Lawyer calls for review of laws that don’t deliver justice

Give judges discretionary powers in death penalty cases, says Abdul Rashid Ismail.

KUALA LUMPUR: There is a need to review laws with only one single punishment and which do not provide equal justice to everyone, a lawyer said yesterday.

Some laws, said Abdul Rashid Ismail, had mandatory death sentences and as such did not take cognisance of the differences in situations and did not allow the power of discretion to judges.

Rashid, the past president of the National Human Rights Society (Hakam), said the criminal justice system was such that when a person was convicted of a crime which carried the death sentence, he would get the mandatory death sentence.

However, he noted that not everyone’s criminal offence was of the same level of severity.

“But because our laws have the mandatory death sentence, judges do not have discretionary powers. Maybe for one offender, it is their first time. Therefore, is the death penalty suitable?

“We need to review the laws because there is no justice in terms of the punishment for offences,” he said at an “Abolish the Death Penalty” forum and art exhibition at Wisma WIM here last night.

The forum was opened by Segambut MP Hannah Yeoh.

Also present were Suaram documentation and monitoring officer Dobby Chew, Amnesty International Malaysia executive director Shamini Darshni Kaliemuthu and Taiwanese prison warden and artist Ewam Lin.

Rashid said there was a need to give judges discretionary powers to consider mitigating factors to either reduce or increase sentences.

“Judges need the discretion to determine the level of severity of the offences committed. Surely those who are first-time offenders will not be given the death sentence immediately?” he asked.

To a question as to what happens to those who commit crimes, such as murder, in the absence of the death penalty, Rashid said the abolition of the death penalty did not mean “we let people go”.

“There is still the life sentence. When a person has to spend 30 to 40 years in prison, their suffering is far greater. We are doing them a favour. Individuals in prison, they do not have much to do, hence they will have a lot of time to reflect,” he said.

Rashid also spoke on the imperfections of the criminal justice system, where the poor facing the death penalty would often get the short end of the stick.

He explained that when an accused could not afford a lawyer, one was assigned by the court.

“Because the lawyers are appointed by the court, the quality and the standards vary.

“These lawyers get paid RM6,000. And mind you, there is a lot of work that goes with death penalty cases, and when they are paid that amount, not everyone will actually put their heart and soul into the case,” he said.

Rashid said some became lawyers to earn a living while others were truly passionate about their profession.

“With the pool of lawyers, the quality varies. In facing the death penalty, the poor get unequal representation.

“With the system that we have, if the lawyer is unable to give 100% to the client, who suffers? Is it justice? It is like a lottery,” he said.

Rashid urged Malaysians, as people with compassion, to think about the less fortunate, and not just themselves.

“Imagine those who cannot afford legal representation. If you have the death penalty, the poor will always be the greater losers. Even those who are not so poor – the middle class – they would not have the means either.

“Not everyone can actually take out RM50,000 to pay (for legal fees). There are people (who have gone to the extent of) selling their properties.

“Think about this particular problem. If someone is not given proper representation, they may not succeed. The law is against you,” he said.

Another issue, Rashid said, was how people tended to judge others based on how they spoke.

“Say, there is someone with mental health issues. They do not know how to speak. And we judge, like judges, based on how they speak.

“For example, you have a very good witness who lies, but speaks well, and then you say ‘oh what a great piece of evidence’.

“But an honest person who cannot speak well, who did not get a proper education, you don’t understand them and you say they are not telling the truth,” he said.

Rashid said the government’s decision to abolish the death penalty sent a message that “justice is not only for the rich but also the poor”.

The Cabinet decided in October last year to abolish the mandatory death penalty for all offences. All death sentences have since been stayed until the abolition of the death penalty comes into effect.

De facto law minister VK Liew reportedly said the Cabinet would make a final decision at one of its weekly meetings next month on whether to table in Parliament a proposal to abolish the death penalty.

In Malaysia, 32 offences under eight acts carry the mandatory death sentence, including murder, drug trafficking, kidnapping, treason and waging war against the Yang di-Pertuan Agong.