According to the Amnesty International (2018), death penalty or also known as capital punishment is the ultimate cruel and considered as inhuman act and degrading. It is an execution of an offender sentenced to death after being convicted by the court of law. Therefore, any and every form of death penalty must be ban and opposes with no exception of cases. However, according to the International Law, death penalty can be use and restricted to the most serious crimes that is intentional killing. Yet, Amnesty International still believes that death penalty is never the answer because it is breaching and violating the fundamental of human rights that is the right to life.
There are for types of executions done today by states according to Amnesty International; beheading, hanging, lethal injection and shooting. The most known states that have done executions took place in China, Iran, Saudi Arabia, Iraq and Pakistan accordingly. However, China was the one who remain as the top executioner but the true extent of the use of death penalty in China is mysterious as this data is classified as a state secret. The global figure of at least 993 recorded in 2017 and this has excludes the thousands of executions believed to have been carried out in China (Amnesty International, 2018). Other than that, there is a significant decrease recorded that is from 3,117 death sentences in 2016 to 2,591 in 2017 in 53 countries (Amnesty International, 2018.).
Therefore, there was a lot of effort being taken to abolish this cruel punishment and examples can be seen from the campaign done by Amnesty International for 40 years and also the United Nations moratorium on the death penalty.
2.0 RESEARCH OBJECTIVES
1. To analyse United Nations moratorium on the death penalty.
2. To study on the law of death penalty in Malaysia
3. To examine factors why Malaysia should abolish death penalty.
3.0 UNITED NATIONS MORATORIUM ON THE DEATH PENALTY
UN moratorium on the death penalty resolution was presented by the EU in partnership with eight co-author member states to the general assembly of the United Nations. It is calling for general suspension (not abolition) of capital punishment throughout the world.
The first moratorium resolution was on December 18, 2007 in which the United Nations general assembly voted 104 to 54 in favor of a 62/149 resolution, stating a global moratorium on the death penalty, with 29 abstentions (5 absent at the time of the vote). The resolution was proposed and sponsored by Italy. Following on how many states voted for and against the moratorium, it seems that the resolution was welcomed to the decisions of moratorium on executions, followed in many cases by the abolition of the death penalty. It is to be considered that the use of the death penalty undermines human dignity and hence, the prohibition on the use of the death penalty contributes to the progressive and progressive development of human rights, that there is no convincing evidence of the imprisonment value and any miscarriage or failure of justice in the execution of the death penalty is irreversible and cannot be fixed. (United Nations, 2008)
Later on December 18, 2008, the general assembly adopted another resolution 63/168 confirming its previous calling for a global moratorium on the death penalty of 106 to 46. This moratorium is a collaboration with the EU, New Zealand and Mexico co-facilitator of a text draft that was developed in six months, which Chile was then tabled to the United Nations General Assembly on behalf of co-sponsors. In this second resolution, it is a request to the secretary general to report on the progress made in the first resolution, that is the 62/149 resolution and the current resolution was for consideration during session sixty-five, and request member states to give the secretary-general with information on this matter. They also decided to continue the consideration of the matter at his sixty-sixth session under the heading “promotion and protection of human rights”. (United Nations, 2009)
The 65th General Assembly adopted a third resolution on 21 December 2010 which 109 countries voting in favour, 41 against and 35 abstentions. This third resolution that is the 65/206 resolution was to reaffirms the resolution of 62/149 from December 18, 2007 and 63/168 on December 18, 2008 on the question of the use of the moratorium on the death penalty. The general assembly calls on states which still defend the death penalty to form a moratorium on death penalty so that death penalty can be abolish. According to United Nations (2011), death penalty is synonymous to violence or failure of justice in which it is irreversible and irreparable. The moratorium on the use of the death penalty contributes to respect for human dignity and progress and progress of human rights, and to consider that there is no definitive evidence of the value barriers to death, given the on-going national debate and regional initiative on the death penalty, as well as the willingness to increase the number of member states to provide information on the use of the death penalty. They also recall to technical cooperation among State Members in relation to the moratoriums of the death penalty.
Next, are about the three last resolutions which are 67/176, 69/186 and 71/187 resolution. These three resolutions were made every two years starting December 2012, December 2014 and December 2016 in which they wanted to reaffirm the moratorium on death penalty. From these last three resolutions, the number of states voting for the moratorium has increase which were from 111 in 2012 and 117 in 2014 and 2016.
4.0 THE LAW ON DEATH PENALTY IN MALAYSIA
Capital punishment in Malaysia is a combination of the punishment inherited during the colonisation of British (British based) and punishment from Islam. Under Malaysian law, criminal offenses involving the death penalty are based on the following provisions; the Penal Code, the Security Act 1960, Firearm Act (Heavier Penalty) 1971, also known as Act 37 and Dangerous Drug Act 1952 (Azman Mohd Noor, 2008).
The crime that falls under the Penal Code is anything that related with Yang di-Pertuan Agung (YDPA), such as declaring war towards the YDPA (mention in the Section 121 and Section 121A), rebellion (Section 132), torture that lead to murder act (Section 302), assisted a kids and an insane person to kill themselves (Section 302), kidnapping (Section 364) and commits murder during the robbery (Section 396). Meanwhile the Security Act 1960’s is about anyone and it is proven that the person own or bringing a firearm or grenade without any valid reason at a safe area. There is a few sections in the Firearm Act (Heavier Penalty) 1971 that related to the usage and the selling of firearm that lead to death penalty such as, Section 3, Section 3A and Section 7(1) (Act 37, 2006). The Dangerous Drugs Act 1952 stated in the Section 39B that any action of distributing, offering to distribute and preparing to distribute the drug can lead to death penalty (Azman Mohd Noor, 2010).
