The death penalty revisited
Published on: Sunday, March 10, 2019
By: Kan Yaw Chong
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De facto Law Minister Datuk Liew Vui Keong has argued for a “Yes” but has conceded since it may not happen for now.
Presumably the abolition idea was a Mahathir Government stand.
At face value, one is tempted to dismiss total abolition outright because who doesn’t believe in keeping societies and criminals in check.
But last Thursday, I heard three divergent answers – Yes, No and a middle ground review position in a serious exchange of stands at a Forum on Restorative Justice – An Alternative to Imprisonment, organised by The Council for Restorative Justice Sabah, held at Grandis Hotel.
Actually, for thousands of years, the use of the death penalty has been a prominent retributive feature of civilisation.
So, there is nothing new. But to suddenly suggest it should be totally abolished in Malaysia caught everybody by surprise.
The normal response is to say a quick “no”.
Lasimbang
The insane retributive history of the death penalty in UK
Cross-checking into the history of the death penalty, however, I was taken aback by the insane capriciousness, tyranny, cruelty, abusiveness and cowboy-style retributive justice of kings, governments and even the equivalents of datuks-datuks datins-datins of Great Britain and America of yesteryears.
For example, even as recent as the 18th century, more than 200 crimes were punishable by death in Britain, and that includes, to my shock, really petty crimes like stealing 40 shillings from a house, or 5 shillings from a shop, or even cutting down a tree – a total mismatch between offence and penalty.
A tyrannical and happy-go-lucky hangman King Henry VII reportedly executed 72,000 people between 1485-1509.
In medieval Britain, even barons (peers or lowest rank of nobility like the ranks of our Datuks and Datins) had the legal force to dig pits to mete out the highhanded death penalty by drowning.
Probably because of an insanely retributive history of the death penalty, Great Britain swung to the other extreme with a total abolition of the death penalty by 1998, after abolishing the death penalty in 1965.
America: Hanged for pinching grapes!
The US sprang even more surprise.
Very petty offences like pinching grapes or slaughtering someone’s chickens would be punished by death under the so-called Divine, Moral and Martial-Laws established by British colonial governor of Virginia, Sir Thomas Dale who, some time in 1614, when Virginia was still a British colony.
Similarly extreme was in New York, if someone simply denied the existence of God or hit their parents, the death penalty applied under the Duke’s Laws from 1665 just about 350 years ago.
But total abolition of the death penalty is not yet a fact as 31 of the 50 states still maintain it although actual execution is getting less and less as no more than 20 out of some 2,900 people on death row had been hung in recent years.
So capital punishment is decreasing also in the US and definitely on a long-term decline.
Australia: No extradition without abolition
In 1985, New South Wales became the last state to abolish the death penalty and in 2010, the Australian government passed a law to ban its reintroduction.
As a result, the Australian government had steadfastly refused to extradite convicted murderer of Mongolian model Altantuya Shaariibuu – Sirul Azhar Omar – former bodyguard of ex-Prime Minister Datuk Seri Najib Razak on grounds that he would face the death penalty once returned to Malaysia, although Malaysia and Australia have an extradition treaty.
But Australia took more than a century to abolish capital punishment mainly because of initial groundswells of public opinion.
Whether total abolition ever happens in Malaysia is unsure.
Lawyer asked Jannie Lasimbang her stand
But the issue has clearly been put on the table in public.
During the forum, a lawyer questioned panel member, Jannie Lasimbang, former Human Rights Commissioner Malaysia (Suhakam), now Assistant Minister of Law and Native Affairs what her stand was, her “Yes” vote to abolition sparked an elaborate “No” argument from former State Attorney General, Datuk Stephen Foo, and apparently a conciliatory middle ground review stand from Dr William Wan, Chairman of the Prisons Fellowship Singapore and robust advocate of Restorative Justice.
“I came here to listen so I am not talking on behalf of the Chief Minister. As you know, Malaysia is also battling with this question. I understand from discussion with my Member of Parliament friend that there is not a good support for the abolishment.
“But coming from Suhakam before, we took a stand that the death penalty, in particular, is something we wanted to abolish.”
She conceded that for many people this is very hard.
“What we have heard is that we have to look at many aspects of different crimes.
“If you want to look at something personal, I am coming from a native background, in the old days when justice was dealt with swiftly which could mean capital punishment as well. I remember my mother telling me certain crimes like murder, it was an eye for an eye (a tooth for a tooth) and it had happened.
