JULY 26 — It is widely accepted that the death penalty is a qualitatively different sentence from any other sentences — it is irreversible and if an error is committed, there is no way to rectify the error.

Be that as it may, the sentence has been upheld as constitutionally valid by the Constitutional Bench of the Supreme Court of India more than 40 years ago in the case of Bachan Singh v State of Punjab [1983] SC 957 by a majority (4:1).

It must be said, though, that the Indian apex court did say in no uncertain terms that only in the “rarest of rare” cases that the death sentence could be imposed.

The Supreme Court did also take to the occasion by laying down some guidelines, namely:

(a) the extreme penalty of death need not to be inflicted except in gravest cases of extreme culpability;

(b) before opting for the death penalty, the circumstances of the “offender” will be taken into consideration along with the circumstances of the “crime”;

(c) life imprisonment is the rule and death sentence is an exception — in other words, death sentence must be imposed only when life imprisonment appears to be altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;

(d) a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weight and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

The Supreme Court then considered the following factors as aggravating circumstances which may attract imposition of death penalty:

(a) If the murder is a pre-planned murder and involves extreme brutality;

(b) If the murder involves exceptional depravity; or

(c) If the murder is of a member of any of the armed forces in India or any police force members or of any public servant who committed such offences: (i) while they were on duty; or (ii) in consequence of anything done or attempted to be done by them in the lawful discharge of his duty whether at the time of murder, he was such member or public servant, as the case may be, or had ceased to be such member or public servant.

The following circumstances have been suggested as circumstances justifying the death penalty:

(a) when the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community;

(b) when the murder is committed for a motive which evinces total depravity and meanness; eg murder by hired assassin for money or reward; cold blooded murder for gains of a person vis a vis whom the murderer is in a dominating position or in a position of trust or murder is committed in the course of betrayal of the motherland;

(c) when murder of a member of a Scheduled Caste or minority community is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of “bride burning” or “dowry death” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation;

(d) when the crime is enormous in proportion for instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality, are committed; and

(e) when the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis a vis whom the murderer is in a dominating position or a public figure generally loved and respected by a community. (See Ratanlal & Dhirajlal’s Law of Crimes (26th Ed) at p 1635)

The above were referred to in a recent Malaysian case of Public Prosecutor v Arumugam a/l Sandanam & Anor [2023] MLJU 2304 where Judicial Commissioner Su Tiang Joo found them “helpful”.

Guided by the above, the learned judge found the facts of the instant case as falling into circumstances (a), (b) and (e) as the murder committed by the accused persons was “extremely brutal, grotesque, diabolical, revolting or dastardly manner, hugely out of proportion, and by persons who are in a dominating position”.

Did the Court of Appeal in sentencing the six former Universiti Pertahanan Nasional Malaysia (UPNM) cadets to death for the murder of Zulfarhan Osman Zulkarnain refer to Bachan’s case and the guidelines above as well as the circumstances justifying the death penalty before sentencing them?

One has to read the full grounds of judgment, which are not publicly available, yet. However, media reports of the decision suggested that the appellate court referred to Bachan’s case.

Court of Appeal Judge Datuk Hadhariah Syed Ismail, who led the three-judge panel, in delivering a 93-page judgment for over three hours, said that the case “is among the rarest of the rare, involving extreme cruelty that poses a grave danger to society, and such inhumane acts must be stopped”.

Section 183 of the Criminal Procedure Code provides that if the accused person is convicted, “the Court shall pass sentence according to law”.

Following the Abolition of Mandatory Death Penalty Act 2023 which abolishes the death penalty and in force since July 4, 2023, section 302 of the Penal Code (on punishment for murder) reads as follows:

“Whoever commits murder shall be punished with death or imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes.” (Emphasis added)

The death sentence imposed by the Court of Appeal is a sentence according to law.

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