PUTRAJAYA, June 13 — The death penalty still exists in Malaysian law even though the government has, on June 8, decided to abolish the mandatory death penalty, Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Dr Wan Junaidi Tuanku Jaafar said.
He said the government had agreed to abolish the mandatory death penalty and substitute it with other sentences which are subject to the discretion of the court.
“The government, through the Cabinet meeting, has agreed in principle on June 8 to do away with the mandatory death penalty, but it is still being implemented at the court.”
“The sentence is governed by existing laws (which have yet to be amended),” he told a press conference here today.
He said the mandatory death penalty refers to the provisions for criminal offences in which the convicted offender would be sentenced to death without exception as the judge has no other choice but to hand down the sentence for the offence, such as under Section 302 of the Penal Code.
Wan Junaidi said death penalty at court’s discretion means that judges will have options to sentence the person found guilty of a crime to either death or life imprisonment or whipping.
“It will be up to the discretion of the judge to decide depending on the type and the level of seriousness of the offence, trend of punishment, condition of the victim, cooperation and regret expressed by the offender, as well as other factors to impose substitute sentence to the offender,” he said.
The minister said the Special Committee on Substitute Sentences for the Mandatory Death Penalty led by former Chief Justice Tun Richard Malanjum made the recommendation on the new sentencing policy based on three principles.
For offences causing death, death penalty at court’s discretion will be maintained; for offences not causing death, death penalty should not be imposed by the court; and if the death penalty were not imposed, the offender an be punished with whipping, he said.
He said the special committee had also studied substitute sentences for 22 offences carrying the death penalty including under the Penal Code (Act 574), Arms Act 1960 (Act 206), Firearms (Increased Penalties) Act 1971 (Act 37), the Armed Forces Act 1972 (Act 77), Water Services Industry Act 2006 (Act 655), Strategic Trade Act 2010 (Act 708) and Kidnapping Act 1961 (Act 365).
Wan Junaidi said the amendment related to the abolition of the mandatory death penalty will be tabled for first reading at Parliament in October and it was expected that the provision of the law can be realistically abolished either in January or February next year.
“The government’s decision is a bold step forward (for Malaysia’s criminal justice system) to be seen as more humane,” he said.
He said a public survey will also be carried out on the abolition of the mandatory death penalty and if there were more objections than support, the matter will be taken back to the Cabinet to decide.
Wan Junaidi said many quarters had questioned the implications of the abolition of the mandatory death penalty for drug trafficking offences under Section 39B of the Dangerous Drugs Act 1952 (Act 234).
For that, he explained that Section 39B of Act 234 no longer provides a mandatory deathpenalty as it has been substituted with the death penalty at court’s discretion through the Dangerous Drugs (Amendment) Act 2017 (Act A1558) effective March 15, 2018.
Wan Junaidi said the government had also accepted and taken into consideration the recommendations from the special committee in regard to the direction of the criminal justice system in Malaysia.
He said this includes the introduction of pre-sentencing procedures, a sentencing council and a sentencing guideline, as well as the setting up of a Law Commission, prison reform and the execution of sentences based on restorative justice.
The minister said the Legal Affairs Division and the Attorney-General’s Chambers were also in the midst of studying the feasibility of the recommendation made by the special committee on 1,342 inmates whose death sentences were put on hold due to a moratorium.
He said the special committee also proposed the setting up of a special panel comprising Federal Court and Court of Appeal judges for the purpose.
“This matter needs scrutiny as it touches on constitutional issues,” he added.