Should the death penalty stay or go?
Published on: Sunday, January 27, 2019
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The church teaches us to forgive
I pondered for some time whether I could usefully add to whatever been already opined in the media regarding abolishing the death penalty. What finally prompted me to write this open plea was the constant reminder ringing within me of the phrase – “Speak now or forever hold your peace” – on the assumption I have something useful to add. I am a proponent of the total abolishment of the death penalty.
Between 1992 and 2007, 86 persons charged with capital offences were tried by me in the High Courts of Tawau, Sandakan, Kota Kinabalu, Kuching and Sri Aman. Many others were similarly charged but the prosecution reduced the charges at the outset of the hearing to non-capital offence resulting in some of the accused pleading guilty for which I sentenced them to a term of imprisonment except for one case where the accused was freed immediately because he had waited in jail for a trial for more than 11 years.
Those that did not agree to plead guilty had their cases transferred to the lower court. As for those 86 accused, they underwent a full trial with some of them being found guilty and sentenced to death by hanging.
This brings me to the question of whether I was ever wrong in those cases where I found an accused guilty of drug trafficking. The Federal Court in respect of one case (No. 03/89, judgment on 12 May 1993) reversed my decision and substituted it with a sentence of life imprisonment.
I was told that I should not have asked the accused to explain why the witnesses concerned should lie against her.
I was following what I learned from a judge two decades ago, who in the course of a murder case in Keningau where I was the assigned defence counsel, had asked the accused why his wife who gave evidence for the prosecution and who saw the accused killed his children should lie against him to which the accused could not explain and was convicted and sentenced to death.
I am glad the Federal Court reversed my decision and spared the accused her life, even more so now, given the present outcry against the death penalty which I will go into shortly. There was another case (Case No.10/94) where I was wrong in convicting an accused of drug trafficking which the Court of Appeal substituted the finding of trafficking with possession which does not carry the death sentence.
On hindsight, I am equally glad that I had in 10 cases after finding the accused guilty of drug trafficking ordered them to be detained at the pleasure of the Sabah Head of State because the prosecution could not prove that the accused were at least 18 years old at the time of the commission of the offence which is the minimum age before a person can suffer a death sentence. I am glad, too, because the scientific community now finds medical benefits in cannabis (also known as marijuana among other names)
So wrongful decisions do happen but they can be rectified by the appellate courts. There is no danger of irreversible harm with the death sentence since all cases where the death sentence is passed entail an automatic stay of execution and an automatic appeal to the Court of Appeal and thereafter to the Federal Court.
But what if the Court of Appeal or the Federal Court is wrong in upholding the convictions and the death sentence has already been carried out? At present, there is no way of knowing whether the Federal Court had ever failed in a case to notice a miscarriage of justice since it was never challenged that they had.
The Federal Court is not known to deliver grounds of decision when affirming a decision with the result that one can only look to the appeal record to see whether there is anything amiss in their decisions. Who is going to do that for those convicts? It must be remembered the legal system is not infallible as said in the following opinion:
“No judiciary, anywhere in the world, is so robust that it can guarantee that innocent life will not be taken, and there is an alarming body of evidence to indicate that even well-functioning legal systems have sentenced to death men and women who were subsequently proven innocent.” (Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights)
That opinion can be justified by the following statistic showing innocent people having been wrongly sentenced to death:
“By category, the leading contributing causes of wrongful conviction in the death-row exonerations between 2007 and April 2017 were:
- l Official misconduct (28 cases, 82.4pc)
- l Perjury or false accusation (26 cases, 76.5pc)
- l False or misleading forensic evidence (11 cases, 32.4pc)
- l Inadequate legal defense (8 cases, 23.5pc)
- l False or fabricated confession (6 cases, 17.6pc)
- l Mistaken eyewitness identification (4 cases, 11.8pc)
(HTTP://deathpenaltyinfo.org/causes-wrongful-convictions)
Recently, the Australian courts were found to have fallen into error which was corrected almost 20 years later but fortunately Australia had abolished the death penalty. This is reported in the Australian press that on Nov 22, 2018, the court acquitted David Eastmen of the charge of murder following a retrial consequent upon the setting aside of an earlier conviction handed down on Nov 3, 1995 which sentenced the accused to life imprisonment.
The earlier conviction was set aside because of a miscarriage of justice but by now he had languished in prison for about 20 years. So there is an ever present danger of the court wrongly convicting an accused of a capital offence as history has shown.
