2 of 3 DOCUMENTS

2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)

The Malayan Law Journal Articles
2010
Volume 5
[2010] 5 MLJ xciv; [2010] 5 MLJA 94
LENGTH: 8123 words
TITLE: Article: THE APPROPRIATENESS BETWEEN THE DEATH PENALTY AND MURDER OFFENCE
UNDER THE MALAYSIAN PENAL CODE
AUTHOR: Chua Ming Zuan Faculty of Law National University of Malaysia (UKM)
TEXT:
INTRODUCTION
Since the eighteenth century, the death penalty has become an inappropriate, barbaric and inhumane punishment for
those who have committed such offences that have to be inflicted with the death penalty. Cesare Beccaria n1 in 1974
declared that capital punishment vis death penalty were both inhumane and ineffective, where capital punishment was
an unacceptable weapon for a modern enlightened state or society to employ, and was less effective than the certainty of
imprisonment. In addition, he argued that the death penalty was counterproductive if the purpose of the law is to impart
a moral conception of the duties of citizens to each other. For, if the states were to resort to killing in order to enforce its
will, it would legitimise the very behaviour which the law sought to repress. What are the dissimilarities between the
law which enforces killing to repress such behaviour and the very behaviour in which the law sought to repress? Such
difference is merely the actions of imposing death and the power of the judges in giving such penalty is governed and
upheld by the law. In another sense, one action is legalised by law and another is on the contrary. In the United States,
the death penalty has been the subject of a heated debate for almost 200 years. Both, the retentionists and abolitionists
have developed their own ritualistic argument on the key issues of the capital punishment controversy. However, it is
much more important to realise the appropriateness or inappropriateness of serving the death penalty for a murder
offence. There might be debate on the issue of death penalty under the Dangerous Drugs Act 1952, especially drug
trafficking. n2 However, does this means that the death penalty under s 302 of the Penal Code can be morally justified
and accepted?
WHAT IS WRONG WITH CAPITAL PUNISHMENT?
The major issue on the inappropriateness of capital punishment is about deterrence. Retentionists claim that capital
punishment is a unique deterrent to crime; an indispensible deterrent which deters others by way of example or to
rehabilitate the criminal. For instance, imposing the death penalty on a criminal would actually deter others from
committing such acts. Abolitionists on the other hand, disagree with the retentionist on deterrent function of the capital
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punishment. Their argument is that the death penalty would only increase the rate of serious crime as those who commit
a crime will not hesitate to commit it again since they feel that they have nothing to lose. Repentance would not be of
any help to them as they think that they will eventually be 'killed' even though they have repented. The retentionists
counter that if a life sentence is substituted with the death penalty, a man who has committed a crime which amounts to
life imprisonment would be just likely to commit other crimes or the same crime again since he has already been
subjected to a maximum penalty. Neither position is persuasive as both arguments are developed based on the
psychological factor of the offenders since the psychology factor is much more subjective. Creating arguments based on
the effects of the punishment would not able to serve a productive analysis instead of taking the view of humanitarian
theory.
According to the humanitarian theory, to punish a man because he deserves it is mere revenge; it is barbarous and
immoral. However, CS Lewis n3 in his opinion regards the humanitarian theory as a dangerous illusion and disguises
the possibility of cruelty and injustice without end. Furthermore, he urged the return of the traditional or retributive
theory not solely for the interest of the society, but for the interest of the criminal as well. His theory explains that the
humanitarian theory removes punishment from the concept of desert n4 which is the only reason that criminal law is
able of giving justice to the society. By perusing his theory, it is clear that the only way of determining the justiceness of
a punishment would be the deserveness of it. It is said that when someone has violated another's right and security, he
deserves to be punished, and if is a capital offence, he deserves the death penalty. According to Montesquieu: n5
Capital punishment represents a kind of retaliation, by which society
withdraws protection from a citizen who has sought to destroy another
citizen. This punishment is derived from the nature of the crime, drawn
from the fund of reason and the springs of good and evil. A citizen
deserves death, when he has violated the security of another and has
gone so far as to kill him or attempt to kill him. The death penalty
thus employed may be described as the medicine for a social malady.
It seems that both CS Lewis and Montesquieu's arguments denote that whenever we come across the issue of
justice, it certainly relates to the concept of desert. If so, should criminals deserve the opportunity of being accepted into
the society again? Do they deserve an opportunity to be recovered from their sickness? Do they deserve a chance to
prove their innocence? CS Lewis' argument, in my opinion, has ignored the sense of reality, whereby to him, criminal
law may be beautiful; it may be able to give justice and safety to the society and to the victims, but how many of them
actually attained justice? We are not questioning the effectiveness of the justice administration or the wisdom of a judge
here, but as to the reality that the 'law is blind'. Whenever we come across a dispute and the verdicts from the court, it is
always depending on evidence, arguments of the counsels and the discretion of the court. The innocence of people being
convicted is beyond our ability to ascertain; we will never know if the convicted is the real killer, or otherwise. Many
argue that equality before the law is the foundation stone of democracy; it is also a basic principle of the law of talion,
but experience tells us that the retributive capital justice is always tainted with biasness and by influential factors that
are beyond the control of the court of justice such as the poverty of defendant or convict. Even though people can
procure justice through law, it is merely for those who are capable of hiring a prominent lawyer to defend them. n6
Victims have public prosecutors to seek justice for them, but it is a losing battle for the accused, who is innocent and
financially incapable to bear the legal costs.
