By Nur Aleya Qystina
Death Penalty that also interchangeably referred to as Capital Punishment is an execution of an offender sentenced to death after conviction by a court of law for typically serious criminal offences that varied throughout jurisdictions; these offences were known as capital offences. The historical background of Death Penalty predated its codification into Malaysian Penal Code and Criminal Procedure Code as early as 21st Century BC in Sumerian Code of the Mesopotamian King Ur Nammu. It also has been sanctioned at one time or another in famous Abrahamic religions holy scriptures following the biblical passage “Whoever sheddeth man’s blood, by man shall his blood be shed” (Genessis 9:6) for Judaism and Christianity. For Islamic law, death penalty was prescribed in Hudud for fixed offences (hadd) such as adultery as stated in Sahih Muslim “’Ubada b. as-Samit reported: Allah’s Messenger (may peace be upon him) as saying: Receive (teaching) from me, receive (teaching) from me. Allah has ordained a way for those (women). When an unmarried male commits adultery with an unmarried female (they should receive) one hundred lashes and banishment for one year. And in case of married male committing adultery with a married female, they shall receive one hundred lashes and be stoned to death”. Over time, the practice of capital punishment spread throughout medieval Europe and Britain, and its influence has persisted into many modern legal systems, including that of Malaysia inherited through British colonisation.
During the period of British colonisation in Malaya, death penalty was enforced as punishment for murder. Although introduced as early as 1952 by British Colonial Government, Dangerous Drug Act only incorporated death penalty provisions since 1973; due to Prime Minister Mahathir Mohamad administration viewing drug crime as Malaysia’s most important security concern. Thereby, positioning Malaysia as having one of the harshest drug laws in the world. The death penalty is currently retained for 27 offences in Malaysia and can be divided into offences punishable by a mandatory death sentence such as murder, hostage taking that resulted in murder and various other prescribed in Penal Code. The second offence is offence punishable by discretionary death sentence. The second offence is offence punishable by discretionary death sentence (non-mandatory) which included capital offences such as kidnapping or abducting in order to murder, rape resulted in death and among others. The method of execution in Malaysia is hanging as stated in section 277 of The Criminal Procedure Code.
It’s clear from the historical development that Malaysian law has consistently retained punishment of death penalty since pre-independence days of its criminal justice system. However, as early as 2006, Human Rights Commission of Malaysia (Suhakam) has expressed support towards full abolition of death penalty and encouraged to substitute it into maximum 30 years of life imprisonment to safeguard human rights of defendants, particularly Right to Life. In 2010, movement within civil society advocating for abolishment ofdeath penalty which gained positive response from Minister and Politicians such as Law Minister Nazri Aziz whom stated “if it’s wrong to take someone’s life, then the government should not do it either”, further solidified the rising public support towards the full abolishment of death penalty. These movements gradually prove to be effective as on 2017 the government amended section 39B of Dangerous Drug Act to allow court to impose either death penalty or life imprisonment, making death penalty no longer mandatory. Discussion among legislators continue until 8th June 2022, when Former Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar, agreed on behalf of the government to conduct a further study in order to proposed a substitute sentence for 11 offences punishable via death penalty, one offence under Section 39B of the Dangerous Drugs Act 1952 (Act 234) and 22 offences carrying the death penalty at the discretion of the court. Finally, on 3rd April 2023 following the unanimous passage of the “Abolition of Mandatory Death Penalty Bill 2023 and the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of Federal Court) Bill 2023” in Parliaments, Malaysia officially abolished punishment of Mandatory Death Penalty.
The question remained on why it is highly celebrated that Malaysia finally abolished mandatory death penalty? The answer relies on the nature of death penalty application itself, that inherently discriminatory as it disproportionately affects individuals from disadvantaged socio-economic backgrounds and minority groups. Those who are impoverished often lack access to adequate legal representation and knowledge of their legal rights. For example, defendants from poor backgrounds may only be represented by overworked and lack resourced public defenders, unlike wealthier individuals who can afford experienced lawyers from well-established firms. As a result, wealthier defendants have a higher chance of avoiding the death penalty even when convicted of similar crimes, demonstrating how justice can be influenced by financial means.
