©The Sun Daily (Used by permission)
Comment by Kua Kia Soong
IT IS truly admirable that Malaysians oppose the inoperable hudud law for its dehumanising forms of punishment, but I am surprised that these same people do not likewise vehemently oppose the death penalty that has existed in our system for so long.
On July 20, 1986, I presented a paper entitled “The Quality and Equality of Mercy” at a Bar Council seminar (subsequently published in Insaf) soon after the hangings of Sim Kie Chon, Barlow and Chambers.
The government’s response to foreign criticism was to point to their double standards and Tun Dr Mahathir Mohamad’s characteristic response was: “I don’t accept all this accusation of being barbaric ... We learnt all this from them (Westerners).”
The deputy home minister at the time was quoted in Time magazine on Aug 5, 1985 as saying: “The problem with the hanging process is that we’ve got to go through the ritual of appeal. That can take two years. I wish the Pardons Board would make faster decisions so that we can start hanging them … We plan to hang a person every week.” The AttorneyGeneral’s Chambers even urged the mass media to “play up executions” as a deterrent. (Malay Mail, Aug 18, 1983)
Every feudal and pre–feudal social system – Chinese, Malay, Indian, Arab or European – has had penal systems involving the grossest cruelty imaginable.
Punishment is an ancient response to wrongdoing. Throughout history, both the forms of punishment and the rationale for using them have changed markedly. Sociological studies have shown that penal systems everywhere are largely based on tradition, untested assumptions and inferences based on inadequate data.
The English penal system is usually cited for obvious reasons. During 18th century England, death was decreed for several hundred specific offences, particularly those against property, including shooting a rabbit stealing a handkerchief and damaging a public building. From the outset, therefore, the law incorporated class and political considerations.
Comparative studies have shown that historically, the penalty as a judicial punishment has been seen to bear unequally and unjustly on the poor, minorities and oppressed groups in society.
Progressively, the impetus for change was provided by the humanitarian and working class movements. Eighteen century Enlightenment thinkers like Montesquieu and Voltaire provided the philosophical basis for reforms. There soon developed a more humanitarian outlook on crime and punishment and the emergence of humanist values.
A more humanitarian approach led to a concern for rehabilitation of “deviants” based on the personal worth of each human being. Thus, in the modern state and under international human rights standards, the
judicial system is intended to protect the individual against the state. The 1948 Universal Declaration of Human Rights prohibits all forms of “cruel, inhuman or degrading treatment or punishment”.
Consequently in 1908, hanging of children less than 16 years of age was abolished in Britain. Today, most countries forbid its use on offenders under 18. Capital punishment for murder offences has been abolished in Britain since 1965. Although the issue has been brought up periodically in the House of Commons, it has always been defeated. Today, most of Europe has abolished the death penalty.
In the US, the death penalty was stopped by the Supreme Court in 1972 but was reintroduced in 1977. By the 1970s, capital punishment had been abolished as a statutory punishment in about one quarter of the world’s nations.
The judicial taking of life has been described as “the most pre–meditated and most diabolical of murders”. It is basically a relic of the primitive drive for revenge and merely passes the responsibility to the judge or jury who are supposed to be acting on our behalf.
Executions dehumanise society and undermine the common values upon which the full and free development of human society is based in all cultures. The value of human life is lessened once a state, in avowing the defence of its citizens, resorts to inhuman and degrading forms of punishment.
Perhaps the most popular misconception is that capital punishment acts as a deterrent to crime for there is little evidence to show this. According to a British Home Office Research Unit study undertaken in the 80s, over the previous decade, the increase in murders in various categories had been insignificant. This was despite the fact there was a war in Northern Ireland.
Another strong argument against capital punishment is that it entails irrevocable miscarriages of justice. In Britain, if the law on hanging had not changed in 1964, at least six men would have been hanged for offences they did not commit. Astro watchers would have seen the film Hurricane about the former US boxer who spent more than 20 years in jail for a murder he did not commit. If he had been hanged soon after his conviction, his death would have been on the nation’s conscience forever.
No legal system is infallible, and miscarriages of justice usually take time to surface.
The vulnerability of all criminal justice systems to discrimination must be taken into account. There are also human factors involved, particularly political expediency, discretion and public opinion especially in the granting of clemency. The decision to disallow the former Communist Party of Malaysia leader Chin Peng from visiting his ancestors’ graves is a clear example of these factors in play.
Worldwide comparative studies undertaken by Amnesty International have further shown that the wealthy, politically well–connected and members of dominant racial and religious groups are far less likely to be sentenced to death than the poor, supporters of the Opposition and members of minority groups.
The Pardons Board is meant to be the last resort for the condemned when the judiciary has decided their fate. Under Article 42 (5) of the Federal Constitution, it comprises the AG, the prime minister or chief minister, and three others appointed by the Ruler or the Yang diPertua Negri. The board tenders advice to the Yang di–Pertuan Agong, who acts on it to commute or not to commute the death sentence.
Thus, the board is supposed to be capable of showing that human capacity for mercy or clemency. Former culture minister Mokhtar Hashim was pardoned after he had been convicted of murder. In the case of Sim, Barlows and Chambers, the board exercised its prerogative to refuse clemency on the ground that it was “not justiciable”. The undue haste to execute the three was absolutely unnecessary especially when there were complaints that all legal avenues to save their lives had not been fully exhausted.
The incongruity of the fate of Mokhtar and Sim led to public demands for a review of the criteria by which the A–G recommends commutation of the death sentence. The desirability of the A–G’s presence on the Pardons Board was also questioned as it is the A–G who institutes a prosecution and seeks the death sentence.
It would be fairer for the board to be made up of members seen to be independent and impartial, made up of the widest possible crosssection of society and representative of all classes and ethnic communities. A sizeable majority should be needed if the death sentence is to be upheld.
The case against the death penalty was best summed up by Lord Morris of Borth–y–Gest, a British High Court judge in the sixties: “Can we be sure that the utter and irrevocable finality of the death sentence can always be matched by positive certainty of guilt? In no country, with the fairest system of law, with the most humane and conscientious judiciary do I feel that we can be satisfied of that.”
Dr Kua Kia Soong is a director of human rights organisation Suara Rakyat Malaysia (SUARAM)