DEATH PENALTY IN MALAYSIA: IS IT JUST?

“The death penalty is, in our common experience, an atavistic relic from the past that should be shed in the 21st century.”

UN High Commissioner for Human Rights, Volker Türk, April 2023

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The death penalty has long been a globally contentious issue, with opinions divided on its morality and effectiveness. Yet, is this irreversible punishment truly just? 

Take this— two criminals sentenced to death, one is accused of the torture and murder of an innocent child, while the other is a single mother of nine convicted for being in possession of drugs, both cases that have occurred in Malaysia and were given the death penalty. Both would spend years on death row, not knowing when their time is up, and when the time does come, the result would be irreversible death. Of course, the latter’s case quickly sparked controversy, igniting flames within Malaysians calling for reforms on capital punishments. 

The aforementioned question then arises.

Is it justifiable to hold the same standard of punishment between a murderer who beat and killed his own child; and a single mother, struggling to make ends meet for her children, who then resorted to selling drugs, her main motive never to harm others but to save her own children? 

That aside, you would think that for such a harsh penalty, it would at least be due to the large number of murder cases in Malaysia. Well, not really. Let’s take a look at the current statistics then. 

67.5% of individuals in Malaysia that remain on death row were convicted of drug trafficking and in particular, amongst the female convicts, 95% were accused of drug related offences. Insanely high numbers, I know. It certainly makes you ponder, how many of these ‘criminals’ were merely trying to provide for their families, how many of them were made accomplices to drug related crimes and found with drugs on hand? Is it truly justifiable to sentence them to the death penalty when criminals convicted of crimes such as rape, which causes the victims both physical and emotional trauma, are able to get away with years of imprisonment while being in possession of drugs would land you a death sentence?

Really puts things into perspective, doesn’t it?

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“The death penalty has not brought the results it was intended to bring.”

Deputy Law Minister, Ramkarpal Singh

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One of the main reasons why the mandatory death penalty had been retained for decades is the deterrence effect, in hopes that such laws would dissuade an individual from committing heinous crimes. But really, does it work? Despite the logic behind that statement, it remains a myth and following studies made in the USA and Canada, there has yet to be any credible evidence indicating the success of such deterrence. 

Many crimes are committed on the spur-of-the-moment, leaving little room for potential punishments to influence whether a crime is committed. At most, some criminals only begin to realise the weight of their actions after the crime has occurred, which by then, is too late. It may also sound absurd, but it may in fact, endorse further crimes. Take a drug trafficker for example, knowing he would be sentenced to death either way should he be caught, what is stopping him from killing another person or two since it eventually won’t make a difference.

Wouldn’t this defeat the purpose of having the death penalty serve as a deterrence in the first place?

With this in mind, Malaysia’s Parliament has ultimately taken the initiative in abolishing the mandatory death penalty through the Abolition of Mandatory Death Penalty Bill 2023. But no, it does not entail an abolishment as a whole, but rather it gives judges the discretion to determine the appropriate sentencing, whether it would be imprisonment, whipping or if the crimes fall within the serious crimes category and should the judges see fit, the death sentence. 

So it hasn’t been abolished, does it really make a difference?

To put it simply— yes. Personally, I find the current death penalty laws to be a justifiable punishment for criminals that have committed unspeakable crimes such as taking the life of another. To me, the death penalty should not be abolished as a whole. Criminals convicted of crimes such as murder or terrorism that result in death should be equally sentenced to death as such acts are irredeemable, you cannot bring back the life of someone you killed. Put yourself into the shoes of the victims’ families, this would soothe their hearts and bring peace of mind to them, knowing that their loved one’s murderer is brought to justice. 

On the contrary, crimes where no one was killed and harm was minimal to nonexistent such as drug related offences, as delved into previously, should be left to the judge’s discretion on how severe the punishment should be dealt. This would allow convicts who were unwilling accomplices to drug trafficking or were perhaps just at the wrong place at the wrong time to potentially be imposed with less severe sentences such as imprisonment.

Whether this abolishment is effective however, brings in a new discussion entirely. Despite it being the “judge’s call”, a majority of criminals are still sentenced to the death penalty. Granted, change takes time and regardless, judges have imposed lighter sentences in several cases, albeit not many, with 11 convicts of drug trafficking ultimately becoming the first batch to have their death sentences commuted in November 2023.  Clearly, it’s a step in the right direction to a fair and just legal system, no?

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“Death is a full stop, not a sentence.”

Amnesty International

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At the end of the day, the death penalty is a final, irrevocable punishment. 

Such sentencing should not be dealt with lightly at the risk of condemning an innocent person or an individual undeserving of death to the death penalty. Sure, the law may be rigid in nature, but humans are not. 

Ultimately, the answer to this complex question is this— there is no simple yes or no answer to whether the death penalty is just.

People are driven by different motivations and influenced by different factors that affect them and others. Everyone’s perception of morality is so inherently different that it is difficult to hold everyone to the same standard. Hence, judges should be allowed to consider the circumstances leading to the crime, or take the defendant’s vulnerable socio-economic realities into account before deciding on a sentence. While it cannot with certainty ensure the absolute just of the death penalty, it would however be a right step towards a fairer criminal justice system. 

Written by: Ho Jia Xuan

Edited by: Elaine Chee