“It is more terrifying waiting to know if you will die than actually dying”.
In the last century, global society has started to move away from a pro-execution mindset. However, a lot of countries in the world today still use capital punishment. Awareness on human rights and constitutional rights is rising around the world, especially as more and more countries are aware of international conventions that reaffirm the right to life as stated, for example, in the European Convention on Human Rights. Despite increasing awareness around the world, 359 people have been executed in Malaysia alone between 1979 and 2001. The Human Rights Commission of Malaysia (SUHAKAM) statistics show that since 2001, approximately 159 people have been put on death row.
On 29 June 2018, Suhakam held the National Conference on Death Penalty in Kuala Lumpur. The aim of the Conference was first of all to provide an insight into the history, situation, and the movement to abolish death penalty in Malaysia. The first anti-death penalty movement emerged in Malaysia in the 1970s after a historic case where a 14-year-old boy was sentenced to death. The first question concerning this issue that arose was therefore whether children should be equally subjected to the death penalty. Following the cases of Che Omar Che Soh and Mamat bin Daud, questions also began to emerge on whether Muslims in Malaysia should be sentenced to death for non-religious offences as Islam is the religion of the Federation under the Constitution. At Malaysia’s 2009 Universal Periodic Review (UPR), the Human Rights Council recommended that the government should reduce the number of crimes for which death penalty can be handed out. It was also recommended that Malaysia should consider abolishing death penalty. However, all recommendations for a moratorium or the abolishment of death penalty were rejected. Death penalty continue to be the general rule in Malaysia instead of life imprisonment. Further recommendations were made at Malaysia’s second UPR in 2013 for the abolishment of the death penalty. However, today we are still in a situation where death penalty is the rule and life imprisonment the exception.
In Malaysia, death penalty is a mandatory punishment for murder, drug trafficking, treason, and waging war against the YDPA. Capital punishment has recently been extended to acts of terrorism, rapists that cause death, child rapists and kidnapping. When someone is sentenced to death, the head of state automatically receives a report on each case and can either commute the sentence to another punishment, pardon the offender, or set the time and place for execution. There are no jury trials in Malaysia for capital punishment.
Death sentences are carried out by hanging as stated in Section 277 of the Criminal Procedure Code. However, other Asian countries like China use multiple methods such as shooting and lethal injection. The procedure is different for three different types of offenders who cannot be sentenced to death: individuals aged below 18 at the time of the crime, pregnant women (who may receive up to a maximum 20 years imprisonment) and mentally ill people.
Originally, capital punishment was introduced to Malaysia as a legacy of the common law system that Malaysia inherited from the British and with the prescription of certain punishments under Islamic criminal law. The idea took hold as many Malaysians continue to believe in retributive and deterrent justice despite prevailing contrary views over the years since and Malaysian syariah courts having relatively limited sentencing powers (i.e. maximum 3 years imprisonment, RM 5,000 fine and/or whipping of six strokes with no power to impose the death penalty).
However, as Suhakam reminded us at the Conference, statistics show that the drug cases have not decreased even though the death penalty remains under the Dangerous Drug Act of 1952. In fact, the number of drug-related murders and attempted murders have actually increased especially in recent years. Armed gang robberies reported each year also number up to between 40 and 100 cases. There has been no concrete proof on the efficiency of death penalty in reducing crime rates throughout the years, which makes lawyers, politicians, activists, citizens, etc. increasingly question its relevance. Many political leaders have also begun to express their dissatisfaction with the situation in Malaysia, claiming that death sentence does not serve as an effective tool for justice.
Malaysia is now one of seven countries worldwide that executes people for drug-related crimes. However, despite years and years of executions, the number of drug users has increased. In the past years, there has been a shift towards a more humanitarian approach towards drugs in Malaysia. In November 2017, the Dangerous Drug Act was amended so that death penalty is no longer mandatory for all drug related issues. This means that the judges now apparently have the discretion to either impose the death penalty or sentence a convicted person to life imprisonment. However, upon closer look, one finds that the amendment only lifts the mandatory ruling in certain circumstances, such as if the person convicted was merely transporting, carrying or delivering a drug, and if he assists law enforcement in stopping drug trafficking. This is why Amnesty International believes that despite this amendment, death penalty will continue to be imposed in most cases and life imprisonment will only be used in exceptional cases. As a matter of fact, in its original form, the amendment bill even required certification that the person on trial had really assisted an enforcement agency. This requirement was only dropped after protests from different groups such as Madpet and the Malaysian Bar. Interestingly however, the same certification is still required in Singapore.