In the United States, before the abolition of the death penalty, the issue of racism flooded the administration of
justice in murder cases, especially on biasness against the African Americans. Gender bias would never be an
exemption along the administration of justice as well whereby female murderers received more chivalrous treatment.
This kind of issue is better known as the 'the discrimination issue'. William O Hochkammer Jr n7 in his writing brings
valid statistical analysis that denotes the existence of such discrimination where the death penalty was imposed more
frequently on the poor, the ignorant and on minority groups. If such discrimination was not uniformly applied, some
argued that it should be abolished. However, Williams believe that the capital punishment system should not be rejected
due to the existence of discrimination; it should be remedied instead. In his opinion, this unequal application can be
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overcome with remedy by a more conscientious administration. With all due respect, how should such discriminations
be remedied with a more conscientious administration? What kind of administration does it mean? If such
discrimination can be remedied, the abolitionist in the United States would have never choosen to abolish the death
penalty; instead, they would have remedied it. Again, William's argument ignores the maldistribution among the society
such as poverty.
Some believe that we ought never to punish someone for breaking the law but instead we ought to treat him as if he
suffers from an illness. Richard Wasserstrom n8 in his writing stated that the best way of treating those people who
are considered as sick people is a chance to contribute to the society to give them a sense of becoming a part of the
society. Be functioning in a satisfactory way within a society at the very same time. Meanwhile, Karl Menninger opines
that every criminal deserves a chance to be reintroduced into the society and redirected into a mutually satisfactory
adaptation to the world. Some may think that these kinds of opinions actually create a fantasy itself or is naive where it
ignores the sense of reality whereby the society would never be able to accept a criminal as a part of them. It is because
knowing that the culprit is also suffering from the punishment especially capital punishment-death penalty, may well
make the victims feel that they obtain at least some of their 'pound of flesh'. n9 The society seem to be taking
vengeance rather than being merciful when dealing with criminals. People believe that a criminal deserves to be
punished for the crime he has committed and to be served with a death sentence for if he has committed a heinous act.
PUNISHMENT V REHABILITATION n10
It is said that a legal system ought to abandon its attempts to assess responsibility and punish the offenders and it
ought instead to rehabilitate them, if possible. It is important to see that there are two very different opinions on what a
legal system ought to be, however the system of treatment is always desirable. Besides, some said, it is in fact always
ought to be preferred comparing punishment. The first argument is fixed upon the desirability of the system of treatment
in virtue of the fact that no offenders are responsible for their actions; hence no offenders are ever justifiably punished.
The second argument, meanwhile, emphasises the attractiveness of the treatment system as well criticises the less
plausibility of the punishment system. Lady Barbara Wootton while proposed such view, stated that every criminal
suffered from a sickness; a sickness of irresistible impulse, and she claimed that those people who commit crime are
considered as sociopath. These people should be provided with treatment instead, besides, there would be no good from
punishing even those who are responsible. Lady Barbara in her theory of 'elimination' actually eliminates the accused or
perpetrators' responsibility simply because they are sick. As we can see, in order to punish a criminal, it is necessary for
us to actually identify two essences, namely mens rea and actus reus. A lack of either will not be permitted provided
that such an offence is a strict liability. The first argument that is often stated is in terms of the sickness of the offenders;
sickness of the offenders actually negates the mental element of the crime committed. It is, based on the arguments,
definitely wrong and immoral to punish someone for something which he or she is not responsible for, or for something
that he or she could not help to avoid. No one ought therefore, ever to be punished for being sick. However, it is
important to realise that it is impossible to claim that all criminals ought to be exempted from punishment-treated
instead because they have sickness of this sort. Therefore, they should be treated rather than punished. It is a fact that
everyone who commits a crime would be found to be afflicted with a sickness which in some way rendered the action in
question unavoidable. Italian Cesare Lombroso (1876) in studying the criminality of criminals concluded that criminals
indeed share a different 'type' of genetics from non-criminals. Besides, he believed that one could literally see the
different characteristics of a criminal. He suggested that, typically, criminals had smaller brains, heavy jaws, abnormal
and asymmetrical skulls, projecting ears and a crooked or flat nose. Furthermore, they were often colour blind, left
handed and physically weak. Besides, in the 1960s, research by biologists indicated that a number of genetic
abnormalities were found in the cells of human beings. By abnormalities, it means the 'supermale syndrome' where
extra male chromosomes are found in the male gene (hence XYY). If there are any, such individual is claimed to be
more of height than an average male with below average intelligence. Besides, they may be twice as violent and
aggressive as the average man. n11 These scientific researches would not actually be able to convince people that
criminals are born, not made, and, that it is absurd to totally adapt such an approach when we come to the matter of
judging one's behaviour and one's personality. We have to realise that it is inevitably hard to deny that these scientific
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research done within a limited sample. Therefore, the outcomes are questionable as well.
