Death Penalty in Malaysia : The Ongoing Debate

The death penalty has always sparked intense debate but in Malaysia, the conversation is at a tipping point. Once seen as a way to stop serious crimes, it is now being questioned for its fairness, ethics, and usefulness today. The question remains : Can justice be served without resorting to the ultimate punishment ?

Historically, the death penalty was used for murder under British colonial rule. In 1952, the Dangerous Drugs Act was introduced without the death penalty. In 1975, it became discretionary for drug trafficking, and by 1983, it became mandatory. [1]

The government amended Section 39B of the Dangerous Drugs Act (DDA) to grant courts the discretion to impose either the death penalty or life imprisonment for drug trafficking offenses in 2017. On 10 June 2022, the government took a step further by agreeing to abolish the mandatory death penalty. In April 2023, Malaysia passed the Abolition of Mandatory Death Penalty Act, which removed the mandatory death penalty for 11 serious crimes. The act also abolished the death penalty for certain lesser offenses, such as kidnapping and specific firearm-related crimes. By July 2023, the law came into effect.

ARGUMENTS 

1. Article 5 of Federal Constitution

“No person should be deprived of his life or personal liberty save in accordance with the law“ 

No person should be deprived of their life or personal liberty except in accordance with the law, which means there must be a legal method for performing such an action. 

The word "law" here means it must be reasonable, fair, and not oppressive. While some judges have described certain laws as harsh or oppressive, it is ultimately the role of Parliament to determine if a law is too severe. 

Article 5(3) gives everyone the right to a lawyer, but in Malaysia, 46% of capital crime defendants lack legal representation. In Hoo Yew Wah's case, he was forced to give a statement without a lawyer, leading to an unfair trial and a death sentence for drug trafficking.

NO MONEY = NO LAWYER = NO JUSTICE

2. Fallibility and Finality 

Fallibility : Courts can sometimes convict innocent people by mistake and as a result there is no way to fix a wrongful conviction in death penalty if it is later proven wrong.

Finality : In death penalty, it can be simply said as ultimate and unchangeable punishment. This finality can make the justice system seem unreliable if even one innocent person is wrongfully executed.

CAMERON TODD WILLINGHAM

A fire destroyed and killing his three daughters. Willingham survived and prosecutors accused him of setting the fire intentionally to kill his children. Before his execution in 2004, the experts argued that the fire investigation was flawed. They sent a report to Texas officials but no action was taken. Willingham was executed on 17 February 2004. Months later, further investigations revealed that the forensic evidence used to convict Willingham was invalid.

3. International Trends 

The death penalty is allowed by the ICCPR only for the "most serious crimes," like intentional killing, excluding drug trafficking. While many countries, including Norway, have abolished it with positive results, 53 countries, including Malaysia, still enforce it, showing global differences in its use.

THE MURDER OF ALTANTUYA SHAARIIBUU & SIRUL AZHAR UMAR

Azilah Hadri and Sirul Azhar Umar, were sentenced to death in 2009. Azilah’s sentence was later commuted to 40 years and caning following Malaysia’s abolition of the mandatory death penalty. Sirul fled to Australia, where extradition laws against the death penalty left him in detention until his release in 2023. 

Malaysia faces a dilemma : Should it align with global abolition trends or retain the death penalty based on domestic needs for public safety and justice ? 

4. Deterrence and Public Safety

The death penalty aiming to prevent serious offenses like murder and drug trafficking. In Malaysia, over 1,300 people are on death row, mainly for drug crimes and murder. However, drug-related crimes increased by 30.6% in 2022, questioning the death penalty's effectiveness. 

5. Secretive Pardons Process 

In Malaysia, clemency decisions for death row prisoners are made in secret by pardon boards, leading to calls for transparency. To ensure fairness, all death sentence cases should be reviewed, and decisions should be explained publicly. An impartial body should handle cases involving royal connections to avoid bias.

SUGGESTIONS 

1. Eliminate Presumptions 

Death penalty cases often involve unfair processes and biased assumptions. To ensure fairness, assumptions about guilt should be removed, and prosecutors must prove guilt with clear evidence.

2. Narrow the Range of Capital Offenses

The death penalty should be reserved for the most serious crimes. Political crimes, like plotting harm against Yang di-Pertuan Agong or state rulers, should not carry it, as it risks turning justice into political control.

3. Abolish Mandatory Penalties

Mandatory death sentences remove judges' ability to decide fair punishments. Prosecutors control outcomes by choosing certain charges, limiting judicial independence and causing unfair punishments. 

REFERENCES 

[1] https://www.amnesty.my/abolish-death-penalty/a-brief-history-of-the-death-penalty-in-malaysia/