Our guest of honour, Mr Raymond Kyles, Acting High Commissioner of the United Kingdom to Malaysia,
Your Excellencies, High Commissioners and Ambassadors,
The Right Honourable Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin, Chief Judge of Malaya,
Judges of the Court of Appeal,
Tan Sri Hasmy Agan, Chairman of SUHAKAM, the National Human Rights Commission of Malaysia,
Judges of the High Court,
Judicial Commissioners of the High Court,
Datuk Dr Khaw Lake Tee and Prof Dato’ Dr Aishah Bidin, SUHAKAM Commissioners,
Consular officers and representatives of the Embassies,
Professor Roger Hood, Professor Emeritus of Criminology, University of Oxford,
Saul Lehrfreund and Parvais Jabbar, Executive Directors of The Death Penalty Project in London,
Members of the Malaysian Bar,
Members of civil society organisations,
Members of the public,
Ladies and gentlemen.
Good evening. It is both an honour and a privilege for me to welcome each and every one of you to the Bar Council, and to the Launch of the Public Opinion Survey on the Mandatory Death Penalty in Malaysia. We at the Bar Council look forward to continue working on the various issues pertaining to the rule of law, administration of justice, and law and order in our country.
One such issue is of course that of the death penalty. In Malaysia, the death penalty is mandatory for persons convicted of murder, trafficking in narcotics of various amounts, and discharging a firearm in the commission of various crimes (even where no one is hurt).
For drug offences, there is a legal presumption that the accused is guilty of trafficking if found in possession of drugs in excess of the prescribed weight limit (which varies for different types of drugs). It is then left for the accused to prove his innocence in a reversal of the legal standard of the prosecution having to bear the burden of proof in a criminal trial.
According to The Global Overview on the Death Penalty for Drug Offences 2010, conducted by the International Harm Reduction Association, Malaysia remains one of 13 countries that impose the mandatory death sentence for drug–related offences. Today, in all Commonwealth countries except Malaysia and Singapore, the mandatory death penalty has been declared to be a “cruel and unusual punishment”.
Certainly, the death penalty is an extreme form of punishment. Keeping a person on death row waiting indefinitely, or for a long period of time, adds to its cruelty. The uncertain and indefinite waiting and fearing for the final moment constitutes inhumane psychological torture, the nature of which those who have not suffered the experience will not even begin to comprehend. It is made worse by the fact that they are kept in solitary confinement most of the time, which means that they have to face the suffering alone.
While those who wish to retain the death penalty, known as “retentionists”, continue to call for the imposition of the death penalty, especially in relation to murder, rape and incest, the Malaysian Bar has consistently argued that there is no empirical evidence that the death penalty serves as an effective deterrent to the commission of crimes. Arguably, there has been no significant reduction in the crimes for which the death penalty is currently mandatory. This is particularly true of drug–related offences.
The Malaysian Bar has, for a considerable time, advocated for the abolition of the death penalty, based on the belief that every individual has the inherent right to life as enshrined in Article 5(1) of the Federal Constitution of Malaysia.
The Malaysian Bar at its Annual General Meetings in 1986, 2006, 2007, 2012 and 2013 passed resolutions calling for the abolition of the death penalty. In 1985, the Malaysian Bar held an Extraordinary General Meeting and unanimously passed a resolution appealing to Seri Paduka Baginda Yang DiPertuan Agong to reprieve Sim Kie Chon from the death sentence. Unfortunately, he was not spared the gallows.
Together with the European Union Delegation to Malaysia and the Human Rights Commission of Malaysia (“SUHAKAM”), the Malaysian Bar has been promoting the abolition of the death penalty in Malaysia. Through a number of public fora, debate and pleadings competitions at university level, and seminars, the three organisations have been sensitising various groups to, and creating awareness of, the harshness of the death sentence. The Malaysian Bar has also supported the campaign by Malaysian civil society calling for a presidential pardon for Yong Vui Kong, who, at the age of 18 years, was given the mandatory death sentence for a drug–related offence in Singapore. Another Malaysian, Cheong Chun Yin, now 29, also faces the death sentence in Singapore for a drug–related offence committed five years ago.
