeal judge Datuk K.C. Vohrah says his family could always sense when he was dealing with a trial involving capital punishment. He would usually be quiet and look worried as he pondered the facts of the case.

"You had to be vigilant to ensure that fairness prevailed with accordance to law," he says.

Vohrah says that he and several other judges would deliver a speaking judgement when they handed the death sentence.

"Everything that you needed to know about how we came to the decision was written down before the judgement was delivered," he says.

The burden on judges became even heavier after the jury system was abolished in 1995, says Vohrah. (In the jury system, the fate of the accused rested upon seven people.)

"It was so terrible that I never wanted to do those sorts of cases again. Before I went up to the bench to deliver the decision, I would pray to God that I did the right thing. I would ask for blessings for the accused if he were convicted. It was a terrible burden," he says.

Another former Court of Appeal judge, Datuk Shaikh Daud Shaikh Mohd Ismail, says passing the death sentence was not a pleasant thing to do.

He remembers the 1st time he had to do it.

"Just before the sentence, I adjourned the court. When I went up, my knees were shaking and I found it hard to utter the first words. After delivering it, I was sweating all over," he recalls.

He says it became subsequently easier to deliver, although there was always fear in doing it.

"With a stroke of a pen, we are taking a person's life. I didn’t like it at all but the law is there and there is nothing that you can do about it," he says.

"On reflection, it is better not to have it."

Then there is the issue of insanity. Recalling a case where the medical report of one mental hospital differed from the other, Bon says he is not convinced of the mental health regime's ability to identify or categorise different forms of mental illnesses.

"If there was no 2nd opinion, we would lose the case and end up hanging an insane person," he says.

Surendran also believes that capital punishment draws attention from the real problem, which is crime prevention. One of the reasons the death penalty is bandied about is that it will act as a stern deterrent.

"Malaysia is still a transit for the drug trade and murders still happen. This lulls people into a false sense of comfort," says Surendran, who also highlights that in drug trafficking cases, only the mules are caught while the kingpins and drug lords generally get away scot-free.

"The strata of people caught are usually from the lower income groups, marginalised and unprivileged backgrounds."

Take Yong, for instance. He comes from a broken family and left home at 12 to work.

Surendran says it would be better to seek the underlying causes of the crime and for better police work.

The wait to be executed is also another form of cruelty, he says. According to a prisons official, those sentenced to death could wait up to 4 years from the date of their sentencing before the execution is carried out (after the various appeal stages).

Irreversible move

Another, and the most important, aspect about the death penalty is its irreversibility once the sentence is carried out.

Most lawyers agree with the fact that there is no such thing as a perfect criminal justice system and that mistakes could be made.

In short, someone could be wrongly punished for something that they did not commit.

Surendran points out the case of 23-year-old Vignes Mourthi from Perak who was hanged for drug trafficking in Singapore in 2003.

The former machine operator was convicted based on a hand-written transcript of a conversation he had with an undercover officer.

The undercover officer, however, was facing allegations of rape, sodomy and bribery at the time he gave the evidence. This fact was not presented to the court at the trial. (The officer was subsequently jailed for 15 months for bribery.)

Vignes, who was jobless and recovering from an accident when he was arrested, said he had been duped into delivering packages which he believed were incense stones.

"If we make a mistake, we can't undo it," says Surendran, citing the case.

Source: Malaysia Star, August 29, 2010