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Balancing Justice and Deterrence: The Abolishment of Mandatory Death Penalty in Malaysia

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Introduction

In a significant stride towards a more balanced and humane legal system, Malaysia has taken the bold step to abolish the mandatory death penalty. This crucial development not only signifies a shift towards a more nuanced approach to justice but also underscores the importance of careful implementation to maintain a balance between justice for victims and their families and deterring hardcore crime.

As revealed by of 31 Mac 2023, among 1,310 offenders who are guilty under the death penalty and waiting for government decision for alternative sentence, within this figure, there are 67.5% of the offenders had been convicted for drug trafficking offence which will be sentenced to mandatory death penalty, in which 38% among the offenders are foreigners with a less fortunate socioeconomic background.[1]

With the aim to uphold the inherent right to life of everyone, the step in abolishing mandatory death punishment has officially been gazetted on 16 Jun 2023 with the Abolition of Mandatory Death Penalty Act 2023 or Akta Pemansuhan Hukuman Mati Mandatori (Act 846) with the date of enforcement starting from 4July 2023.

Background

For decades, Malaysia had a mandatory death penalty for certain offenses, including drug trafficking and murder. This rigid approach meant that judges had no discretion but to impose the death penalty upon conviction, regardless of the circumstances surrounding the case. While the move to abolish mandatory death sentences is welcomed, it comes with the challenge of maintaining a delicate balance in the justice system.

To address the concern, there were initiatives that had been taken with the cooperation and collaboration of various entities. According to Tuan Ramkarpal Singh , Deputy Minister for  Law and Institutional Reform under the Prime Minister Department during the second reading of the Abolition of Mandatory Death Penalty Bill on 11 April 2023 , the government had actively taken several initiatives to revise and analyse the sentencing policy comprehensively since 29 August 2019 by establishing Special Committee to Review Alternative Sentences to the Mandatory Death Penalty or Jawatankuasa Khas Hukuman Gantian terhadap Hukuman Mati Mandatori (“The Committee”).[2]

The Committee was chaired by Yang Amat Berbahagia Tun Richard Malanjum, the former Chief Judge with the involvement of legal experts comprising of the former Chief Judge of Malaya (Hakim Besar Malaya), former Public Prosecutor, legal practitioners, law lecturers as well as criminologists. Pursuant to surveys and discussions which had been conducted, the Committee had suggested new sentencing policy based on proportionality principle embedded in these following principles:

  1. for offence that caused death, the sentence for death penalty is based on the discretionary powers of the court;
  2. for other offence which does not cause death, death penalty will not be sentenced by the court; and
  3. if death penalty is not sentenced by the court, the offender can be sentenced via alternative sentence including whipping.

On 25 May 2023, the Committee with the involvement of Attorney General Chambers, Malaysian Prisons Department, Ministry of Health, Malaysia Bar Council and the National Legal Aid Foundation and the Registry Office of Federal Court had conducted the Preparatory Meeting (TOR) for the Execution of the Alternative Sentences to Mandatory Death Penalty and Life Imprisonment to discuss the preparation of the flow chart and guideline in implementing the alternative sentences. 

The Guidelines had considered several items including the background of offender, case hearing mechanism, legal services and explanation to prisoners and appointed lawyers.[3]

The Change

The decision to abolish the mandatory death penalty came after a series of discussions, legal reforms, and international pressure. Malaysia recognized that such a rigid approach didn’t allow for consideration of mitigating factors, such as the offender’s intent, mental state, or involvement in the crime.

Pursuant to the Final Report published by the Committee, the Committee had given recommendations to 11 mandatory death penalty offences under the Dangerous Drug Act 1952 [Act 234], and 21 offences under the Penal Code and Arms Act 1971 which was later adopted in the current legal framework. [4]

Judicial Discretion

With the abolishment of mandatory death sentences, judges in Malaysia now have the discretion to consider various factors when sentencing individuals convicted of capital offenses. This newfound flexibility allows for a more fair and balanced approach to justice, taking into account not only the severity of the crime but also the individual circumstances of the offender.

