SHOULD THE DEATH PENALTY BE ABOLISHED?

1. Introduction

In the international level, it is stated that large majority of the members of United Nation which

is about 150 countries have abolished death penalty sentence and some of other countries has

limited the offences that carry out death penalty sentence.1 United Nation opposed the

implementation of the sentence of death penalty as it violates the fundamental right provided

under Universal Declaration of Human Rights which is right to life.

On 20 December 2012, the General Assembly of the United Nations adopted a fourth resolution

on a moratorium on the use of the death penalty, with 111 countries voting in favour. In the Asia

Pacific region, 17 countries have abolished the death penalty, while 14 countries, including

Malaysia, retain it.2

While in Malaysia, even though the death penalty has not been abolished and still exist in the

Penal Code for certain offences, a few petitions for its abolishment and few discussions

pertaining to the unsuccessfulness of this corporal punishment to prevent serious crime have

been made. For example, in March 2012, Home Minister Dato’ Seri Hishammuddin Hussein

revealed in Parliament that the mandatory death penalty has failed to act as a deterrent.

This is supported with the statistic from PDRM that shows that the offence of drug dealer under

section 39B of Dangerous Drugs Act 1952 which carries the maximum punishment of death

penalty has shown increases in number which proved that death penalty as deterrence is a

failure.3 Furthermore, in 2013, a petition made by Archdiocesan Office for Human Development

has been made to urge the government to abolish death penalty.

From the above discussion, it can be said that strong opposition comes from the international

level that firmly stand and fight for the preservation of human rights while retentionist believed

1 Navi Pillai. High Commissioner for Human Rights. “Moving Away from the Death Penalty Lesson from National Experiences”.

2 Abolish Death Penalty in Malaysia. Petition by Archdiocesan Office for Human Development. 2013. Page 3.

3 Ibid. page 2.

that the death penalty is a form of deterrence and it should not be abolished. Both views will be

discussed thoroughly and at the conclusion, my own stand will be stated.

2. Death penalty as deterrence.

There are two types of deterrence which is general and specific deterrence.4

General deterrence is to deter the public or society from committing crime by publicizing the

death penalty punishment. By conducting the death penalty in public, this can create fear to the

one who witness the execution of death penalty for not committing crime or they will bear the

same consequence. The public and family members were allowed to attend so that they could see

what happened to those who broke the law. This is believed to prevent crime in a vast scale with

the involvement of society at large that will be affected by witnessing the pain of the one who

receive corporal punishment.

Meanwhile, the specific deterrence is aiming specifically to educate and to affect the criminal

himself. By imposing the punishment to the criminal, it is to threaten the criminal to not repeat

the same mistake as he will suffer the same consequence. This type of deterrence might not

applicable in the case of corporal punishment as the criminal has no chance to turn back and to

reflect as his life will be ended anyway.

Therefore, the question is whether the current practice of death penalty effectively deters serious

crime like homicide? To answer that, we have to look at the crime statistic in a state that

implemented death penalty and state that do not have it. Data from 1973 to 1984 show that

murder rates in the states without the death penalty were consistently lower and averaged only

63% of the corresponding rates in the states retaining it.5 According to statistics from the latest

FBI Uniform Crime Report, regions of the country that use the death penalty the least are the

safest for police officers. Police are most in danger in the south, which accounts for 80% of all

executions (90% in 2000).6

4 Deterrence Theory. marisluste.files.wordpress.com/2010/11/deterrence-theory.pdf

5 John Lamperti. “Does Capital Punishment Deter Murder?”. Page 4.

6 Deterrence: Death Penalty fails to deter crime. Death Penalty Focus. http://www.deathpenalty.org/article.php?id=82.

Does the current practice sentencing the criminal to death penalty is in line with its objective to

deter crime? If we look at the practice of executing death penalty in Malaysia, the executions are

not publicized. Jabatan Penjara Malaysia has the sole authority to execute death penalty. The

case will be heard by the High court and appeal case will be heard by court of appeal and Federal

Court. The final judgment will be given by the Federal court. If that highest court still maintain

with the execution of death penalty, the accused can apply for forgiveness from YDPA. If the

YDPA refused, he will be sentenced with death penalty.

Normally, the period taken from the judgment and execution is one year and nine months to

seven years and ten months.7 The execution will be conducted in a closed area and only certain

officers are allowed to witness the execution. Even the family members are only allowed to visit

the accused for the last time a day before the execution. Public, media, criminals are not allowed

to witness this execution. The only disclosure that the public can get is through media when they

read in the newspaper that the accused has received his punishment in certain date at certain

place. No real pain can be witnessed, thus, how this punishment can achieve the objective to

deter the public from committing crime?

Therefore, I submit that, death penalty can be a good example of deterrence punishment but it

depends on how it is conducted. To achieve the objective of it as a general deterrence

punishment, the public must witness the real procedure of it in order to feel fear and reflect from

others’ mistake. Death penalty should not just punish the offender but it must act as deterrence

which is inflicting fear in the heart of those who watching it.

3. Scholars view on punishment as deterrence- abolitionist and retentionist

One of the prominent scholars, Thomas Hobbes stated in his book, Leviathan which is published

in 1651, he described human as neither good nor bad. He described men as “men are creatures of

their own volition who want certain things and who fight when their desires are in conflict”. 8 In

achieving his own desire or personal interest, he might do anything for it even though it might

against the law of a country. To avoid this, people entered into social contract which is all people

behaving as they should and give up their self-interest. The duty of state is to enforce the social

7 Ahmad Faudzi bin Awang. "Pengurusan Banduan Hukuman Mati". 15 December 2004. 8 Deterrence Theory. marisluste.files.wordpress.com/2010/11/deterrence-theory.pdf. page 2.

contract. Even so, he did not deny that the crime may still occur. In this case, Hobbes argued that

the punishment for crime must be greater than the benefit that comes from committing the crime.

