Capital punishment in Malaysia

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Capital punishment in Malaysia is a legal form of punishment. It is a mandatory punishment for murder, drug trafficking, treason, and waging war against Yang di-Pertuan Agong (the King). Recently, the law has been extended to include acts of terrorism. Any terrorists, and anyone who aids terrorists, financially or otherwise, are liable to face the death penalty. Since January 2003, the death penalty in Malaysia has been a mandatory punishment for rapists that cause death and child rapists. A 1961 law states that kidnapping carries a life sentence or a death sentence, preceded by a whipping. Foreigners are not exempt from the death penalty.

Only High Courts have the jurisdiction to sentence someone to death. Juvenile cases involving the death penalty are heard in High Courts instead of the juvenile court where other juvenile cases are heard. Appeals to the Court of Appeal and the Federal Court are automatic. The last resort for the convicted is to plead pardon for clemency. Pardons or clemency are granted by the Ruler or Yang di-Pertua Negeri (Governor) of the state where the crime is committed or the Yang di-Pertuan Agong if the crime is committed in the Federal Territories or when involving members of the armed forces. 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.

Between 1970 and 2001, Malaysia executed 359 people. As of 2006, 159 people remain on death row.

The idea behind capital punishment in Malaysia arose from a mix between the common law system that Malaysia inherited during their colonisation period from the British and the authorisation of certain punishments from Islam.[1] Currently, death penalties are carried out in Malaysia through hanging and the penalty is used for a variety of offences.[2] Under Article 5(1) of the Constitution of Malaysia, the death penalty was not expressly prohibited and this has yet to be re-appealed by parliament.[3]

In a recent report on the death penalty carried out by Amnesty International on 27 April 2014, there have been at least 2 executions carried out in 2013. Amnesty noted that it was not able to gain the official figures given that there was a lack of information provided by the government on the matter.[4]

As for the number of people charged with an offence carrying the death sentences in Malaysia, it was estimated to be about 76 while there was an estimated 992 people on death row in Malaysia by the end of 2013.[5] Amnesty International noted in their report that the way the death sentence was passed in Malaysia happens to be inconsistent with International Covenant on Civil and Political Rights (ICCPR) given that the sentence does not take into consideration the defendants personal circumstances or the circumstances of the particular offence during the trial.[6] 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 can thus be said to be inconsistent with the ICCPR and universal human rights in general.[6]

Statutory provisions[edit]

The following is a list of the criminal offences that carry the death penalty:

  • Waging war against the Yang di-Pertuan Agong – Section 121 Penal Code (see: Al-Ma'unah)
  • Offences against the person of a Ruler[7]Section 121A Penal Code
  • Abetting mutiny (Armed Forces) – Section 132 Penal Code
  • Murder – Section 302 Penal Code (mandatory) (see: Mona Fandey)
  • Abetment of suicide[8]Section 306 Penal Code
  • Attempt by life convict to murder, if hurt is caused – Section 307(c) Penal Code (mandatory)
  • Kidnapping or abducting to murder – Section 364 Penal Code
  • Hostage taking – Section 374A Penal Code (see: Pudu Prison siege)
  • Gang robbery with murder – Section 396 Penal Code
  • Drug trafficking – Section 39B Dangerous Drugs Act 1952 (mandatory) (see: Barlow and Chambers execution)
  • Possession of firearms – Section 57 Internal Security Act 1960 (see: Botak Chin)

Dangerous Drugs Act[edit]

The presumption is that a person would be considered to be trafficking drugs if they were in possession of a certain amount of dangerous drugs.[9] Under section 39B of the Dangerous Drugs Act, those in possession of 15 gm or more heroin and morphine; 1,000 gm or more opium (raw or prepared); 200 gm or more cannabis; and 40 gm or more cocaine will receive the mandatory death sentence.[10] The courts have affirmed that to establish prima facie drug trafficking, it has to be shown that the accused party was in actual possession of the drug and that the person has to have knowledge that they were in possession of the dangerous drug.[11] Once the death sentence has been passed, the sentence shall be passed on to the chief minister of the state where the judgment was given where a note about the evidence used in the case and a report about the judges opinion of the sentence would be included.[12] The minister then has a choice of either fixing a time and place for the execution to be carried out or may substitute in a lesser punishment if the minister wishes.[12]

The courts though have noted the severity of the sentence and in several instances have tried to impose a lower sentence where possible. One of the methods employed by the court would be to ensure that the procedures set out for the sentence have been strictly adhered to by the prosecution.[13] The court in that case paid close attention to the evidence presented to ensure that the judgment made was the right one. The court has also acquitted a person when the reported amount of drugs seized was only slightly different from the amount of drugs received by the forensics lab chemist.[14] The difference in amount was 10.21 grams.

