THE death penalty is defined as a punishment given by a court of law for very serious crimes. Those who oppose the death penalty regard it as something that is not only murderous and barbaric, but also against justice and human rights.

But what about the justice and rights for the victim’s family who had lost a member through a criminal act? Their pain is worse than the family of the murderer who has cut short the sacred life of an innocent person. No amount of regret or remorse can resurrect the dead innocent person from living again.

And those who oppose the death penalty also seem to conveniently forget not only the sufferings of the victim’s family but also behave as if the victim’s family doesn’t exist. Their attention is disproportionately focused on the sufferings of the aggressor’s family.

Thus, the way death penalty is defined is like a one-size-fits-all, perhaps the result of the indoctrination of the modern, liberal western civilisation, from their staunch belief on the worst aspect of the death penalty.

This is quite strange considering that the epitome of the modern, western civilisation is the United States, which doesn’t see it fit to abolish the death penalty nationwide.

With the introduction of the mandatory death penalty mainly because of the drug menace since the 1960s, we now can discern two different definitions of the death penalty from the perspective of the role of the judges.

Prime Minister Ismail Sabri Yaakob highlighted this when he stressed the death penalty will still remain but it would no longer be mandatory, and judges will be given discretion when sentencing offenders.

We can thus deduce while death penalty refers generally to all capital offences where judges have the discretion to impose any kind of punishment they see fit, including the death penalty, the mandatory death penalty refers to capital punishment where the judges do not have discretion to impose any kind of punishment except the death penalty.

It is my personal view as a layman with no legal training that tying the hands of judges to just meting out the death penalty is a travesty of justice. So too is limiting the judges to just meting out a punishment that is not the death penalty.

If the judges err on not giving the death penalty when the facts of the case point in that direction, an appeal against the judges’ non-capital punishment can always be made, or vice versa.

When the appeal is at the final stage of the Federal Court, whatever the verdict, the judge should add that the final judgment rests on the member of the victim’s family.

In Islam, this is the concept of qiṣāṣ (retaliation in kind), which is the retribution goal in punishment – an eye for an eye.

But Islam does not limit punishment to qiṣāṣ only, as it gives the victim’s family an alternative to forgo the demand for the death penalty to diyat or blood monies (compensation to the families of victims following a serious offence).

This is the Quranic basis for qiṣāṣ and diyat:

“O ye who believe! The law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, and the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.” [AlBaqarah (2): 178].

Better still, Islam also gives a third alternative – forfeit the right of qiṣāṣ by forgiving the culprit as an act of charity or in atonement for the victim family’s past sins.

But they must not be coerced into making any of these alternatives. They must decide on one of these alternatives sincerely on their own. Of course, they can be counselled with kind words to accept either diyat or to forgive.

In this regard, Law and Parliament Minister Wan Junaidi Tuanku Jaafar mentioned diyat being considered as a substitute for the mandatory death penalty, but stressed the matter must be discussed with the relevant parties, such as shariah scholars.

In 2018, the Pakatan Harapan (PH) government announced plans to abolish the death penalty for good but facing vocal rebuke from the opposition and some segments of the rakyat, it scaled back its ambition to ending only mandatory death sentencing instead. But before it can do so the PH government collapsed in early 2020.

Two political parties that campaigned hardest against abolishing capital punishment then were MCA and PAS.

Heng Zhi Li, an executive committee member of the MCA’s youth wing, where he joined the campaign against abolishing capital punishment in 2018, supports plans to end mandatory death sentencing, but believes judges still need to keep capital punishment as an option to deter the most serious crimes.

It is interesting to note that Dobby Chew, executive coordinator of the Malaysia-based Anti-Death Penalty Asia Network, is glad to hear of the government’s plans. 

According to Chew, the absence of a surge in crimes that carry mandatory death sentencing since the 2018 moratorium, is proof against capital punishment’s power to deter, while Heng ascribes the trend to good policing, and went on to say leaving capital punishment to the court’s discretion would strike a just balance between the rights of criminals and victims alike.

“Retaining the death penalty doesn’t mean that we ignore human rights,” he said. “Actually, we are also protecting the human rights of the victims because we have to take into account that… the victims are being murdered, so what’s the feeling of (the) families?”

But many civil society groups here said such laws do not have the deterrence effect in lowering crime or murder rates. In the US, the Federal Bureau of Investigation has found states with the death penalty with the highest murder rates while states that have abolished capital punishment show no significant changes in either crime or murder rates.   

But this comparison is flawed because there has never been a situation in Malaysia where the death penalty is abolished, and the federal government did not give any autonomy like in the US for the state governments to decide on their own whether to opt for abolishing the death penalty or retain it.

Moreover, since experts said there are five main underlying goals of criminal punishment – retribution, incapacitation (social protection), deterrence, rehabilitation and reparation – if these five are not met, it does not necessarily mean the punishment has failed. There could just be other factors that are the main cause of the failure to meet the goals.

What is more important is in meting out the death penalty, the due process of the law must reflect the internationally recognised legal maxim that one is innocent until proven guilty.

One rationale for abolishing the mandatory death penalty pointed out by Ismail is “sometimes, the case involves an 18-year-old. The judge may find him ‘trapped’ as drugs were found in his bag but he could not prove they belonged to somebody else, and the court had to send him to the gallows even though the judge felt that the accused was just a young man who should be given a second chance to change.”

In the example above, it seems the burden of proof of innocence fell on the young accused, which is the opposite of the legal maxim “one is innocent until proven guilty”.

The burden of proof of guilt must be taken up by the authorities, in that the youth should be detained for the maximum period allowed by the law for the authorities to investigate further so they can find solid evidence of his guilt.

Failing which, it should be presumed he is innocent and should be freed in line with the internationally recognised legal maxim.

But because drugs are a real menace to society, if the offender is found to be a hardcore drug trafficker to the extent of causing hundreds of thousands of people to die (due to drugs), he can be sentenced to death and sent to the gallows.

However, if the judge, in his discretion, felt the offender should be given a second chance and decided to jail him for life with whipping, he can substitute the mandatory death penalty with that of life sentence.

This is what ultimately the proposed abolishment of the mandatory death penalty seeks to achieve. – June 20, 2022.

* Jamari Mohtar is editor of Let’s Talk!, an e-newsletter on current affairs.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.