PGA Parliamentary Roundtable and Consultations on the Abolition of the Mandatory Death Penalty in Malaysia

November 23, 2015 | Kuala Lumpur, Malaysia

The Roundtable, co-hosted on Tuesday, November 17th by H.E. Min. Dato Seri Mohamed Nazri Aziz (Malaysia), Chair of PGA National Group and Minister of Culture and Tourism, was organised in the framework of PGA’s Global Parliamentary Platform for the abolition of the death penalty, created to support, enhance and maximise the impact of individual initiatives of parliamentarians worldwide on the abolition of the death penalty. Through the Parliamentary Platform, PGA also launched targeted campaigns in selected countries, including Malaysia, to raise awareness among Parliamentarians, strengthen political will and provide technical assistance for parliamentary initiatives on this issue

The Roundtable organised on 17 November 2015 was the outcome of several consultations held with PGA Members in Malaysia, as well as other parliamentarians, who helped conducting a first assessment of the death penalty situation in Malaysia as well as challenges to abolition. As such, in early June 2015, PGA had organisedConsultations on the abolition of the death penalty and the fight against impunity to present the PGA Parliamentary Campaign against the death penalty and elaborate strategies with PGA members to launch the abolition process. During the meeting, PGA Members, including H.E. Min. Nazri and H.E. Hon. Min. Nancy Shukri (Malaysia), Vice-Chair of PGA National Group and Minister of Law, highlighted their interest and support to work on this important issue and committed to organise a Parliamentary Seminar on this topic in November.

The Roundtable which took place in the Parliament of Malaysia on 17 November gathered more than 60 participants, in particular Malaysian and international MPs, high-level national authorities and stakeholders as well as experts and representatives of the international community. The roundtable aimed to analyse the situation of the national and international legal frameworks of the death penalty, as well as the particular situation of the mandatory death penalty for drug-related offences and firearms offences. The Roundtable was also designed to identify the role and contribution of Parliamentarians on this important issue, as well as strategies and measures to overcome any identified obstacle and challenge to abolition of the death penalty.

During the Opening Session, Hon. Nazri, MP (Malaysia), Minister of Tourism and Chair of the PGA National Group, welcomed all the participants and expressed his support to PGA Campaign on the abolition of the death penalty. He highlighted that such issues should be discussed openly within Parliaments, and noted that there was a growing movement towards abolition in Malaysia, among parliamentarians but also the public and State officials, recalling his own support to the abolition of the mandatory death penalty when he was the Law Minister in 2011. Hon. Nazri said that one of the most important challenge at the political level was the public opinion, and added that it was now the State’s responsibility to show compassion and forgiveness to offenders, considering that the crimes are considered offences against the State. He underlined the responsibility and role of parliamentarians to have a concrete impact towards a society more respectful of human rights and human dignity, and declared that he personally believed that the mandatory death penalty should not be maintained and that he would introduce or support any bill introduced in this regard.

Hon. Shukri, MP (Malaysia), Minister of Law and Vice-Chair of the PGA Malaysia Group informed the participants that a draft amendment to the law on the death penalty had been prepared in order to remove the mandatory death penalty, an objective she could fully commit to. She considered that the aforementioned bill could be presented next year, and welcomed the organisation of the Roundtable, which provided a key forum to exchange and gather support on this issue.

Hon. Melissa Parke, MP (Australia), Chair of PGA Australia Group, presented PGA and its Global Parliamentary Platform for the abolition of the death penalty. She underlined the already existing movement towards abolition in Malaysia, particularly under the leadership of PGA Members who repeatedly expressed their strong interest and political will in achieving abolition of the death penalty. She also reminded the role of Parliamentarians in drafting and amending legislation and shaping national policies.

As the final remarks of the Opening Ceremony, H.E. Luc Vandebon, Head of the EU Delegation to Malaysia, recalled the position of The European Union on the death penalty, which is one of the main objectives of its human rights policy worldwide as it considers it to be a cruel, inhuman and irreversible punishment and thus has made its abolition. He welcomed initiatives involving parliamentarians who should be at the forefront of abolition reforms in order to secure ownership and meaningful support to achieve the process.  

The first session, dedicated to the Situation of the mandatory death penalty in Malaysia, was chaired by Hon. Nazri and focused on the relevant legal framework, the impact of the mandatory death penalty, the challenges to abolition and the role and contribution of Parliamentarians.

