AHMAD IBRAHIM KULIYYAH OF LAWS

LEGAL RESEARCH
MANDATORY DEATH PENALTY IN MALAYSIA
CRIMINAL PROCEDURE I (LAW 4310)
SECTION 1
Lecturers name:
DR. RANI
Group members:
MAWAR NUR IZATTI BINTI MD ZAMRI 1324580
NUR SYAKIRAH BINTI AZHARI 1328408
Capital punishment in Malaysia is a legal form of punishment. It is a mandatory
punishment for murder, drug trafficking, treason, and waging war against Yang di-
Pertuan Agong (the King). Recently, the law has been extended to include acts of
terrorism. Any terrorists, and anyone who aids terrorists, financially or otherwise, are
liable to face the death penalty. Since January 2003, the death penalty in Malaysia has
been a mandatory punishment for rapists that cause death and child rapists. A 1961
law states that kidnapping carries a life sentence or a death sentence, preceded by a
whipping. Foreigners are not exempt from the death penalty.

Only the High Courts have the jurisdiction to sentence someone to death. Juvenile
cases involving the death penalty are heard in High Courts instead of the juvenile
court where other juvenile cases are heard. Appeals to the Court of Appeal and
the Federal Court are automatic. The last resort for the convicted is to
plead pardon for clemency. Pardons or clemency are granted by the Ruler or Yang di-
Pertua Negeri (Governor) of the state where the crime is committed or the Yang di-
Pertuan Agong if the crime is committed in the Federal Territories or when involving
members of the armed forces. Death sentences are carried out by hanging as provided
in Section 281 of the Criminal Procedure Code. Pregnant women and children may
not be sentenced to death.

Between 1970 and 2001, Malaysia executed 359 people. As of 2006, 159 people
remain on death row.1

The idea behind capital punishment in Malaysia arose from a mix between the
common law system that Malaysia inherited during their colonisation period from the
British and the authorisation of certain punishments from Islam. Currently, death
penalties are carried out in Malaysia through hanging and the penalty is used for a
variety of offences. Under Article 5(1) of the Constitution of Malaysia, the death
penalty was not expressly prohibited and this has yet to be re-appealed by parliament.

In a recent report on the death penalty carried out by Amnesty International on 27

April 2014, there have been at least two executions carried out in 2013. Amnesty
noted that it was not able to gain the official figures given that there was a lack of
information provided by the government on the matter.

1
https://en.wikipedia.org/wiki/Capital_punishment_in_Malaysia
As for the number of people charged with an offence carrying the death sentences in
Malaysia, it was estimated to be about 76 while there was an estimated 992 people on
death row in Malaysia by the end of 2013.2

Amnesty International noted in their report that the way the death sentence was
passed in Malaysia happens to be inconsistent with International Covenant on Civil
and Political Rights (ICCPR) given that the sentence does not take into consideration
the defendants personal circumstances or the circumstances of the particular offence
during the trial. It was held that for some of the offences which carry the death
penalty, the offence does not require that a person have any intent on killing another
person thus it would not fall under the definition of a serious crime as stated by the
ICCPR. Such offences can thus be said to be inconsistent with the ICCPR and
universal human rights in general.

The mandatory death penalty is on the decline, largely as a result of judicial

challenges to its application. Since 2000, at least eighteen nations have discarded the
mandatory death penalty. National tribunals in the Americas, India, and Sub-Saharan
Africa have concluded that the mandatory death penalty is unconstitutionally arbitrary
and/or inhumane and some have determined that it violates the right to life, the right
to due process, and separation of powers principles.

However, a few countries such as Singapore and Malaysia have continued to uphold
the mandatory death penalty in the face of repeated constitutional challenges.
Singapores Court of Appeal has rejected arguments that the mandatory death penalty
is unconstitutional on the basis that it bears a rational relation to the social objective
of reducing crime and deterring would-be offenders.3

There are nine common methods of execution which include hanging, shooting by
firing squad, shooting, beheading, lethal injection, stoning, gas chamber,
electrocution, and falling from an unknown height. The most common method
authorized by law is hanging, with sixty countries authorizing this practice, while the
least common methods include electrocution, gas chamber, and falling from an
unknown height. The United States is the only country to authorize both
electrocution and gas chamber and Iran is the only country to authorize pushing

2
International, Death sentences and Executions in 2013, (27 March 2014) pg 8 & 24
3
http://www.deathpenaltyworldwide.org/mandatory-death-penalty.cfm
individuals from an unknown height. Additionally, the method of execution for
Maldives is unknown and Sudan uses a method which calls for retributive sentences
to be carried out in the same manner in which the offender caused death.