“It is not easy to deal with the death penalty. My personal position is very clear.
There are some criminal acts that need to be dealt with but if we can use also restorative justice on certain aspects of crime, it means we need to look at abolishment of the death penalty. This is my stand but I know it is not going to be popular.”
Retired OCPD: Lasimbang stand matches UN resolution
Panel Chairman and a retired OCPD, Datuk Abdul Wahab Sulaiman Wahab, Vice President II of The Council for Restorative Justice Sabah, noted that Lasimbang’s stand would be consistent with a UN General Assembly resolution passed (Nov 15, 2007) supporting worldwide moratorium on execution and at the same time quoted to capital punishment states to restrict death penalty by not imposing it on juvenile offenders and limiting the number of offences from which it can be imposed.
Ex-State Attorney-General: ‘Total abolition frightens me!’
At this juncture, entered into the foray was former State Attorney General and Prosecutor, Datuk Stephen Foo, who said “actually I have been waiting for a chance” to say his piece.
Invoking his experience in the difficult nitty-gritty of successful prosecution and conviction of serious crime offenders, Foo said the idea of total abolition of the death penalty “frightened” him.
“I think what the Government has proposed is that the death penalty be abolished across the board,” he said.
“I think it is very risky to abolish death penalty across the board.”
Abdul Wahab
Ex-Prosecutor: Death penalty remains a big deterrence to serious crimes
Making his position clear, Foo said:
“If you say certain offences should not carry the death penalty, I agree. But when I think about murder, treason and some very serious things, then I think the death penalty should remain because the fact is it remains really quite a big deterrence in the sense that death itself would make people not want to commit the crime,” he argued.
On the other hand, Foo said he worried public indifference may see the issue grossed over without adequate thought.
He cited the Daily Express not long ago invited people to share their views.
Low public interest not a good sign
“Unfortunately, Sabahans don’t seem to be interested by saying this is other people‘s business but they do not know that it (murder) can happen to them any time.
“Ask a police officer, they will tell you it can happen any time, you walk in the street, people can just murder you for nothing, so don’t say this is other people’s business and we don’t care.
“So the other day I read the Daily Express the invited views and there were only seven views – an ex- judge for whatever reason strongly supported the death penalty, and including the ex- judge, there were five lawyers, myself also, an ex – Minister, a wife of an ex Deputy Chief Minister and a leader of an alumni association, plus two private members. Out of the seven opinions, five were against (abolition).”
In other words, 75pc of this small circle were against abolition.
“Of course my view was I am against it as far as murder cases are concerned,” he said.
Ex-AG: Fact is very hard to convict a murderer
Foo contended that the death penalty is a lot harder to succeed than most people imagined and maintains he has not lost faith that it remains a deterrence.
“I was a prosecutor for about six years and at least Datuk Wahab knew about it as he was chasing murderers, I tell you, to chase down somebody who had committed an offence, do you think you can just pick him from the street and then charge him?” Foo asked.
“No. It takes a long, long process to investigate and investigate means you must go and gather evidence to put in court.”
Wan
The lop-sided odds against prosecutor
“Even if you put in court you see this imbalance – the prosecution has to prove beyond reasonable doubt. I was a prosecutor, it’s not easy to prosecute and get somebody convicted but the defence needs only raise a reasonable doubt, the judge decides what is a reasonable doubt,” Foo enlightened the audience.
“Apart from that, not all killings will end in a murder charge.
“A lot of people think that once you kill somebody then you deserve murder (charge). That is not true,” Foo added.
Multiple options to escape the gallows
“Under the penal code section 304 whereby it is deemed homicide not amounting to murder (case), then that is not death penalty and even if you are charged for murder… if the judge believes you by you raising a reasonable doubt you also will be converted to homicide. So in order to get somebody convicted for murder for death penalty is not easy,” Foo contended.
Appeal
“So even after the judge convicted you of murder, you still have a chance to appeal to the court of appeal, there are three judges sitting there and once you can also raise a reasonable doubt and once you have raised a reasonable doubt then maybe you are acquitted,” Foo argued.
Federal Court
“If not, assuming that your death sentence is confirmed, you go to the federal court. The federal court there are five judges sitting there and the five judges if they do confirm that the death sentence should be upheld, then you go to the Pardon Board. There is so much process for you to go and get yourself acquitted.
