BY UMSU PRESS
Brief History of Capital Punishment
The death penalty or capital punishment has been a long disputed topic within the legal field on various reasons stretching from the harsh nature of sanction via it to some arguing on why it ought to be maintained even in modern times. The capital punishment disputed now has been something that laws and regulations had adopted centuries ago since the ancient civilisation. The death penalty has been said to go back as far as the 18th century during the rule of Hamurrabi in Babylon where around 25 crimes were codified with the sanction being death. Other prominent civilisations that were shown to have adopted such punishments would be Britain which made death by hanging a usual form of execution by the 10th A.D. Various methods to render the capital punishment and none can be said to be humane though it seems as such when compared to one another. Methods consisted of crucifixion, beheadings, hangings and more. The reasoning that led to the death penalty back when the law was not very well revised and the emphasis of human rights would display forms of atrocious injustice as death could be handed on issues such as stealing. A fine yet harsh example would be in the year 1612 where the Governor of Virginia, Sir Thomas Dale had enacted laws that allowed executions for stealing grapes, killing chickens and carrying out trade with the Indians.
The Practice of Capital Punishment in Modern Times
Given that we now live in an era where the law has been more revised and has experienced the importance of human rights, many may expect harsh sanctions to have been revised to more proper and effective methods. In today’s situation, it can be said to be fairly different. Many countries have altered their laws to no longer practice capital punishment or stopped practicing it for certain crimes. At least 75 countries have done so since the year 1976. Examples of countries that halted it for all crimes would consist of the Netherlands in 1982, Australia in 1985 and Italy in 1994. Hence, the necessary scrutiny would begin to narrow as to why these countries changed the practice that has been accommodated by law for too long and why some countries still practicing the capital punishment and if they are doing so, is it directed to the crimes that are equally heinous. The latter issue is solely based on the fact that there are countries that still practicing the death penalty such as China, Iran, Iraq, Saudi Arabia, North Korea, Japan, India and our nation along with many other countries that have not rendered capital punishment obsolete.
The debate as to whether capital punishment ought to be abolished or if it is still a necessary practice for the sake of maintaining peace and safety for society rages on until today given that different countries have made different decisions regarding capital punishment in their respective laws.
Practice of Capital Punishment in Malaysia
Malaysia has yet to fall within the list of countries that have done away with capital punishment. Here, our laws have shown to render death by hanging toward crimes that may seem proportionate to be subjected to such harsh sanctions of the law. This would usually involve murder as seen in Section 300 of the Penal Code along with its punishment in Section 302. However there are circumstances where Malaysia has clearly taken the side of countries that render the death penalty for crimes that may not seem proportionate for such harsh sanctions especially in the current era. These crimes range from drug trafficking as shown in Section 39B of the Dangerous Drug Act 1952 which is the leading crime that has been rendered capital punishment to offenses of treason under Section 121 of the Penal Code. Other countries that practice the death penalty to this day share the same perception when facing this crime.
Reasons for maintaining the death penalty
The countries that have maintained the death penalty have clearly taken the view that it is still necessary given that the reasoning has been seen to be rational and of such importance when it comes to upholding the law.
i) Discretionary power to render capital punishment rather than it being compulsory
One of the massive factors regarding the death penalty especially when directed towards crime that has been seen to be not so proportionate to be associated with it such as drug trafficking would be the fact that it is not affirmed in law that death would be the outcome for such crime. This of course is not practiced in many countries but has been seen in our laws. This would be seen specifically in section 39B(2A) of the Dangerous Drug Act 1952 which created this path of leniency by taking into consideration the limited roles played by individuals in drug trafficking cases to avoid the sentencing of death towards them. Another factor viewed by courts would be if the accused had shown cooperation towards law enforcers in the said matter. Hence, it allows the judges to use their discretionary power to decide if capital punishment is necessary rather than allowing a rigid law or legislation to make it a must for crimes of drug trafficking. This enables the law to maintain such sanction as it is assured to be not wielded as pleased.
