THE cabinet has passed the death sentence on death penalty. With that, Malaysia will join 106 countries that have abolished capital punishment. And if Parliament approves, mandatory death sentence will be taken off the statute book, saving 1,267 prisoners on death row from the noose. But doing away with death sentence is a very divisive issue as New Straits Times Press found out.
In a survey conducted by NSTP, 82 per cent of the 22,000 Netizens polled opposed the government’s move to axe the death sentence.
Many worry that doing away with capital punishment will embolden hardcore criminals. The families of the victims will be denied justice, they argued. We do not disagree.
But there are also cogent arguments put forward by the abolishers. Take the case of drug mules. They often turn out to be naive victims of scams. They just ferry an uninspected luggage of drugs for their “newfound lovers” not knowing that they are innocent preys of well-organised global syndicates.
Love cannot be more blind. Surely there is no guilty mind here.
Death penalty in such circumstances will be both unjust and unnecessary. But the hands of the judges are tied. For example, Section 39B of the Dangerous Drugs Act 1959 that concerns trafficking in dangerous drugs makes it mandatory for the court to pass the death penalty once the accused is found guilty. Sometimes the innocent do get sent to prison, a few of whom are exonerated posthumously.
The 1921 Australian case of Colin Campbell Eadie Ross, who was executed for the murder of a child despite evidence to the contrary, is instructive. Sadly, Ross was pardoned 86 years after his execution.
The law sometimes is asinine as this. Newspapers around the world do have occasions, now and then, to write about these unfortunate happenings. Sir William Blackstone, the English jurist, judge and Tory politician of the 18th century, was so troubled by the prospect of such miscarriages of justice that he has left a doctrine behind that says “the law holds that it is better that 10 guilty persons escape, than that one innocent suffer”. A way around this predicament is for the law to provide the court the discretion to pass the death sentence for murder and other heinous crimes rather than making it mandatory as it is the case now.
Perhaps our civil legal system may do well to take a leaf from Syariah law where the death penalty for murder is imposed only if the next of kin of the victim does not forgive the murderer or does not agree to accept diyah (blood money).
The authority for this is Surah Al-Baqarah, Ayat 178 which means “... if the murderer is forgiven by the brother (or the relatives) of the victim against blood money, then adhering to it with fairness and payment of the blood money to the heir should be made in fairness. This is an alleviation and a mercy from your Lord...”. So you have it: compassion for the accused and justice for the next of kin.