DPRU/DPP Joint Statement: Why Malaysia should abolish the mandatory death penalty as a prelude to ending capital punishment

This Joint Statement is issued by the Death Penalty Research Unit (DPRU), University of Oxford, and The Death Penalty Project.

It is believed that the Malaysian Cabinet will meet this week to consider the report on alternatives to the mandatory death penalty; a report written and submitted by a Special Committee, commissioned by the former Chief Justice Richard Malanjum, which includes expert testimony provided by the late Professor Roger Hood, Professor Carolyn Hoyle, Director of the DPRU, and Saul Lehrfreund and Parvais Jabbar, co-executive Directors of The Death Penalty Project. Therefore, this is an opportune moment to reflect on the limitations of the mandatory death sentence as well as to consider possible alternatives, with reference to research and legal precedent.

The mandatory death penalty is out of step with international human rights norms and ‘evolving standards of decency’. Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) has declared that “no one should be arbitrarily deprived of his [or her] life”. And the UN Human Rights Committee has interpreted this to mean that no one shall be sentenced to death without a fair trial, as guaranteed by Article 14 of the Covenant, which includes not being sentenced to a mandatory death penalty. Issues with the mandatory death penalty abound. In particular, it conflicts with the following established legal principles: proportionality (which requires an assessment of both the circumstances of the offence and the offender); the absence of judicial determination as to the appropriateness of the sentence; and it violates the right to a fair trial (as it denies the right to a fair hearing and there is no opportunity to present mitigating evidence).  

While the discretionary death penalty is undeniably preferable to a mandatory regime, it would be incorrect to think that the introduction of judicial discretion will eliminate arbitrariness. Indeed, studies from a variety of jurisdictions have shown that those sentenced to death and executed are amongst the least powerful and marginalised in society. By way of example, in India, the death penalty is deemed a ‘lethal lottery’, and as such, in 2015, the Law Commission of India concluded that a discretionary system was so flawed that it recommended the abolition of the death penalty for all ordinary crimes. And, furthermore, research from the DPRU and others has shown that the death penalty in Malaysia disproportionately affects those in vulnerable and economically precarious situations, there is a gendered dynamic at play, and foreign nationals face unique and intersectional disadvantage. Thus, the abolition of the mandatory death penalty should be a prelude to full abolition in Malaysia.

Significantly, the Malaysian public has had its say on the matter: The Death Penalty Project’s 2013 public opinion survey on the mandatory death penalty asked participants what measures they thought would reduce violent crime and drug trafficking, to which the highest ranked option was “better education of young people” followed by “more effective policing”, and crucially, in both cases “more executions” was ranked last. And, of the representative sample of 1,535 Malaysians surveyed, only 12% said they were in favour of the mandatory death penalty for all three crimes of murder, trafficking and firearm offences, 70% stated they support the mandatory death penalty for one of those crimes, and 30% stated they supported it for none at all. Indeed, when asked to judge scenario cases for which the penalty is mandatory death, only a small minority of Malaysians responded in a way that showed they favoured this policy for all such cases. Just over 1 in 100 considered that all the cases they judged were worthy of death. In other words, they did not support a practice of mandatory death sentencing where the circumstances of the case should be ignored whatever they may be. Moreover, a fifth (22%) of respondents did not impose the death penalty for any of the cases they were asked to judge. Additionally, the findings from the scenario cases show that when a death penalty was not chosen, respondents did not simply choose life without parole, but when judging these cases, Malaysians showed that they valued the discretion to adjust the penalty to the circumstances of the offence and characteristics of the offender.

If the death sentence were to be abolished altogether, what punishment should replace it? Well, in countries where the death penalty has been abolished, the sentence of death was replaced with either a maximum sentence of imprisonment or a term of imprisonment subject to a statutory maximum. This was the case in almost all member states of the Council of Europe, as well as Australia and New Zealand, which replaced the death penalty with a life sentence – indeterminate or determinate – with the possibility of release after serving a number of years in prison. The key point here is that where life imprisonment is the alternative punishment, this must be supported by a system of early release through a fully functioning, independent parole system. Moreover, the replacement punishment must be individualised so as to be proportionate to the gravity of the crime, the circumstances in which it was committed, the characteristics and culpability of the offender, and the impact of the crime on those directly affected by it and on the general community. The establishment of sentencing guidelines will reduce the risk of arbitrary sentencing.

Moreover, we should not assume that death sentences should automatically be replaced with “natural life” imprisonment, nor a mandatory minimum sentence of imprisonment nor a mandatory sentence to life imprisonment, as the same issues would arise in terms of arbitrariness, disproportionality and violation of the right to a fair trial. The European Court of Human Rights is of the view that a whole life sentence is tantamount to cruel, inhuman and degrading punishment due to the lack of hope of release and review of sentence. And this has been established in international and domestic courts which have found that there must be a review of a prisoner’s life sentence after no more than 20-25 years to determine fitness for release, as without the realistic possibility of release, the sentence will always amount to inhuman and degrading punishment.

Other considerations include: the sentence of imprisonment should not be retributory – but instead focus on reformation and social rehabilitation, in accordance with Article 10(3) of the ICCPR. This includes a robust parole system, access to rehabilitative programmes inside prison and restorative justice mechanisms. With regards to victims of crime: there is no reliable evidence to suggest that the death penalty provides unique benefits to victims, beyond the need for retribution that could be satisfied by a term of imprisonment. Additionally, while the death penalty is often retained with reference to its deterrent value, sophisticated econometric research has failed to provide convincing evidence in support of the assumption that the threat of execution is a uniquely effective deterrent to murder (as well as drug trafficking) – and this applies to both mandatory and discretionary regimes. And while Diyya (‘blood money’) is an option in some Muslim-majority countries, this allows victims to usurp the authority of judges and therefore risks unjust sentences, and may disadvantage those from lower socioeconomic backgrounds and foreign nationals.

Overall, the DPRU and The Death Penalty Project, with their considerable wealth of research and legal expertise, recommend that Malaysia abolish the mandatory death sentence on its path to complete eradication of capital punishment.