The Death Penalty is immoral and hypocritical. The late and great Indian leader, Mahatma Gandhi, once said, “An eye for an eye will make the whole world blind.” There is no arguing that crimes associated with the death penalty–such as premeditated murder–are reprehensible. However, if we are to agree that taking the life of another human being can be categorized as the upmost heinous of acts, how can we justify treating such a crime with a punishment that mirrors the very thing we so adamantly condemn? It is because of this that support of the death penalty can be deemed as moral hypocrisy. Despite the moral hypocrisy of death penalty, Malaysia still retains capital punishment and Malaysia is one of the 32 countries that still provides for death penalty. The hypocrisy of the governments who still retain the death penalty could also be seen when their citizens were sentenced to death for crimes committed in foreign countries – they condemn or plead to the country concern to commute the sentence.
In Malaysia, death penalty is a mandatory punishment for murder, drug trafficking, treason, and waging war against Yang Di-Pertuan Agong (the King). In 2003 the Penal Code was amended to provide terrorism-related offences which carry death penalty upon conviction. Since January 2003, the death penalty in Malaysia has been a mandatory punishment for rapists that cause death and child rapists. Foreigners are not exempted from the death penalty and there are many cases in Malaysia where foreigners were sentenced to death, especially for drugs trafficking.
To the Malaysian Bar, death penalty should be abolished in the belief that every human being has a right to life. This right is absolute, universal and inalienable, irrespective of crimes that had been committed. In many studies conducted by experts and voluntary organizations, there is no empirical proof that the death penalty is an effective sentence in deterring heinous crime. In fact, drugs related offences and addiction have been on the rise in Malaysia since the 1983 amendment to the Dangerous Drugs Act 1952, which brought in the mandatory death penalty.
Which court has jurisdiction to hear capital punishment cases?
Only the high court has jurisdiction to sentence a convicted person to death. Juvenile cases involving death penalty are also heard before the high court instead of juvenile court where other juvenile cases are heard. Upon conviction, appeal to the Court of Appeal and the Federal Court are automatic and if appeal failed, the last resort is to seek a pardon or clemency from the Ruler or Governor of the state where the crime was committed and convicted. In Federal Territories or when the crime involved armed forces, pardon or clemency has to be sought from the King.
Death sentences are carried out by hanging as provided in Section 281 of the Criminal Procedure Code. Pregnant women and children may not be sentenced to death. Currently, death penalties are carried out in Malaysia through hanging and under Article 5(1) of the Constitution of Malaysia, the death penalty is not expressly prohibited.
Amnesty International noted that the way the death sentence was passed in Malaysia happened to be inconsistent with the International Covenant on Civil and Political Rights (ICCPR). This is because the sentence did not take into consideration the defendants personal circumstances or the circumstances of the particular offence during the trial. It was held that for some of the offences which carry the death penalty, the offence does not require that a person have any intent on killing another person thus it would not fall under the definition of a serious crime as stated by the ICCPR. Such offences could thus be said to be inconsistent with the ICCPR and universal human rights in general.
Should death penalty be abolished?
Under the Malaysian death penalty law, the most infamous convict who faced the death penalty was Botak Chin, a well-known gangster in 1970s. He was known for conducting armed robberies, which in a few cases involved huge amounts of cash. He was respected by the Chinese community and often regarded as modern-age Robin Hood, as some say he shared the cash from the robberies with the poor. On the evening of 16 February 1976, he was captured by the police, and was sentenced to hang to death in Pudu Prison on 11 June 1981.
The most infamous convict who was pardoned by the King was Datuk Mokhtar Hashim, who at that time was the Minister for Culture, Youth and Sports. He was convicted in 1983 for murdering a political rival in Negri Sembilan at Kampung Seri Asahan, Gemencheh at 1.30 in the morning of 14 April 1982. The judge in a 40-page judgment said it was an “intelligently planned, neatly execute and almost became a perfect crime”. He was pardoned by the King on 10th July, 1991. He was convicted after a 75 day long trial, which was one of the longest trial in Malaysia.
Under the death penalty, the most infamous wrong conviction was against a lecturer, Karthigesu for murder of Miss Jean Perrera Sinappa, a former beauty queen. Four days after the conviction, a witness, Jayatilake, confessed telling lies. The lies led to the conviction against Kartigesu. The conviction was then quashed by the court as the conviction caused by the confession of the witness in telling lies which led to the conviction. On this ground the conviction could not stand. The critical lesson from Jean’s case is that, the legal system was unable to uncover the witness’ dishonesty. The trial Judge believed the perjured evidence given by Jayatilake.
