There is a huge difference between death penalty and mandatory death penalty, and your Editor, Jamari Mohtar, feels the government is moving in the right direction by abolishing the latter only.
- Let’s begin with what is meant by a mandatory death penalty. And unfortunately, here’s the irony: while you can find many dictionary definition of a death penalty, you can’t find a single dictionary definition of a mandatory death penalty.
- A death penalty is defined as a punishment given by a court of law for very serious crimes.
- Crimes punishable by death in Malaysia are murder, drug trafficking, treason, waging war against the Yang di-Pertuan Agong, terrorism, kidnapping or abducting in order to murder, possession of firearms, abetting mutiny (Armed Forces) and hostage taking.
- Those who oppose the death penalty regard it as something that is not only murderous and barbaric, but also against justice and human rights.
- What about the justice and rights for the victim’s family who had lost a member through a criminal act? Their pain is worse than the family of the murderer who has cut short the sacred life of an innocent person.
- No amount of regrets or remorse can resurrect the dead innocent from living again.
- And those who oppose the death penalty also seem to conveniently forget not only the sufferings of the victim’s family but also behave as if the victim’s family doesn’t exist.
- Their attention is disproportionately focussed on the sufferings of the aggressor’s family day in and day out instead.
- Thus, the dictionary definition of the death penalty sounds like a one-size-fits-all definition, perhaps the result of the indoctrination of the modern, liberal western civilisation because of their staunch belief on the worst aspects of the death penalty as mentioned above.
- This is quite strange considering that the epitome of the modern, western civilisation is the US, which doesn’t see it fit to abolish the death penalty nation-wide.
- With the introduction of the mandatory death penalty mainly because of the drug abuse menace since the 1960s, we now can discern two different definitions of the death penalty from the perspective of the role of the judges.
- Whereas all death penalty excluding the mandatory one revolve around the judge having the discretion to impose either the death penalty or non-death penalty, the mandatory one ties the hand of the judges in that they have no discretion at all to impose penalties other than the death penalty.
- This is what Prime Minister (PM) Ismail Sabri Yaakob on June 10, was saying when he stressed with the proposed abolishment of the mandatory death penalty, it does not mean there is no death penalty in Malaysia.
- The death penalty in Malaysia will still remain, but it will no longer be mandatory and judges will be given discretion when sentencing offenders.
- Elaborating further, Ismail said with the abolishment of a mandatory death penalty, judges will no longer be bound by the term that had left them with no choice but to impose the death penalty on criminal offenders such as those in drug trafficking cases.
- From what Ismail said, we can thus deduce while death penalty refers generally to all capital punishment where judges have the discretion to impose any kind of punishment they see fit including the death penalty, mandatory death penalty refers to capital punishment where the judges do not have discretion to impose any kind of penalty except the death penalty.
- If we follow the breakdown of death penalties as given in a statement by the Minister in the PM’s Department, Datuk Seri Wan Junaidi Tuanku Jaafar, who is also the de facto Law Minister, there are “11 offences which carry the mandatory death penalty, one offence under Section 39B of the Dangerous Drugs Act and 22 offences which carry the death penalty but under the discretion of the court”.
- This means out of the present 34 death penalties (11 + 1 + 22) in Malaysia, only 12 are mandatory death penalties. It is 12 because Section 39B of the Dangerous Drugs Act pertains to drug trafficking – a mandatory death penalty.
- If the proposed abolishment of the mandatory death penalty becomes law, then the 12 mandatory death penalties will become death penalties like the remaining 22 in which judges have discretion to mete out either the death sentence or alternatives to the death sentence.
- Thus, the judges are neither tied up to issuing only the death penalty nor the non-death penalty only. They can issue either one of the penalties, depending on the severity of the case once mandatory death sentence is abolished.
- It is your Editor’s personal view as a layman with no legal training that tying the hands of judges to just meting out punishment of the death penalty is a travesty of justice.
- So too is limiting the judges to just meting out punishment of the non-death penalty.
- If the judges err on not giving the death penalty when the fact of the case points to a death penalty, then an appeal against the judges’ non-capital punishment can always be made, or vice versa.
- When the appeal is at the final stage of the Federal Court, your Editor would like to propose that whatever the verdict of the highest court of appeal, the Judge should add that final judgement rests on the members of the victim’s family.