ii) Proportionate punishment for horrendous crimes
Another factor of allowing the capital punishment balls down proportionality of it towards certain crimes. This can be seen agreeable given that some crimes are just a depiction of savagery and may only be solved in similar manner via permanent incapacitation. Acts which involve murder or anything that causes such harm towards people which led to death may be seen to be proportionate when it is the death penalty which is rendered. This isn’t just to prevent similar acts from taking place in the future but is also seen as a necessary message to society that some crimes will be dealt harshly and there isn’t any leniency that can be given as it would only downgrade or weaken the law which stands for justice. Hence the penal code in Malaysia for instance which permits death via section 302 for murder may be seen as a proportionate sanction for the said crime rather than a cruel one.
iii) Deterrence from allowing crime to happen
Next, it is believed to be a form of deterrence for atrocious crimes from taking place. From the advantageous, may be agreeable to crimes which revolve around the death of another person. The same view is however not shared entirely when it is rendered to crimes that do not involve victims. Nonetheless it cannot be denied that the element of fear that death would be the result for certain crimes would still in a way play a vital role in ensuring it is deterred whether statistics display a trend in accordance to such expectations or otherwise.
Reasons for ending the death penalty
The advantages on the other hand stretch further with various reasoning and this comes to no surprise given that the trend of ending the death penalty had been adopted by more countries which would be 106 of them in contrast to those which had chosen to remain idol in this matter.
i) It is held to be not a form of deterrence
Firstly, the rebuttal to the inclined argument for maintaining the death penalty is that it doesn’t actually function as a form of deterrence for severe crimes. At least 88% of criminologists have held that the death penalty has not proven useful as deterrence. An additional solid evidence for this would be Canada that displayed a decline in crime rate ever since the abolishing of capital punishment in 1976. Hence this proves the capital punishment to be not as effective as many had presumed.
ii) There is no reversing the decision if an error is made
When death is rendered, there is no turning back from it. Hence, it can be seen why many countries practice law without it in current times. One incident of that sort was seen in Texas where Cameron Todd Willingham was sentenced to death for allegedly starting a fire that killed his 3 children. Further evidence had later shown that he wasn’t in fact guilty but it was too late. A surviving example would be KwameAjamu who was wrongfully put on death row for commiting a murder but was later freed when evidence revealed otherwise. Not many can be considered as lucky as him and the failure to filter those innocent makes the law that ought to protect the innocent function in the opposite direction.
iii) It affects the mental wellbeing of others
Carrying out an execution isn’t just costly but it also requires manpower and witnesses to ensure it is done in accordance to procedures. It is said many have faced mental issues and turned to drugs and alcohol with the inability to digest the fact an execution was carried out by their hands or with them to witness it. This is not a surprise as witnessing such events would only lead to shock if the person is able to walk out without any form of trauma and would be most suitable for the task that has been left behind by many countries.
iv) It is simply a violation of human rights
The right to life is for all and the capital punishment opposed that statement. Amnesty International views it as the ultimate denial of human rights as it ends the life of people in the name of justice. Additionally the view goes on to it being a cruel, inhuman and degrading punishment.
The Best Stand in This Issue
With all the advantages and disadvantages of the death penalty being inquired, it would be wrong to say that the death penalty is necessary but at the same time it may not be the time to actually set it aside yet given it is also seen important to handle certain crimes. However, Malaysia can or more necessarily should at least put itself on a more neutral stand regarding the death penalty and at least revisit it’s laws that render it and start filtering as to where it ought to be rendered and where it is best prevented from being a sanction. Given that drug trafficking can be said to be a victimless crime and one that is not of such severity based on how other countries apply alternative punishment without capital punishment in the mix of discussion as discretion to the judges is still far from conclusive as to whether the other cheek will be turned.
It may be time for Malaysia to also considers such laws for a better display of justice as maintaining the capital punishment for crimes other than murder has only led to intense scrutiny towards the legal system such as death row for marginalised groups, a less transparent system to unfair trials. It is time for our laws to also go with the trend as displayed by other countries that have done away with the death penalty but our lawmakers should also balance the importance of maintaining capital punishment despite the modern day scrutiny and criticism towards it given that even if it does have disadvantages, it is also bearing with it which makes it hard to remove from the law.
Written by Secretariat of Current Affairs 2021
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