Featured image from Carribean National Weekly.

by Goh Cia Yee, Michelle Liu & Arveent Srirangan Kathirtchelvan

The signs were already there. Just last November, Malaysia’s de facto law minister, Datuk Liew Vui Keong told Al-Jazeera in an interview that he didn’t think the Government was going to make a U-Turn on the abolition of the death penalty. The article also mentioned that he was “working to get the death penalty abolished in its entirety”. While the headline for the interview screamed “Malaysia says no ‘U-turn’ in death penalty abolition”, perhaps it is our fault in failing to notice the little details. The de facto law minister never gave any certainty that there would be no U-Turn on the decision. Instead, he merely thought that the Government wouldn’t.

Fast forward to March 2019 and the Deputy Minister in the Prime Minister’s Department, Mohamed Hanipa Maidin mentioned in Parliament that the Government is suggesting to replace the mandatory death penalty for 11 offences under the Penal Code and Firearms (Increased Penalties) Act 1971 with a discretionary one.

While Pakatan Harapan’s manifesto only promised the abolition of the mandatory death sentence, the following statement by Datuk Liew in October 2018 gave a positive assurance to Malaysians that the Government would take a step further and abolish the death penalty as a whole. The specific words he used were:  “Death penalty will be abolished. Full stop.

The removal of the mandatory death sentence for these 11 offences would certainly be a welcome change, we would like to emphasise that it is not the same change that we, Malaysians were promised by the de facto law minister just a few months ago. It is also not a change that we at Liberasi, are willing to settle for.

After the statements made by Mohamed Hanipa, Datuk Liew said that the government “plans to abolish the death penalty was still a work in progress” and that they were waiting for the government to look at three options, which are:

  1. The total abolition of the death penalty
  2. The removal of the mandatory death penalty and replacing it with a discretionary one
  3. The removal of the discretionary powers of the court under the Dangerous Drugs Act “whereby we are either going to commute it to life imprisonment for the Dangerous Drugs Act.”

However, Datuk Liew also made it clear that he was “hoping to go for the middle ground”, paints quite a clear picture in our minds that the only options that will end up being considered or executed down the road by the current Government are the second and third options mentioned above, much to our disappointment. The informal announcement of the replacement of the mandatory death sentence for the 11 offences with a discretionary one is further confirmation of this.

Mohamed Hanipa’s statement that there was no decision to form a parliamentary committee to study the abolishment of the death penalty is also worrying. In our opinion, the first option is only mentioned by Datuk Liew to appease certain sides that are advocating for the total abolition of the death penalty. In many instances, the decision has already been made and the announcement of it is just pending.

Perhaps we may be proven wrong on this matter and the death penalty may be abolished as a whole but the recent backtracking, non-committal or please-both-sides approach of the current Government on various other matters ranging from the UUCA to the minimum wage, suggests to us that we are not too far from the mark with our prediction. In fact, the recent statements by Mohamed Hanipa Maidin suggests that they have already done so.

We, at Liberasi, insists that the protection to the right of life of any individual is not a right that can be picked or chosen at the whim or fancy of anyone. It is a right that is absolute. The Government must commit to its promise and not assume that we are willing to settle for the half-protection of such a fundamental right because of their need to appease certain groups within Malaysia.

Yes, we do acknowledge that there are a number of people within Malaysia that do not support the total abolition of the death penalty but we would like to emphasise that the topic has always been a decisive one and if we were to wait for a complete agreement from all sides, we would continue to wait for a very long span of time, in which the state-sponsored killing of many individuals would continue.

In any event, we would like to present to the Government and also to certain groups within Malaysia the reasoning and arguments we have for the complete abolition of the death penalty. We welcome other groups to contribute towards the debate but do note that our stance is firm and in our view the death sentence must be completely abolished.

The process

Before we can argue over its abolition, we must seek to understand the process itself.

The prison prepares for a hanging one month before it occurs. An appropriate date and time is selected by the chief executioner alongside a support team to prepare the chamber, noose and trapdoor lever. One week before the execution, the family members of the inmate are informed about the execution and are advised to turn up the day before.

The inmate is only informed about their impending death 24 hours before the execution. This is despite them potentially waiting on death row for potentially up to 11 years. They may meet their family on the day they are informed about the execution and they may request for a last meal but on the morning after, they will be woken up and led to the gallows.

