THE death penalty is due to be abolished. Despite positive feedback from some quarters, not all Malaysians are convinced.
In the Q&A below, Ambiga Sreenevasan and Ding Jo-Ann address some commonly expressed fears about abolishing the death penalty and why there is no place for it in today’s society.
Q: Won’t violent crime like murder and armed robbery as well as drug trafficking increase if the death penalty is abolished?
A: The death penalty does not deter crimes more effectively than other punishments. Studies that indicate this have been debunked. We are therefore effectively executing people on the erroneous assumption that it actually deters crime.
A study of Hong Kong and Singapore homicide rates for 40 years demonstrated that Hong Kong is just as safe a city from criminal homicide as is Singapore. This is despite the fact that Singapore has the death penalty whereas Hong Kong’s last execution was in 1966 and had completely abolished the death penalty in 1993.
Research, in fact demonstrates that the certainty of being caught is a more powerful deterrent than the severity of the punishment. We should therefore be focusing our efforts on effective policing and increasing the perception that criminals will be caught.
How many countries do we have to cite as examples to show that the death penalty isn’t the magic pill to solve crime? In the Global Peace Index, the top seven safest countries – Iceland, New Zealand, Austria, Portugal, Denmark, Canada and the Czech Republic – have all abolished the death penalty. Out of the top 20 on that list, only Singapore and Japan retain it.
To date, 142 countries have abolished the death penalty in law or in practice. These countries have not seen dramatic increases in the crime rate; nor have countries that retain it seen a consistent decrease in crimes that attract execution.
Malaysia, for example, implemented the mandatory death penalty for drug trafficking in 1983, but has seen a steady increase in drug crime since then. From 1990 to 2011, drug trafficking arrests increased from 744 to 3,845.
Finally, the death penalty cannot be defended on principle as it perpetuates the idea that violence is the answer to violence.
Q: Isn’t it fair and just for murderers to pay the ultimate price for taking another person’s life?
The death penalty is inherently unfair and unjust for the following reasons:
1.Innocent people have been killed.
In 1997, Chiang Kuo-Ching, aged 21, was executed by firing squad in Taiwan for raping and murdering a five-year-old girl. In 2011, the Taiwanese government apologised and paid compensation to his family for his wrongful execution after he was posthumously acquitted. It was found that Chiang had been tortured into confessing and that evidence used against him could not prove his involvement. Another man with previous convictions for child sexual abuse was subsequently arrested for the crime.
The justice system is imperfect. Every year, dozens on death row are exonerated all around the world. In 2016, 60 exonerations were recorded in nine countries. The Death Penalty Information Centre has documented 163 exoneration cases in the US since 1973. Twenty were exonerated because of DNA evidence. Others were set free because the prosecution had withheld key evidence, key witnesses had lied, confessions obtained by torture were struck down and in one case, it was likely that the trial judge was bribed. In these exonerations, the persons involved escaped with their lives. But for Chiang, and undoubtedly, for many others, it was too late.
Can anyone say with certainty that what happened to Chiang and others has or will not happen here? In October 2017, a police officer in a Malaysian drug trafficking case admitted that he lied about a South Korean student being the only one present when he raided the student’s apartment and found cannabis. The officer only admitted to lying when confronted with CCTV evidence. If the CCTV evidence had not been available, it is likely that the student would be sitting on death row today awaiting execution.
That some innocent persons will be executed by the state is alone reason enough to abolish the death penalty. As an old criminal law adage states, “It is better that ten guilty persons escape than that one innocent suffer”.
2. The poor are executed more than the rich.
In every state that has retained the death penalty, there are overwhelmingly more poor people on death row than others. Money is needed to hire a good lawyer, to commission expert witnesses, to search for witnesses and to gather evidence, for a start. If an accused is foreign and poor, the challenges are even greater. They may not have sufficient understanding of the legal system or even of the charges levelled against them. They may therefore face the death penalty purely due to their lack of resources.
The death penalty is a class-based form of discrimination and makes it the equivalent of an arbitrary killing.
3. Revenge, not justice.
State-sponsored killing of a perpetrator is not about justice, but violent revenge. And given the problems with the death penalty as stated above, it leads to even graver injustice and greater suffering.
Q: Isn’t it unfair to the victims’ families to let the perpetrators off the hook?
If the death penalty is abolished, it does not mean that criminals will be let off the hook. Those who have committed serious crimes will still be punished and sentenced to prison, some of them for life. The loss of liberty is a serious punishment.
With the death penalty, there is also no chance of rehabilitation. Rehabilitation is especially relevant for those convicted of drug offences, many of whom are sentenced to death just for being drug mules. More so when the offenders are young and there is every chance of rehabilitation.
Q: Isn’t a majority of the public in favour of maintaining the death penalty?
Surveys that demonstrate that the public supports the death penalty generally ask yes/no questions. When actual scenarios are presented, as in a 2013 survey in Malaysia, the number supporting the death penalty drops dramatically. Further, when asked what their choice would be if it were proven that innocent people were executed, the number supportive of the death penalty fell into the minority.
Public opinion changes when presented with information and evidence about the fallibility of the death penalty. Many are also unaware of death row conditions.
There are 1,281 prisoners on death row in Malaysia. They are usually kept in solitary confinement for 23 hours a day, not knowing when they will be executed. Some have been there for up to 20 years. This, in itself is a form of torture and many suffer from mental illnesses as a result.
It is for the government to provide the people with the relevant facts and evidence to support their decision to abolish the death penalty.
Q: Why can’t we keep the discretionary death penalty for violent and heinous crimes?
Let us do this properly and abolish the death penalty completely. There should be no U-turns on what has been announced.
Keeping the discretionary death penalty means keeping everything that is wrong with the punishment – the risks of getting it wrong and the impossibility of restitution, the cruelty and inhumanity of the punishment, and the disproportionate representation of the poor on death row.
As long as the death penalty is maintained, there will be pressure for it to be used, especially in emotionally charged cases, such as the rape and murder of the five-year-old in Chiang’s case. If we see the death penalty as wrong, arbitrary and unfair; it remains so in any circumstance. It cannot be left on the books merely to satisfy an outraged public’s momentary desire for revenge and retribution when a particularly heinous crime is committed. – November 2, 2018.
* Ambiga Sreenevasan is a Commissioner of the International Commission of Jurists and former Malaysian Bar chairman. Ding Jo-Ann is a writer and lawyer.
* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.