The countries that authorize hanging as a method of execution include Afghanistan,

Antigua & Barbuda, Bahamas, Bangladesh, Barbados, Belize, Botswana, Brunei,
Cameroon, Democratic Republic of the Congo, Dominica, Egypt, Equatorial Guinea,
Eritrea, Gambia, Ghana, Grenada, Guyana, India, Iran, Iraq, Jamaica, Japan, Jordan,
Kenya, Kuwait, Lebanon, Lesotho, Liberia, Malawi, Malaysia, Myanmar/Burma,
Nigeria, North Korea, Oman, Pakistan, Palestine, Papua New Guinea, Qatar, Saint
Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Sierra Leone,
Singapore, South Korea, South Sudan, Sri Lanka, Sudan, Swaziland, Syria, Tanzania,
Tonga, Trinidad and Tobago, Tunisia, Uganda, United States, Zambia, and
Zimbabwe. The Democratic Republic of the Congo specifies that they use hanging
only in military courts, but the president has the power to designate the method of
execution. Equatorial Guinea, Iraq, Lebanon, Syria, and Uganda indicate that they
only use hanging for offenses tried in civilian courts and India is the only country to
specify that they use hanging for offenses tried in both civilian and military courts.4

Essentially, the decision on discretionary death sentence will normally rely on the
different circumstances of the case. As it can be observed in Malaysia, the court
would adhere to the beyond reasonable doubt rule when it comes to the ruling on
death sentencing as the liberty and life of the accused is at stake. It refers to the
prosecution officer who will have to prove that the commission of the said crime by
the accused was actually beyond reasonable doubt or else the courts will not bring
about the issue of conviction. Beyond a reasonable doubt is the requirement for
sentencing someone to death.

However, there is a controversial issue with regard to the abolishment of the death
sentence. Mostly, this idea was raised by people who dislike the concept of death
sentence. The main reason for the death sentence to be abolished is that they alleged
the concept of death sentence is actually contradict with the right of life. It can be
seen that citizens around the world had become more aware about the importance of
their constitutional rights.

4
http://www.deathpenaltyworldwide.org/methods-of-execution.cfm
There is also another view that lead to the objection of such an abolishment of death
sentence. This mostly refers to the victims family and friends. In this situation, they
are demanding for the equal punishment towards the murder and so on. They would
definitely wish for a death sentence in return for the life that had been taken. Since
the ancient times, there has been an application of the saying, an eye for the eye, a
tooth for a tooth.

By looking at the reason of the establishment of the death sentence. Most probably Commented [u1]: Delete la yg cha highlight kuning ni

the capital punishment had been imposed because it is likely to deter more than other
punishments.5 It can be simply said that people actually fear death more than anything
else. Therefore, the implementation of such capital punishments would likely give the
awareness towards the citizens. They will become afraid to commit such crimes as the
heavier punishment of death sentence will be imposed towards the one who had
committed the crimes.

The issue of capital punishment could also be seen from the view of religious
perspective especially the Islamic view. Generally, according to the Federal
Constitution, Islam is the official religion in Malaysia. Therefore, we should rely on
the authority from the Quran and other references.

There is a verse or dalil in Quran which is dealing with the issue of death sentence.
In this ayah, it was stated,

Do not kill a soul which Allah has made sacred except through the due
process of law.

This verse indicates that such a clear sign which is actually underlying the principle
of Islam. From this verse, it emphasizes that no one should be given the right to kill
anyone unless it is accordance to the law. This statement provides such guidelines for
the usage of the punishment of death sentence.

According to Islamic law, the members of the victims family can opt for a number of
sentences. They can either choose the death sentence, diyah (blood money) or the
pardon of the offender for all his crimes.

5
http://kedah.kehakiman.gov.my/?q=system/files/document/Capital%20Punishment.pdf
(conclusion pasal abolishment of death penalty)

Second sub issue is what happens if the offender did not die after the execution has
been carried out. Below were stories of people sentenced with death penalty but did
not dies.

