KUALA LUMPUR - To this day, Malaysia still practices the death penalty and in 2020, there were 1,314 death row inmates still stuck in limbo as executions have been on hold ever since an official moratorium was put in place in 2018.

The death penalty was not something which was put into law by the Malaysian people, it was a common law system which was inherited from the British when Malaya was colonised. It stayed in place due to Islamic principles of punishment and has since coalesced into a consensus amongst the Malaysian public.

Sentiments and such practices are hard to distance from once they become regular, as they become norms of society. There is a certain numbness to the idea of executing criminals, and individuals in society quickly formulate their own reasoning to validate such killings.

Malaysia last carried out executions in 2017, where four death row inmates were executed according to ‘Fatally Flawed’, Amnesty International’s 2019 annual report on the death penalty in Malaysia.

On the other hand, when it comes to Commonwealth nations, practising the death penalty is not an irregular thing. According to the Death Penalty Project, in 2017, only 37% of Commonwealth nations have abolished the death penalty in law. In 2021, this percentage remains the same, showcasing the lack of progress in abolishing the death penalty amongst Commonwealth countries.

Overall, countries that still have the death penalty written in law, have seldomly executed death row inmates in the past decades. Such countries are dubbed as de facto abolitionist country, as they may not have legally abolished the death penalty, but they have forgone its practice for atleast 10 years.

This reflects an image of progressing support for fundamental human rights issues and it is not just a criminal justice policy. But there are still many countries which practice the death penalty, which are dubbed as retentionist countries.

According to the Cornell Center on the Death Penalty, in Asia, 56% (24) of the countries are still considered retentionist countries. This outlines the lack of progress in this region when compared to the rest of the world.

THE WISH FOR A CHOICE

The current agenda regarding this topic in Malaysia is the mandatory punishment aspect of the death penalty. Written in law, there are currently 11 offences that can be charged with a mandatory death penalty in Malaysia, ranging from drug trafficking to murder.

The mandatory aspect prevents judges from reducing a sentence if the given charge calls for a mandatory death penalty. In such a case, once the defendant is charged they can only hope to appeal the charge or go through the royal pardon process.

Latheefa Beebi Koya, an ex-Chief Commissioner of the Malaysian Anti-Corruption Commission and co-founder of Lawyers for Liberty has experience in dealing with cases such as these.

“Once the Federal Court has confirmed the death sentence, it could be reversed, sometimes they can be acquitted, but that is very rare.

“They will also have the opportunity to make a petition to the king, this is what you call the Royal pardon process.

“This [process] can take many years because they do not convene often,” she states.

Trafficking in dangerous drugs under Section 39B of the Dangerous Drugs Act 1952 is seen as particularly contentious as it only added the mandatory aspect to the death penalty for this conviction in 1983 when drug trafficking was one of the primary challenges of the nation.

Punishment of death has been seen as disproportionate to the conviction, and governmental bodies have hinted the sentiment to replace the punishment since 2012.

Latheefa echoed, “even before Pakatan Harapan came about, they were already in discussion to reform and find out what is the best way? Is capital punishment still relevant? Does capital punishment reduce crime?”

Malaysia is one of 35 countries in the world that sentences those convicted with drug offences with the death penalty, according to Harm Reduction International.

This sentiment of reform only entered the forefront in 2018 when Pakatan Harapan campaigned on reviewing capital punishment. Yet, this did not come fruition as they would reduce that promise to abolishing the mandatory aspect of the death penalty.

Then Minister of Legal Affairs, Datuk Liew Vui Keong in 2019, disclosed that a Bill had been brought forth to abolish the mandatory death penalty. This was met with major backlash and concerns from the public.

Amnesty International Malaysia’s Research Consultant Brian Yap says that the public perception [on death row inmates] is often only focused on the murderers and rapists, and that we look at the death row inmates as if it's only these types of people who are hanged.

“The debate and discussion around the death penalty is not based on fact, nobody wants to tell a grieving person whose husband or wife was murdered, that they will not get the justice they want,” he continues, saying that most opinions are influenced by emotions.

The battle for the abolition of the mandatory aspect or the death penalty altogether is not a battle of facts, but a battle of emotions and public perception.

As of January 2021, with no Bill put forth to amend the laws, and a change in government, the movement has since lost traction. However, the moratoriums put in place since 2018 will buy time for the next steps to be taken.