People might wonder if those who commit crimes are really sick. Are they sociopaths as claimed? However, it still
remains as a matter of fact. It is inevitably difficult to actually ascertain the humanity of capital punishment, the
appropriateness between capital punishment and the offences that have been committed. The theory of the sickness of
the offender is very interesting and we can see the world from the criminal's perspective. However people will not take
into account the sickness of the offenders because the offenders, in the eyes of the victims, are the people who should be
responsible for their actions. The victims would need to blame someone for such their lost, and they would need
someone to take that responsibility. However, when we come to a law that deprived one's life, it is always pertaining to
humanity, the so called 'humanitarian's theory'. If killing is inhumane, then the law which imposes the death penalty is
inhumane as well. Some say, that no one in this world deserves to be imposed with the death penalty because they have
a right to live and to decide what is best for them. However, there are some opinions that resist such thoughts since the
victims also deserve the right to live, a right to decide what makes the best for them as well. If someone had deprived
their right to live, then, it is also correct to deprive the right to live of the person who had deprived others. The law, in
doing so is just the law that is helping those people who are the victims of this kind of heinous crimes. It is right to think
in this way, however, we need to accept the inevitably that there might be innocent people who are being accused and
convicted. If so, who will be helping them? As I mentioned before, the death penalty is a controversial issue that it is
hard to determine the humanity of it. Therefore, we have to consider the proportionality between these two issues when
we are asking about the humanity of the death penalty: the loss suffered by the victim and the probability of innocent
people being convicted, causing a miscarriage of justice at the very same time.
MURDER AND THE DEATH PENALTY
When talking about murder and the death penalty, this reminds me of two stories; n12 Charles Stuart and Adam's
stories. Charles Stuart lost his pregnant wife, Carole Dimaiti Stuart on 23 October 1989. As a consequence, Charles had
committed suicide. Prior to that, Carole and Charles were both attacked by a man, whereby Carole was shot in the face
and Charles was shot in the stomach. Eventually, this news had attracted most members of the society, whereby a
thousand of people paid their last respects at Carole's funeral. It is inevitable that this news caught most of the people's
heart, so poignant. Subsequently, people might start to wonder the reasons of abolishing death penalty. For them, if the
killer is so cruel, and is a menace to the society, why should the law retain his life? Some may think that the killer
deserves to be put to death because of what he has done and yet, he is not. He has ruined someone's life and yet, he does
not have to take any responsibility. People with such thoughts reflect the theory of CS Lewis whereby the rehabilitation
of the offenders or life imprisonment will not do justice and it removes punishment from the concept of desert.
According to CS Lewis, if the punishment has disappeared or has been removed, there would be something wrong with
the concept of desert. However, if an accused has not infringed a person's right, then the concept of desert would not be
applied since the concept of desert is all about the balance between appropriate punishments imposed upon a behaviour
which has infringed other people's right. If a person is innocent, then this concept would not be applied as well. If there
is a probability that the person being convicted and executed is innocent, then the concept of desert should not be
applied at all. There is another story which is able to denote the reason of abolishing death penalty. On 10 May 1984,
Adams was executed in Florida for murdering Edgar Brown. However, it is contended that Adams was not the murderer
of Edgar Brown; he was falsely prosecuted and executed. Adams's public defender called no witness during his trial.
Adams claimed that he was at Nickerson house playing cards precisely at the time of the homicide. Besides that, he also
contended that Vivian Nickerson and another man, Kenneth Crowell were off in his car at the very same time. It seems
like that the public defender never intended to help Adams and the jury spent a mere five minutes deliberating over the
sentence. Adams though had been convicted for rape and escaped from prison, but it does not mean that he is bad and
cruel enough to kill someone. One witness, Willie Orange, positively identified that Adams was the driver of the car
during that time and the second witness, John Thompkins, 'thought' Adams was the driver. Foy Hortman is the sole
person who had the chance to identify the killer of Edgar Brown. He testified that the person he tried to speak with
shortly after he heard someone come out from Brown's house was blacker than Adams and unlike Adams, the killer had
not moustache. Vivian Nickerson, the person who Adams claimed to have had access to his car was very large and had a
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strikingly masculine appearance. In fact, she resembled James Adams and her height and complexion fitted Hortman's
description better than Adams and yet Adams was the one being executed. Echoing Adams' attorneys' Clemency papers
in 1984:
In sum, had all of the evidence raising doubt about Mr Adams's guilt
been submitted to the jury, there would have been at least a reasonable
doubt about Adams's guilt. The evidence would have shown that the only
person who had an opportunity to observe the perpetrator was 'positive'
that Mr Adams was not that person. The evidence would have shown that
Willie Orange's identification of Mr Adams as the person driving away
from Brown's house wholly unbelievable because of his stated motive to
'get' James Adams. The evidence would have shown that a specimen of
hair asserted by the investigating deputy to have been recovered from
the hand of Mr Brown in the ambulance after the assault against him
could not have come from James Adams ... . Had the jury been told about
Vivian Nickerson's sworn testimony less than two months before James
Adam's trial which unequivocally corroborated Mr Adams's testimony that
he was continuously at Ms Nickerson's house from before the homicide
until well after the homicide, the jury would have been more likely to
suspect Vivian Nickerson as perpetrator than James Adams.
