On the 3rd April, 2023, the Dewan Rakyat unanimously agreed to pass a Bill to abolish the mandatory death penalty laws in Malaysia. The Bill will now be presented in the Dewan Negara (the Senate) for its approval. Thereafter, it formally be passed into law after receiving the Royal Assent from His Majesty, The Yang di-Pertuan Agong.
There are currently 34 offences under Malaysian Law which imposes the death sentence, out of which 11 of them imposes mandatory death sentence. These include offences like murder and drug trafficking. If the accused person is found guilty of committing these 11 offences, the Court will not have any choice but to sentence the accused person to death.
However, if the Bill to abolish mandatory death penalty becomes law, judges will be given discretion as to what sentence to impose on the accused person in the said 11 offences. It does not mean that the death penalty is abolished – judges may still pass the death sentence if they are of the view that that is the fair and right sentence. However, judges will be free to impose a sentence of imprisonment not exceeding 40 years and of whipping of not less than 12 strokes.
The Deputy Director of Human Rights Watch’s Asia Division was quoted saying that the said passing of the Bill was an important step forward for Malaysia. Other Rights Groups have voiced similar views.
The passing of this bill is important for a few reasons. First, it is the explicit recognition of the right to life of everyone. Deputy Law Minister Ramkarpal Singh said that “We cannot arbitrarily ignore the existence of the inherent right to life of every individual”. The right to life is protected under Article 3 of the Universal Declaration of Human Rights. The right is extended to all human without discrimination. This includes those who are convicted of crimes. This right is also echoed in Article 5(1) of our Federal Constitution.
Secondly, by giving the discretion to the judges to decide on the sentence, this may result in a fairer outcome. A law that imposes mandatory death sentence means that it is Parliament that passes the sentence on the accused person. However, as the trial judge have had the opportunity to hear and watch the witnesses during the trial, he or she will therefore be the best person to decide on the suitable punishment. No two cases are identical and the judge can take into consideration the specific facts of each case to reach a fair decision.
The judge will also be able to consider the mitigating factors. For example, in 2018, Muhammad Lukman Mohamed was convicted of trafficking in drugs and sentenced to death. He was in fact selling cannabis oil for medicinal purposes. His motives reportedly were noble as he wanted to help his clients by giving them relief from chronic and crippling pain caused by their medical conditions. However, this was not taken into consideration. As he clearly satisfied the legal provisions of trafficking in drugs, Muhammad Lukman was sentenced to death because the judge did not have the discretion to decide on the sentence. His conviction subsequently was set aside by the Federal Court which found that the prosecution had failed to prove the weight of the drugs.
Another case that caught the attention of the public was of a 58-year-old woman who was sentenced to death by the Tawau High Court in October 2021 also for drug trafficking. The fact that she was a single mother of 9 children was not taken into consideration since the judge was required by law to pass the death sentence on her.
With the abolishment of mandatory death sentence law, judges will now have the discretion to take into account the relevant mitigating factors to determine what is the suitable and fair sentence to impose. A convicted person who is a repentant first-time offender can be treated differently from a repeat offender who has shown no remorse.
Finally, it is recognised that death penalty is not effective as a deterrent. Deputy Law Minister Ramkarpal Singh said Parliament that “The death penalty has not brought the results it was intended to bring”.
Having had mandatory death sentences in our laws all these years have not deterred people from committing those crimes as those who do consider committing the crimes usually do not plan to get caught. Instead, in most cases, it death sentences also end up punishing the family members of the convicted person.
With the passing of the Bill to abolish mandatory death penalty, there is a legitimate expectation that sentences imposed by the judges will be fairer and just. It is also hoped that this will be a step forward leading to a total abolishment of death penalty sentence in Malaysia.
By Lai Mun Onn, Senior Lecturer, Taylor’s Law School