1. JOHN HENRY GEORGE LEE6

John Henry George Lee, better known as John 'Babbacombe' Lee, survived three
attempted judicial executions in England and is known as the man they couldn't
hang.

Lee was born in Abbotskerswell, Devon, served in the Royal Navy and was a
known thief. In 1885 he was convicted of the brutal murder of his employer
Emma Keyse at her home at Babbacombe Bay near Torquay on 15 November
1884.

The evidence was weak and circumstantial, amounting to little more than Lee
having been the only male in the house at the time of the murder, his previous
criminal record, and being found with an unexplained cut on his arm. Despite this
and his constant claim of innocence he was sentenced to hang.

However, on February 23, 1885, at Exeter prison, three attempts were made to
carry out his execution. All ended in failure as the trap door of the scaffold failed
to open. This was despite the fact it had been carefully tested by James Berry, the
executioner, beforehand.

6
http://murderpedia.org/male.L/l/lee-john-henry.htm
 As a result, Home Secretary Sir William Harcourt commuted the sentence to life
imprisonment. Lee continued to petition successive Home Secretaries and was
finally released from gaol in 1907. The only other known man in history to
survive three hangings is Joseph Samuel.

2. WILLIAM DUELL7

William Duell was a 17-year-old English boy convicted of raping Sarah Griffin
in Acton, London. He was sentenced to death. On 24 November 1740, he
was hanged in Tyburn, along with four others.His body hung for about 20 minutes
before being cut down. His body was brought to Surgeons' Hall to be anatomised;
but after it was stripped and laid on the board, and one of the servants was
washing it, in order to be cut, he perceived life in him, and found his breath to
come quicker and quicker, on which a surgeon took some ounces of blood from
him; in two hours he was able to sit up in his chair. That night, he was taken back
to prison in Newgate.

It was suggested that his bad state was what ultimately saved his life. By the
following day, he was back to full health. Meanwhile, the public had apparently
found out what happened to Duell, and there was great excitement over his case.
The authorities decided to change his sentence to transportation. He was sentence
to death.

3. WENSESLAO MOGUEL8

Back during the Mexican Revolution (1915) a young man by the name of
Wenceslao Moguel , whio lived in Yucatan, Mexico joined up with
Revolutionaries fighting on the side of Venustiano Carranza gathered up a group

7
https://en.wikipedia.org/wiki/William_Duell_(criminal)
8
https://mexicomystic.wordpress.com/tag/wenceslao-moguel/
of students to fight the opposing enemy, poorly armed and inexperienced they
were captured and a Col. Ortiz ordered their execution by firing squad. Wenceslao
was in the last group to face a squad of 8 soldiers and after a cigarette they fired 8
rounds into his body, he fell and the Col. Went over with a revolver and shot him
in the head with a Coup de Grace shot.

Another battle was taking place so the bodies were left where they were. But
Wenceslao wasnt dead, although severly wounded he managed to crawl to the
church of St. James Apostle three blocks away where a church member found
him, took him home a helped to stop his bleeding cared for him till he
recuperated. After the Revolution ended he became known as the miracle of the
executed man who returned from the dead. He traveled around the country and
even to the USA where he was invited on the Ripleys Believe It Or Not Radio
Program in 1937

From the above stories, it was understood that if the offender did not die after the
death sentence has been executed, their punishment will be changed to life
imprisonment. However, in this modern times, we have not heard such stories
anymore.

So far as Malaysia is concern, we do not have any case like this. The Criminal
Procedure Code used the term sentence to death by virtue of Section 218 of
CPC and this indicates that the offenders must die at the end of the execution. In
additional to that, Section 218 (e)(iii) provides that:

As soon as may be after judgment of death has been executed the Medical
Officer shall examine the body of the person executed and shall ascertain the
fact of death and shall sign the certificate thereof and deliver the same to the
Office-in-Charge

The fact that the Medical Officer shall ascertain the death and issue certificate
shows that the death punishment in Malaysia is carry out in serious way and no
one will be able to cheat or to escape their punishment. Thus, it can be concluded
that, the issue of not die will not arise and if it occurred, the authority will
proceed with the execution until he die because the wording in CPC is sentence
to death and not sentence to hang.