- In Islam, this is the concept of Qisas, which is the retribution goal in punishment – an eye for an eye.
- But Islam does not limit punishment to Qisas only, as it gives the victim’s family an alternative to forgo the demand of direct and equal retribution in the form of the death penalty to diyat or blood monies (compensation to the families of victims following a serious offence).
- This is the Quranic basis for qiṣāṣ and diyat: “O ye who believe! The law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, and the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.” [AlBaqarah (2): 178].
- Better still, Islam also gives a third alternative – forfeit the right of qiṣāṣ by forgiving the culprit as an act of charity or in atonement for the victim family’s past sins.
- But the victim’s family must not be coerced into making any of these alternatives. They must decide on one of these alternatives sincerely on their own.
- Of course, this does not mean they cannot be counselled with kind words to accept either diyat or to forgive.
In this regard, on June 13, Wan Junaidi in a special press conference mentioned about the concept of diyat as among the punishments being considered as a substitute for the mandatory death penalty but the matter must be discussed with the relevant parties, such as shariah scholars.
- The next day, Minister in the PM’s Department (Religious Affairs) Datuk Idris Ahmad also at a press conference said the matter will be discussed at length and should there be a need to set up a special committee, it would be handled by Wan Junaidi, and the views of related parties would be sought.
- “The concept of diyat is already in the book on jurisprudence, especially involving qiṣāṣ (retaliation in kind) … for example if A murdered B, he is given three options, the first is the death penalty, the second is to pay diyat and the third to be forgiven.
- “However, this matter is still in process and will be managed by the legal division,” he added.
- Two political parties that campaigned hardest against abolishing capital punishment in 2018 were MCA and PAS. They were then in the opposition but are now part of the ruling coalition.
- In that year, the Pakatan Harapan (PH) government announced plans to abolish the death penalty for good but facing vocal rebuke from the opposition and some segments of the rakyat, the government scaled back its ambitions to ending only mandatory death sentencing instead.
- But before it can do so the PH government collapsed in early 2020 before putting any legislation to parliament.
- In an interview with the Voice of America (VOA), Heng Zhi Li, an executive committee member of the MCA’s youth wing, where he joined the campaign against abolishing capital punishment in 2018 is unmoved by the argument in support of abolishing the death penalty.
- He supports his government’s plans to end mandatory death sentencing, but believes judges still need to keep capital punishment as an option in order to help deter the most serious crimes.
- It is interesting to note that Dobby Chew, executive coordinator of the Malaysia-based Anti-Death Penalty Asia Network (Adpan), told VOA he was glad to hear of the government’s plans.
- The absence of a surge in crimes that carry mandatory death sentencing since the 2018 moratorium argues against capital punishment’s power to deter, while Heng ascribes the trend to good policing.
- Heng went on to say leaving capital punishment to the court’s discretion would strike a just balance between the rights of criminals and victims alike.
- “Retaining the death penalty doesn’t mean that we ignore the human rights,” he said. “Actually, we are also protecting the human rights of the victims because we have to take into account that … the victims are being murdered, so what’s the feeling of [their] families?”
- A concern among some rakyat is with the mandatory death penalty gone, serious crimes will be on the rise. If it is still rising with the mandatory death penalty on, serious crime could rise further without it.
- But many NGOs here say the opposite – that death penalty laws do not have the deterrence effect in lowering crime or murder rates.
- They pointed out on the US, for example, the FBI has found states with the death penalty have the highest murder rates while states that have abolished capital punishment show no significant changes in either crime or murder rates.
- But this comparison with Malaysia is flawed because there has never been a situation in Malaysia where the death penalty is abolished, and the Federal government did not give any leeway like in the US for the state governments to decide on their own whether to opt for abolishing the death penalty or to retain it.
- Even with the mandatory death penalty abolished, death penalty is still there to be decided by the discretion of the judges.
- So such statistics is only true for the country concerned and we must be wary to postulate such findings to Malaysia because of the different circumstances, which could lead us to an apple-to-pear comparison.
- Moreover, since experts say there are five main underlying goals of criminal punishment – retribution, incapacitation (social protection), deterrence, rehabilitation and reparation – if these five are not met, it does not necessarily mean the punishment has failed. There could just be other factors that are the main cause of the failure to meet the goals.