No doubt, the due process of law failed rather badly in the case of James Adams, and these deficiencies played a
critical role in his conviction and death sentence that we may doubt the innocence of James Adams. However, was
Adams truly innocent? There is no legal forum in which the innocence of death can be officially confirmed, or even
satisfactory investigated. However, if Adams was truly innocent, even we may not know, and if he was being life
imprisoned, he still has a chance to evoke the case and to prove his innocence even the chance might be tenuous.
Beccaria in Essay on Crime and Punishments n13 argued that the death penalty is final and unchangeable. If a person
is punished with the death penalty and is later proven innocent, then the capital punishment would offer no opportunity
to correct the action of the justice system. As Ernest van de Haag questions: 'can any amount of deterrence justify the
possibility of irrevocable injustice?' n14 If a capital punishment (which the death penalty is irrevocable) is meant to be
done with the purpose of deterring, if it is injustice, there would be no returning point of it.
Ernest van den Haag also claims that capital punishment is regarded as unjust because it may lead to the execution
of innocents, or because the guilty poor (or disadvantaged) are more likely to be executed than the guilty rich. The only
purpose of punishment is doing justice, where the guilty would be punished rather than the innocent, and the equally
guilty would be punished equally. However, if one does include justice among the purpose of punishment, said van den
Haag, it becomes possible to justify any one punishment -- even death -- on the ground of justice. Most of the people
object towards death penalty with reasons such as the death penalty is inhumane in nature. However, Van den Haag's
argument is different and is all about the proprietary of justice. In his argument, if justice is not a purpose of penalties,
then injustice cannot be an objection to the death penalty, or to the other; if it is, justice cannot be ruled out as an
argument for any penalty vis the penalty should be justifiable as well. Interestingly, Van den Haag draws our attention
on the 'maldistribution' n15 rather than the injustice of the penalties. Injustice does not occur during imposition of a
penalty, but during the process of imposing penalty. As said by Van den Haag:
... errors will occur in judicial proceedings: the innocent may be
found guilty, or the guilty rich may easily escaped conviction, or
receive lesser penalties than the guilty poor. However, there injustice
does not reside in the penalties inflicted but in their
maldistribution. It is not the penalty --whether death or prison which
is unjust when inflicted on the innocent, but its imposition on the
innocent. Inequity between poor and rich also involves distribution,
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not the penalty distributed. Thus injustice is not an objection to the
death penalty but to the distributive process -- the trial. n16
Van den Haag on the other hand, raises the question for someone who, however defines justice, cannot mean less
than to favour the least injustice. If the death of innocents caused by judicial error is unjust, so is the death of innocents
by murder. Van den Haag starts to draw the attention of those who claim to abolish death penalty because of injustice,
to open their eyes on the matter that injustice indeed happened to those who are victims of murders as well. If some
murders can be avoided by a penalty conceivably more deterrent than others such as the death penalty, then the question
that arises is, which penalty is actually able to minimise the number of innocents killed (by crime and by punishment)?
It is said that the death penalty would not significantly militate against it sometimes, if capital punishment deters
enough murders to reduce the total number of innocents killed so that fewer are lost than would be lost without it. Then,
it would be said to be just and equal. However, some said that the possibility of injustice argues against the death
penalty only inasmuch as the added usefulness (deterrence) expected from irrevocable is thought less important than the
added harm. However, it is not that the possibility of injustice argues against the death penalty lied between the
proportionality of usefulness or deterrence of death penalty, probable harm and probable inequities if without it. Yet, it
is always pertaining to humanity. It is inhumane to deprive someone's life which is not responsible or responsible for the
crime since it is also inhumane to deprive someone's life even with their permission (suicide pact). n17 The echoing
statement by Martin Luther King Jr is as follows:
A man must evolve from all human's conflicts. A method which rejects
revenge, aggression, retaliation. The foundation of such method is love.
