PETALING JAYA: Legal experts have proposed that judges be given the discretion to impose the death penalty on accused persons who commit violent crimes.
They cautioned against a blanket removal of the capital punishment, saying it would send the wrong message to would-be offenders that their lives would be spared even if they are found guilty.
Retired Federal Court judge Gopal Sri Ram said public interest might demand the retention of the death penalty in cases such as the rape or murder of children.
“The circumstances surrounding the crime may be so gruesome that it requires the offender be put to death,” he told FMT.
Instead of scrapping the death penalty for all offences, he suggested that the courts be given the discretion to impose either a prison term or the death sentence.
He said this had been the practice prior to 1983, when judges were given the option to impose a custodial sentence or order the hanging of convicted persons in drug trafficking cases.
He was responding to the announcement by de facto law minister Liew Vui Keong that amendments to abolish the death penalty would be tabled in the coming Parliament sitting.
The mandatory death sentence is currently imposed for drug trafficking, kidnapping, possession of firearms and waging war against the king.
Lawyer A Srimurugan suggested that Malaysia emulate India, where courts are allowed to decide whether to take the life of a convicted person.
“This is also known as the rarest of rare case tests, as pronounced by their Supreme Court in two cases,” he said.
In India, he said, life imprisonment was the norm while the death sentence was the exception.
In Malaysia, he added, once the prosecution proves the crime of murder or trafficking, the court has no choice but to impose the capital punishment.
“A jail term is allowed only if the trial court orders the accused to enter defence on a reduced charge, or the prosecution amends the charge to culpable homicide not amounting to murder or possession of drugs.”
He said the government’s decision to abolish the death penalty was a knee-jerk reaction to please the public, as pledged in Pakatan Harapan’s election manifesto.
He urged for a detailed study to be carried out on the implications of a blanket ban on the death penalty.
Srimurugan also suggested that those charged with trafficking who were proven to be mere carriers be exempted from the death sentence.
“But kingpins and drug manufacturers should not be spared as they are responsible for untold suffering for the nation and its citizens,” he said.
Muhammad Rafique Rashid Ali agreed that discretion should be given to judges as they were the triers of facts and law.
“Judges are trained in law and have wide experience before they are elevated to the bench,” he told FMT. “Discretion must be placed in their hands.”
He proposed that the government set up a select committee to obtain feedback from the public before amending the law.
He said the committee should also study the prison system and the expense to the government if serious offenders are made to serve long years behind bars.
The criminal justice system, including the measure of punishment, should be tailored to local needs and circumstances, he said.
“We should be master of our destiny, and not be influenced by what is happening elsewhere, including in the West.”