IF modern society is still having second thoughts about abolishing capital punishment, we should take a long hard look at how it has been implemented throughout history. 

Throughout ages, people condemned to capital punishment had been boiled alive, burned at the stake, or hung, drawn and quartered. 

In Britain, the abominable practice of hanging, drawing, and quartered and its other variants were only truly abolished in 1870.

While supporters of death penalty may argue that the world has since progressed where the act of hanging and lethal injection are deemed more “appropriate”, people during the medieval ages also believed it was proper to boil people to death if they dared speak against authorities.

Equally, our posterity might study how the state executed people in the late 20th to early 21st century and condemned the acts of hanging people or fatal injections.

Therefore, regardless of the method of execution, the death penalty is still seen as cruel, inhuman and degrading under international law.

On June 6, Malaysia has finally taken an important first step in abolishing the death penalty. The cabinet has agreed that all mandatory death penalty will be abolished, and this means that the judges’ hands are not tied, and the judiciary is free to decide the appropriate sentencing of an individual found guilty. 

In Malaysia, there are at least 11 offences that leave judges with no choice but to mete out the death penalty. 

Perhaps the most notorious of them all is Section 39(B) of the Dangerous Drugs Act 1952, where anyone can be sent to the gallows for drug trafficking. 

As things stand, there are around 1,366 people on death row as of September 2021, and a significant majority of them have been found guilty under the act.

You may think this only means that the provision is doing its job by sending drug traffickers to the gallows, but a mandatory death penalty means that capital punishment makes no distinction between a drug kingpin and a minor drug mule, who may be falsely accused.

The injustice of the mandatory death penalty is reflected in the case of Hairun Jalmani, a single mother of nine who was sentenced to death after being caught with 113.9g of meth.

Setting aside how such little possession could justify executing someone, the judges were disallowed from considering Hairun Jalmani’s personal situation while meting out the sentence.

Ideally, the abolition of mandatory death penalty would rectify the injustice that has befallen the likes of Harun Jalmani.

However, the policy of doing away with capital punishment is still a divisive issue, especially when the Pakatan Harapan (PH) government was forced to back down from its promise of full abolition to only mandatory abolition after a severe 2018-2019 protest.

This is perhaps why the PH leadership has still not publicly commented on the issue for fear of spooking the crowds again.

However, if there is ever a suitable time to claim credit, the mandatory abolition is one that PH should not be shying away from unless PH itself was never a believer of total abolition.

In fact, the policy of abolishing mandatory death penalty should be construed as a bipartisan effort and one of the very few policies successive governments have continually pursued.

The Najib Razak-led Barisan Nasional government first floated the idea of abolishing mandatory death penalty and had amended the Dangerous Drug Act 1952 by allowing judges to use their discretion in issuing sentences, only under highly specific conditions.

The abolition movement took a step further under the PH government when it applied a moratorium on all death penalty offences and publicly contemplated abolishing the death penalty before it backtracked to the abolition of the mandatory death penalty.

Having said that, granting judges the discretionary power to decide whether an individual is to be executed may indeed lead to a fairer criminal justice system, but the fact remains that one may still be executed for certain offences. 

Only a total abolition of the death penalty would ensure our criminal justice system does not execute an innocent person.

And if total abolition is a cause that the Malaysia government intends to pursue, regardless of who is in power, political parties from both sides should work together and start mustering political will to argue the case for rehabilitative, not retributive, justice. – June 12, 2022.

* Kenneth Cheng has always been interested in the interplay between human rights and government but more importantly he is a father of two cats, Tangyuan and Toufu. When he is not attending to his feline matters, he is most likely reading books about politics and human rights or playing video games. He is a firm believer in the dictum “power concedes nothing without a demand. It never did and it never will”.