A law which imposes the death penalty would be the law which legalises the very behaviour that it sought to
repress. The reason behind it is that when a law prohibits killing, and if so committed, then it would be imposed with a
punishment such as the death penalty. However, how about the very behaviour of the law that killed those who were
convicted with murder? Is the law good, reasonable or justifiable? If human natural instinct feels that killing is
inhumane, against the natural law, thus whatever kind of killing would not be permissible or justifiable, including the
law which is legalising killing. Life imprisonment for those who are convicted may not be enough to justify and restore
the loss suffered by the victim; however, the same question applies to the death penalty: was the death penalty able to
restore the loss suffered by the victim? What would a victim attain if the murderer was sentenced to death? On the
contrary, if the convicted is not the real murderer, the convicted actually is a victim as well. Therefore, they can both be
considered as the victims of the administration of justice. If we satisfy ourselves by imposing the death penalty on
someone who is really innocent, then we can be considered as a killer as well. Even though punishing the convicted or
the actual murderer is a vital part of attaining justice for the victims, however, finding the truth, the real murderer would
be the paramount part of attaining justice for the deceased (the victim). Imposing life imprisonment over someone who
has been convicted is not merely about preventing the inhumanity of the death penalty; however, it is about giving more
oppurtunity to find out the truth. For virtue of the deceased (victim of murder), it is vital for us to find and hunt for the
truth -- even though it is difficult, but it is not impossible. In order to attain this, it is necessary for us to leave as many
opportunities as may be to find out the truth. If a person convicted is dead because of the death penalty imposed on him
and he is later found to be innocent, then it would be useless and irrevocable.
THE OFFENCE OF MURDER AND ITS DEATH PENALTY UNDER THE MALAYSIAN PENAL CODE
Section 302 of the Malaysian Penal Code ('MPC') conferred the court power of imposing the death penalty to those
who are actually convicted with a murder offence. Only one punishment of a mandatory in nature is prescribed under s
302, n18 the death penalty. This would also mean that there is only one punishment for those who have committed
murder and are being convicted. There would not be any options like other countries, for example India, whereby the
sentence for murder may be death or life imprisonment with a fine. The phrase 'shall be punished' denotes the intention
of the law, that the death penalty is obligatory for the murder offence and the sole punishment. No one shall be forgiven
for committing murder, unlike children who are given a chance to be repented to change their behaviour and
delinquency by substituting the death penalty into imprisonment for a period which is determined by the discretionary
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of the Ruler of the State, or the Yang di-Pertuan Agong (the Highest Ruler). n19 It has to be understood that, such
death penalty would only be imposed if such particular person had actually committed murder. If otherwise, then the
court would not be entitled to impose it. There are four forms of murder under s 300, n20 from limbs (a) to (b), if any
murder charge reduced due to the successful application of anyone of the five exceptions to s 300, it will not come
within the ambit of the murder offence. n21
SHALL BE PUNISHED WITH DEATH OR IMPRISONMENT FOR LIFE UNDER S 302 OF THE INDIAN
PENAL CODE: WHY?
The Malaysian Penal Code imposes the death penalty on those who commit murder, yet the Indian Penal Code
('IPC') consists of alternatives n22 to imposing the death penalty. With regard to the quantum of the punishment, the
IPC provided a very large discretion to the court in the matter of awarding punishment, namely: the death penalty, life
imprisonment and fine. However, which one applied first? Life imprisonment is the sentence which the court awards to
those who commit murder and the death penalty would be the sentence that is imposed when the court finds special
reasons to be imposed with. It may be found that term 'special reasons' is difficult to put in a strait-jacket whereby each
case must depend on its own particular facts. Meanwhile, the question of sentencing would be left to the discretionary
of the court. n23 Under this section, the sentence of life imprisonment is the minimum, and that cannot be reduced
even if the court so desires. n24 It is the duty of the court to balance the seriousness of the case tried, whereby the
cases that are not falling amongst the rarest of rare case and mitigating circumstances are outweighing or equalling
aggravating circumstances would be imposed with life imprisonment. However, if the accused is a menace to the
society whereby the aggravating factors outweigh the mitigating factors, even sentences of life imprisonment is
altogether inadequate, then it would be more appropriate to impose the death penalty to the accused. The IPC is giving
alternatives on the punishment for a murder offence; however, the Malaysian system on the other hand is different
whereby Malaysian judges are given a sole punishment for a murder offence and that is the 'death penalty'. The reason
behind the IPC is that the deterrent effects on the punishment itself can actually deter the people around; besides it is
claimed to have ability to strengthen the social bonds, and is likely to send the wrong signal n25 to the society if any
leniency is shown toward the accused. Giving alternatives upon the sentences is actually creating opportunities to the
criminal to repent; if such criminal is a hard core who believes that 'life imprisonment' would just be a temporary stay
for a few years, and he is a menace to the society, he would then be sentenced to death. By perusing the alternatives
given under the IPC, the IPC itself is actually able to deter the society whereby only such offender that is impossible to
be rehabilitated would be sentenced to death. If someone has done murder, for the purpose of taking revenge, he may be
deserved a chance to repent. If he is someone that can be regarded as a menace to the society such as a serial killer and
sort of this kind, he would then be appropriately sentenced with the death penalty. However, the question arises upon
the determination on the term of 'menace to the society'. How would the courts determine term of 'menace to society'?
