Malaysia says no ‘U-turn’ in death penalty abolition

Kuala Lumpur, Malaysia – As a lawyer, Liew Vui Keong helped one of his clients appeal successfully against a death sentence.

Now, as Malaysia’s minister in charge of law, he is working to get the death penalty abolished in it entirety.

The legislation could be introduced in parliament before the house finishes its current sitting in the middle of next month.

“We have made a decision and I don’t think we are going to make a U-turn,” Liew, the de facto law minister, told Al Jazeera. He said studies showed that capital punishment was not an effective deterrent.

“The [only] question is whether we can do it in this session [of parliament] or the next.”

Abolition of the death penalty was part of the election manifesto of the coalition that took power in May, the country’s first change in government in six decades.

With the repeal, it joins only a handful of countries in the Asia-Pacific that have abolished the death penalty for all crimes, and hands a reprieve to the 1,281 people who were on death row as of October 29.

A moratorium on all executions – Malaysia hangs those found guilty of capital crimes – is already in force.

Death row inmates are held in solitary confinement from the time of their conviction, and allowed out of their cells for just an hour each day, according to those allowed to visit them.

Many have been there for years as their appeals make their way through the courts; a process lawyers say can take at least a decade.

About one-quarter have been found guilty of murder.

Balancing feelings

Some families, including relatives of murdered activist Bill Kayong and deputy public prosecutor Kevin Morais, have already said they don’t support the abolition.

Last week’s death of an 11-month-old baby, suspected of being abused in the care of a babysitter, has also prompted calls to maintain the death penalty for the most serious crimes.

“This is where I have to balance the feelings of the family of the victims who were murdered,” Liew told Al Jazeera. “The Pardons Board can sit now to decide whether they want to commute that particular person to either life imprisonment or imprisonment for life.”

The start of that sentence should also date from the time the board makes its decision on the offender, rather than the date at which they were originally convicted, he added.

Australian Maria Elvira Pinto Exposto was sentenced to death in May for drug trafficking [Lai Seng Sin/Reuters]

“The government must not take a blanket approach to deal with death row inmates upon abolition,” the Anti-Death Penalty Coalition of Malaysia, a civil society group formed last month, said in a statement. “The government must review each case individually as some of these crimes do not deserve the death penalty in the first place.”

It’s a view echoed by the Malaysian Bar. Sentences should be proportionate to the severity of the offence committed, its president George Varughese said. 

Nearly three-quarters of those facing execution are people who have been found guilty of contravening Malaysia’s harsh drug laws.

Until earlier this year, anyone found with a certain amount of drugs – 200 grams for cannabis and 15 grams for heroin – was considered a trafficker and faced a mandatory death sentence.

But recent amendments to Section 39B of the Dangerous Drugs Act gave judges the option to sentence an offender to life in prison with 15 strokes of the cane, providing certain conditions were met.

‘I prayed’

Restaurant worker Shahrul Izani Suparman liked to play football and hang out with his friends in his village in Selangor, a state on Malaysia’s west coast.

Malaysian restaurant worker Shahrul Izani Suparman at the age of 18 [Family photo/Al Jazeera]

But when he was 19 he was stopped at a police roadblock and arrested after officers found 622 grams of cannabis hidden in the motorbike he’d borrowed from a friend.

Six years later he was sentenced to death – at that time the only option available to the judge – and transferred to death row where he found himself in a cell close to the “bilik akhir” – the final room – where inmates are taken the night before their execution.

“I prayed,” Sapenah Nawawi, Shahrul Izani’s mother, recalls in an interview through a translator. “I thought if this is what is fated then I accept it. But if my son has a chance to live I hope he does.”

Many of the prisoners had been abandoned by their families who couldn’t handle the social stigma of having a relative convicted to death, Shahrul Izani told her.

He thanked his mother for sticking by him.

In December 2016, with Shahrul Izani’s appeals exhausted, prison officials called the family and asked them to come – all of them – for a special meeting.

Sapenah remembers the drive to the jail was tense. Everyone was worried it might be the last time they would see Shahrul Izani.

But when they sat down with the officials, it turned out the Sultan of Selangor, following a global campaign, had decided to commute his sentence to life in prison.

“When we heard the news we were so happy,” she said. Everyone was in tears.

Sapenah supports the government’s decision to abolish the death penalty.

“A life sentence is good enough,” she said. “It gives people a chance to repent and come out of prison a better person.”

Miscarriages of justice

A year ago, South Korean student Kim Yun-soung was facing the death penalty on a charge of drug trafficking after being found with 219 grams of marijuana in a house south of Kuala Lumpur.

But the aircraft engineering student was freed after the main witness – the arresting officer – admitted lying about who was in the house at the time of the raid.

The police officer insisted in court there had been no one else at the scene of the arrest, but CCTV footage obtained by the defence clearly showed a second person in handcuffs.

“I am so happy and relieved and cannot describe my feelings,” Kim’s grandmother told the local media through tears of joy after he was acquitted.

Research from the Penang Institute, a think-tank, examining 289 capital cases found “inconsistency and a high judicial error rate” when it came to the death penalty in Malaysia.

Using legal publication databases, the institute found on average more than one-quarter of High Court judgements and half of Court of Appeal decisions were overturned by the immediate higher courts, mostly in relation to evidence.

“Decisions made by the high court have more than a one-in-four chance of being overturned,” the October 30 report noted.

The type of offence, the accused’s ethnicity, nationality and even the location of the offence were all found to contribute to the errors, while women were far less likely to be acquitted in drug trafficking cases than men.

Lim Chee Han, one of the report’s authors, said its findings were further evidence of the need for the death penalty’s abolition.

“It’s quite big considering this is a life and death matter,” he told Al Jazeera.

‘A new era’

About 44 percent of death row inmates in Malaysia are foreign nationals with the largest group from Nigeria, followed by Indonesia and Iran.

The Philippines is still reconciling the number of its nationals on death row. The embassy said there are “at least 50”, including a group of nine who were sentenced to death for their part in the armed incursion into a settlement in southern Sabah.

It would like to see the commutation of sentences take into account each individual’s crime.

“We are hoping the law will be more nuanced in terms of the severity of the crime,” Ambassador Charles Jose told Al Jazeera.

Liew said the priority now is to secure cross-party support to ensure the abolition’s smooth passage through parliament. The cabinet has already directed all ministries to get feedback on the repeal.

At least 32 offences across eight different pieces of legislation currently carry the death penalty, and in some cases the sentence is mandatory.

All will need to be amended for the abolition to become a reality.

Liew and his staff look queasy as they recall a recent visit to prison where officers explained how executions are carried out.

The inmate gets 48 hours notice and is moved to “the final room” the night before. 

“It’s just 15 seconds,” Liew said of the time it takes from the hood being placed over the prisoner’s head to their death on the gallows.