Hon. Justice Datuk Mah Weng Kwai, a retired Judge of the Court of Appeal, first reminded all participants that the aims of justice should not be vengeance. He then proceeded with a comprehensive presentation of the legal framework of the capital punishment in Malaysia, including both mandatory and discretionary death penalty. Under Malaysian law, the death penalty is thus mandatory for treason (Article 12A, Penal Code), murder (Article 302, Penal Code), firearms offences (Articles 57(1) and 59  of the Internal Security Act, as well as Articles 3 and 3A of the Firearms (Increased Penalties) Act) and drug-trafficking (Article 39B, Dangerous Drugs Act).  He also presented the crimes punishable with discretionary death penalty, that is some offences linked to treason (Article 121, Penal Code), mutiny (Article 132, Penal Code), giving false evidence to procure conviction of a capital offence (Article 194, Penal Code), abetment of suicide (Article 305, Penal Code), offences resulting in death or with intent to kill (Articles 307(2), 364 and 376(4), Penal Code), gang-robbery with murder (Article 396, Penal Code) and trafficking in firearms (Article 7(1), Firearms Act). With regards to the impact of the mandatory death penalty in Malaysian courts, Hon. Justice Datuk Mah Weng Kwai stressed that as a recently retired Judge, his experience was that most judges are in support of the reintroduction of their powers to decide on the relevant sentence.

The subsequent presentation by Hon. Shamsul Iskandar Mohd Akin, MP (Malaysia) and PGA Member, stressed that the irrevocable character of the mandatory death penalty was a major issue considering the possibility for judicial mistakes, and declared that he personally did not believe that the mandatory death penalty had a deterrent effect. He thus recommended a Human Rights approach to the death penalty, while moving away from the idea of retribution and revenge.. He added that public policies should not be dictated by public opinion only and that it is the role of parliamentarians to act as visionaries and lead the society away from revenge and retaliation. Hon. Iskandar declared that he would support and promote the adoption of a bill abolishing the death penalty for drug-trafficking and firearms-related offences.

Lord Jeremy Purvis of Tweed, MP (United Kingdom) and Member of the UK All Parliamentary Group on the abolition of the death penalty, welcomed in his intervention the initiative to discuss the issue of the death penalty in the Parliament, underlining that it is the role of Parliamentarians to represent the best interests of the public, even when the issue seems to be contrary to the public opinion. He explained to all participants the abolition process in the United Kingdom, which was the result of long parliamentary campaigns, examining best practices and lessons learnt. He notably underlined that the process had been carried out in several stages, as discussed for Malaysia, and that abolition of the death penalty was achieved after a first reduction of the capital offences and two attempts in Parliament. Lord Purvis also recalled that at that time the public opinion was still in favour of retention and thus encouraged parliamentarians to focus on leading public opinion rather than following it.

Finally, Mr. Parvais Jabbar, Co-Executive Director of the Death penalty Project, emphasised that although there is a general trend to abolish the death penalty in Malaysia, the punishment still exists and there are many challenges to its abolition. He also mentioned the survey conducted in 2013 on the public opinion in Malaysia by the Death Penalty Project, with the support of the Malaysian Bar, SUHAKAM, HAKAM and the University of Malaya. Interestingly, he explained that when asking the question regarding the most effective way to deal with offences committed in Malaysia, the respondents generally put the death sentence as their last choice, after a better moral education and more effective policies.

The second session was entitled Towards the abolition of the mandatory death penalty for drug-related offences and chaired byHon. Kula Segaran, MP (Malaysia) and Secretary of PGA National Group.

Hon. Liew Chin Tong, MP (Malaysia) introduced the session by reaffirming his strong commitment to abolition of the death penalty in Malaysia. He underlined his concern regarding the lack of transparency on the number of convicted persons as well as on those in death row. As a parliamentarian he highlighted the necessity to use their prerogatives of parliamentary control of government to ask questions on the situation of the death penalty in Malaysia and encourage relevant reforms.

Mr. Philipp Hadorn, MP (Switzerland) gave a comprehensive presentation on the arguments generally invoked to retain the mandatory death penalty for drug-related offences, while presenting counter-arguments.He also presented a comparative analysis of drug-related offences and their punishment in South-Eastern Asia, revealing that the amount of drugs that established a presumption of drug-trafficking – and thus punishable with death penalty – was generally lower in Malaysia compared to the others countries.

The last intervention of this session was given by Datuk Dr. Khaw Lake Tee, Vice-Chairman of the Human Rights Commission of Malaysia (SUHAKAM), who reaffirmed the right of every individual to life, to be free from torture as well as from cruel and degrading treatment, in particular for those waiting for years to be executed. She presented the position of the SUHAKAM, which opposed the death penalty but as it is a long process, strongly advocates for the instatement of a moratorium on executions pending abolition of the death penalty. SUHAKAM has also requested the commutation of death sentences for prisoners that have been in death rows for more than 5 years, considering that it is in line with many international human rights guidelines, standards and instruments

The last session was chaired by Hon. Thomas Su, MP (Malaysia) and Treasurer of PGA National Group, and dedicated to the abolition of the mandatory death penalty for firearms offences.

The session started with a presentation given by Mr. Steven Thiru, President of the Malaysian Bar. He started by mentioning the successive resolutions passed by the Malaysian Bar calling for the abolition of the death penalty, including mandatory. He then comprehensively explained the national legal framework on the death penalty for firearms offences, reminding that the capital punishment for firearms offences does not need them to result in death. He declared this fact unacceptable; as individuals can be convicted for offences where there was no intention to kill and that did not result in any death. Mr. Thiru thus called for, at least, the abolition of the mandatory death penalty so as to leave the appreciation of the facts to the discretion of the judges, even where there was intention to kill.  

