An eye for an eye

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.

死刑違反人權?

死刑是我國備受爭議的熱門課題。贊同死刑者表示死刑有殺一儆百之效,而反對死刑者則認為死刑否定了人類生命的價值,因此違反了世界人權宣言(UDHR)第三條的人類「生存權」,以及公民權利和政治權利國際公約(ICCPR)類似條文。

死刑也似乎違反了世界人權宣言第五條,即「任何人不得加以酷刑,或施以殘忍的、不人道的或侮辱性的待遇或刑罰」。

提倡死刑的人認為死刑能殺一儆百,有助降低犯罪率,有些還認為一些罪犯已無法改過自新,因此死刑符合大眾的利益。

但,死刑能否降低犯罪率還是具爭議性的。舉例來說,香港與新加坡,這兩個城市的人口相似,但對死刑的政策卻不一樣。Jeffery Fagan教授在他的研究中表示沒有死刑的香港「與執行死刑的新加坡一樣安全」。

反對死刑者則聲稱死刑是一種不人道的懲罰,無論如何執行,奪取一個人的性命就是不人道的。而且,如果死刑能有效制止犯罪,是否應該逐步減少執行呢?

聯邦憲法第5條承認生存權,寫說:「根據法律,沒有人須被奪取性命或個人自由」。任何違反個人生存權或個人自由的行動或法律將被撤銷,並因牴觸聯邦憲法,而宣佈違法及無效。

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」。

既然第5條規定生存權受「法律」約束,從國際人權原則中,探討我國環首死刑的執行是不是好的法律,非常重要。但,肯定的是,強行執行死刑忽略了被指控的人的情理部分。

以楊偉光的案件為例,楊偉光因經濟與情緒不穩定而在不知後果下參與毒品走私。他犯案時只有18歲。考慮這些因素,判他死刑將讓他沒有改過的機會,即宣佈他無可救藥。從這來看,死刑違反人權,而死刑的強制性性質呢?一當判罪,法官只有判楊偉光死刑,別無選擇。

強制性死刑違反了人的生存權,無法分別出罪行的輕重。因此,死刑抵觸憲法中的基本權利。

如英國這樣已廢除了死刑的國家,死刑已由終生監禁所代替。贊成死刑者可能認為無止境的上訴、監獄空間不足,比起執行死刑,更加重國家經濟負擔。為何納稅人的錢要用於維持監獄的運作呢?

世界上沒有完善的司法制度。我們知道許多案件以不安全證據來扭轉局勢的。犯罪率沒有因執行死刑而下降,人們也因死刑而變得對社會上的暴力漠不關心。

我個人主張廢除死刑。我們應專注於保護我們的社會免受犯罪的危害。預防勝於治療。


~~~~~~~~~~~~~~~~~~~~~~~~~

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.

About givelife2ndchance

Give Life 2nd Chance is a movement dedicated to work on abolish death penalty in Malaysia.
This entry was posted in Reports on Death Penalty and tagged , . Bookmark the permalink.

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