- What is more important is in meting out the death penalty, the due process of the law must reflect the internationally recognised legal maxim that one is innocent until proven guilty.
- One rationale for abolishing the mandatory death penalty as pointed out by Ismail Sabri is “sometimes, the case involves an 18-year-old. The judge may find him ‘trapped’ as drugs were found in his bag but he could not prove that they belonged to somebody else, and the court had to send him to the gallows even though the judge felt that the accused was just a young man who should be given a second chance to change.”
- In the example above, it seems the burden of proof of innocence fell on the young accused, which is the opposite of the legal maxim “one is innocent until proven guilty”.
- The due process of the law in this example is actually “one is guilty until proven innocent.”
- The burden of proof of guilt must be taken up by the authorities in that this youth should be detained with the maximum period allowed by the law for the authorities to investigate further so that they can find solid evidence of his guilt.
- Failing which, it should be presumed that he is innocent and should be freed in line with the internationally recognised legal maxim.
- But because drug abuse is a real menace to society, if the offender is found to be a hardcore drug trafficker to the extent of causing hundreds of thousands of people to die (due to drugs), he can be sentenced to death and allowed to be sent to the gallows.
- However, if the judge, in his discretion, felt that the offender should be given a second chance and decided to sentence him to life imprisonment with whipping, he can substitute the mandatory death penalty with that of life sentence.
- This is what ultimately the proposed abolishment of the mandatory death penalty seeks to achieve.
Read more on the death penalty, mandatory death penalty, qisas, diyat and goals of punishment:
- If we argue backward, climate change is the result of global warming and the latter is the result of excessive greenhouse gases (GHG) being emitted into the atmosphere, which in turn is caused by the cumulative effect of decade-long activities when individuals or for-profit corporations continuously burned massive amounts of fossil fuels and cut down trees.
- The rising global average temperature, due to excessive amount of GHG emitted to the atmosphere is currently about 1.2° Celsius above the pre-industrial average.
- For a 1.5° Celsius of global warming, there will be increasing heat waves, longer warm seasons and shorter cold seasons. At 2° Celsius of global warming, heat extremes would more often reach critical tolerance thresholds for agriculture and health.
- In the end, this would increase the likelihood and severity of extreme weather events as warmer air holds more moisture.
- When the atmosphere is sucking up more water (around 7% more water for every 1° Celsius rise in temperature), heavy rainfall are more likely to happen in the coastal regions, and severe droughts in the middle of continents.
- So to manage climate change, we can either start from the beginning by really going green in preventing unabated logging including illegal ones and plant more trees. But these efforts alone are not enough.
- It has to be reinforced by effort to make electrical vehicles (EVs) mainstream and ubiquitous.
- If all the roads and highways in Malaysia are legislated for use by EVs only while the use of conventional carbon vehicles emitting GHG are prohibited, global warming will be reduced significantly because our roads and highways will no longer be a source of GHG emission.
- But the hundreds of millions of batteries of the EVs will be manufactured in factories or manufacturing sites where the electricity are generated by the use of fossil fuels.
- To close the loop on this, there is a crucial need for electricity generation by using clean energy.
- Thus it is indeed a very welcome development when Transport Minister Dr Wee Ka Siong said on June 13 Malaysia has to implement new policies to address various issues surrounding EVs for the sector to flourish in the country.
- Bernama quoted him as saying with EVs becoming more prevalent throughout the world, it was inevitable for EVs to become mainstream in Malaysia.
- “We are currently in need of an ecosystem that will support the use of EVs as the speed of building such infrastructure is slow,” he said in a posting on his Facebook on June 13.
- With the emphasis on various transportation sectors to go green, Wee added, it is time for Malaysia to conduct in-depth studies on plans for introducing more charging stations in public places including shopping malls and highways, and on the disposal of old batteries.
- Meanwhile, another welcome development is when Petronas on June 16 announced the establishment of a new clean energy solutions company, Gentari, as part of a global push by the state oil firm to produce carbon-free energy.
- Petronas, the world’s fourth-largest exporter of liquefied natural gas (LNG), in 2020 said it was stepping up investments in hydrogen and expanding its portfolio in renewable energy.
- Wholly owned by Petronas, Gentari has been tasked with helping deliver renewable energy, hydrogen and green mobility solutions, with a long-term goal of becoming a “full suite net-zero solutions provider”, according to a statement by Gentari.