In Malaysia, when a death sentence is passed by the judge at the end of a trial, the phrase that is often used by the judge is ‘hukuman gantung di leher sampai mati’. The last two words of the phrase are necessary as the act of simply hanging an individual by the neck may not lead to instantaneous death. Depending on the position of the knot, the slackness of the rope, the inmate’s weight and height, a drop may lead to instant decapitation. If you are fortunate to survive the initial drop, you may die a slow and agonising death. Moving about or kicking may help to accelerate it. Despite common belief, suffocation is barely a contributing factor to death. A fracture of the spinal cord or the lack of blood flow to the brain play a huge role instead.

Assuming that the head is not decapitated and the body remains hanging on the noose, the heart may continue to beat for a period of time and the limbs of the body may spasm involuntarily. Urine and faeces will be evacuated and visible scarring or injury from the hanging upon the deceased’s body may range from the face of the deceased turning blue and swollen. There may be little blood marks on the face or eyes of the deceased. The tongue may also protrude. These details on the face of the deceased will be hidden under a cover placed over the head before the lever is pulled.

Inhumane, torture and degrading treatment

Having looked at the process in which the sentence is carried out, let’s proceed to look at the statistics provided by Suara Rakyat Malaysia. According to the study, only 33 executions out of 1, 279 death sentences have been carried out between 2010 and 2018. This is due to death row prisoners having to wait for years due to delays in the judicial process of their appeals.

According to Loyar Burok, in one unreported case, a man became a death row prisoner for 14 years. This lengthy wait could lead to inhumane and degrading punishment, including human right that may be considered torturous. For example, holding these prisoners in solitary confinement within 10×10 feet cells for 23 hours each day is as common as it is horrifying. This may be further amplified by the living conditions in such cells.

One can only imagine the amount of mental and physical torture one would go through in this environment. The death penalty is the ultimate inhumane punishment as it the ultimate breach of human rights as protected in the United Nations Universal Declaration of Human Rights 1948, specifically the rights to life, to live free from torture or cruel, inhuman or degrading treatment or punishment. This is worsened when considering the potential for the further misuse of this punishment.

Amnesty International notes that many cases resulting in the death penalty occur in a skewed justice system. Innocence and guilt are not simple determination. There lies the risk of miscarriage of justice, where innocent people are found to be guilty. This is especially true for those who are socioeconomically disadvantaged or are otherwise discriminated against due to belonging to a racial, ethnic or religious minority. Many on death row are not given proper legal representation because they cannot afford legal fees. Language and comprehension is an issue where the accused is a foreigner. These individuals’ experience of the criminal justice system makes it possible for the death penalty to disproportionately affect them.

At this point, one may argue that the accused could always appeal his or her death sentence, but the stakes of obtaining a contrary decision is quite slim. The ‘finding of facts’ of a trial of first instance is almost undisturbed on appeal, as the law states that fresh facts cannot be presented, only challenged, in court on appeal.

The irreversibility of the death penalty makes it so that injustices like wrongful executions can never be rectified. This is the ultimate injustice that nullifies the whole ethos of the criminal justice system which is to decrease injustices, not further them. At this point, one needs to ask further that even if an individual is guilty of an offense that carries the death penalty, can they be said to be completely responsible for the crime committed. Especially in Malaysia, where drug crimes can lead to death penalties, one needs to ask the circumstances of an individual’s life that led them to committing them in the first place. Poverty, for example, can cause a vulnerable individual to commit crimes simply to sustain a livelihood.

Is it justified to punish them so severely for being born at the wrong place in unfortunate circumstances? How about those they have supported financially like old parents and young children who now are left to fend for themselves without their sole breadwinner? These people then become more vulnerable to committing crimes as well. The environment an individual is in has a tremendous impact on the choices they make. For example, if gangsterism is all a person is exposed to as a means to improve themselves and all their role models are criminals themselves, they are more likely to be involved in it as well. Can we then punish these individuals for being moulded by the wrong environment?

We must ask who suffers when we punish a person. Does it change the system that births criminals significantly to punish criminals in such an extreme manner? One would need to be cognisant of the need to truly bolster law and order in support of building a more peaceful, inclusive nation. This includes the need to eradicate heinous crimes by targeting the very roots of it, whether poverty, mental health or building misunderstandings of the other. The death penalty does nothing to address these aspects, rather it further heightens injustices, inhumanity and discrimination.