While for Cesare Beccaria, he published in his treaties, Dei Delitti e delle Pene (On Crimes and

Punishments), challenging the right of state to punish crime. He argued that the law should

provide “greatest happiness shared by the greatest number”. He argued that people will not

commit crime if they know that the price they are going to pay is higher than fulfilling their own

interest desire. If the sole purpose of punishment is to prevent crime in society, Beccaria argued,

“Punishments are unjust when their severity exceeds what is necessary to achieve deterrence”.

He has opinion that severe punishment will only increase the rate of crime while certain and

speedy punishment is the best in controlling and preventing the crime. Furthermore, he rejected

the use of capital punishment and suggested that it be replaced by imprisonment.

As for Jeremy Bentham, he published An Introduction to the Principles of Morals and

Legislation in 1780. He argued that “nature has placed mankind under the governance of two

sovereign masters, pain and pleasure”. The duty of the state in Bentham’s view was “to promote

the happiness of the society, by punishing and rewarding”. The object of the law is to widen the

happiness of the people by increasing the pleasure and lessening the pain of the community.

Excess punishment to deter people from violating the law is unjustified.

As for Hobbes, he just put the guideline that the punishment must be greater than the benefit of

committing the crime which he did not mention as to what extent the punishment should be

“greater”. There is no limitation given by him. As long as it is serve greater effect, it is just.

Beccaria explicitly rejected corporal punishment and promoted life imprisonment instead. For

Bentham, he did not support the idea of excess punishment.

4. Death penalty in Islam

In Islam, Al-Quran and the teaching of Prophet (peace be upon him) are the main sources of

Shari’ah law. Al-Quran prescribed three types of punishment in criminal cases which are hudud,

qisas and ta’zir. Hudud is the mandatory punishment from Allah and when the case is

established, no one can escape from being punished. There are 7 offences under hudud which are

drunkenness, adultery, apostasy, theft, robbery, rebellion and defamation. Qisas is the

punishment that reflects the concept of “eye for eye, tooth for tooth”. The accused can be

excluded from being punished if the family of the victim pardons him. Meanwhile ta’zir is

offences that are not included in either hudud or qisas.

The question is whether there is corporal punishment in Islamic law? Allah s.w.t said in His holy

Quran “Take not life, which God has made sacred, except by way of justice and law. Thus does

He command you, so that you may learn wisdom” (6:151). The first limb of this verse clearly

prohibits the act of killing another soul as the life of a person is a sacred from Allah. However,

Allah made an exception to this by allowing the act of killing with the condition that he is killed

after justice has been upheld. Even though punishment of killing is allowable, the act of

forgiveness is preferable which Allah promised to grant a vast reward to those who forgive

others. Kill the one who kill the victim is allowable under qisas which shows that Allah protects

the victim and serve the just punishment to the criminal but at the same time, Allah provide huge

reward for the one who forgive the criminal.

Furthermore, the punishment in Islam is not aiming to punish the offender but to create fear to

the public and to deter them from committing crimes. Under Islamic law, execution must be

made in public in order to enhance its alleged effect of general deterrence. People might question

that the punishments provided under Islamic law are against human rights which deny the right

of life. The truth is, to sentence an offender with the corporal punishment, prosecution need to

prove beyond the shadow of doubt which is the highest burden of proof. There was a case when

one offender came to the Prophet and confessed that he had committed adultery but the Prophet

(peace be upon him) asked him to go back. When he came for the third time, then Prophet (peace

be upon him) executed the punishment.

Therefore, it is submitted that even though there is corporal punishment provided under the

Shari’ah law, its execution must take place only after a just trial has been made. There should not

leave any tiny space for punishing someone arbitrarily and the procedure on its execution merely

not to punish the offender alone but the more important impact is to deter the public and to

prevent crimes.

5. Conclusion

Based on the above points that I have discussed earlier, I would like to make some conclusions

and stand my point on whether the death penalty should be abolished or not.

First, I believe that most of the abolinist are arguing based on the human rights view. They want

to protest on this death penalty as it against the right of life which is the inherent right of human

being. This is maybe due to the some incident such as misused of power by certain irresponsible

people who have used this corporal punishment to end innocent life. There are also few cases

that have been decided wrongly and sentenced innocent people with death penalty which is

obviously unjust. I have to agree that to certain extent, death penalty is unjust because of certain

reasons. However, I cannot imagine that if death penalty is fully abolished and the most severe

punishment will be a lifetime imprisonment. I demand that the death penalty itself should be stay

put in our law but the procedures on how it should be conducted must be reviewed and amended.

For example, rather than having a closed and private execution, it is better to execute it in public

so that it can achieve its purpose to deter people from committing crime. Then, the power of

pardoning should be given to the victim’s family rather than YDPA because the one who is the

most affected by the crime is the family members, not YDPA. They should be given the power to

pardon the victim. Increase the burden of proof from beyond reasonable doubt to beyond the

shadow of doubt to prevent any injustice to the accused. The charge and trial should be made

justly to prevent sentencing innocent people.

Second, I agree that death penalty indeed serves as deterrence in certain ways. It depends on how

the execution of this punishment is conducted.