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Hudud And The Death Penalty

By Kua Kia Soong, Director of SUARAM, 14 October 2011
It is truly admirable that Malaysians oppose the inoperable hudud laws for their dehumanizing forms of punishment but I am surprised that these same people do not likewise vehemently oppose the death penalty that has existed in our system for so long.
On 20 July 1986, I presented a paper entitled ‘The Quality and Equality of Mercy’ at a Bar Council Seminar (subsequently published in INSAF) soon after the hangings of Sim Kie Chon, followed by that of Barlow and Chambers.
The Malaysian government’s response to foreign criticism was to point to their double standards and Dr Mahathir’s characteristic response was: “I don’t accept all this accusation of being barbaric…We learnt all this from them (Westerners).”
The Deputy Home Minister at the time was even quoted in Time Magazine on 5 August 1985 as saying: “The problem with the hanging process is that we’ve got to go through the ritual of appeal. That can take two years. I wish the Pardons Board would make faster decisions so that we can start hanging them…We plan to hang a person every week.” The Attorney-General’s Chamber even urged the mass media to “play up executions” as a deterrent. (Malay Mail, 18.8.83)
No Civilisation has a monopoly of Barbarism
Every feudal and pre-feudal social system – Chinese, Malay, Indian, Arab or European – has had penal systems involving the grossest cruelty imaginable. Punishment is an ancient response to wrongdoing. Throughout history, both the forms of punishment and the rationale for using it have changed markedly. Sociological studies have shown that penal systems everywhere are largely based on tradition, untested assumptions and inferences based on inadequate data.
The English penal system is usually cited for obvious reasons. During 18th century England, death was decreed for several hundred specific offences, particularly for those against property, including shooting a rabbit, stealing a handkerchief, damaging a public building. From the outset therefore, the law incorporated class and political considerations.
Comparative studies have shown that historically, the penalty as a judicial punishment has been seen to bear unequally and unjustly on the poor, on minorities and on oppressed groups in society.
The Triumph of Humanism
Progressively, the impetus for change was provided by the humanitarian and working class movements. The 18th century Enlightenment thinkers like Montesquieu and Voltaire provided the philosophical basis for reforms. There soon developed a more humanitarian outlook on crime and punishment and the emergence of humanist values.
A more humanitarian approach led to a concern for rehabilitation of “deviants” based on the personal worth of each human being. Thus, in the modern state and under international human rights standards, the judicial system is intended to protect the individual against the state. The 1948 Universal Declaration of Human Rights prohibits all forms of “cruel, inhuman or degrading treatment or punishment.”
Consequently, in 1908 hanging was abolished in Britain for children less than 16 years of age. Today, most countries forbid its use on offenders under the age of 18. Capital punishment for murder offences has been abolished in Britain since 1965. Although the issue has been brought up periodically in the House of Commons, it has always been defeated. Today, most of Europe has abolished the death penalty.
In the US, the death penalty was stopped by the Supreme Court in 1972 but was reintroduced in 1977. By the 1970s, capital punishment had been abolished as a statutory punishment in about one quarter of the world’s nations.
The judicial taking of life has been described as “the most pre-meditated and most diabolical of murders.” It is basically a relic of the primitive drive for revenge and it merely passes the responsibility to the judge or jury who are supposed to be acting on our behalf. It is indicative of the primordial psyche that we are not content that criminals be safely put away in prison, we demand their death!
Executions dehumanize society and undermine the common values upon which the full and free development of human society is based in all cultures. The value of human life is lessened once a state, in avowing the defence of its citizens, resorts to inhuman and degrading forms of punishment.
No Evidence that Capital Punishment Deters Crime
Perhaps the most popular misconception is that capital punishment acts as deterrence to crime for there is little evidence to show this. According to the British Home Office Research Unit study undertaken in the eighties, over the previous decade the increase in murders in the various categories had been insignificant. This was despite the fact there was a war in Northern Ireland.
Another strong argument against capital punishment is that it entails irrevocable miscarriages of justice. In Britain, if the law on hanging had not changed in 1964, at least six men would have been hanged for offences they did not commit. ASTRO watchers would have seen the film “Hurricane” about the former US boxer who spent more than twenty years in jail for a murder he did not commit. If he had been hanged soon after his conviction, his death would have been on the nation’s conscience forever!
This was accounted for by the fact that no legal system is infallible. Moreover, as in the case of Hurricane and also in the British cases, miscarriages of justice usually take time to surface. Repeated appeals had failed to establish their innocence.
The vulnerability of all criminal justice systems to discrimination and error must also be taken into account. There are also human factors involved, particularly, political expediency, discretion and public opinion especially in the granting of clemency. The decision to disallow the former CPM leader Chin Peng from visiting his ancestors’ graves is a clear example of these factors in play.
The world-wide comparative studies undertaken by Amnesty International have further shown that the wealthy, the politically well-connected and members of the dominant racial and religious groups are far less likely to be sentenced to death than the poor, supporters of the Opposition and members of minority groups. The Altantuya murder case demonstrates this tendency very well.
The Quality and Equality of Mercy
The Pardons Board is meant to be the last resort for the condemned when the judiciary has decided their fate. Under Article 42(5) of the Federal Constitution, it comprises the Attorney-General, the Prime Minister or Chief Minister, and three other members appointed by the Ruler or the Yang Di-Pertua Negeri. It tenders advice to the Yang Di-Pertuan Agung who acts on the advice to commute or not to commute the death sentence.
Thus, the Pardons Board is supposed to be capable of showing that human capacity for mercy or clemency. In the past, a former minister of culture, Mokhtar Hashim was pardoned after he had been convicted for murder. In the case of Sim Kie Chon, Barlows and Chambers during the eighties, the Pardons Board exercised its prerogative to refuse clemency on the grounds that it was “not justiciable”. The undue haste to execute them was absolutely unnecessary especially when there were complaints that all legal avenues to save their lives had not been fully exhausted.
The incongruity of the fate of Mokhtar Hashim and that of Sim Kie Chon led to demands by the public for the criteria by which the Attorney-General recommends commutation of the death sentence or otherwise. The desirability of the AG’s presence in the Pardons Board was also questioned since it was the AG who had instituted the prosecution and sought the death sentence in the first place.
It would be fairer and preferable for the Pardons Board to be made up of members who are seen to be independent and impartial, made up of the widest possible cross-section of society and representative of all classes and ethnic communities. A sizeable majority should be needed if the death sentence is to be upheld.
The case against the death penalty was best summed up by Lord Morris of Borth-Gest, a British High Court judge in the sixties:
Can we be sure that the utter and irrevocable finality of the death sentence can always be matched by positive certainty of guilt? In no country, with the fairest system of law, with the most humane and conscientious judiciary do I feel that we can be satisfied of that.”

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