MARCH 14 — MADPET (Malaysians against Death Penalty and Torture) is saddened by the alleged U-turn by Prime Minister Tun Dr Mahathir Mohamad and his Cabinet that had decided earlier to abolish the death penalty, but now will apparently only abolish the mandatory death penalty.

On March 13, 2019, Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin was reported saying in Parliament that only the mandatory death penalty will be repealed, being the mandatory death penalty for nine offences under the Penal Code and two under the Firearms (Increased Penalties) Act 1971. (Malay Mail, 13/3/2019)

It must be noted that the Cabinet under Dr Mahathir, had at a meeting in October 2018, decided to repeal not just the mandatory death, but the death penalty for 33 offences under eight acts.

‘The Cabinet has decided to abolish the death penalty, and it will be tabled in the next Parliament sitting, which will begin on October 15, said Datuk Liew Vui Keong[Minister in charge of law in the Prime Minister’s Department] …. "All death penalty will be abolished. Full stop.” ‘ (Malay Mail, 10/10/2018)

This decision was applauded worldwide, and even celebrated at the recent 7th World Congress Against the Death Penalty in Brussels on February 26, 2019 to March 1, 2019, who also highlighted the United Nations General Assembly 7^th Resolution for the moratorium of executions pending abolition that was adopted on December 17, 2018, with 121 in favour (including Malaysia for the very first time), 35 Against and 32 Abstention.

It is now disappointing that some Cabinet Members and political parties in Pakatan Harapan may have buckled, and this maybe what led to a change in position. It must be noted that at the end of the day, it is the Prime Minister that chooses his Cabinet, and so blame would really fall on the Prime Minister.

All the Cabinet had to do was to table the Bill/s to repeal the death penalty, and leave it to Parliament. If Parliament defeats the Bill, then blame lies with Parliament not Dr Mahathir and his Cabinet.

The mandatory death penalty has already been declared unconstitutional in about 12 jurisdictions, the last being in Kenya and in June 2018, in Barbados. There is currently a challenge at the Federal Court, seeking a similar declaration that the mandatory death penalty is unconstitutional, in a case represented by Gopal Sri Ram. (Star, 6/3/2019). The court may most likely declare that mandatory death penalty is unconstitutional.

Mandatory sentences, is undemocratic and unconstitutional as the legislature infringes and takes away completely the power of the Judiciary, when it comes to the imposition of an appropriate and just sentence on a convicted person. Parliament could fix minimum, and maybe maximum sentences but should never take away judge’s discretion when it comes to sentencing.

As such, the abolition of the mandatory death penalty is  long overdue, but is really no great achievement. Abolishing the death penalty, on the hand, will be something we can all be proud of, as Malaysia joins the majority of nations. Every time someone is executed, every Malaysian is responsible for the death.

The reason for the abolition of the death penalty is clear. It has been shown in Malaysia that it is no deterrent to crime. It has been shown for drug trafficking, and we believe that number of murders have been increasing, a fact that cannot be shown ever since the past government stopped giving actual statistics of crimes, including murder since about 2014. Now, we get a crime index, which is a basket of several crimes, which hides the fact whether the number of murders, rapes, snatch thefts, robberies or any particular crimes are actually increasing or decreasing. Malaysians deserve real statistics of each and every crime.

The risk of miscarriage of justice is very real, where an innocent man could wrongly be executed – the flaws of the administrative of justice is real. Many believe that Anwar Ibrahim, who was convicted and sentenced twice for sodomy, is such a ‘miscarriage of justice’. The police, prosecutors, lawyers and judges can all make mistakes or wrongs. Anwar was lucky as his sentence was imprisonment, not death.

Spending time in prison is adequate punishment, and there is really no justification of putting anyone to death in this modern world. The notion justice will be done only by the killing killers, raping those who rape, beating up those who had assaulted others and such kind of punishments is not the kind of justice that Malaysia should ever advocate.

Without the total abolition of death penalty, Malaysia is most unlikely to bring back Sirul Azhar from Australia, and as such that may prejudice the investigation of other perpetrators who may have been involved in ordering or paying for the Altantuya Shaariibuu murder.

In a criminal trial, accused person will usually elect to remain silence, not pleading guilty or let alone say ‘I did it with so and so’ or "I did it because I was ordered or paid to do so by some other person’ because any such statement will also be a personal admission of guilt. It is also less likely for those sentenced to death, to even after all appeals and petitions are exhausted to come forward and give information about perpetrators yet to identified and/or prosecuted – what is the use, as they still will be executed.

Remember that there is always a possibility that those perpetrators, still free and unidentified, may threaten the convicted to remain silent, if not their family members may be harmed. However, if the sentence is not death, then there is a better chance of the convicted speaking up and more perpetrators being brought to justice.

Malaysia, being a Muslim majority nation, should also not insist the death penalty, now in secular laws not Islamic laws,  that do not comply with the evidential and procedural requirement of Islam, to be retained. Christians, and especially Catholics, after Pope Francis’s clear position for the abolition of the death penalty,  also do not support the continued existence of the death penalty. Likewise, Buddhist, Hindus and Sikhs that advocate the sanctity of life, should be against the death penalty.

SUHAKAM, the Malaysian Bar, Parliamentarians for Global Action(PGA) and so many others also wants the Death Penalty abolished in Malaysia.

It must be pointed out that even in France, when the death penalty was abolished by the government, over 60 per cent of the population were against abolition.

The Prime Minister and parliamentarians must have the required political will and courage to do the right and just, and immediately abolish the death penalty.

The worry of loss of popular support and the impact on the next General Elections, in four years time, is a deplorable reason not to completely abolish the death penalty now.

MADPET urges PM Mahathir and his cabinet to bravely table the Bill to abolish the death penalty for all offences, and let Parliament decide on it. Let the votes be transparent, so all will know how each and every Parliamentarian voted, which will also help in people to later lobby their MPs.

MADPET also calls for the continued moratorium on all executions pending the abolition of the death penalty.

MADPET calls on Malaysian political parties to come out and clearly state their position on the Death Penalty. It is shameful to give the impression in certain forums that it is for the abolition of the death penalty, only to see some of their leaders come out later taking an opposite stance.

MADPET also calls for Parliamentarians in the Opposition and backbenchers to also support the abolition of the death penalty on principle and for justice, and not simply vote against it just because it is a Bill tabled by the government.

*This statement is submitted by Charles Hector, for and on behalf of MADPET (Malaysians Against Death Penalty and Torture).

**This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.