By Audrey Lim (original post : the Sun, 21 Oct 2010)
THE death penalty has been regularly debated in Malaysia. Proponents of the death penalty argue that it serves as a deterrent, whereas activists and abolitionists argue that it undermines the value of a person’s life, hence violating a person’s “Right to Life” provided in Article 3 of the Universal Declaration of Human Rights (UDHR) and similar provision in the International Covenant of Civil and Political Rights (ICCPR).
The death penalty also appears to violate Article 5 of the UDHR which states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.
Deterrent or a diminution of life’s value?
Those who advocate the death penalty perceive it to be an effective deterrent, one that will help lower crime rates. Some contend that some criminals are beyond rehabilitation, and subjecting them to capital punishment will be for the greater good.
However, the extent to which the punishment lowers crime rates is debatable. Take for example, Hong kong and Singapore – two cities, similar in demographics and population, but different in terms of their policies on the death penalty. Professor Jeffery Fagan in his research, “Executions, Deterrence and Homicide: A Tale of Two Cities” (Aug 31, 2009), found from his data that execution-free Hong Kong is “just as safe a city from criminal homicide as is Singapore”.
On the other hand, abolitionists assert that the death penalty is a form of inhuman punishment. Regardless of how a person is executed, be it by a firing squad, hanging or lethal injection, taking a person’s life is inhuman.
In addition, if the death penalty is an effective deterrent, should the necessity of such a sentence decline over time?
The death penalty and the right to life in the Federal Constitution
The right to life is recognized in the Federal Constitution in Article 5(1), which states that “no person shall be deprived of his life or personal liberties save in accordance with law”. Any action or law which violates a person’s right to life or personal liberty will be struck down and declared illegal and void as being inconsistent with the Federal Constitution.
In a unanimous decision of the Federal Court in Lee Kwan Woh v Public Prosecutor (2009) 5 MLJ 301, it was held by Justice Gopal Sri Ram that the judiciary should adopt a wide interpretation of the Constitution:
On no account should a literal construction be placed on (the Constitution’s) language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights. In our view, it is the duty of a court to adopt a prismatic approach when interpreting the fundamental rights guaranteed under Part II of the Constitution. When light passes through a prism it reveals its constituent colours. In the same way, the prismatic interpretive approach will reveal to the court the rights submerged in the concepts employed by the several provisions under Part II. Indeed the prismatic interpretation of the Constitution gives life to abstract concepts such as “life” and “personal liberty” in Article 5(1).
The death penalty for murder is contained in section 302 of the Penal Code. It is also available for other crimes such as drug trafficking (Dangerous Drugs Act) and possession of firearms (Internal Security Act).
As the right to life is subject to “law” in Article 5, it is important to question whether laws which provide for mandatory death by hanging in Malaysia are, in light of international human rights principles, good or bad laws.
Surely, the mandatory nature of the death penalty fails to take into account an accused person’s individual, extenuating circumstances.
Take the case of Yong Vui Kong. Due to his financially and emotionally unstable background he was coerced into drug trafficking, not fully understanding the consequences of his actions. He was only 18 years old when he committed the crime.
Considering these circumstances, killing him will not allow him to make amends. The penalty of death is a declaration that he is beyond rehabilitation.
Seen on its own, the death penalty is a violation of human rights; now, what more, the mandatory nature of the penalty? Upon conviction, the judge’s hands are tied. The judge has no choice but to order the death of Yong.
The mandatory death penalty violates one’s right to life. It fails to differentiate between different classes of crimes and their severity. In this sense, the imposition of the penalty is arbitrary and conflicts with fundamental rights protected by the Constitution.
Death penalty versus life imprisonment
In countries that have abolished the death penalty such as the United Kingdom, capital punishment has been replaced with life imprisonment. Proponents of the death penalty may argue that never-ending appeals and the overcrowding of prisons may incur higher costs than disposing of the convicted by death sentences. Why should the people’s income tax accommodate the maintenance of prisons?
On the other hand, there is no one fail-safe criminal justice system in this world. Not in America, certainly not in Malaysia. We have heard of many convictions which have been overturned for having been based on unsafe evidence. Crime rates have not decreased, and state-sanctioned killing desensitizes people towards violence in society.
It is my view that the death penalty should be abolished. We should instead focus our resources on keeping society safe from criminals. Prevention is the key.
聯邦法院對Lee Kwan Woh vS Public Prosecutor（2009）5MLJ301案例一致通過的判決中，法官哥巴斯里南表示司法界應對憲法採取更廣的詮釋：
憲法語言應採用逐字正確基礎來詮釋，尤其對於保證保護個人基本權利的條文。我們認為，法庭有責任像稜鏡般詮釋憲法第二部分保證基本權利的條文。當光 線通過稜鏡將會顯示出其中的七種顏色，同樣的，以這種方式來詮釋憲法就能解釋出第二部分憲法條文的概念背後的含義，也可以活化抽像概念，如第5(1)條文 下的「生命」及「個人自由」。
Audrey Lim is a member of the Constitutional Law Committee, Bar Council Malaysia (www.malaysianbar.org.my/constitutional_law_committee). The views expressed in this article are personal to the writer and may not necessarily represent the position of the Bar Council.
“The Rakyat Guides” are available at the Bar Council and offices of the state Bar Committees. You can download the guides at www.perlembagaanku.com.