“Then even the key person hearing the case itself, like the high court judge who hears the case and court of appeal presiding judge, each of them would give their opinion whether the death penalty should be implemented or carried out because under the law, he says we are actually bound to impose the death penalty but because of circumstance ‘we feel’ that it should not be carried out,” Foo shared his experience.
“So there is another provision whereby the person convicted of death penalty may not be hanged because the judges may express their personal opinions which are confidential and that will be given to the Pardon Board and the Pardon Board will sit down and decide.”
Pardon Board
“If a judge says that the death penalty should not be carried out, then in most cases the Pardon Board would accept their opinion and then the death sentence would be commuted to life imprisonment and the Pardon Board itself, represented by the Yang di-Pertua Negeri, Chief Minister, a Federal AG representative and three persons appointed by the TYT and these three persons are the lay people,” Foo pointed out.
Foo
A long process to get people hanged
“So it means you have to go through a long process before you decide whether the death penalty will be carried out or not. But, in fact, I must say there are not many cases where the Pardon Board will decide that the death penalty will be carried out as it has been mentioned there has not been an execution for many years.
“This means there is no fear that that once the death penalty is imposed you will be hanged. It does not happen that way. But to have the death penalty there is a big deterrence.
“But if the death penalty is not there, then somebody goes to the house to rob you, he says I can kill you I know that I can go to prison for 30 years the Government looks after me so they are not afraid.”
Justice for victims forgotten?
Anybody reading this may not like long the details.
But Foo claims that’s the problem, people advocating total abolition of ‘the death penalty without actually knowing the details, I am sorry to say,” he was recorded as saying.
Foo said he had talked to the main advocate but he said something which I cannot understand like if it is wrong to take somebody’s life is it not wrong to hang the murderer? What type of logic? Somebody has killed an innocent person, you hang him because he has done wrong whereas he killed somebody who had not done something wrong, how can you talk about human rights, do we have human rights at all to be protected, why only talk about the human rights of the murderer? Why?
“Today we are talking about the welfare of the prisoner, does anybody raise the welfare of the victims, people who are robbed, people who are cheated, killed, why don’t they say that the Government should set up funds to compensate these people? Think about it, we talk about justice of the convinced prisoners but I think we have forgotten about justice for the victims of crime.
“We emphasise so much on the prisoners we talk nothing about the victims, the families, somebody’s husband had been murdered and then the only bread earner is lost, who compensates them ? I think nobody seems to really realise the other side of justice,” Foo went on with his lengthy defence of the death penalty.
Some of the attendees at the forum.
Restorative Justice guru: Review your death penalty offences
Foo finished, Dr Wan came into the foray and said in his articulate style:
“I want to just say to our Datuk, fundamental to all your arguments why capital punishments should be considered is back to the basics: it’s not about rehabilitation, it’s about if a person has done something like this, does that person deserve to pay a life for a life?
“So it’s back to deserve. If it’s back to deserve, then you consider all the other circumstances – the victims, the damage done to society etc, whether he has lost his right to live because he has taken somebody’s life.
“Those are the key questions because if we don’t address those we will still end up with a lot of issues.”
Dr Wan conceded: “And then I think if we are going to ask the nation now to abolish across the board capital punishment I think it is a really hard call.”
“I think my new friend Datuk (Foo) will agree if you have 32 offences like in Singapore, I don’t know how many in Malaysia, whether we should review them and see if all of them, all those offences deserve to be executed.
“I think that is the question, You may end up saying only 16 of those offences deserve the death penalty. I think those will be a good exercise but to say, oh, just forget all about it altogether I think it is not quite right.”
Ex-AG: “I agree with a review”
Foo responded by saying: “Now we agree it should not be abolished across the board like murder cases and all these, I agree that it should be reviewed. In Malaysia we also have 30 over offences which carry the death penalty so we can look at each of them and see which one should be abolished or should be changed but the Government is talking about across the board.
That’s the thing that frightens me, meaning also murder cases even talking putting somebody away 30 years. So this is what we are saying, should the death penalty be abolished or not, I say “yes”, for certain offences it should be retained but other offences we review to see whether to retain or modify to other forms of punishment. This is my point. I am not saying it should not be looked into.”
Ex-OCPD on why he supports death penalty
Concluding the long discussion, Wahab shared his experience as an ex OCPD.
He said: “I have investigated six murder cases and all involved taxi drivers, poor men, I tell you. But the worst I couldn’t forget was on the eve of Hari Raya, a taxi driver was murdered in Inanam beside the river. I was there, next day was Hari Raya. I got very, very mad. So I support death penalty!”
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