As we can peruse from the provision under s 302, it is the discretion of the court to determine depending upon the
nature of the crime and the circumstances of the offender that might reveal that the criminal is a menace to the society;
mere murderous attacks that are diabolic in conception and cruel in its execution would not fall under the meaning of
'menace to the society'. It has to establish that the collective consciousness of the community would be shocked if the
death penalty is not inflicted upon such murderers. n26 Under s 354(3) of the CPC, the court is required to state the
reasons for the sentences awarded, and for those cases of the imposition of the death penalty, the judges are required to
record a 'special reason' as justification for imposing the death penalty. However, in some cases, the court held that it
was neither necessary nor possible to specify the 'special reasons' which may justify the passing of the death penalty in a
given case. Therefore, it is still left to the discretionary of the court on deciding upon the question on sentencing. It is
necessary for us to understand that the requirement stated under s 354(3) of the CPC is neither feasible nor legally
permissible in giving a definite connotation upon the expression of 'special reasons' by the court. However, by virtue of
s 354(3) of the CPC, it is vividly indicating that India has begun to understand the inhumanity of the death penalty and
is trying to ordain a much appropriate sentence that would enable for it to be justified with humanity. By giving
alternatives for the punishment of murder offences, the IPC obviously denotes the intention of the Indian legislation in
abolishing death penalty. However, there might be certain reasons (the deterrent effect to the society) of retaining it and
making as a punishment to be inflicted in exceptional cases. As I mentioned before on the imposition of the death
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penalty on the rarest of rare cases, the collective conscience of the community is so shocked that it will expect the
holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards to the
desirability of retaining the death penalty, then death sentences can be awarded. However, in what circumstances can it
be regarded as to the extent described above? There are five circumstances, n27 whereby (1) when the murder is
committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse the intense and
extreme indignation of the community; (2) when the murder is committed for a motive which evinces total depravity
and meanness; which the murderer is hired by an assassin for money or reward or a cold-blooded murder for gains of a
person, vis-a-vis whom the murderer is in a dominating position or in a position of trust, or the murder is committed in
the course of betrayal of the motherland; (3) when the murder of a member of a scheduled caste or minority
community, etc is committed not for personal reasons but in circumstances which arouses social wrath, or in cases of a
bride burning or a dowry death or when murder is committed in order to remarry for the sake of extracting dowry n28
once again or to marry another or in an account of infatuation; (4) when the crime is enormous in proportion (for
instance, when there are multiple murders, say of all or almost all the members of a family or a large number of persons
of a particular caste, community, or locality, are involved); and (5) when the victim of murder is an innocent child, or a
helpless woman or an old or infirmed person or a person vis-a-vis whom the murderer is in a dominating position or a
public figure generally loved and respected by the community. n29 By perusing the circumstances given, it is
abundantly clear that such circumstances must be aggravating rather than mitigating circumstances. When a judge
comes to the process of decision making, some factors must be pondered upon such as the manner of the commission of
murder, motive for commission of murder and the anti-social or socially abhorrent nature of crime.
MALAYSIA AND THE DEATH PENALTY: SHOULD MALAYSIA ADOPT SUCH PUNISHMENTS AS S 302
OF IPC?
As I have mentioned before, when we are asking about the humanity of the death penalty, it is necessary for us to
consider the proportionality between: the loss suffered by the victim who deserves to be recovered from its loss, and the
probability of innocent people being convicted, causing a miscarriage of justice at the very same time. Section 302 of
the IPC is one of the finest law which is able to achieve the right stay of these proportionality. The law is legislated in
order to restore or maintain a peaceful and harmonised society whereby those who are criminals should be punished
accordingly. However, there are some issues that we must ponder upon, and that is the justice of a criminal justice
administration. As I have mentioned, it is hard to achieve a right stay in between the restoration of the loss suffered by
the victims and the probability of innocent people getting executed. The loss suffered by the victims is actually denoting
that the society is in danger, and therefore should be protected. However, if the offender is not a menace to the society,
he would then be only life imprisoned. On the other hand, I propose that the restorative justice system is the most
appropriate mechanism of restoring the loss suffered by the victim. How? Restorative justice is one of the justice
systems that emphasises on the welfare of the victims and the rehabilitation of the offenders. If a person is convicted
under restorative justice, it is under his obligation to restore the loss suffered by the victim. For instance, if a family
losses their father, and it causes them to be financially deficit. Thus, it is the responsibility of the offender (who
murdered their father) to solve their financial deficit. The family of the victim and the convicted can come to an
agreement under the supervision of a special department, to give a new responsibility to the convicted for restoring the
loss suffered by the victims. In this case, the convicted may bear the responsibility of a father. It is timely for the
offender to assimilate the loss suffered by the victim and rehabilitated, if possible. The offender should be allowed to
contribute to the society. Other than that, it is a newly borne system which enables to restore the relationship of the
community. This way, the relationship between the offender and victim can be harmonised and restored.