Amnesty International, a prominent non-states actor regarding human rights reported that at least 800 people were under sentence of death in Malaysia at the end of 2017 and at least 38 death sentences were issued during the year (Amnesty International Global Report, 2018). Asia Pacific region is the highest proportion of countries that resulting to the death penalty for drug related offences.
According to Cornell Center on Death Penalty (2013), one of the crimes that punishable toward death penalty are murder. Next, Malaysia has a felony murder rule that death penalty is eligible if the offender commits murder during the robbery. In addition, bearing false witness also resulting in death penalty. Besides that, assisted suicide of a child or insane person is punish by death penalty. Raping before committing murder of the victim also resulting in capital punishment. The crimes of treason against Malaysia or offenses against Malaysia federal or federated head of state is punishable by death penalty. Furthermore, mentioned in the Penal Code of Malaysia, kidnapping to assist a murder act are punishable by death penalty. Moreover, according to Firearms (Increased Penalties) Act 1971, weapons trafficking or possessing more than two firearms illegally is punishable by death. Repeat offender is punishable by death penalty if the offender was serving a sentence of 20 years or more at the time of the offense.
Based on Amnesty International Global Report (2018), Malaysia had recorded four executions in 2017. Three of the execution were for murder and one for discharging a firearm. The family of the murder offender on death row were allowed to visit before the executions were carried out. The family were only informed on their last visit which is 24 hours before the executions. In addition, categories of offender excluded from the death penalty are individuals below age 18 at the time of crime. The maximum sentence for a pregnant woman at the time of sentencing are 20 years imprisonment. Person who are mentally ill or incapable of knowing the nature of the act cannot be charge for the offense.
Based on the legal system in Malaysia, the offender will be going through several trials before the death penalty was executed. The first stage is High Court followed by the Court of Appeal and lastly by the Federal Court. If in the three stages, the court decided that the offender are guilty, then an appeal for remission committed by the offense can be submitted to the Yang di-Pertuan Agong or the Royal Highness the Sultan or the speaker of the states depending on where the offense was committed. If the decision remain the same, the court will order the prison to execute the death penalty. The legal process took a long time and even years.
There are some cases related with death penalty that are controversial in Malaysia and one of the case is the Barlow and Chamber execution. The both of them are the first two westerners that were punished by execution after the legislation is introduced. They were arrested for trying to smuggle 141.9 grams of Heroin out of Penang Airport in Malaysia in November 1983 (Dover, 2015). After about a year of trial, their families plead against Malaysia government and they, Barlow and Chamber even got appeals for clemency from the Australian and British Prime Minister, in 1985, and yet the both of them were imposed death penalty by hung. Amnesty International during that time mention that Malaysia was breaking the United Nations resolution banning of death penalty by executions. The aftermath of this case was the cold relationship between Australia and Malaysia during that time.
5.0 FACTORS WHY MALAYSIA SHOULD ABOLISH DEATH PENALTY
In Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR), it stated that a country which has not abolished the death penalty, the death sentences may only imposed on the serious crimes in accordance with the law as long as it not contradict with the provision of the Present Covenant and the Convention on the Prevention and Punishment of the Crime of Genocide. However, the Human Right Committee has criticized the statement where the expression of “the most serious crime” should be more strict and specific.
As in Malaysia, the mandatory death sentence for the drug offenses were not suitable as the “the most serious crime” that stated in Article 6(2) of the ICCPR. Hence, the Malaysia’s government wanted to abolish the death penalty due to a few factors such as the death penalty has violates the human right, the death penalty may risk of executing the innocent people, and the death penalty does not deter crime effectively.
One of the factor on why Malaysia’s government wanted to abolish the death penalty is that death penalty has violated the most basic of all human right which is the right to life. This can be seen from Article 3 of the Universal Declaration of Human Right (UDHR) where, “everyone has the right to life, liberty and security of person” and in Article 5 of the UDHR also stated that, no one should be treated or punished cruelly and inhumanly (UDHR, 2015). Thus, the United Nation Human Right Council and Amnesty International has kept urging Malaysia’s government to abolish the death penalty altogether.
Secondly, the death penalty may risk of executing innocent people exists in any justice system. Even though the justice system was well developed, the susceptible to human failure may still remain. However, unlike prison sentences, once the accused was sentenced to death penalty, the decision could not be withdrawn.
Last but not least, the death penalty does not effectively prevent the crime. There is no statistic stated that, when the death penalty were enforced has decreased the number of crime. Instead, looking at Table 1, the number of drug trafficking for example has keep increasing since 2009 until 2015. According to APAIC (2014), the annual average seized of the crystalline methamphetamine over the period has constantly increased nearly ninth times to 1177kg. Since 2002, Malaysia has seized more than 500,000 methamphetamine tablets every year and reported that more than 400,000 “ecstacy” tablets were seized in 2015. While in 2016, approximately 650kg of crystalline methamphetamine and 1215kg of methamphetamine in liquid were seized as according to the preliminary figures from national authorities.
In conclusion, death penalty was and is perceived as cruel and breaching the basic human rights. Death penalty was introduced as to deter people from doing anything seen as crime or wrong by the state and law. It might work to decrease crime rate in the past but does is still works in this 21st century? Despite its effectiveness or not, death penalty is still seen as inhuman and thus should be abolished. Therefore, states whether the government or the non-state actors along with the international community must show effort in solving the issue. Campaign and moratorium has been done and what left was the responsibilities of states whether to follow or reject death penalty.