Drug cases have no immediate victim as opposed to murder cases where the relatives of the victim would be painfully affected at least emotionally. Their opposition to the abolishment of the death penalty must be respected. However, I am of the opinion that their pain would ease over time if they would forgive rather than seek retribution.
I had experienced the sadness of seeing an accused I defended sentenced to death. On another occasion I was at the receiving end of an outburst from the relatives of the victim after the accused I defended was acquitted of murder.
There was also the murder case in Sri Aman where the accused was charged with killing his wife and where her father testified against him and saying to me while leaving the witness box that if I do not sentence the accused to death he will kill him.
All these contrasted with the Tawau murder case where I found the accused not guilty but only of culpable homicide not amounting to murder and the father of the daughter victim appeared before me together with the now convict serving a 20-year prison term with regard to an application by the victim’s father for the custody of the victim’s child to which the convict (who is the father of the child) did not object and what struck me most was the total absence of animosity by the father towards the convict.
Apart from those experiences, I faced the death penalty almost daily for years when I heard those capital cases during some 17 years resulting in my losing my smile, my laughter and my happiness but my early retirement helped me to regain them.
Of course, those experiences are pale in comparison to those suffered by the relatives who lost the lives of the victims which loss is permanent. However, the way forward for the relatives, in my humble opinion, would be to forgive rather than seek retribution or demanding that the death penalty stays.
Forgiveness, an attribute of magnanimity, should help ease and gradually lose their pain. Remember, innocent people had been put to death and the only way to prevent this happening again is to abolish the death penalty.
Those are not the only experience I underwent concerning the death penalty. After the Federal Court upheld a conviction, the docket concerning the case was returned to me and on top of the docket was a green form. It is in this form that I had to state why the death sentence should or should not be carried out.
Looking back, I wish the scientific community had two decades earlier concluded that cannabis has medicinal value which would have influenced what I had to state as regards whether the sentence should be carried out. The community can and has reversed their opinion of cannabis but the death sentence already carried out cannot be reversed.
This shows the undesirability of the death penalty. Cannabis, which was thought to be dangerous drug, is now legally available in several countries as a recreational drug and as medicine. Just imagine the feeling of having ordered someone to be hung for 700 gm of cannabis some decades ago but which drug is now legally available for recreation.
The green form was to chase me again, this time over a conviction under S 3 of the Firearms (Increased Penalties) Act which the Federal Court affirmed in 2007 but which docket was referred to me after I have retired and I happily told the court official I am not qualified to sign that form since I have retired.
If I am legally allowed to do so, I would recommend the death sentence not to be carried out in that case because though the firearm was discharged by the accused while resisting arrest, no one was hurt. It is because you hardly get to read and, therefore, fail to appreciate how the police risked their life to protect us, I decided to take this opportunity to reproduce the relevant part of the judgment of that case, viz:
The 1st accused demanded that Cha swapped his shirt with him and they did. The 7 accused went down first carrying on his back the injured 3rd accused. They were followed by Cha and Dayang while the 1st accused followed Dayang whose neck he held with one arm while the other hand held the chrome revolver which was pointed at the back of Dayang. The 1st accused also took the black revolver back from the 3rd accused and tucked it in his back waist. They all descended the staircase.
The 2nd and 3rd accused were helped into the waiting ambulance by police officers without any incident and were handcuffed. It was then that the 1st accused shouted to the police to leave or else he would shoot Dayang. All the police officers left except for one called Paulinus Sabinus ("Paulinus") to whom the 1st accused then pointed his gun. Paulinus then removed his gun and threw it away while he raised his hands to pretend to surrender.
The 1st accused re-directed the revolver at the back of Dayang whom he was still holding and Dayang was still holding on to Cha. The trio then proceeded towards the ambulance followed from behind by Paulinus. It was at this time that Paulinus jumped on the 1st accused and wrestled with him in an attempt to restrain the 1st accused. Dayang, sensing that the 1st accused's hand was no longer around her, fled. Cha also fled. Paulinus testified that while struggling with the 1st accused, the finger of the 1st accused was at the trigger of the revolver and the 1st accused had tried to point the pistol at him. It was during the scuffle that the 1st accused discharged the revolver once. It was after the shot was fired that Paulinus managed to twist the wrist of the 1st accused and the revolver fell to the ground. The other revolver carried by the 1st accused also fell to the ground. The 1st accused was then arrested by Paulinus with the help of two other police officers.
