Rethinking Death Penalty
The recent announcement by Minister in the Prime Minister’s department Datuk Liew Vui Keong that the government is looking to abolish the death penalty had created a public controversy. I would like to share my thoughts on the issue, as someone who has been directly involved in the campaign to abolish the death penalty since 2011. It is important to have a rational discourse on this difficult subject.
In June 2011, when I was the MP for Bukit Bendera, the then de-facto Law Minister Dato’ Seri Nazri Aziz invited me to a meeting with the then European Union head of delegation to Malaysia, Vincent Piket. I assisted Nazri and the EU delegation to organize a cross-party parliamentary roundtable on abolition of the death penalty.
The roundtable further strengthened my conviction that the death penalty in itself does not have a significant deterrent effect. In my view, police reform is the most important method to curb crime and deter criminals from committing acts of crime.
The parliamentary roundtable in June 2011 passed three resolutions. First, the abolition of the death penalty as a long-term goal. Second, the government should abolish the mandatory death penalty in the short term, especially for Section 39(B) of Dangerous Drug Act. Third, the government should declare a moratorium to suspend the execution of inmates currently on death row.
No room for discretion
I talked to several retired judges who shared their psychological struggles when passing the death sentence. It is a huge psychological burden to make the call to end a person’s life -even in the course of duty. It weighed on the judges’ consciences so much so that they had to pray and deliberate for days to make the right decision.
In the case of the mandatory death penalty, if the judge finds sufficient evidence, he has no other option but to sentence the accused to death. There is no room for the judge to exercise discretion to take into account the possibility of corruption or undue influence in the accused’s arrest, or any other circumstantial evidence.
Take for instance a case handled by (now Minister) Gobind Singh Deo at the Seremban High Court in October 2017. In the case, a 20-year-old Korean student was arrested during a police raid where 219 grams of marijuana was found in the apartment premises. The police insisted that the student was the sole person on the scene, until the defendant’s lawyer showed a CCTV recording of other people on the scene. Eventually, the witness who had testified against the accused admitted that he lied, and the defendant was freed. Imagine if there was no CCTV recording!
It is hard to know how many such stories exist in our police and judicial system. Judges whom I met have told me that if there is no death penalty, at least if the case is overturned after 10 years, the person would still be alive in the jail.
The long road
The government’s 2018 announcement has been a long time in the making. After Pakatan Harapan won in 9th May election, I finally had access to the documents showing the impact of our 2011 parliamentary roundtable on the death penalty.
During a cabinet meeting on 2nd November 2012, the government had already decided to suspend the execution of death sentence for prisoners under Dangerous Drug Act. The same decision was made in December 2013; while in November 2017, parliament passed the bill on abolition of the mandatory death penalty in Section 39B, but the decision did not apply retrospectively to the death row prisoners serving their sentence.
Nazri and even his successors Nancy Shukri and Azalina Othman Said had all told me that the cabinet ministers and government officials were aware that death penalty has not an effective deterrent. However, the government at that time did not want to deal with the prevailing public opinion of “an eye for an eye”.
Many people still believe that the death penalty can “eliminate” crimes and extract revenge. Another common argument is that it is cheaper to end their lives instead of spending taxpayers’ money to imprison them.
This is a fallacy. It actually costs more to maintain prisoners in death row under high security detention as well as facilities for execution. In fact, most death row prisoners are kept in prison for an average of 10 to 15 years before execution, such as Yong Vui Kong who was arrested in 2007 and whose final appeal was in 2014.
Low and middle classes make up the vast majority of those sentenced to death row. Why?
Rich traffickers can afford to use drug mules to do the “dirty work”, or afford to hire top lawyers to get themselves off the hook.
In my 10 years a a Member of Parliament, I have been asking in Parliament every year for the number of death row prisoners. From 1960 to February 2011, there were 411 death row prisoners, of which 228 cases involved drug trafficking, 78 involved murder, 130 involved illegal possession of guns, 4 involved in declaring war on the head of state, and 1 involved kidnapping.
In February 2011, there were 696 death row prisoners in prison. In 2013, the number of death row inmates increased to 964.
As of October 2018, there were 1,279 death row prisoners, of which 932 involved drug trafficking, 317 involved murder, 13 involved illegal possession of guns, 5 involved kidnappings, 9 involved declarations of war on head of state, and 2 involved collective robberies and murders. One person was charged under the now-repealed Internal Security Act.
All these sentences were made in the name of “national interest” , all these people were executed in the name of you and I. In other words, executing a death row prisoner is a collective decision of our society.
I have several observations about the controversy over the abolition of the death penalty:
First, the media seems to portray that “the government had a sudden thought yesterday and decided to implement it immediately tomorrow.” – In fact, Minister Liew Vui Keong did not say it will be implemented immediately. Besides, as explained above, the abolition of the death penalty was a bipartisan process started since the Najib administration in 2012, 2013 and 2017.
Second, on the perception that the abolition of the death penalty will lead to an increase in crimes. In fact, the key to effective police reform is to ensure that criminals understand they will be caught and brought to justice. We must deal with the problem of corruption within our police and judicial system.
I have been directly involved in the discussion of the death penalty since 2011, while the late Karpal Singh was a leading light in the global campaign to call for abolition of the mandatory death penalty in Malaysia as early as 1980s. He acted for many defendants in death penalty cases.
Prisoners do not vote, but as politicians and as a government, we must fulfil justice, balance social peace and security, while preventing injustice to any person. It is not easy to draw this fine line, but let us discuss it rationally.
*Liew Chin Tong is a DAP Johor Chairman