ON April 3, the Dewan Rakyat unanimously passed a bill to abolish the mandatory death penalty in Malaysia. The bill will now be presented in the Dewan Negara (the Senate) for approval. It will be passed into law upon royal assent from the Yang di-Pertuan Agong.

There are currently 34 offences under the law which imposes the death sentence, which is mandatory for 11 of them, including murder and drug trafficking. If the accused is found guilty of these 11 offences, the court will have no choice but to sentence him to death.

However, if the bill to abolish mandatory death penalty becomes law, judges will have the discretionary powers to decide whether or not to impose capital punishment.  The passage of the law does not mean that the death penalty is abolished – judges may still pass the death sentence if they are of the view that it is the fair and right penalty. 

Rights groups have hailed the bill as an important step forward for Malaysia. 

The passing of this bill is important for a few reasons. First, it is an explicit recognition of the right to life.  The right to life is protected under article 3 of the Universal Declaration of Human Rights. The right is extended to all human without discrimination. This includes those who are convicted of crime. This right is also echoed in article 5(1) of our Federal Constitution.

Secondly, giving judges the discretion to decide on the sentence may result in a fairer outcome. A law that imposes the mandatory death sentence means that it is parliament that passes the sentence on the accused person. However, as it is the trial judge who has had the opportunity to hear and watch the witnesses he is the best person to decide on the suitable punishment. No two cases are identical and the judge can take into consideration the facts of each case to reach a fair decision. 

The judge will also be able to consider the mitigating factors. For example, in 2018, Muhammad Lukman Mohamed was convicted of trafficking in drugs and sentenced to death. He was in fact selling cannabis oil for medicinal purposes. His motives were reported to be noble as he had wanted to offer people relief from chronic and crippling pain caused by their medical conditions. However, this was not taken into consideration. Lukman was sentenced to death because the judge did not have the discretion to decide on leniency. His conviction subsequently was set aside by the Federal Court, which found that the prosecution had failed to prove the weight of the drugs.

Another case that caught public attention was that of a 58-year-old woman who was sentenced to death by the Tawau High Court in October 2021, also for drug trafficking. The fact that she was a single mother of nine children was not taken into consideration since the judge was required by law to pass the death sentence on her.

With the abolition of the mandatory death sentence, judges will now have the discretion to take into account the mitigating factors to determine a suitable and fair sentence. A convicted person who is a repentant first-time offender can be treated differently from a repeat offender who has shown no remorse.

Finally, it is recognised that death penalty is not effective as a deterrent. Deputy Law Minister Ramkarpal Singh said in parliament that “the death penalty has not brought the results it was intended to bring”.

The law has not deterred people from committing crimes as those who who commit crimes do not plan to get caught. Instead, in most cases, the death sentence ends up punishing the family members of the convicted person.

With the passing of the bill to abolish the mandatory death penalty, judges are expected to impose fairer and more just sentences. It is also hoped that it will lead to the full abolition ofthe death penalty in Malaysia. – April 6, 2023.

* Lai Mun Onn reads The Malaysian Insight.

* 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.