The policeman Paulinus mentioned there was only a corporal earning a meager salary and yet he put his life on the line to save the members of the public. I called him “Rambo” during the trial and he was obviously very happy because years later he introduced himself to me as “Rambo” after I earlier failed to recognise him at a gathering. He did not come out to oppose the abolition of the death sentence.
He is not the only good policeman. There are many others in various sections who performed their duties well and which I learned from the evidence of the trial cases and from the over 50 criminal appeals I heard.
The legal system is also imperfect on account of poor prosecution or poor investigation. Inadequate legal defence, as mentioned earlier in the statistic, was also a factor leading to an innocent person being sentenced to death.
Lately, Catholic Church revised its teaching regarding the death penalty (2/8/2018 – Rescriptum ex Audentia SS.mi) in these words:
“2267. Recourse to the death penalty on the part of legitimate authority, following a fair trial was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme means of safeguarding the common good.
Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitely deprive the guilty of the possibility of redemption.
Consequently, the Church teaches in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”, and she works with determination for its abolition worldwide.
Finally, we have these words of the UN Secretary-General said last year – “The death penalty has no place in the 21st century”. Many countries had agreed. I too agree.
As for those still on death row, irrespective of whether the death penalty is abolished, they should not be executed because of the long wait they had endured since the death sentence was passed. In this regard the Privy Council in 1993 in the case of Pratt & Anor, said:
“There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity. We regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time.
‘A state that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve.
‘To execute these men now after holding them in custody in an agony of suspense for so many years would be inhuman punishment.’
They ruled that for those held more than five years the death sentence should be commuted to life and for those held more than two years, there may be an arguable case over inhumane treatment.
That ends my plea for abolishing the death penalty totally.
I would ask the lawyers in order not to be those that do not provide adequate legal representation, which resulted in innocent people being put to death, to read all those capital offence cases judgment, especially the last five cases which I heard before retiring because they contain very instructive notes of proceeding.
All my decisions can be read from a DVD, including those of 54 criminal appeals, 183 civil trials (with notes of proceedings in 16 cases one of which is of an election petition) and 468 civil interlocutory matters. The notes of proceedings of the election petition are also instructive in the preparation of an election petition.
Contact Arthur 012-8337099 to get a copy of the DVD.
Ian Chin - Retired judge
It deters crime and saves lives
The death penalty question is fundamentally about the rights of victims versus the rights to life of the convicted.
Some crimes are so heinous and inherently wrong – it, therefore, demands strict penalties, up to and including life sentences or even death.
It is not right to support the death penalty to seek revenge. However, death penalty laws do provide a true measure of justice to murder victims and their loved ones.
Death penalty, per se, sends strong signal to violent criminals and murderers that criminals will not be excused but punished severely. It creates a climate that protects citizens. It instils fear to criminals for arrest, prosecution and punishment.
I support death penalty because I believe it deters crime and it saves other people’s lives. For example, in the case of drug-related crimes whether in possession, production, manufacture, or distribute or trafficking. Of course, arguably death penalty do not stop people from committing such crimes but I believe no one will question the powerful deterrent effect of death penalty.
Furthermore, death is final. Nothing will deter a criminal more than the fear of death. But where there is life there is hope, that is, a hope to get out of the prison. Life in prison is less feared; and murderers clearly prefer it to execution. Otherwise, they would not try to be sentenced to life in prison than an execution to death. Therefore, a life sentence must be so glaringly less deterrent than a death sentence.
So far, in our country this piece of legislation on death penalty has been working well both in its punitive and deterrence nature; and has been judicially administered fairly and justly.
I have every confidence that it will continue to deter gruesome murders and heinous crimes, continue to enhance public safety and be enforced fairly and justly.
I think it should not be abolished or disturbed in any way whatsoever but to be allowed to continue to be enforced in its present manner.
Vicky Yee - Advocates & Solicitors, Justice of Peace
‘Misconception that every death penalty ends up in hanging’
I strongly object to the abolition of death penalty, especially for murder cases. In many murder cases, the police don’t just pick up the killer from the street and charge him/her. The police have to undertake a long and painstaking investigation before the killer is traced and sufficient evidence is gathered to charge the killer.
Moreover, it is not in all such cases that the killer is charged with murder. In many cases, due to the nature of the evidence, the killer may only be charged with manslaughter which does not carry the death penalty.