THE DUCKS SITTING AND WAITING

Referring to Amnesty International’s ‘Fatally Flawed’ 2019 annual report on the death penalty in Malaysia, the 1,281 death row inmates consisted of 89% (1,140) men and 11% (141) women. Two-thirds of death row inmates in Malaysia are convicted of drug-related offences.

This figure becomes more disproportionate when applying it only to women, of which 95% are on death row for drug trafficking. Foreign nationals make up 44% of the total population of death row inmates in Malaysia, and a similar trend with drug-related offences can be identified. 73% of foreign nationals on death row are convicted of drug trafficking.

“We found that the death penalty often disproportionately targets the poor, marginalised communities, and in Malaysia’s case, often foreigners,” said Brian.

VICTIMS OF THE SYSTEM

As previously stated, a disproportionate number of death row inmates are convicted of drug trafficking. This can be seen as a product of the 1983 amendments to the Dangerous Drugs Act of 1952 previously mentioned. But on the other hand, did this amendment meet its original purpose?

The mandatory death penalty fails to rid the country of drug crimes showcased by the existance of such death row inmates on such convictions. It does however highlight how it disproportionately targets marginalised individuals in Malaysian society.

“Very often what we found is that they do not understand the Malaysian legal system, they do not speak maybe Malay or even English well, so they do not really understand,” Brian states.

The high percentage of death row inmates being foreign nationals can therefore be attributed to a combination of both the lack of knowledge on the laws of Malaysia and legal assistance.

“When it comes to capital punishment or offences that are carrying capital punishment, the court must appoint a lawyer if the accused does not have a lawyer of his own,” said Latheefa, co-director of Lawyers for Liberty.

But with the topic of legal assistance, even if the lawyer is appointed by the court, there is the question of whether the lawyer is competent. If an individual has the resources to afford a better lawyer, they could possibly fare better than someone who cannot.

Therefore another marginalised group affected is the poor, as they are preyed upon both by the criminal justice system and criminal syndicates who exploit them as drug mules.

“You need to have a good lawyer defending yourself, [as the] chances of you getting off, are going to be much higher,” said Brian.

They are victims of the decisions put in place by our predecessors, and it is hard to repeal these past decisions as there are many obstacles in the way of such changes.

“The government is basically made up of politicians, so when they do something, they would want [it] to be as popular or accepted,” added Latheefa.

Policy cannot be written based on emotions, it has to be based on solid facts backed up by data.

THE ASSUMED TRUTH

The death penalty plays two major roles: a deterrent, and a punishment. When it comes to the death penalty acting as a deterrent, it has been deeply ingrained into the minds of the public as common knowledge and it is therefore assumed as the norm.

“[However] would the [death penalty] actually stop people from continuing to do murder, to continue to do [drug] trafficking? I do not think so.

“Because [the possibility of getting caught] is not in their minds when they commit such crimes,” said Latheefa.

There is no evidence that shows that the death penalty has ever played this role, as individuals who murder do not commit the act assuming that they will be caught. The possibility of facing the death penalty likely did not cross their minds.

On the other hand, there is data that shows that countries that do abolish the death penalty do not suffer any harmful effects from doing so. According to The Death Penalty: A World-wide Perspective by Roger Hood; in Canada, the homicide rate per 100,000 was at its peak in 1975 at 3.09. After the abolition of the death penalty for murder, this figure fell to 2.41 in 1980. In 1993 it fell further to 2.19 per 100,000, which is 27% lower than in 1975.

The death penalty’s role as a punishment is also put to question. The death penalty is a function of criminal justice, but what happens in the circumstances where an individual is falsely convicted?

“Once you execute someone, it is irreversible; you cannot bring that person back to life,” said Brian.

A Global Study of Wrongful Death Row Convictions by the Cornell Center on the Death Penalty Worldwide outlines numerous cases where an individual was falsely sentenced to death.

They cite many reasons as to why wrongful convictions occur, such as fair trial violations, obstacles to appeal, tunnel vision and many others. This just highlights how flawed criminal justice systems can be, and that they are not always accurate.

Therefore, how can you gamble an individual’s life when such uncertainties exist. One wrong conviction would result in the loss of an innocent life.

So until the government decides on what to do, the moratorium will act as a safeguard for the inmates but until then, there will always be a sense of uncertainty.