Hon. Kasthuri Patto, MP (Malaysia), Secretary of the Women’s Caucus of the Malaysian Parliament and PGA Member, gave the last presentation and underlined the unfairness of the mandatory death penalty, stating it did not leave any space for justice and discussions in courts and adding that State-killing would never solve the problem of firearms offences. She welcomed Hon. Nazri’s commitment to ensure that the mandatory death penalty is abolished, and deplored the current status of the law, which provides for a very high burden of proof on the accused.

During the roundtable, the participants and panellist presented several argument in favour of abolition, namely the irreversibility of the punishment, the fact that it is contrary to shared human values of respect for human life, that it can be considered as torture and that the mandatory death penalty excludes all possibilities of redemption and rehabilitation. All panellists and most of the participants, in particular Hon. Tian Chang Chua, MP (Malaysia) thus called for a moratorium on executions, stating that it would otherwise be unfair for people to be executed while there were consensus and intentions among the Government, the Parliament and the public that the death penalty should be removed.

Similarly, they all declared that the issue of the public opinion was one of the main argument to retain the death penalty, but considered that there would actually  be no strong public objection to the removal of the mandatory death penalty, in particular in light of the Death Penalty Project’s Survey, which showed that respondents were prone to take mitigating and aggravating circumstances into account. In this regard, all participants recommended to raise awareness among the general public and educate the youth on the mandatory death penalty. They also strongly condemned the mandatory death sentence for firearms offences, considering that the mandatory death penalty for these offences was a formal preventive punishment, as people could be convicted without the actual commission of a crime and without established intention to commit such crime.

In general, during the roundtable, all participants agreed that the abolition of the death penalty altogether was the main objective, and that abolition of the mandatory death penalty for drug-related offences and firearms offences was only a first step that would start the abolition process in Malaysia. They considered that the failure to take into account different circumstances and characteristics of each case rendered the capital punishment arbitrary and disproportionate, whereas it was necessary to protect the individuals from the arbitrary deprivation of life, considering it would otherwise amount to a violation of due process. They thus all acknowledged the importance for the judges to exercise discretionary powers should the death penalty not be fully abolished, as well as the necessity to halt all executions of inmates currently on death row until a review of the mandatory death penalty was conducted and achieved. The necessity for discretionary sentencing was particularly highlighted, as they emphasised that the mandatory death penalty had strong impacts on vulnerable individuals such as women and migrant workers. The participants expressed as well their opinion that the death penalty was a cruel punishment – even more so when mandatory – contrary to international Human Rights standards, particularly considering that drug-related offences and firearms offences did not meet the threshold of the ‘most serious crimes’ as set out in the ICCPR.

The participants all acknowledged that the death penalty had no deterrent effect, whatever the crime, as there was no empirical evidence that it prevented the commission of crimes and that it was a stronger deterrent than imprisonment sentences. Furthermore, they added that it was costly for the criminal justice system, considering that there were additional expenses such as pre-trials and appeals, lengthy incarcerations, retrial and resentencing. They admitted that, as a leading country in the region, Malaysia should move away from it.

The participants thus highlighted the necessity for parliamentarians to act as leaders, use their political and legislative prerogatives to raise awareness, inform and educate on this issue to overcome the obstacles and challenges identified and to take the necessary measures to definitely abolish it.

As a result, during the Strategic Discussion on priority topics andAgreement on Strategies and Actions, a Declaration was adopted by the participants, including Pledges and an Action Plan was suggested as the way forward, which includes the following points:

• To support the introduction by H.E. Hon. Nancy Shukri of a bill aiming at the abolition of the mandatory death penaltyfor all offences and maximum term of life for drug related offenses and to consider a review of existing death row cases which resulted from the imposition of the mandatory death penalty;
• To create a working group under the leadership of the PGA National Group Chair in order to proactively engage with their fellow parliamentarians and other stakeholders to achieve national and multi-partisan consensus to remove the barriers towards abolition and ensure better standards for its use as well as to promote the drafting a study on the effectiveness of the death penalty;
• To generate support and request our Government to instate an official moratorium on executions pending the assessment of the report on effectiveness of the death penalty;
• To urge the Malaysian Government to ratify the International Covenant on Civil and Political Rights, in particular its Second Optional Protocol and to remove the reservation to the Convention on the Rights of the Child allowing for capital punishment for children to properly reflect the position of the law under the Child Act of 2001.

At the end of the roundtable, the situation of Mr. Kho Jabing, a Malaysian national sentenced to death in Singapore was presented by his legal representative and his family. Mr. Kho Jabing was to be executed on November 6 as his clemency petition was denied by the President but benefitted from a last minute postponement. His mother and sister, with the assistance of an MP from their constituency exposed their situation and exchanged with participants on the actions to be taken to save his life. Take action to stop his execution.