THE death penalty might not be totally abolished, said de facto Law Minister Liew Vui Keong, adding that judges may be allowed more leeway to exercise their discretion when it came to sentencing convicts facing capital punishment.

Liew said while the government will keep its word to ensure the death penalty is no longer mandatory for crimes stipulated under eight laws, there would be three likely scenarios after the government completes meeting stakeholders this year on this contentious issue.

They are the total abolition of the death penalty; allowing judges more discretion on the imposition of the death penalty; and allowing judges more discretion to impose the death penalty for certain crimes, such as murder, while abolishing the death penalty for drug-related offences. 

“These scenarios are all still under consideration at the moment,” Liew told The Malaysian Insight.

“We have engaged with various stakeholders. I have met with family members of those who have had their loved ones murdered while at the same time, I have met with the family members of death row inmates. 

“So the approaches can be quite different. The family members of those murdered, the pain and suffering are still there. The victim can even be the breadwinner of the family. It can be very painful.”

Liew, however, said the cabinet had also questioned whether court decisions are completely infallible. 

“We have to consider all those feelings (of surviving family members) but, of course, the other thing we cannot say is if the process of convicting a person through the courts is 100% guaranteed. There can be an error of judgment.”

Liew pointed to instances in the American judicial system where convicts were set free after DNA evidence exonerated them of capital crimes, such as murder. 

“If that can happen to one case in Malaysia, then your conscience will tell you that you cannot hang people or any person, for that matter, because you cannot be so sure they are 100% guilty. 

“So there’s a saying that it is better to let 100 guilty men go than to sentence one innocent person to death. Because if one innocent person is dead, your conscience would not allow you live (with that).”

The laws that carry mandatory death sentences include offences against the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri (Section 121A of the Penal Code; committing terrorist acts resulting in death (Section 130C of the Penal Code); hostage-taking resulting in death (Section 374A of the Penal Code); and discharging a firearm in the commission of an offence (Section 3 of the Firearms (Increased Penalties) Act 1971).

However, the majority of mandatory death sentence convictions in Malaysia were for murder (Section 302 of the Penal Code) and drug trafficking (Section 39B of the Dangerous Drugs Act 1952), said Liew.

In late 2017, the previous government amended Section 39B to remove the mandatory death penalty for drug offences and to instead give judges full discretion on sentencing. The amendment does not apply in retrospective for previous convictions. 

Judges are now required to find four conditions to reduce the sentence from death to life imprisonment – there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested; no involvement of agent provocateurs; or the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and that the person convicted has assisted an enforcement agency to disrupt drug-trafficking activities within or outside Malaysia.

The public prosecutor must issue a certificate declaring that the convict had cooperated with authorities.

Liew said currently there are 66,222 prisoners throughout the country, of whom 1,281 are death-row inmates. 

More than half, or 56%, are drug-related offenders. Of the death row inmates, 923 are drug traffickers. The remaining death row inmates comprise mostly of those convicted for murder while 19 others were convicted for participating in the 2013 Lahad Datu insurgency.

Liew added that the death sentence process is not as clear-cut as most Malaysians believe. 

“A person has to write (his appeals) for at least 10 years before the execution order is signed by the Agong or the Tuanku of the respective state. It would take years. He would suffer. He would have nightmares and he would have a difficult life inside because he has lost all his freedom.

“Even when it comes to food, they are served with boneless chicken and boneless fish. Why are they served with boneless chicken? Because they might use a bone to make a weapon or perhaps kill themselves with it.”

All these factors must be taken into consideration when a decision is made on the death penalty, he said.

“It is because some of them are just mules. They are not really the syndicate members, and yet to they are on death row.” – March 8, 2019.