‘Justice for the victims’

Proponents of the death penalty often cite the need to provide ‘justice for the victims’ as a justification for its’ retention. The death penalty serves as a retributive punishment unto one for taking the life of another: an eye for an eye, a tooth for a tooth, a life for a life. The severity of the punishment is said to be justified so to deter others from committing the same offence.

However, arguments for the death penalty made on these basis often pay little regard to the functions as well as realities of the criminal system. Although punishment bear the aims of retribution and deterrence, it also bear the competing aims of rehabilitation and reparation. In cases where the death penalty is administered, however, the offender is not given a second chance to make amends and correct himself.

Proponents of the death penalty often argue that the death penalty serves as a form emotional closure for the victim’s family and the affected community. There is little evidence to show that trauma and pain suffered by the victim’s family ends with the perpetrator’s pulse. Emotional closure is a complex process which cannot be reduced into a court sentence and as stated in the above, it is not the purpose of the punishment to provide such closure.

The criminal justice system is not as victim-centred as per the claims of politicians, given the absence of victims throughout the trial as a whole. In a criminal trial, it is the State, represented by the prosecution, who initiates and conducts proceedings against the accused person, who shall be represented by his or her defence lawyer. It is the prosecution who describes the loss and injury suffered by the victim. It is the prosecution who gets a chance to speak to the accused. The victim, if not deceased, does not appear in court save for cross-examination where he or she will be left angry, hurt and humiliated without ever seeing the accused. According to Christie (1977), the victim will have to rely on ‘classical stereotypes’ of a criminal in order to find closure and understand why the accused had committed that crime. The justice process has been taken away from the victim to become the property of lawyers.

Furthermore, the interests of the prosecution are not always aligned with public morality and justice. Given the high volume of criminal cases, the prosecution is also concerned with quick disposal of cases. It is stated in its’ Client’s Charter that the AG Chambers must peruse the investigation papers within 14 days, and reply swiftly whether prosecution has to be initiated. There is no issue with quick disposal of cases per se, in fact justice without delay is to be practiced. However, the discretion the prosecution has over cases makes it difficult to determine if a good balance has been drawn between meeting performance goals and pursuing charges that carry merit.

Leaving the discretion to the judiciary

While leaving the death sentence to the discretion of the trial judge may sound like an ideal solution to placate both sides of the debate, in reality this proposed option is not as straightforward as it seems. It should be noted that while such a discretion may be granted, it might only be exercisable by the judge with regard to a limited number of circumstances as set out by the law.

This is seen firsthand with the amendment of the mandatory death sentence for a drug trafficking offence under section 39B of the Dangerous Drugs Act 1952 to a discretionary one in which the judge may only have regard to four circumstances when considering whether to impose an imprisonment for life. The failure to meet only one of these circumstances such as the assistance of an enforcement agency in disrupting drug trafficking activities (whatever that may mean) could quite literally mean life or death for the accused.

The nature of the law that allows a discretion to be exercised only in view of these few specific circumstances arguably denies the trial judge any meaningful discretion at all and is merely narrowing the circumstances in which the death sentence must be imposed. In other words, the amendment of the mandatory death sentence to a discretionary one with such requirements, may instead only be creating a narrower form of the offence in which the court is still mandated to pass a death sentence, thereby robbing the court of any meaningful discretion on the matter at all and defeating the purpose of the amendment in the first place. The judge’s ‘discretion’ is more often than not merely an illusion.

If the recent amendments proposed by the Government take similar shape as the past amendments to the Dangerous Drugs Act 1952, it is highly arguable that these amendments will be merely a farce to win political will on both sides of the debate while not delivering any substantial change at all.

Considering that the wideness of such a discretion is still up in the air, perhaps we may give the benefit of the doubt to the current Government. However, assuming that the discretion granted is a wide one, it should still be noted that this is not necessarily a beneficial thing.

A lack of a proper guideline as to who would receive the death sentence is not desirable, bearing in mind that a trial judge’s ability to remain impartial is also not something that is certain. Imagine a situation in which two wildly different judges with different backgrounds and philosophies in life were left with a wide discretion as to the imposition of the death sentence. It would not be too far-fetched to suggest that these two judges may hear the same case and pass a completely different sentence from each other. The fate of the accused, whether death or imprisonment, would be decided by the luck of the draw. While many lawyers may argue that this is often the reality for all kinds of criminal cases and not just those that involve the death sentence, it should be borne in mind that the life of the accused who is presumed to be innocent is a high price to pay in a game of chance.