The new Act grants discretion for the court in sentencing the offenders particularly for offences under section 121A, 130C, 130I, 130N, 130O, 130QA, 130QC, 3302 and 374A in which the court is given discretion to sentence the offenders under death penalty or imprisonment not less than 30 years and not exceeding 40 years.

In situation where death penalty is not sentenced upon the offenders, the offenders shall be punished with whipping not less than twelve strokes for the following offences:

  • Penal Code 121A: Offences against the person of the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri
  • Penal Code 130C: Committing terrorist acts
  • Penal Code 130I: Directing activities of terrorist groups
  • Penal Code 130N: Providing or collecting property for terrorist acts
  • Penal Code 130O: Providing services for terrorist purposes
  • Penal Code 130QA: Accepting gratification to facilitate or enable terrorist acts, if the act results into death
  • Penal Code 130ZB: Accepting gratification to facilitate or enable organized criminal activity
  • Penal Code 302: Murder
  • Penal Code 374A: Hostage-taking

Nonetheless, for drug trafficking offence under the Dangerous Drugs Act 1952, the death penalty was still retained as a discretionary punishment.[5] This had received criticism by the Amnesty International whom regards that the drug and sexual offences are not within the threshold of the “most serious crimes” as provided by the UN Human Right Committee.[6] This further was supported with the statement released by the UN Chief Executive Board in 2019, stating that the imposition of death penalty to drug related offences does not respect the spirit of the international drug-control conventions. [7]

Balancing Act

The key challenge lies in striking the right balance between justice for victims and their families and deterring hardcore crime. While the mandatory death penalty was often seen as a means to provide closure and retribution to victims’ families, it didn’t necessarily serve as a strong deterrent to serious crimes.

International Implications

This move aligns Malaysia with international human rights standards and treaties. It reflects the country’s commitment to respecting the dignity and rights of all individuals, even those accused of heinous crimes. It also highlights the importance of evolving legal systems to meet contemporary societal needs.

Conclusion

The abolishment of the mandatory death penalty in Malaysia is a pivotal step towards a more balanced and just legal system. However, it must be carefully implemented to ensure that justice is served to victims and their families while also deterring hardcore crime. Striking this delicate balance will be an ongoing challenge, but it is a challenge that signifies progress towards a more humane and nuanced approach to justice in the country.




[1] Hansard Dewan Negara Parlimen Kelima Belas Penggal Kedua, Mesyuarat Pertama (11 April 2023); https://www.parlimen.gov.my/files/hindex/pdf/DN-11042023.pdf

[2] Hansard Dewan Negara Parlimen Kelima Belas Penggal Kedua, Mesyuarat Pertama (11 April 2023); https://www.parlimen.gov.my/files/hindex/pdf/DN-11042023.pdf

[3] Penyata Rasmi Parlimen, Kamar Khas (7 Jun 2023); https://www.parlimen.gov.my/files/hindex/pdf/KKDR-07062023.pdf

[4] Pemberitahuan Pertanyaan Lisan Dewan Rakyat Mesyuarat Kedua, Penggal Keempat

Parlimen Keempat Belas (13 Disember 2021); https://pardocs.sinarproject.org/documents/2021-september-december-parliamentary-session/oral-questions-soalan-lisan/2021-12-13-parliamentary-replies/20211213-par14p4m1-soalan-lisan-39.pdf

[5] MALAYSIA: STRIDES AND SETBACKS, Amnesty International’s submission to the 45th Session of the UPR Working Group, January- February 2024 (June 2023)

[6] Amnesty International, Reforms of Mandatory Death Penalty in Malaysia: What Do the Bills Say? (29 March 2023) https://www.amnesty.my/wp-content/uploads/2023/03/Amnesty-International_Analysis-of-the-Bills-to-Abolish-The-Mandatory-Death-Penalty-in-Malaysia_March-2023-3.pdf

[7] UN Chief Executives Board, “What we have learned over the last ten years: A summary of knowledge acquired and produced by the UN system on drug-related matters”, UN Doc. E/CN.7/2019/CRP.10

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