Besides, it is inhumane to deprive one man's life even if the law permits. The reasons are: firstly, if the convict is
innocent and executed, there will be a miscarriage of justice. Secondly, when a life of the person that is put to death and
later found to be innocent, then such execution is similar to 'killing', which is the very behaviour that the law sought to
repress. Putting a person to death, who is later found to be innocent, actually dismisses the justifications or reasons of
such person being inflicted with the death penalty. When there are no justifications or reasons, then the death penalty
can be considered as murder as well. Thirdly, the death penalty that is imposed on someone convicted with a murder
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offence will not restore the loss suffered by the victim. If the convicted is dead, who will bear the responsibility of the
loss suffered by the victim afterward, like the above mentioned case? Therefore, the death penalty is counter-productive.
The death penalty is regarded as unable to solve the social problems, and unable to restore society's disorder.
However, it is true that if a murderer is a menace to the society, the law shall not retain his life. The benefit of a
society must be protected. By the benefits of the society, it would certainly mean that the society needs to be restored of
its order, harmony and balance. If an offender is prosecuted and executed, some say that there will be an imbalance of
the social order. Therefore, the offenders should be rehabilitated instead. Even the constitution is allowing such law that
deprives one man's life for the sake of the safety of society. Such allowance could not be absolute. Article 5(1) of the
Federal Constitution (no person shall be deprived of his life or personal liberty save in accordance with law) is
questionable whereby inhumanity of such particular law is still permissible even if it is against the norms of a society. If
the Federal Constitution allowed such deprivation of life, the extent of such deprivation should be guarded. The
allowance should be restricted with certain stipulations which protect the people's right to live. Besides, art 5(1)
ironically seems to be rhetoric. Reason behind it is, if the life of someone is so important, there should be some
stipulations on the extent of the law where the deprivation of life is permissible. For instance, s 302 of the MPC is
giving the absolute power to the court on imposing the death penalty. There should be some stipulations on the extent of
the death penalty imposition as the principal enshrined under s 302 of the IPC. The method enshrined under s 302 of the
IPC is founded with love, mercy and for the benefits of the society as a whole whereby innocent people or a murderer
that does not fall under those five circumstances would be exempted from the death penalty and be life imprisoned; and
by life imprisonment, it would be his stay in prison for his whole life until his death. The safety of the society will be
safeguarded at the very same time. However, life imprisonment is the least favoured alternative that the writer insists to
adopt with, because by life imprisonment, it will contribute nothing to the society, as opposed to restorative justice.
Therefore, it is appropriate for the Malaysian legislation to adopt the alternative punishment enshrined under s 302
of the IPC. By taking such path, the benefits of the society as a whole can be safe guarded and the people, who have
mistakenly or unintentionally committed murder due to excessive anger, avenge and etc can be life imprisoned or
rehabilitated under restorative justice as proposed.
CONCLUSION
The law pertaining to the death penalty in Malaysia especially under s 302 of the MPC is in need for revised since
the humanity of the death penalty has already started to be questioned by many. Even though the murderer deserves to
be sentenced to the death penalty and the law permits it, yet it is still regarded as an inhumane punishment due to
reasons mentioned above. However, a deterrent effect of the death penalty cannot be ignored at the same time.
Therefore, the death penalty still remains as an important part of the law. Section 302 of the IPC denotes a very brilliant
approach by the legislation of India to minimise the injustice that may be arise in the process of the imposition. By
inflicting life imprisonment, make it as a rule to those convicted actually create opportunities for the court to revoke the
decisions which wrongly made. However, murderers which are a menace to the society will be punished with the death
penalty. Both punishments can be considered as the heaviest punishment that lies under criminal law; the deterrent
effect of such punishment would still be remained.
Return to Text
FOOTNOTES:
n1 Hood, Roger, The Death Penalty: A Worldwide Perspective, Claderon Press Oxford at p 9.
n2 Section 39B(2) of the Dangerous Drug Act 1952 (Act 234) provides: 'Any person who contravenes any
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of the provision of subsection (1) shall be guilty of an offence against this Act and shall be punished on
conviction of death.'
n3 Skolnick, Jerome H, Frost, Martin L and Scheiber, Jane L, Crime and Justice in America, Publisher's
INC; Lewis, CS,The Humanitarian Theory of Punishment at p 157.
