PASSING a new law would allow the government to remove all the provisions for the mandatory death sentence in one fell swoop, legal experts said.

This, they said, can be done as early as the next parliamentary sitting.

Senior lawyer Haniff Khatri Abdulla said this was the most efficient way to abolish all provisions for the death sentence in various acts of Parliament.

“All they need to do to abolish the mandatory death penalty act is to pass a simple act of Parliament in the next sitting,” Haniff said.

“They need to include the definition, what it is for and include all the necessary provisions in the act to abolish the sentence and give the discretion to the courts to impose the necessary punishment.

“This (new act) will then prevail over the current law.”

There are currently 1,359 inmates on death row and 12 offences including the Dangerous Drug Act and the penal code that allow the court to hand out the mandatory death sentence.

Alternatively, Haniff said the government could also look at each provision individually and make the necessary amendments.

The government announced yesterday that it has agreed to abolish the mandatory death sentence, giving discretionary power to the courts in handing down sentences.

Prime Minister Ismail Sabri Yaakob said the death penalty will remain, and the “mandatory” part removed.

He said judges would no longer be bound by the word, which previously left them with no choice but to impose capital punishment on criminals in certain cases, such as drug trafficking.

The lawyer, however, warned against removing the death penalty all together.

He made reference to the Delhi Nirbhaya gang rape and murder which saw India introduce the death penalty in certain instances following massive street protest.

“Terrorism is going up, you never know when you will need to use the death sentence.

“We don’t want to face another amendment down the road (to reintroduce the death penalty). We have to be sober,” he said.

Commute sentences of those on death row

Lawyer Venmal Arasan said with the decision to abolish mandatory death sentences, the government must also commute the sentences of those on death row now.

“The government should commute (the sentence) for those already on death row,” he said.

“However the government hasn’t given a time frame. So far it’s only a cabinet decision.

“They haven’t amended the law per se and they haven’t clarified how they are going to overcome that issue.”

Arasan said the challenge in commuting the sentence now is that most of the inmates have exhausted the appeal process.

“Their sentences can’t be judged by a sitting judge. That’s a predicament. Also the legality of it may be an issue.

“Since they have exhausted their appeal process, there isn’t a legal provision for them to go back to court unless they all file a review in the Federal Court,” he said.

Arasan, who is representing three inmates currently on death row and one ongoing case, said that he has not consulted with his clients on the next step as there is no guideline from the government on what needs to be done as yet.

Seeking clemency

Haniff said inmates currently serving the mandatory death sentence could go before the pardons board to get their sentence commuted.

Article 42 of the Federal Constitution grants powers to the Yang di-Pertuan Agong to grant pardons, reprieves and respites in respect of all offences in the Federal Territories while the state ruler has power to grant pardons, reprieves and respites in respect of all other offences committed in his state.

“The government through the minister of law should supervise and get the officers to collate all the information for all those facing execution and in one go put it before the pardons boards, the Agong or the respective state sultans.

“Article 8 states that everyone is equal before the law. If there is a new law protecting life, those awaiting execution must also be protected,” he said.

Haniff said the abolishment of the mandatory death sentence is a culmination of the work that began during the Pakatan Harapan (PH) administration.

“From 2018, when PH came in, they formed a committee to look into these laws and when Muhyiddin Yassin became prime minister he carried on with the committee.

“Same when Ismail Sabri Yaakob became the PM. This issue proves that all three governments were consistent.” – June 11, 2022.