In cases where the killer is charged with murder, he/she would first be tried in the High Court where he/she is defended by a counsel of his/her own choice or by Government-assigned counsel. The burden is on the prosecution to prove his/her guilt beyond reasonable doubt to secure a conviction and the accused needs only to raise a reasonable doubt to attract an acquittal. Therefore, the preponderance of evidence is always in favour of the accused.
When convicted and sentenced to death, there is automatic appeal to a three-member Court of Appeal and from the Court of Appeal to a five-member Federal Court. Even after the Federal Court has confirmed the death penalty, the matter is automatically referred to the six-member Pardons Board (consisting of the Yang di-Pertua Negeri/Sultan/Agong, the Prime Minister/Chief Minister/Menteri Besar, the Federal Attorney General and three appointed members of the public) to decide whether the death penalty should be carried out or not.
At the same time, the High Court Judge who convicted him, the presiding Judge of the Court of Appeal and the presiding Judge of the Federal Court which heard the appeals would give a confidential opinion to the Pardons Board on whether the death penalty ought to be carried out or commuted to life imprisonment notwithstanding death penalty was imposed as required under the law.
The confidential opinions of the three learned judges carry much weight in the deliberation of the Pardons Board. Except in extremely brutal cases of murder, many death penalties were computed to life imprisonment by the Pardons Board. Therefore, it is a serious misconception and indeed a fallacy that every death penalty will end up in hanging!
Besides, the long process taken and the number of learned people involved in the process to decide whether the death penalty should be carried out or not make it almost impossible for any wrong person to be hanged as feared by those supporting the abolition of death penalty.
In regards to the human rights issue, it is a again fallacy as the victim and the victim’s family have more justification to be protected by human rights and to seek justice for a wrong committed on their innocent loved ones than the convicted murderer who has no moral grounds to seek human rights protection as he/she deserves to be punished for taking an innocent life.
Members of the public are entitled to human rights grounds to be protected from fear of would-be murderers who may be lurking around because they know that they would not be hanged for murder any more once death penalty is abolished.
If death penalty is abolished for murder, the safety and lives of members of the public would be under threat everyday because there would be no more deterrent against taking an innocent life when the would-be murder knows that even if he is convicted he has only to go to jail and not hanged where he will be well cared by the Government at the expense of tax-payers.
We must prevent the new Government from making another mistake in the nine months they are in power. They keep making decisions that hurt the feelings of members of public. It is time for members of the public to speak up loudly and clearly that enough is enough, otherwise the vote for change was cast in vain.
Thank you for the opportunity to express our views!
Datuk Stephen Foo
‘What if the verdict is wrong?’
I personally think death penalty is entangled between morality, right or wrong. Life is precious. God gives us second chances so why don’t we? What if the law is right but the verdict is wrong? Wrongly accusing someone who did not murder the victim? Death penalty is already beyond the law – to judge whether a person is to be sentenced to death or not. What gives the law the right to take away a person’s life? Human rights is not to take people’s life and I believe life sentence is good enough. As a civilised country or individuals, we should not take people’s life and our duty is to educate them instead.
BR Kenryu
‘Death penalty shouldn’t be abolished totally’
I do agree that death penalty should not be abolished totally, especially if it involves offences like a serial killer who has been proven to have committed the crime. But in the case of drug offences I believe the proper sentence for someone who has been proven to have committed drug offences should be life imprisonment as the offender deserves second chance in life. This is more so especially there are cases where the offenders caught are drug mules who are being used by drug dealers, because drug mules are those ignorant about the law and coming from poor background.
Jainab Ahmad Ayid - Advocate & Solicitor
‘Referendum is necessary’
A referendum is necessary on whether the death penalty should be abolished in our country. In my opinion, the death penalty serves as an important role as a deterrent to serious crimes and not merely as a punishment based on “eye for an eye”. Therefore, it must be retained.
Peggy Liow - President, All Saints’ & St Agnes’ Schools Alumni Association
‘Lessons must be learnt from ISA abolishment’
The recent aggressive push by NGOs, in particular the Bar Council (BC), Lawyers for Liberty (LL), Amnesty International and Suhakam to abolish Death Penalty & Sedition Act 1948 should also to be put aside as it does not benefit Malaysia and the people. Majority Malaysians of (nearly 80pc) want to keep the death penalty (as supported by survey and petitions).