Furthermore, in reality, death sentence cases go on appeal and the accused’s final fate is often left to the Federal Court. A trial judge in Malaysia is both the adjudicator of fact and law and these judges tend to find themselves bound by the decision of the higher courts. If there is a lack of written law dictating the circumstance in which a death sentence should be passed, it would be no surprise that common law will end up finding its own set of principles. It merely takes one precedent to bind these trial judges, thus invoking the further question of whether such a discretion can actually exist or not in the first place and whether it is merely an illusion.

A trial judge in Malaysia plays two roles, that of a judge and a jury. Assuming it is possible to hand a wide discretion to such a judge in regards to the death sentence, then it may be arguable that there is also a third role that the judge must play, that of an executioner.

In the words of George R.R. Martin: “The man who passes the sentence should swing the sword. If you would take a man’s life, you owe it to him to look into his eyes and hear his final words. And if you cannot bear to do that, then perhaps the man does not deserve to die.”

While the judge will not be personally hanging the accused to death, it actually distances the judge from the reality of the situation. It ought to be noted that whether the judge does the execution personally or not, a man will be hanged by his throat until he dies no matter how pretty we try to paint the picture.

Rethinking the punitive approach as a solution to crime

Perhaps one may think that punishment as harsh as the death penalty is justified to deter very serious crimes, there is no concrete evidence to prove that it is doing such effectively. In spite of the death penalty, those convicted for drug trafficking under Section 39B of the Dangerous Drugs Act 1952 make up the majority among 1,279 people on death row.

It appears that sending people to the gallows for drug trafficking does little to nothing in alleviating the problem of drug addiction either. As of 2017, 33,500 out of 59,600 inmates in Malaysian prisons were convicted of drug-related offences and that constitutes about 56 per cent of the total number of inmates in Malaysian prisons. In addition, the National Anti-Drug Agency (AADK) has detected over 25,922 drug cases in the same year, out of which 18,440 were new cases and 7,482 involved repeat offenders.

Deputy Prime Minister Datuk Seri Wan Azizah Wan Ismail has called Malaysia’s “war on drugs” a “failure” despite spending huge amount of funds and she was right to say so. What could have gone wrong? Corruption, money laundering and poor governance are said to be hindering Southeast Asian nations from tackling the drug problem. Perhaps we are not plugging the leaking holes within the system which continue to enable the supply of drugs into the country. Perhaps it is easier to punish drug mules than to go after the those who wield real power and control over region’s drug trade. In any case, none of that should be allowed to take place in Malaysia Baru. We must do better by looking at the right places and going after the right parties.

It also helps when we do away with unhelpful labelling and stigmatisation surrounding crime as well. Malaysia’s drug issue, for instance, should be viewed as an issue of public and social health rather than one of crime. Harm reduction programmes are already being implemented by the Ministry of Health in collaboration with local government authorities, peer outreach workers, and non-governmental organisations, which have seen some success in recent years – the HIV infection rate through the sharing of needles saw a fall from 79.6% in 2001 to 4% in 2017. The Needle-Syringe Exchange Programme (NSEP) and Medication Assisted Therapy (MAT) helps addicts wean off their dependency on drugs as well as to reduce the risk of diseases and injuries resulting from the use of needles.

Despite good testimonies from the programme itself, many still misunderstand it to be encouraging the drug habit due to the lack of public education and stigma. Programmes like these should be supported and expanded for further implementation. While it is costlier compared to incarceration, it offers a more holistic and humane solution to drug addiction, giving addicts a second chance to reintegrate into society.

The Pakatan Harapan government must be bold enough to lead the nation in implementing human rights reforms rather than falling back onto ineffective, un-examined populist criminal justice policy. Having presented our arguments, we urge the Government of Malaysia to reconsider their decision to retain the death penalty by assessing and consulting with interested parties. Criminal justice is a complex issue that should be looked at from multiple perspectives and cannot be solved by simplistic solutions such as the death penalty.

In support of the total abolishment of the death penalty in Malaysia,

Liberasi

25 March 2019.

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