Civil society, NGOs, lawyers, and political leaders in Malaysia and other Asian countries have begun calling for the repeal of death penalty. Political and social engagement on the issue is deepening as prominent politicians and lawyers such as Wang Ching-Feng from Taiwan have even gone on to express their willingness to step down rather than having to sign any death warrant. Such an indication of strong political will for change is significant given that death penalty is deeply seated in Asian countries with 44% or 24 of Asian countries still applying capital punishment and constituting 95% of death sentences commuted worldwide.
Nevertheless, opposition to the movement remains strong. Despite suspending the execution of death penalties since 2006, the Duterte administration of the Philippines is advocating a return to death penalty as the president himself declared his express willingness to use violence in order to preserve social order and fight crime. In March 2018, a bill was adopted to reintroduce death penalty for certain crimes. This comes in addition to the violent drug war that has extrajudicially killed thousands of people, including suspected political leaders and drug dealers since Duterte became president in June 2016. Meanwhile, China continues to hold the highest number of executions of death penalty in the world every year at about 1,000 to 8,000 executions annually, despite reducing the number of death penalty offences and introducing a two-year deferment of execution policy. Despite being extremely cautious in imposing death penalty, the number of executions held in Japan continues to rise. In South Korea, execution of death sentences have effectively ceased since the presidential moratorium on executions in 1998. The last execution that took place in South Korea was in 1997 when 23 convicts were executed. However, in 2013, over 60 convicts remain on death row.
In these circumstances, the future of the movement to abolish death penalty in Asia remains uncertain. The diversity of social systems and culture in Asian countries would also come into play. In the early 2000s, it was widely believed that the situation was improving in Southeast Asia. Cambodia had already abolished death penalty in 1989, East Timor one decade later, the Philippines in 2006, and in Indonesia a moratorium was installed and no executions took place between 2008 and 2013. In Singapore, no executions were recorded between 2010 and 2013. However, since 2013, the situation appears to have deteriorated. According to Vietnam’s Ministry of Public Security, a total of 439 convicted persons were executed between August 2011 and June 2016, and more people have been sentenced with capital punishment in the past year including for corruption. In Thailand, an execution by lethal injection was held in June 2017 for the first time since 2009. In 2015 in Indonesia, a Malawian national was executed for drug trafficking and Indonesia continued to use capital punishment ever since. In May 2018, Maria Exposto, an Australian national, was sentenced to death for transporting drugs in Malaysia.
These cases are a powerful reminder that Asian countries still have a long way to go in abolishing the death penalty. Although some have begun leaning towards a more humanitarian approach in criminal justice, others remain adamant. Proponents of capital punishment in Asia continue to argue that people who constitute a risk to the survival of a nation could be eradicated to save the nation. For example, Muhammad Prasetyo, the Indonesian Attorney General, claimed in an interview for News24 in 20151 that the Indonesian war on drugs is justified because drugs continues to be a “threat to national survival” and capital punishment is necessary to “save the nation from the danger of drugs”. Prominent Thai military leader also argued that executing those involved in drug trafficking and dealing is necessary to “guarantee national peace” of Thailand.
In comparison, all members of the EU have abolished the death sentence in line with Protocol 6 of the European Convention on Human Rights. [Belarus remains the only country in Europe to have the death penalty]. Most of these countries maintain that capital punishment ought only to be invoked during war time. Meanwhile, capital punishment continues to be enforced in 31 states and under federal laws of the US. Although murder rates in both death penalty and non-death penalty states in the US have relatively decreased in recent years, the crime rates in non-death penalty states in general are far lower. The US case also highlights the fact that the death penalty is not an absolute deterrent to crimes. According to the US Death Penalty Information Centre2, as of July 2017, there were 2,817 inmates on death row.
In Malaysia, death row prisoners would normally have to wait for years for their appeals to be processed due to judicial delays. This was a concern that was consistently highlighted by many speakers at the National Conference. In one unreported case, a man became a death row prisoner for 14 years. Such a long wait could easily amount to cruel and degrading punishment and constitutes separate human right violation as death row prisons are commonly held in solitary confinement for 23 hours each day in 10×10 feet cell.
Before the Conference concluded, SUHAKAM reaffirmed their hope to see the new Pakatan government take more concrete steps to abolish the death penalty completely in Malaysia. It is also hoped that the review process on capital punishment and law reforms to that end would begin as soon as possible.