In the recent months, these NGOs have pushed the new Government for human rights reform to remove our laws, including the Death Penalty that has been a solid law for years. A few NGOs are fronted by criminal lawyers paid to act in the best interest of their clients, i.e. the criminals. They have cleverly worked together with the many liberal lawyers in our Government (some in our Parliament are still in active private practice) to push forward this initiative.
The same principles apply to the Sedition Act 1948, the Government should not be subject to the same pressure to abolish it by certain groups that to do not have public interest at heart. Protecting the national security of our country is of utmost important in ensuring the unity of all races and religion in our country which is very fragile at the moment. Any groups that attempt to upset the equilibrium and bring discourse must be punished accordingly.
The law enforcement team must have the relevant and effective law to carry out their duties properly, to protect our country. Lessons must be learnt from the abolishment of the Internal Security Act (ISA), this has compromised our rule of law and national security.
We must not let our country and our laws be manipulated by criminals or the NGOs backed by the criminals on the pretext to meet the international standards of human rights in United Nation, when in reality it is for the criminals to escape punishment by stripping our rule of law and compromise our rule of law, because the public interest matters the most.
The majority of the people human rights count more (33 million of our citizens) as opposed to the minority of the 1,281 inmates (awaiting death sentence) that make up 0.000039pc of the population. We call for:
- l Full Disclosure of ALL interests of ministers/MPs, particularly the lawyers who have vested interests (directly or indirectly in the 1281 inmates and/or any criminal cases (past and present). There is a conflict of interest here. MACC should look into this matter seriously. They must be recused from influencing in this decision in the Parliament as they might be bias for the criminals and do not act in the best interests of the public. We need to conduct thorough and responsible studies on the negative impact and to engage dialogue with the stakeholder and the public as a whole.
- l The Government can call for referendum on Death Penalty & Sedition Act to reaffirm the people’s majority position on these issues.
- l The NGOs, particularly, Suhakam, Amnesty, BC and LL again should put the public interest first, they should not pressure the Government and should not be involved in any decision-making or influence the Government directly or indirectly. The opinion that counts should be that of the victims of crime (who really suffer from the brutality of crime and yet cannot speak up) and the public opinion.
- l The recent incidents must be lessons for us. For example, the recent temple riot, our innocent fireman, Muhammad Adib Mohd Kassim’s life has been put in danger and is still on life support machine. Look also at our DPP, Kevin Morias who was also murdered in line of work or even the 11 months old infant that was sexually assaulted and killed and the innocent victims raped and murdered. We must take care of the human rights of these victims and the public interest first. Innocent people need protection and they rely on strict laws to protect them!
- l Human rights cannot supersede majority’s public opinion, because democracy comes first.
- l Do not remove the death penalty as there are no benefits but more negative impact:
i) Budget – for manpower, infrastructure, rehabilitation, healthcare, welfare etc (it costs nearly RM 575 million to feed 1281 inmates on food alone for 30 years at RM41 each person everyday (approximately RM19.2 million on food alone every year), what about the rest of expenses, these could run to billions. And this is precious taxpayers’ money that could be used for better and urgent purposes like education, hospital, infrastructure, and welfare needs.
ii) the negative impact to economy and social problems. Current crime rates are very high, reliable studies have shown Death Penalty deters crime and saves lives. But if that is removed, there will be more crimes as there is no deterrent. This will put our citizens lives in danger, especially the majority public, and the government servants that risk their lives everyday in danger to uphold the rule of law and protect our country, ie. police, prosecutors, firemen, military, judges. Removal of the law, undermine their work and their lives. Without the death penalty, if a perpetrator wants to kill to achieve something, he will kill, because at most, he is safe and also at most he only gets life imprisonment or 30 years imprisonment, whilst the innocent victim(s) will lose their lives. This is totally wrong. Our law should protect the innocent, the weak and not the perpetrators of crime.
iii) Instead of removing the death penalty, the Cabinet and the Government instead should work first on strengthening enforcement of our laws. Let the judges have the discretion to decide on cases based on evidence. Let Pardons Board review on cases that concerns miscarriage of justice.
I fully support the Prime Minister to always listen to the people and respect democracy of our country. Malaysia is still very far from the developed countries in terms of education and social welfare etc. Lawless people take risks to break the law to meet their selfish needs.
It is important we have strict laws to protect the citizens and not strip it. We trust our Prime Minister to uphold the rule of law in the interest of the majority public and to look at the bigger picture to protect public interest. The human rights of the majority matters first.
We also ask public to continue to support the petition to keep the death penalty in Malaysia.
Perkasa
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