Universal Periodic Review 2009[edit]

Malaysia has been review twice by the United Nations Human Rights Council under the Universal Periodic Review (UPR). First in 2009 and the other in 2013. In 2009, Malaysia reported in their national report that the death sentence was only imposed on the most serious crimes and was in line with Article 6 of the ICCPR.[15] They also held that there were several safeguards in place in the legal system that have to be met before a death penalty can be passed.[16] Of the various non-governmental organisations that made a submission for the review, three of them had an extract about the death penalty. The first was the Human Rights Commission of Malaysia (SUHAKAM). In their report, they noted that they were against the death penalty and natural life sentences and had recommended that the such cases be reviewed by the Pardon Board.[17] Amnesty International reported that although such a heavy punishment was being carried out, very little information about the executions its-self was actually made public. This included when the punished was set to be carried out, who was the person being punished and who had been executed as well.[18]

It appeared in the same report that according to Malaysians Against Death Penalty there were a total of 300 inmates on death row in prison on January 2008. Most of them were for drug related offences.[19] The Coalition of Malaysian NGOs in the UPR Process stated that they took the same stance as Amnesty International and noted that the death penalty went against the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[20] As for the Working Groups report, several nations including France, Djibouti, Egypt and Sudan recommended for a range of actions to be taken against the death penalty. This included suggestions of outright abolition to ratifying the ICCPR and applying the relevant standards when the death penalty was imposed.[21] Malaysia re-affirmed their position on the matter and stated that the death penalty was only applied in the most severe cases however noted that, they were at the time attempting to remove the death penalty and canning of those below the age of 18 through an amendment of the Essential (Security Cases) Regulations 1975 and at the same time, would consider a reduction in offences which carry the death penalty in a step towards the abolition of the death penalty outright.[22]

Universal Periodic Review 2013[edit]

In their national report, Malaysia re-iterated their statement made in the 2009 Periodic Review. They added though that there has recently been discussion with the public about the possibility of abolishment of the death penalty. They also noted that a study has been undertaken to reform the criminal justice in which included offences with a death penalty upon conviction.[23] Amnesty International prepared another report for submission for the 2013 Universal Periodic Review. With regards about their submission to the death penalty in 2009, the organisation reported that none of the past recommendations have been implemented yet and reported that currently, there were a total of 930 inmates on death row.[24] The Child Rights International Network reported that the death penalty was still in force in Malaysia which allowed for the death penalty sentence to be passed under Article 97 of the Child Act 2001.[25] The report submitted Joint Submission number 8 reported that convictions under s302 of the Penal code for murder still occurs in Malaysia.[26]

The report noted that Malaysia's approach to drug offences violated international standards. They further noted that there was a serious lack of due process given that those accused of drug trafficking are presumed guilty upon arrest. The organisation argued that as a result of these presumptions, it has led to hundreds of death sentences and executions.[27] They next reported that for treason which was punishable by death, at least 4 people were executed because of it in 2007.[28] In the working group's report, several nations commented on the fact that Malaysia still has the death penalty and suggested that the death penalty be abolished or that a moratorium on the death penalty be recognised. Some of the nations that recommended this included Spain, Switzerland, Argentina, Belgium, Costa Rica and Kazakhstan. Malaysia responded with a statement that they would keep their options open and continue to engage the public on this subject. They would also look into alternatives to the death penalty. Malaysia pledged that it would complete its review on the moratorium of the death penalty with the intent to abolish it at a later date.[29]

Developments toward the abolishment of the death penalty[edit]

The idea behind the death penalty for drug trafficking was made mandatory in 1983. The main reason for this was because drug trafficking was seen as one of the national challenges of the country. Since then, there has been a relaxation on this rule as death penalties may sometimes be substituted with a lighter sentence which includes mandatory whippings, forced rehabilitation or preventive detention.[30] The abolishment of the death penalty has started to gain momentum in Malaysia. The government has started to consider more humane ways to "uphold the justice for the people."[31] The public are not as unsupportive for the abolishment of the death penalty as imagined. It was found that although a substantive portion of the public would agree for the death penalty in cases of murder, drug trafficking or firearms offences, this number took a considerable drop once the participants were told about the various scenarios which merited capital punishment as defined in the relevant statute.[32]