- By 2030, the company aimed to build a renewable energy capacity of 30-40 gigawatt (GW) particularly in solar, and supply up to 1.2 million tonnes per annum (mtpa) of hydrogen.
- It also aims to capture a 10% share of the EV ecosystem across key markets in the Asia Pacific, especially in Malaysia and India.
- Gentari will benefit from Petronas’ capacity and resources to pursue clean energy on an industrial scale, said Gentari’s chairperson, Tengku Muhammad Taufik, who is also Petronas’ chief executive.
- The firm said its existing assets and projects include more than one gigawatt peak (GWp) of solar capacity in India and Malaysia, a pipeline of clean hydrogen projects, as well as more than 220 EVs.
- The first of the clean hydrogen projects, which is being developed in Malaysia and other markets, is due to come on-stream in 2025, it added.
- So all the ingredients are there for sustainable efforts to curb and manage climate change – a respectable new clean energy solutions company by Petronas, and developing EVs ecosystem nationally spearheaded by the Transport Ministry.
- What’s missing is to complete the loop in developing a national world-class company manufacturing the EVs that is of the same league and stature as Tesla.
Let’s begin with what is meant by a mandatory death penalty. And unfortunately, here’s the irony: while you can find many dictionary definition of a death penalty, you can’t find a single dictionary definition of a mandatory death penalty.
A death penalty is defined as a punishment given by a court of law for very serious crimes.
Crimes punishable by death in Malaysia are murder, drug trafficking, treason, waging war against the Yang di-Pertuan Agong, terrorism, kidnapping or abducting in order to murder, possession of firearms, abetting mutiny (Armed Forces) and hostage taking
Those who oppose the death penalty regard it as something that is not only murderous and barbaric, but also against justice and human rights.
What about the justice and rights for the victim’s family who had lost a member through a criminal act? Their pain is worse than the family of the murderer who has cut short the sacred life of an innocent person.
No amount of regrets or remorse can resurrect the dead innocent from living again.
And those who oppose the death penalty also seem to conveniently forget not only the sufferings of the victim’s family but also behave as if the victim’s family doesn’t exist.
Their attention is disproportionately focussed on the sufferings of the aggressor’s family day in and day out instead.
Thus, the dictionary definition of the death penalty sounds like a one-size-fits-all definition, perhaps the result of the indoctrination of the modern, liberal western civilisation because of their staunch belief on the worst aspects of the death penalty as mentioned above.
This is quite strange considering that the epitome of the modern, western civilisation is the US, which doesn’t see it fit to abolish the death penalty nation-wide.
With the introduction of the mandatory death penalty mainly because of the drug abuse menace since the 1960s, we now can discern two different definitions of the death penalty from the perspective of the role of the judges.
Whereas all death penalty excluding the mandatory one revolve around the judge having the discretion to impose either the death penalty or non-death penalty, the mandatory one ties the hand of the judges in that they have no discretion at all to impose penalties other than the death penalty.
This is what Prime Minister (PM) Ismail Sabri Yaakob on June 10, was saying when he stressed with the proposed abolishment of the mandatory death penalty, it does not mean there is no death penalty in Malaysia.
The death penalty in Malaysia will still remain, but it will no longer be mandatory and judges will be given discretion when sentencing offenders.
Elaborating further, Ismail said with the abolishment of a mandatory death penalty, judges will no longer be bound by the term that had left them with no choice but to impose the death penalty on criminal offenders such as those in drug trafficking cases.
From what Ismail said, we can thus deduce while death penalty refers generally to all capital punishment where judges have the discretion to impose any kind of punishment they see fit including the death penalty, mandatory death penalty refers to capital punishment where the judges do not have discretion to impose any kind of penalty except the death penalty.
If we follow the breakdown of death penalties as given in a statement by the Minister in the PM’s Department, Datuk Seri Wan Junaidi Tuanku Jaafar, who is also the de facto Law Minister, there are “11 offences which carry the mandatory death penalty, one offence under Section 39B of the Dangerous Drugs Act and 22 offences which carry the death penalty but under the discretion of the court”.
This means out of the present 34 death penalties (11 + 1 + 22) in Malaysia, only 12 are mandatory death penalties. It is 12 because Section 39B of the Dangerous Drugs Act pertains to drug trafficking – a mandatory death penalty.