n4 The concept of desert is deeply entrenched in everyday morality. Substance of this concept is that effort
deserves success, wrongdoing deserves punishment, innocent suffering deserves sympathy or compensation,
virtue deserves happiness, and so on. Society thinks that the getting of what is deserved is just, and that failure to
receive what is deserved is unjust as well as believing that it is good for a person to get what he deserves, and it
is bad if he does not--even if he deserves something bad, like punishment. However, it iswrong to treat people
better or worse than what they deserve, and it is right to treat them according to their deserts. In these and other
ways, the notion of desert pervades our ethical lives.
n5 De l'esprit des loix, 1978, Chapter 4, Book XII.
n6 See The Warping Effects of Race and Poverty in Charles L Black Jr, (1974), Capital Punishment: The
Inevitability of Caprice and Mistake, New York: WW Norton & Company.
n7 Skolnick, Jerome H, Frost, Martin L and Scheiber, Jane L, Crime and Justice in America, Publisher's
INC; William O Hochkammer Jr, The Capital Punishment Controversyat p 162.
n8 Baird, Robert M and Rosenbaum, Stuart E, Punishment and the Death Penalty: the Current Debate,
Prometheus Books Publications at p 51.
n9 Ainsworth, Peter B, (2000), Psychology and Crime: Myths and Reality, Harlow: Pearson Education at p
141.
n10 Baird, Robert M and Rosenbaum, Stuart E, Punishment and the Death Penalty: the Current Debate,
Prometheus Books Publications at p 51.
n11 Ainsworth, Peter B, (2000), Psychology and Crime: Myths and Reality, Harlow: Pearson Education at
p 64-66.
n12 Baird, Robert M and Rosenbaum, Stuart E, Punishment and the Death Penalty: the Current Debate,
Prometheus Books Publications at p 95.
n13 Melton, J Gordon, The Crusade against Capital Punishment. See Baird, Robert M and Rosenbaum,
Stuart E, Punishment and the Death Penalty, Prometheus Books Publications at p 113.
n14 Ernest van de Haag, On Deterrence and the Death Penalty. See Baird, Robert M and Rosenbaum,
Stuart E, Punishment and the Death Penalty, Prometheus Books Publications at p 126.
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n15 The term 'maldistribution' relates to the deficiencies on the distribution of the penalties.
n16 Ernest van de Haag, On Deterrence and the Death Penalty. See Baird, Robert M and Rosenbaum,
Stuart E, Punishment and the Death Penalty: the Current Debate, Prometheus Books Publications at p 126.
n17 A suicide pact is an example of unlawfulness in depriving someone's life even with their permission.
Besides, a suicide pact is considered as one of the criminal offences under s 4 of the Homicide Act 1957 (UK)
and s 306 of the Penal Code (Malaysia) which punish those whoever abets a person to commit suicide.
n18 'Whoever commits murder shall be punished with death.'
n19 Section 97 of the Child Act 2001 (Act 611).
n20 'Except in the case hereinafter excepted, culpable homicide is murder--
(a) if the act by which the death is caused is done with the intention of
causing death;
(b) if it is done with the intention of causing such bodily injury as the
offenders know to be likely cause the death of the person to whom the
harm is caused;
(c) if it is done with the intention of causing bodily injury to any
person, and the bodily injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death; or
(d) if the person committing the act knows that it is so imminently
dangerous that it must in all probability cause death, or such bodily
injury as is likely to cause death, and commits such act without excuse
for incurring the risk of causing death, or such injury as aforesaid.'
n21 Gopal Sri Ram and Andrew Christopher Simon, (2001), Mallal's Penal Law, Kuala Lumpur: Malayan
Law Journal at pp 501-502.
n22 Section 302 of the IPC provides: 'Whoever commits murder shall be punished with death or
imprisonment for life, and shall also be liable to fine.'
n23 Rajendra Prasad v State of Uttar Pradesh AIR 1979 SC 916.
n24 Shamin Rahmani v State of Uttar Pradesh AIR 1975 SC 1883; (1975) Cr LJ 1654.
n25 The writer pretends to understand the meaning of the words 'wrong signal' since neither the dictionary
nor the books explain such term. Such term is echoed from Ra Nelson's Indian Penal Code. See SK Sarvaria,
(2008), Ra Nelson's Indian Penal Code, (10th Ed), LexisNexis Butterworth, Vol 3 at p 2987.
n26 See SK Sarvaria, (2008), Ra Nelson's Indian Penal Code, (10th Ed), LexisNexis Butterworth, Vol 3 at
p 3007.
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n27 See SK Sarvaria, (2008), Ra Nelson's Indian Penal Code, (10th Ed), LexisNexis Butterworth, Vol 3 at
pp 3008-3009.
n28 This circumstance could only have happened in India whereby it is the Indian's culture for the bride to
give dowry to her bridegroom. However, by comparing the substance of such circumstance, we can conclude
that the murder has to be done in the purpose of gaining the murderer's desires or purposes rather than mere
intention to kill such as monetary purpose, sexual satisfaction, or in other means.
n29 Sushil Murmu v State of Jharkhand (2004) Cr LJ 658 (SC).
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