Abolishing mandatory death penalty is the first step, but what else must be done?

Rights groups have hailed the move as a step in the right direction but remain wary over its actual implementation.

Phil Robertson, Deputy Asia Director of the Human Rights Watch, pointed out that “we have been down this road before, with successive Malaysian governments promising much on human rights but ultimately delivering very little.”

“The Malaysian government loves to float trial balloons about human rights initiatives because it knows the international community has a short attention span and will take this as a sign of Malaysia progressing forward,” he said in a statement.

Meanwhile, Amnesty International Malaysia urged the government to go further and work towards full abolition of the sentence.

Its Executive Director Katrina Jorene Maliamauv noted multiple documentations of “how the death penalty itself has not served as a unique deterrent to crime, and how its continued use has stifled the necessary and visionary work towards enabling fair justice and addressing issues at the root causes.”

Does the death penalty effectively deter crime?

According to human rights lawyer and drug policy reform advocate Samantha Chong, capital punishment is often handed to those from the “most marginalised and poorest segment of society,” many of which are unable to afford lawyers to represent them.

“One of the main points for crime reduction and prevention is always a higher sentence but this does not translate into real life. Why does crime happen? Because of poverty, lack of education, lack of access to healthcare and strategic policies,” she told Astro Awani.

Other factors leading to crime, she added, were corruption and lack of early police intervention.

“(The death penalty) is a very shortcut answer, a bandage solution,” said Chong. “If you want a safer society, it is never as easy as giving the harshest sentence.”

A 2011 study by the UN Office on Drugs and Crime showed that the largest proportion of murdered took place in countries with low levels of human development. Additionally, nations with severe income inequality recorded murder rates that were almost four times higher than those with “equal societies”.

Certain statistics from countries that have completely done away with the death penalty have also shown that its absence did not bring an increase in crime rates.

A study that compared the murder rates in Hong Kong and Singapore over 35 years show that the abolition of capital punishment in the former and the high execution rate in the latter, particularly during the mid-1990s, had little impact on homicide levels.

Similarly, a report by the US’ Death Penalty Information Center found that the murder rate in non-death penalty states were consistently lower than the rate in states that still imposed the death penalty during the years 1990 to 2019.

“The deterrence hypothesis only distracts public attention from the much-needed, long-term solutions that could be more effective in tackling crime and its root causes,” wrote Amnesty International in its appeal for Malaysia to fully abolish the death penalty in February.

“Crime trends and patterns in different countries and regions are related to a range of different factors, some of which are context-specific. Consequently, there is no one solution that could address public safety concerns in all countries.”

Beyond execution and other alternatives

Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar said the government had agreed to study other proposed punishments for 11 offences carrying the mandatory death penalty, as well as another 22 offences carrying the death sentence but at the court’s discretion.

Crimes that are punishable by death in Malaysia include drug trafficking, terrorism, firearms offences and murder.

A moratorium on execution has been in place since 2018. A total of 1,341 convicted persons are on currently on death row in Malaysia, of which 905 were convicted for drug trafficking, 403 for murder and 33 for other crimes.

Wan Junaidi has said the government cannot commute their sentences as amendments to the relevant laws have yet to be finalised, although he hopes they can take effect by early 2023.

Until then, the government is seeking to gather public feedback before tabling the proposed abolition in Parliament in October. It is also looking into drafting pre-sentencing procedures, forming a sentencing council and making institutional reforms to the prison system, among other things.

Once the new amendment is imposed, Chong said an important alternative to consider was a sentence of 20 years imprisonment or life imprisonment, which is 30 years.

According to statistics released by the Malaysian Prison Department, 85% of death row inmates had their sentences commuted to life imprisonment. It found that there was no recidivism (the tendency to reoffend) among them.

“It means that life imprisonment or 20 years of imprisonment is enough to reform those who committed murder or drug trafficking,” she said, adding that it was not likely for crime rates to go up following the abolishment of the mandatory sentence.

What other reforms should Malaysia carry out?

One significant move to further strengthen the nation’s criminal justice system, said Chong, would be establishing the “long overdue” Independent Police Complaints and Misconduct Commission (IPCMC). This would help restore trust in the police force.

Initially tabled by the Pakatan Harapan government, the IPCMC Bill was then replaced by the Independent Police Conduct Commission (IPCC) when the Perikatan Nasional administration took over.

Secondly, there is a need for prison reforms – a move that has begun to take place with over 7,000 inmates undergoing parole and the Community Rehabilitation System (CRP) as of last year.

The Prisons Department aims to have 23,000 inmates serving light sentences come under the parole system and CRP by 2030. The programme has proven to be a success with a recidivism rate of 0.4% as compared to the 13% recidivism rate for those serving prison sentences.

“Those who commit petty crimes do not need a prison sentence. They need social support and to be referred to the Welfare Department. This is not something a heavier sentence can fix,” said Chong.

She also called for Putrajaya to look into drug policy reforms as most cases presented in courts involved non-violent minor drug offenders.