LETTER | Malaysia once again made it to the international headlines when the government announced that Malaysia is in the process of abolishing the death penalty. With the moratorium already in place, it seems that the government is not merely being rhetorical with this progress but is serious about the direction that they are taking. This policy will likely be heavily scrutinised amongst the lawmakers and citizens of Malaysia.

In Malaysia, the death penalty is provided by the acts of Parliament including the Firearms Act 1971, Penal Code, and Dangerous Drugs Act 1959. Some of the offences punishable with the death penalty include drug trafficking, possession of firearms, attempting war against the Agong and terrorism. The state enactment (that is, Enakmen Undang-Undang Kanun Jenayah Syariah Kelantan) also provides the death penalty for adultery and intentional killing.

However, the Syariah Court in Malaysia is subject to the limitation under the Syariah Courts (Criminal Jurisdiction) Act 1965 which is limited to the punishment of three years imprisonment, RM5,000 fine and six strokes of caning. Therefore, the death punishment derived from the Syariah Law provided in Kelantan could not be enforced and proved technically unimplemented. This is why in Malaysia, the death penalty only comes from the civil law and the one that is derived from Syariah Law is not practised in Malaysia.

Post-2000 has seen many countries initiate the abolishment of the death penalty. Currently, there are 47 signatories to the European Convention on Human Rights – a convention that requires participating members to abolish the death penalty completely in their country and to not extradite anyone to any country that could potentially see the prisoner receive the death penalty.

To date, only 63 countries opted for a retentionist approach while the rest of the world have completely abolished the death penalty either in law or in practice. Seven of them take a middle approach where it is only abolished for minor crimes, while retaining it for serious crimes such as treason and cold-blooded killing.

The world has shifted its view for numerous reasons. The death penalty historically serves as a punitive measure and acts a deterrent to the offender from committing a certain offence – murder, treason, blasphemy.

However, a recent development on the protection of human rights changed this. Firstly, they believe that it is not the state’s right, or anyone’s right to take someone’s life as a punishment. Right to life is part of a human right and no one should be conferred the power, including the state, to strip off the offender’s right to life.

Secondly, no matter how fair and impartial a court can be, the court is vulnerable to a certain degree of mistakes and errors. Many circumstances in the US have seen someone sentenced to death only to find out later that the offender was innocent. With the death penalty, any mistake cannot be undone. It leaves no room for rectification. Therefore, it has become the stance of the state’s that such a risk and danger of taking someone’s life is best avoided.

Fundamental structure

Thirdly, the death penalty is no longer considered or perhaps never was, an effective deterrent factor to stop people from committing crimes. Countries with the death penalty in place continue to see similar and rising rates of drug trafficking and killing. From a study released by the Death Penalty Information Center in the US, the report cited that the death penalty fails to serve as a deterrent factor as 57 percent of the police chiefs concurred that criminals rarely think of the consequences of their act.

The supervening psychological temptation to commit the act overwhelms any rational thought over the consequences. The report further suggested that other measures to combat violence are expanded training and more equipment for police officers, hiring more police officers and community policing.

These conflicting approach and opinions regarding the death penalty is an issue that deserves to be addressed. I believe that Malaysia must move forward from becoming a non-progressive state that is stagnant in the development of law. Malaysia must not be left behind and we must prioritise human rights as the fundamental structure of this nation.

Therefore, we must move forward, not for conforming to the Western values of human rights but on the principles of law and justice.

Yet a crime is a crime and it must be punished with a justified punishment. Retributive punishment for a crime remains relevant as we must not only be fair to the offender, but a higher threshold of fairness must be reserved for the victim of the crime. The right of a victim to a cold-blooded killing seems to be violated if the criminal is not punished accordingly.

An alternative to abolishing the death penalty absolutely is for Malaysia to retain it for only serious crimes such as first-degree murder. As a retribution and deterrent purpose, the death punishment is effective. A very serious crime like cold-blooded killing deserves a discretionary death penalty for an effective combatting measure.

There are a few countries taking this approach which is considered as the middle ground for a more progressive punishment measure. The judiciary plays an important role to ensure that this approach can be taken effectively. On the other hand, the remaining crimes that are currently punished with the death penalty can be punished with an imprisonment of natural life without any chance of obtaining pardon.

Currently, many offenders who are sentenced to life imprisonment are able to get out of prison after 25 to 30 years of serving after getting a pardon from the Agong or the state ruler. Abolishing the opportunity of pardon may serve as a deterrent factor that is equivalent to the death sentence while the rate of executions may be reduced tremendously.

In this new Malaysia, let’s hope that any progress or change that is happening will not be done hastily. Abolishing the death penalty must not be done merely to adhere to the international moral policing but to enhance the principle of law that is enshrined in our Federal Constitution. The development of law is always welcomed as we Malaysians have always believed in the core values of justice and fairness.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.