Abolishing mandatory death penalty gives judges flexibility: UTM academic

KUALA LUMPUR – The government’s move to abolish the mandatory death penalty and leave sentencing to the courts’ discretion is considered a relevant move to give judges space to make more accurate decisions based on the offences committed.  

Universiti Teknologi Malaysia (UTM) constitutional expert, Assoc Prof Muhammad Fathi Yusof said the mandatory sentence contains certain elements that bound judges to impose the death penalty when an individual is found guilty.  

Fathi said the situation had resulted in judges not being able to make flexible decisions upon conviction, despite there being elements that should be able to reduce sentences. 

“The government’s decision gives the judge an opportunity to assess if a person is found guilty, but has elements which makes it possible for the severity of the punishment to be reduced. 

“Therefore, the offender is not necessarily sentenced to death. Instead, he is imprisoned, caned and the like, based on the provisions of existing laws,” he told The Vibes’ Bahasa Malaysia sister portal Getaran. 

However, Fathi, who is also a law and policy lecturer at UTM, urges the government to review the decision on abolition with a substitute sentence subject to the court’s discretion, as practised in some European countries. 

There is a need for the revision, he said, considering Malaysia adopted the principle of local laws which sees the death penalty having to be imposed for certain offences. 

He expressed hope that the abolishment of the death penalty is not implemented in its entirety.  

“The need to maintain the death penalty for offences such as murder is still necessary because based on Islamic principles, the act is a major offence as it involves a person’s life.

So, those found guilty of murder should be subjected to the death penalty,” he said. 

Alliance for Safe Community chairman Tan Sri Lee Lam Thye echoed Fathi’s sentiments.

Lee described the decision as an important and positive development, which is in line with the opinion of various parties in the country who feel it is high time for the government to review the mandatory death penalty.

However, he hoped that the decision would be followed by immediate coordination efforts in realising the abolishment. 

He said the study on the issue and announcements made by the government are steps in the right direction.  

In fact, Lee considers it to be a positive approach, but he noted that the abolishment might need time to be realised as many amendments has to be made. 

“There are various laws related to (the) mandatory death (penalty), so I hope all these matters can be coordinated and expedited,” he said.

The abolishment of the mandatory death penalty and leaving the sentencing to the court’s discretion will allow judges to use discretion in sentencing after hearing the case based on facts presented. 

There have been previous cases of drug traffickers being sentenced to death, but the people who are actually involved are ‘big bosses’, but they can evade law and not be arrested, instead the drug mules get arrested.

“If such a case is being brought to court (with the abolition of the mandatory death penalty), the judge can determine the sentence, for instance, life imprisonment or several years behind bars.”

Yesterday, Putrajaya agreed to abolish the mandatory death penalty and to substitute it with other sentences subject to the discretion of the courts.  

Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar said the decision was reached following the presentation of a report on the study of substituting sentences in place of the mandatory death penalty that he presented in Wednesday’s cabinet meeting. 

However, Prime Minister Datuk Seri Ismail Sabri Yaakob later explained that the death penalty will remain and not be abolished, and the change is only on the fact that judges are now given discretion in sentencing.  

Ismail Sabri said, with the decision, the “mandatory” part will be removed and judges will no longer be bound by the word, which had previously left them no choice but to impose the death penalty on criminal offenders as provided by law, such as in drug trafficking cases. – The Vibes, June 11, 2022