This also affected immigrants that lack social security and deep understanding in another country’s jurisdictions. They may not understand their rights, language barrier and lack financial means to afford a reputable lawyer often force them to rely on public defenders for such a heavy offence. In the situation facing death penalty it is crucial for them to have access to competent legal knowledge, to stand in a fair trial. This is crucial aspect to consider when we acknowledge that back in 2017, there are 417 (37%) foreigners in Malaysian death row due to drug trafficking, some may have not even stand in a fair trial due to lack of resources.
Additionally, individuals with disabilities are at a disadvantage during legal proceedings, as their disabilities may affect their understanding of the case or their ability to comprehend their legal rights. Such individuals are also more vulnerable to coercion or manipulation during interrogations, leading to confessions or statements that are not truthful. This further increases the risk of wrongful convictions and, ultimately, unjust punishment.
Ethnic minorities also face similar challenges. Indigenous communities, for instance, may have limited access to education and a lack of awareness regarding their legal rights, making it difficult for them to navigate the legal system effectively. Mistakes made during trial due to this lack of understanding can worsen their position before the court. Historical evidence also demonstrates racial bias in the use of the death penalty. For example, in the United States during the 1930s to 1950s, reports on the administration of justice in southern states revealed that African Americans were disproportionately sentenced to death especially for crimes committed against white individuals while white offenders committing similar crimes often received lighter or no punishment at all. This pattern capture that the death penalty violates the right to life by unfairly targeting less advantaged groups.
This bias resulted from a desire to protect the interests of the majority population, as society judgemental actions often leads to harsher punishment for minorities to maintainmajority public confidence in the justice system. Thus, the implementation of the death penalty reflects deep-rooted inequalities rather than impartial justice that is apparent globally throughout the history.
In addition, there is a lack of empirical evidence proving the effectiveness of the death penalty, even in countries such as the United States, where it has been implemented since 1608. Notably, a study found that between 1974 and 2004, 447 executions occurred in the state of Texas, 13 in California, and none in New York, yet the homicide rates in these states displayed similar patterns of fluctuation. Moreover, a study comparing and examining crime rates before and after the abolition of the death penalty revealed a comparable trend. According to a study by the United Nations Office on Drugs and Crime (UNODC), in countries such as the Czech Republic, Hungary, Moldova, Romania, and Poland, the overall crime rate declined by 61% between 2000 and 2008 following abolition. This evidence challenges one of the main arguments supporting the retention of the death penalty which is its supposed deterrent effect. Punishment alone may not effectively prevent crime; instead, emphasis should be placed on improving the justice system itself, such as ensuring access to fair trials, providing adequate legal resources, and strengthening law enforcement’s ability to execute law efficiently and impartially.
In essence, the abolition of mandatory death penalty marks a significant human rights reform in Malaysian criminal justice system. Its priorities rehabilitation and reconsider state of people in trial whether it is fair and just to impose a death penalty. At the same time addresses longstanding discrimination issues, especially against poor, minorities, immigrants and person with disabilities considering their unavoidable circumstances such as financial burden. Especially due to unproven deterrent effect of death penalty implementation. This reflected Malaysia’s commitment towards justice over retribution gradually aligning with international human right standards. The impact of this abolishment promotes judicial independence and fair trial for all that is convicted. Due to permanent nature of death penalty, we may reduce wrongful convictions and irreversible injustice. Especially due to inhumane conditions in death row that impacted mental and physical health of inmates. In conclusion, the abolishment of mandatory death penalty is a step towards a more humane and just legal system. This movement may open a new opportunity to push for a full abolition of death penalty in Malaysia and prioritising refinement in our legal system in term of guaranteeing fair trial towards everyone, access to adequate legal air and equal protection between defendants and plaintiffs in any scenarios. To achieve justice, it’s not purely on the basis of fear of punishment but through fairness, equality and respect for every individual’s human rights.
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