There have also been suggestions by those in the executive for a re-appeal of the death sentence for drug trafficking. The Law Minister in 2012 held that the government may replace the death sentence with an imprisonment term instead in recognition that such a sentence only punishes the drug mules and not those higher up in the chain.[33] There was also the fact that the death penalty does not seem to have the deterring effect that such a penalty was hoped to create thus questioning the need for the penalty for that particular offence.[34]

Notes and reference list[edit]

  1. ^ Andrew Novak Global Decline of Mandatory Death Penalty: Constitutional Jurisprudence and Legislative Reform in Africa, Asia and the Caribbean (Ashgate Publishing Ltd, Burlington, England, 2014) page 76
  2. ^ Submission 8 at paragraph [5]
  3. ^ Constitution of Malaysia, Article 5(1)
  4. ^ Amnesty International, Death sentences and Executions in 2013, (27 March 2014), Amnesty International ACT 50/001/2014,at page 7
  5. ^ International, Death sentences and Executions in 2013, (27 March 2014), Amnesty International ACT 50/001/2014, at page 8 and 24
  6. ^ a b Amnesty International, Death sentences and Executions in 2013, (27 March 2014), Amnesty International ACT 50/001/2014,at pg 9
  7. ^ including the Yang di-Pertuan Agong, Sultan, Yamtuan Besar, Raja and Yang di-Pertua Negeri.
  8. ^ when suicide committed by a child, insane or delirious person, an idiot, or intoxicated person.
  9. ^ Act 234 Dangerous Drugs Act, 1952 (Revised 1980), s37
  10. ^ "Malaysian Law Dangerous Drugs Act 1952". The Official 16th Commonwealth Games in Kuala Lumpur Website. Retrieved 30 April 2015. 
  11. ^ Pendakwa Raya v Ouseng Sama-Ae [2008] 1 CLJ 337 at paragraph [7]
  12. ^ a b Criminal Procedure Code No.593, s281(b)
  13. ^ Lee Kwan Who v Public Prosecution [2009] 1 LNS 778 at paragraph [16] to [20]
  14. ^ Yusri bin Pialmi v Pendakwa Raya [2010] 6 CLJ 878 FC at paragraph [11]
  15. ^ General Assembly report A/HRC/WG.6/4/MYS/Rev.1 at paragraph [89]
  16. ^ General Assembly report A/HRC/WG.6/4/MYS/Rev.1 at paragraph [90]
  17. ^ SUHAKAM Report 2009 at pg 3, paragraph [17]
  18. ^ Amnesty International Report 2008 at page 4
  19. ^ Amnesty International Report 2008 at page 5
  20. ^ The Coalition of Malaysian NGOs in the UPR Process Report at page 1
  21. ^ Working Group Report A/HRC/11/30* 2009 at pg 6 and 18
  22. ^ Working Group Report A/HRC/11/30* 2009 at pg 12
  23. ^ Malaysia General Assembly Report A/HRC/WG.6/17/MYS/1 at paragraph [45] – [47]
  24. ^ Amnesty International Report page 2
  25. ^ The Child Rights International Network Report at page 1
  26. ^ Bernama, (1 November 2012). "Death sentence on duo upheld for murder of businessman", The Malaysian Insider
  27. ^ Joint Submission No.8 Joint Submission No.8 Report at paragraph 9
  28. ^ Amnesty International Report for 2007
  29. ^ Working Group Report A/HRC/25/10 at paragraph 146.106 to 146.111
  30. ^ Andrew Novak Global Decline of Mandatory Death Penalty: Constitutional Jurisprudence and Legislative Reform in Africa, Asia and the Caribbean (Ashgate Publishing Ltd, Burlington, England, 2014) pg 81
  31. ^ Churchill Edward, (30 October 2011), "Abolition of Death Penalty in Malaysia?", The Borneo Post
  32. ^ Thomas Hubert, 10 July 2013 "Malaysian Popular Support for Mandatory Death Penalty Overstated"
  33. ^ Bernama, (20 October 2011). "Possible Moratorium on Death Sentences Pending Government’s Final Decision: Nazri", The Malaysian Insider
  34. ^ Bureau of Democrary, Human Rights and Labour, Country Reports on Human Rights Practices for 2013 Malaysia