If the proposed abolishment of the mandatory death penalty becomes law, then the 12 mandatory death penalties will become death penalties like the remaining 22 in which judges have discretion to mete out either the death sentence or alternatives to the death sentence.
Thus, the judges are neither tied up to issuing only the death penalty nor the non-death penalty only. They can issue either one of the penalties, depending on the severity of the case once mandatory death sentence is abolished.
It is my personal view as a layman with no legal training that tying the hands of judges to just meting out punishment of the death penalty is a travesty of justice.
But before it can do so the PH government collapsed in early 2020 before putting any legislation to parliament.
In an interview with the Voice of America (VOA), Heng Zhi Li, an executive committee member of the MCA’s youth wing, where he joined the campaign against abolishing capital punishment in 2018 is unmoved by the argument in support of abolishing the death penalty.
He supports his government’s plans to end mandatory death sentencing, but believes judges still need to keep capital punishment as an option in order to help deter the most serious crimes.
It is interesting to note that Dobby Chew, executive coordinator of the Malaysia-based Anti-Death Penalty Asia Network (Adpan), told VOA he was glad to hear of the government’s plans.
The absence of a surge in crimes that carry mandatory death sentencing since the 2018 moratorium argues against capital punishment’s power to deter, while Heng ascribes the trend to good policing.
Heng went on to say leaving capital punishment to the court’s discretion would strike a just balance between the rights of criminals and victims alike.
“Retaining the death penalty doesn’t mean that we ignore the human rights,” he said. “Actually, we are also protecting the human rights of the victims because we have to take into account that … the victims are being murdered, so what’s the feeling of [their] families?”
A concern among some rakyat is with the mandatory death penalty gone, serious crimes will be on the rise. If it is still rising with the death penalty on, serious crime could rise further without it.
But many NGOs here say the opposite – that death penalty laws do not have the deterrence effect in lowering crime or murder rates.
They pointed out in the US, for example, the FBI has found states with the death penalty have the highest murder rates while states that have abolished capital punishment show no significant changes in either crime or murder rates.
But this comparison with Malaysia is flawed because there has never been a situation in Malaysia where the death penalty is abolished, and the Federal government did not give any leeway like in the US for the state governments to decide on their own whether to opt for abolishing the death penalty or to retain it.
Even with the plan to abolish the mandatory death penalty, it will still be there to be decided by the discretion of the judges.
So such statistics is only true for the country concerned and we must be wary to postulate such findings to Malaysia because of the different circumstances and doing so is like an apple to pear comparison.
Moreover, since experts say there are five main underlying goals of criminal punishment – retribution, incapacitation (social protection), deterrence, rehabilitation and reparation – if these five are not met, it does not necessarily mean the punishment has failed. There could just be other factors that are the main cause of the failure to meet the goals.
What is more important is in meting out the death penalty, the due process of the law must reflect the internationally recognised legal maxim that one is innocent until proven guilty.
One rationale for abolishing the mandatory death penalty as pointed out by Ismail Sabri is “sometimes, the case involves an 18-year-old. The judge may find him ‘trapped’ as drugs were found in his bag but he could not prove that they belonged to somebody else, and the court had to send him to the gallows even though the judge felt that the accused was just a young man who should be given a second chance to change.”
In the example above, it seems the burden of proof of innocence fell on the young accused, which is the opposite of the legal maxim “one is innocent until proven guilty”.
The due process of the law in this example is actually “one is guilty until proven innocent.”
The burden of proof of guilt must be taken up by the authorities in that this youth should be detained with the maximum period allowed by the law for the authorities to investigate further so that they can find solid evidence of his guilt.
Failing which, it should be presumed that he is innocent and should be freed in line with the internationally recognised legal maxim.
But because drug abuse is a real menace to society, if the offender is found to be a hardcore drug trafficker to the extent of causing hundreds of thousands of people to die (due to drugs), he can be sentenced to death and allowed to be sent to the gallows.
However, if the judge, in his discretion, felt that the offender should be given a second chance and decided to sentence him to life imprisonment with whipping, he can substitute the mandatory death penalty with that of life sentence.
This is what ultimately the proposed abolishment of the mandatory death penalty seeks to achieve.
Regards,
Jamari Mohtar
Editor, Let’s Talk!
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