On the World Day Against the Death Penalty (10 October), Malaysians Against Death Penalty and Torture (Madpet) calls on Malaysia to take the next step towards the abolition of the death penalty.
This step involves abolishing the death sentence for all crimes that do not directly cause death or grievous bodily injury to the victims of the criminals.
This year, the World Day theme is “dedicated to challenging the misconception that the death penalty can make people and communities safer”. Madpet asserts: It cannot.
If the death penalty remains in the statutes, the courts will still continue to sentence people to death – even though judges now have a choice of alternative sentences, after the mandatory death penalty was repealed.
Previously, when the death penalty was mandatory, the courts had no choice but to sentence everyone to death for offences that provided only for the mandatory death sentence.
First step – Abolition of mandatory death penalty history
Malaysia took the first step by abolishing the mandatory death penalty and imprisonment for life, through the abolition of Mandatory Death Penalty Act 2023, which came into force on 4 July 2023.
Even before the 2018 general election, the then Barisan Nasional-led government was already considering the abolition of the death penalty.
In November 2018, in Parliament, it was reported that Malaysia’s cabinet (under the Pakatan Harapan led-government) had reached a consensus that the death penalty for 33 offences should be abolished. These offences were provided for under eight acts of law, including Section 302 of the Penal Code, which pertains to murder, said Minister in the Prime Minister’s Department Liew Vui Keon.
However, in March 2019, there was a backtracking. “We have made a decision. The government will only repeal the mandatory death penalty…” said deputy minister in the Prime Minister’s Department Mohamed Hanipa Maidin.
In October 2022, under Prime Minister Ismail Sabri, the first concrete step was taken. Seven separate bills were tabled in Parliament to pave the way for the abolition of the mandatory death sentence in Malaysia. Among the laws to be amended were the Dangerous Drugs Act, Kidnapping Act, Arms Act, Penal Code and Firearms (Increased Penalties) Act. (Star, 6/10/2022).
However, it did not see the debate or passing of bills as Parliament was dissolved to make way for the November 2022 general election.
When the new Pakatan Harapan-led coalition government under Prime Minister Anwar Ibrahim came into power, two bills were tabled.
Besides, the Abolition of Mandatory Death Penalty Act (which came into force on 4 July 2023), the other act was the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 (which came into force on 12 September 2023).
This second act now allowed all on death row or sentenced to life imprisonment to apply to the court for a reconsideration of their sentences. Sadly, the Federal Court has still maintained the death penalty for some cases.
Death penalty still being imposed or maintained
Despite the abolition of the mandatory death penalty, the death penalty remained but courts now had the discretion of using the alternative sentence of 30-40 years’ imprisonment, along with no fewer than 12 strokes of the cane (whipping).
Madpet has called for the abolition of whipping (caning), which is a corporal punishment, that recently has caused death to one person.
Death sentences sadly continue to be imposed by the court, despite judges having the choice of alternative sentences. Three people convicted for the murder of cosmetics millionaire Sosilawati Lawiya and her three aides in 2010 failed in their application to review their death sentence. The three-member Federal Court unanimously upheld their death sentence.
In other courts, after hearings or appeals, the courts continue to sentence people to death.
On 27 July 2027, the Court of Appeal, in the case where six former students of the National Defence University (UPNM) killed naval cadet officer Zulfarhan Osman Zulkarnain seven years ago, changed the charge to murder and sentenced all to death.
Justice Hadhariah, in a unanimous decision, said the High Court judge erred in amending the original charge from Section 302 of the Penal Code, which is murder, to Section 304 (a) of the Penal Code. “Therefore, we unanimously decide that a single sentence is appropriate for all six defendants, and they shall be taken to a place of execution where they will be sentenced to death by hanging…Therefore, the court overturns the 18-year prison sentence imposed by the High Court on the six defendants and replaces it with the death sentence.”
Madpet states that this reality will not change until the death penalty itself is abolished in law.
Pardon powers rarely used
The king and the state rulers do have pardon powers that can commute death sentences. In May 2015, the sultan of Perak, Sultan Nazrin Shah, commuted the death sentences of two people to life imprisonment.
In February 2017, Selangor Sultan Sharafuddin Idris Shah granted a pardon to Shahrul Izani Suparman, commuting his death sentence to life imprisonment.
Sadly, the use of pardon to commute death sentence is rare in Malaysia. The previous king of Thailand was famous for pardoning death row inmates in great numbers.
Abolish death penalty now
One cannot blame the courts for the sentencing of people to death.
The blame lies with the people of Malaysia and their representatives in Parliament, who are the only ones who can abolish the death penalty in law.
When Malaysia kills a person by hanging to death, all in Malaysia inevitably become murderers, and that is something nobody wants.
Notice must be taken that there was no public outcry when the death sentences of murderers were commuted to imprisonment and whipping by the Federal Court in the revision of death sentence application. That must be taken as a sign that people in Malaysia are ready for the abolition of the death penalty.
Therefore,
Madpet calls on Prime Minister Anwar Ibrahim and the current government of Malaysia to immediately abolish the death penalty. At the very least least, consider abolishing the death sentence for all crimes where the perpetrator does not kill or cause grievous bodily harm to the victim.
Madpet notes that the UN General Assembly Resolution calling for a moratorium on execution pending abolition of death penalty will soon be voted upon at the end of 2024. Madpet urges Malaysia to vote in favour again, as it did in 2018, 2020 and 2022.
Madpet reiterates its call for the abolition of whipping and corporal punishment; and
Madpet reiterates its call for the abolition of the death penalty.
