Make death sentence non-mandatory to the discretion of judges

In Malaysia, death sentence has been an integral part of the penal code since the time of independence. It was even made mandatory for certain offences including possession of firearms and drugs. However, a bill to abolish the death sentence is being presented to the parliament next week.

The arguments for and against abolishing death sentence are many. I will like to state beforehand I am against mandatory death sentence as practised at the moment in this country. However, I am also against the total abolishment of death sentence as suggested. As we could see, there were many heinous crimes that cause public outrage like serial murders or sexual abuse to death of an infant recently.

The common arguments against death sentence is that

  1. A state has no rights to take away the life of an individual.
  2. Death sentence is proven not to deter criminals from committing crimes.
  3. A life sentence is a better punishment as the convicted will be punished for a long time rather than a death sentence that did not last very long.

1. A state has no right to take away the life of an individual.

Every individual’s life is his or her basic human right that is recognised worldwide. Cases convicted of death sentence overturned on appeal or emergence of new evidence were always quoted as the reason why innocent lives might be lost. However, the “individual” lost the right once the person overstepped into the forbidden areas of crimes defined by laws that may result in death sentence. Especially he or she took away the lives of other people.

Ironically, many countries in the world that ban death sentence also legalised abortions to be performed. What give these states the right to say it is acceptable to take the lives of unborn children? It is certain that these aborted foetuses were 100% innocent and had no chance to do any wrongs whatsoever. Yet they who claimed to defend the innocents could condone the abortions done for non-medical reasons.

Second scenario is that our soldiers are required to kill when commanded. An enemy soldier could be killed even If he had not fired a shot. His only “crime” was that he was born in an enemy country.

Third scenario is our police are to shoot if necessary to stop a criminal that can be a danger like brandishing a knife. A person who has yet to commit a crime maybe killed before he was even given a chance to be tried in court.

In Malaysia, a person who was found to have murdered many people in a terror attack with multiple witnesses and evidence, went through a full trial with defence lawyers, appeal process and appeal process to the highest court, and many years on the death roll with no new evidence emerging. To say it was wrong for the state to consider death sentence is bending the arguments too much to the other extreme.

2. Death Sentence was proven not to prevent crime and is not a deterrent.

Death sentence definitely would not prevent the determined criminals. However, it does deter many people from breaking the laws. Similarly, life sentence and caning would not deter the would be criminals as well. A death sentence was not enacted as a deterrent, it was enacted from ancient times to be the punishment for the most heinous of crimes. It was also the justice and closure needed by the families of the victims for them to move on after the loss of their loved ones. The judges can always take into account of the wishes of the families concerned.

3. A Life Sentence is a Worse Punishment for the Wrongdoers than A Death Sentence

This is contradictory in the way that people who claim to be concerned about human rights want to impose a worse penalty on the wrongdoers. Certainly some wrongdoers will be worse off with life sentence. However, all ordinary criminals will prefer a life sentence to a death sentence. Those who suggest life sentence is worse appeared to be not in tune with the common people at all.

In summary, I am supportive of the idea to abolish mandatory death sentence. However, death sentence was a part of every justice system in the past. People had been sentenced to death for war crimes after World War Two. If the survey done by NST that showed 82% of the people are against the total abolishment of death sentence, Malaysia should amend the process by first abolishing mandatory death sentence. In cases where the unintentional like a drug mule, a mandatory death sentence should be abolished and judges given the right to exercise his wisdom in each individual case.

Dr Ko Chung Sen
Media statement by Dr. Ko Chung Sen in Ipoh on Friday, 7th December 2018