MP wants mandatory death penalty abolition applied retroactively

 

The abolition of the mandatory death penalty for certain crimes as approved by the cabinet should be applied retroactively, according to a PKR lawmaker. 

While welcoming Putrajaya’s move, Sungai Buloh MP R Sivarasa (above) said the abolition of the death penalty is not acceptable if it is not applied to ongoing trials and on death row inmates. 

“This is not a case of increasing punishments for particular offences when the principles of natural justice would mean that the increased punishments would certainly not be retroactive. It would only apply to fresh cases,” he said in a statement to Malaysiakini.

“We are dealing with reforms that are bringing in lighter sentences in the sense that the mandatory death penalty will be removed and the judge is given full discretion on whether to mete out the death sentence or not.

“The possibility now exists that the judge may be of the view that the death sentence is not suitable in the circumstances and consider a life or other sentence. These cases should be reviewed through a suitable review mechanism and decisions must be made as to whether to maintain the death penalty or not.”

According to Sivarasa, the best existing mechanism to do this would be the pardon process.

“There is no need to create a new mechanism. All pending convicts facing mandatory death penalty sentences should be allowed to file fresh pardon applications and that mechanism should be used to review whether the death sentence should remain or be reduced to a lower sentence.”

The lawyer-turned-lawmaker, however, noted the silence of Minister in the Prime Minister’s Department (Parliament and Law) Wan Junaidi Tuanku Jaafar on those currently on death row.

Wan Junaidi announced yesterday that the government agreed to abolish the mandatory death sentence and would substitute the mandatory provision with other types of punishment that would be decided by the court.

The cabinet said a further study should be carried out on the proposal to have substitute punishment for 11 offences which carry the mandatory death penalty, one offence under Section 39B of the Dangerous Drugs Act, and 22 offences which carry the death sentence but under the discretion of the court.

Minister in the Prime Minister’s Department (Parliament and Law) Wan Junaidi Tuanku Jaafar

The existing mandatory death penalty provision means the judge has no option but to sentence the accused to death upon conviction of certain crimes, except if the accused has a mental disorder.

Currently, there are 11 offences under the Penal Code and one under the Dangerous Drugs Act that carries the mandatory death sentence. They include crimes such as murder with intent to kill, drug trafficking, and possession of firearms.

It is learned that the mandatory provision may not apply retroactively as the government may propose another alternative for death row convicts.

‘Harapan leads, others follow’

Sivarasa said the move to abolish the mandatory death penalty was initiated by the previous Pakatan Harapan government. 

“Our position all along has been that the trial judge should have the discretion to decide whether the death sentence is the appropriate sentence in the circumstances of each case. They should not have their hands tied to a mandatory sentence.

“Personally, I am also of the view legal reform should continue until we completely remove the death penalty, but that view may not be shared by all my Harapan colleagues,” he said.

Meanwhile, Amanah’s Sepang MP Mohamed Hanipa Maidin said it would be best to allow the judge discretionary power to make a ruling.

Sepang MP Mohamed Hanipa Maidin

“As far as I am concerned, the mandatory death sentence is not really good law. It brings more harm than benefits. Its disadvantages trump its advantages.

“Be that as it may, the best option, in my view, would be to give to a judge a wide yet reasonable discretion to impose any fit and proper sentence duly commensurated with the gravity of any particular offence,” he said. 

“This issue also duly depicts one of many positive accomplishments brought by the then Harapan+Warisan government which was duly mandated by the rakyat,” added Hanipa.

“We are thankful to the present government, which has duly agreed to accept the findings made by the relevant committee then headed by our ex-chief justice Richard Malanjum, which was duly established by the then Harapan+Warisan government," he said. 

“In short, like it or not, the present unmandated government ought to accept this truism ‘Harapan leads and BN+PN merely follows’,” he said. - Mkini