LETTER | Malaysians against Death Penalty and Torture (Madpet) is tickled by the announcement of Minister in the Prime Minister’s Department (Law) Liew Vui Keong that a special committee to look for alternatives to the mandatory death sentence will be set up.
Such a committee could have been established earlier in March, but to do so now a few weeks before the commencement of the October parliamentary session when the bill to abolish the mandatory death penalty is to be tabled is really disconcerting.
Madpet is also concerned whether it is just another attempt to further delay the decision to abolish the mandatory death penalty. Last October, the cabinet decided to abolish the death penalty, then in March this year, they changed their mind.
It was announced on Oct 10, 2018 (being also the World Day Against the Death Penalty), that the cabinet had reached a consensus that the death penalty for 33 offences as provided for under eight acts of law would be abolished and this was again reiterated several times.
Then on March 13 this year, the Malaysian government made a shocking U-turn and said that only the mandatory death penalty would be axed. Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin said the mandatory death penalty was for nine offences under the Penal Code and two under the Firearms (Increased Penalties) Act 1971.
A mandatory death penalty deprives a judge’s sentencing discretion – the ability to order an appropriate just sentence when a person is found guilty and convicted of the crime.
Madpet hopes that the government, who previously decided to abolish the death penalty, who then did a U-turn to now only abolish the mandatory death penalty will no more procrastinate but will speedily table the relevant bills in Parliament in this upcoming parliamentary session.
It must be remembered that the delay of several months by the previous BN government in putting in force the Dangerous Drugs Amendment Act 2017 which abolished the mandatory death penalty for drug trafficking resulted in great injustice to at least 10 persons who were sentenced to death as judges still could not use the new law until it was in force.
Now, the Pakatan Harapan-led government’s delay in the abolition of the mandatory death penalty also greatly prejudices accused persons charged with mandatory death penalty offences, whose trials are starting, proceeding and/or will end before the amendment becomes law.
Now, the prosecution and the defence are preparing and presenting their evidence and submissions in these trials on the basis that conviction results in the mandatory death penalty. If there is no mandatory death penalty, evidence tendered will also be evidence that would assist the judge later in imposing a sentence other than the death sentence.
If the mandatory death penalty is now abolished, justice would only be done for those sentenced to the mandatory death penalty maybe by a re-trial where all court records of the trial before are expunged and cannot be relied upon. Alternatively, a less just option, for trials yet to have ended, provisions be given for prosecution and defense to adduce new relevant evidence, including the recalling of witnesses, which will have a bearing on the sentence to be imposed if found guilty.
As such, the abolition of the mandatory death penalty should be not be delayed.
Other amendments to deal with cases where trials have already commenced or have ended by the time the abolition of the mandatory death penalty had come into force can always be dealt with later, maybe in subsequent amendments tabled in Parliamentary sessions in 2020.
The government can immediately amend the law to abolish the mandatory death penalty and can impose a natural life prison sentence.
Later, it can always again amend the law to even give greater discretion to judges, maybe imprisonment not less than 15 years to natural life sentences, which it could do after this "special committee" submits its conclusions maybe three to six months down the road.
The abolition of the mandatory death penalty must not be delayed simply because we are waiting for this "special committee" to submit its final report.
The law could also later be amended to deal with persons whose trial have commenced and completed before the law abolishing mandatory death penalty comes into force.
It is sad that the government has been using all kinds of excuses to delay bringing about necessary repeal or amendment of draconian laws in Malaysia. For example, on June 19, it was reported that the government will wait for the Federal Court to decide on a suit challenging the constitutionality of the death penalty for trafficking before it tables an amendment. Parliament makes laws and there is no need for it to wait to be told by a court whether a law is constitutional or bad.
The worry now is that in the near future, the minister will come out and say that the mandatory death penalty will not be abolished until it receives the final report from this "special committee" it set up just weeks before the bill to abolish the death penalty is to be tabled.
The writer represents Madpet.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.