Capital and Corporal Punishment

As reported by SUARAM:

A number of laws in Malaysia carry a mandatory death penalty. These include murder under section 302 of the Penal Code (F.M.S. Cap 45), section 57 of the Internal Security Act 1960 for possession of a firearm or part of a firearm and section 39B (2) of the Dangerous Drugs Act 1952 for possession of proscribed drugs above a certain specified quantity i.e. 15 grammes for heroin and 200 grammes for cannabis. The death penalty is also provided for the offence of treason under section 121 of the Penal Code and possession of firearms under the Firearms (Increased Penalties) Act 1971.

In prosecutions under the Dangerous Drugs Act 1952, after possession above the specified amounts is proved to the required standard by the prosecution, a presumption then arises that the accused is trafficking in drugs which has to be disproved by the accused to avoid a conviction and the resulting death sentence. Section 40A (1) of the same Act provides that the evidence of an informer or agent provocateur is admissible in court even when the informer has encouraged the commitment of the offence. From the period between 1970 and March 1996, there have been 349 executions in Malaysia, the majority of which were for drug offences. Since 1993, 50 new death sentences have been recorded. Based on news reports, in 1993, there were 29 executions, the highest ever for any single year; in 1994 there were 10 executions; 5 executions in 1995; 3 executions in 1996, and 2 executions in 1997. These figures are based only on press reports, so the actual executions may be higher.

It is encouraging to note that the trend is towards a decreasing number of executions. However official statistics show that the death penalty has been ineffective in combating the drug problem in Malaysia. The number of known new addicts has been on the rise from 7,154 in 1980 to 13,140 in 1995. The total number of known drug addicts in Malaysia from 1988 to 1995 was 194,797. It is believed that the number of known new addicts rose by 18 % in 1995.

Offences under the Penal Code, such as murder under section 302, were tried until December 1994 by juries of 7 persons. However, in December 1994, the Malaysian Parliament amended the Criminal Procedure Code to abolish jury trials in these cases. The Bar Council and other NGOs complained that they were not consulted by the government before the tabling of such an important amendment to the law. It has been universally acknowledged that the death penalty is an inhuman form of punishment and violates Article 11 (1) of the Universal Declaration of Human Rights as well as Article 12 (2) of the Malaysian Human Rights Charter. The presumption of trafficking in cases under the Dangerous Drugs Act also violates international norms of fair trial in which all elements of the offence have to be proven by the prosecution (Suaram, 1999: 40).

Caning/whipping is a supplementary form of punishment to imprisonment for some 40 crimes including drugs offences, rape and attempted rape, kidnapping, firearms offences, attempted murder, causing grievous injury, child abuse, robbery and theft. The authorities are of the opinion that caning/whipping has a deterrent effect on criminals. During the nineties, the authorities have, at various times, suggested caning/whipping for white collar crimes, illegal racers and its organisers, illegal workers and employers found harbouring them, pimps, as well as for wife battering and juvenile delinquency. In December 1994, caning for economic crimes such as embezzlement, tax fraud and bribery was introduced. In 1996, the Immigration Act was amended to make caning a mandatory part of the sentence for those convicted of using forged passports and other immigration offences.

This form of punishment contravenes Article 5 of the Universal Declaration of Human Rights as well as Article 12 (2) of the Malaysian Human Rights Charter which states: "No person shall be tortured or subjected to cruel or degrading treatment or punishment by individuals, police, military or any other state agency." (Suaram, 1999:41).