It was during one such public forum in 2010 that the former Minister for Law Dato’ Seri Mohamed Nazri Abdul Aziz said that he personally would like to see an end to the use of the death penalty.
I am given to understand that a cross–party caucus in Parliament was formed to promote support for the abolition of the death penalty. The caucus made a decision on 27 June 2011, during another public forum, to try to move a resolution in Parliament to end the mandatory death penalty for drug–related offences. I do not know whether the resolution was ever tabled in Parliament, but in July 2012, the Attorney General announced that the Attorney General’s Chambers was considering proposing an amendment to the Dangerous Drugs Act 1952 to give judges the discretion not to impose the death sentence on drug couriers, or “drug mules” as they are commonly known. The Attorney General’s Chambers was reportedly also considering a proposal that those on death row be resentenced. These proposals by the Attorney General are very much welcomed by the Malaysian Bar and we look forward to seeing progress in this direction.
As at 22 February 2011, there were 696 inmates on death row throughout Malaysia. More than half of those outstanding death sentences were for drug offences (479), followed by murder (204) and illegal possession of firearms (13).1
The Malaysian Bar takes heart that the Singapore Government has introduced changes to the sentencing regime in Singapore, by amending the Misuse of Drugs Act, that will now allow judicial discretion in the punishment for the offences of drug trafficking. In April 2013 a person accused of drug trafficking escaped the gallows as he was found to have met the twin conditions of having only played the role of a courier, and providing substantive assistance to the prosecution. This was the first prosecution made under the amended Misuse of Drugs Act.
In May 2013 two persons on death row in Singapore for murder had their cases sent back to the High Court for resentencing, following amendments to the Singapore Penal Code in November 2012. 30 others awaiting execution in Singapore will also be eligible to apply for resentencing.
Much of the unwillingness of the Malaysian Government to do away with the death penalty may well be due to the perception that a considerable portion of Malaysian society feels that the death penalty should remain, arguing that many (and some will say most) of these inmates have indeed committed heinous crimes, have gone through the legal process, and have been found guilty. In short, the reaction is that “they deserve it” and “they have to pay for the crimes they committed”.
There is no denying that guilty persons ought to receive punishment. But that is not the same as saying that they therefore ought to die. Even in the case of a convicted murderer, the death penalty is a reflection of the notion that “an eye for an eye” provides the best form of justice, a concept that we should not embrace nor practise today, bearing in mind that at present there is no criminal justice system emplaced which is foolproof.
As such it is timely that the Death Penalty Project commissioned the very eminent and highly respected Professor Roger Hood to conduct a public survey on the mandatory death penalty. The Malaysian Bar is pleased to co–organise the launch of the results of this public survey with the Death Penalty Project, a leading international human rights organisation based in United Kingdom spearheaded by Saul Lehrfreund and Parvais Jabbar.
We are also highly appreciative for the support and participation of the UK Foreign and Commonwealth Office, British High Commission, SUHAKAM, Law Faculty of Universiti Malaya, National Human Rights Society of Malaysia (“HAKAM”), and the many individuals who have provided input.
We urge the Malaysian Government to study the results of the public survey carefully and to take steps to enhance the rule of law in Malaysia and firm up Malaysia’s international standing. The Malaysian Bar reiterates its call on the Malaysian Government to abolish the death penalty, and in the meantime for an immediate moratorium on its use pending its abolition.
We thank the team at the Death Penalty Project for initiating this partnership with the Malaysian Bar through this launch and for contributing to this discourse in Malaysia.
And we thank all of you present here for supporting today’s event. We look forward to your continued support and participation in the future. Let us together work to abolish the death penalty in Malaysia.
8 July 2013
1 Shaun Ho/The Star, 28 June 2011.
Please click here to view the Opening Remarks by Raymond William Kyles, Acting High Commissioner of the United Kingdom to Malaysia.