Likewise, even in many developed countries although their methods of investigation and science are more advanced than ours, there often were cases of wrong convictions where accused persons were sentenced to death. In Texas, Cameron Todd Willingham was executed in 2004 for allegedly setting a fire that killed his three daughters. Following his execution, further evidence revealed that Willingham did not set the fire that caused their deaths. But it came too late.
It is therefore undeniable that death penalty puts innocent lives as risk and to execute an innocent person is morally reprehensible. It is also argued that the death penalty violates the right to life which happens to be the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Furthermore, the death penalty undermines human dignity which is inherent to every human being.
Given the fact that our criminal justice system is clearly not prefect and is susceptible to errors of which can be deliberate as well as unintentional should death penalty be abolished? The problem we are facing now is that the country’s criminal justice system is not flawless. Many said our criminal justice system is also not up to mark and skewed against poorer people who could not afford lawyers. There is also a fear that suspects in capital punishment cases were tortured and made to confess by their investigators of the crime they never committed.
In order to ensure fair justice and fair trial, the court normally appoint lawyers to defend accused persons who could not afford the services of lawyers, but, these court appointed lawyers being poorly paid by the government could not put much focus on handing assigned cases for several reasons. In many cases, appointed lawyers are overworked, lacked trial experience required for death penalty cases. Therefore, poor quality defence by appointed lawyers could easily lead to conviction.
Judges can also be biased and may convict an accused person based on background and race of the accused person.
To those who oppose death penalty, capital punishment to them, should have no place in a society that values and respects human lives and their view is that Malaysia should join the rank to abolish the death penalty because there is no evidence that death penalty is an effective deterrent to crime. Right now, there are more than 1,000 prisoners at the death row in the country waiting to know their fate if they will be executed for their crimes or have their lives spared. It is also argued that Article 5(1) of our Federal Constitution specifically mandates the Government to protect the citizens’ right to life.
Arguments have been put forward that that justice is for the rich, the powerful and the famous. A heinous crime committed could be swept under the carpet or even if prosecuted will end in acquittal. We have seen that in our criminal justice system some powerful figures, despite outcry from public, escaped prosecution. Most often than not, the reason given was that there was insufficient evidence to prosecute them. Even if prosecuted, they may receive light sentences or ended in acquittal.
To those who are exceptionally wealthy, they could buy justice by assembling the best criminal defence team, whereas those of low social economic group status could not. Verdicts are largely dependent on the quality of one’s defence team and the price of a good lawyer can equate to an entire mortgage. This fact once again spotlights the flaws within the legal system that lead to the innocent being prosecuted and the guilty being set free. The death row is simply not for the rich, the powerful and the famous.
Death Penalty is State Sanctioned Revenge
In murder cases, it is often argued that the death penalty is based on retribution for the victim as well as the victim’s family and friends. The desire for revenge is understandable but it is also based on emotions – particularly those which are heated and are catalyzed not long after a severe incident has occurred. But, the criminal justice system is not a place where decisions are meant to be based on passion, but are based on factual evidence and justice.
Furthermore–with sympathy toward those who have experienced the loss of a loved one due to crime–revenge and an “eye for an eye” mentality has not been shown to lead to healing. The death of a convicted criminal will not negate the loss of a loved one. Forgiveness has been shown to be instrumental in healing and health, as well as in moving forward. Have you ever been heated by emotions that you wished ill will on someone? What happened when the anger subsided? The ill will most likely dissipated and then the healing truly began.
Death penalty denies opportunity for rehabilitation. Many who are charged with crimes that entailed capital punishment are mentally and or emotionally unstable. Most often than not, murders occur in a moment of passion, in conjunction with a psychological disability or due to substance abuse. These characteristics call for a movement toward rehabilitation rather than to punish those convicted with death penalty. Rehabilitation efforts not only help convicted criminals, they help society in understanding the motivations behind criminal actions and can prevent similar crimes from occurring in the future.
To those who lost their loved ones caused by robberies or murder, they may undergo severe trauma and loss which no one could minimize. However, executions do not help these people heal nor do they end their pain. It is also argued that, we are the “State” and when the “State” kills, we are participants. Would we choose to be the person that executes that snuffs out a human life?