The aim of this paper is to critically analyse and discuss whether the death penalty is indeed a desirable policy, drawing a comparison between the position in the United Kingdom and in
Malaysia. The lawful infliction of death as a form of punishment
1
as per legal definition or also known as the death penalty was first established in the 18 th
century in the
“Code of King
Hammaurabi of Babylon”, 2
which codified the death penalty for 25 different crimes.
Throughout the course of history, the death penalty has often carried upon itself a maxim
“an eye for an eye” which often more than not questions its capability to be a solution. Capital punishment in the United Kingdom was first introduced with the intention to deter wrongdoers as well as protect the wealthy. In Malaysia on the other hand, the death penalty was first inscribed in the Penal Code with the main intention of preventing serious offences such as drug trafficking and murder as well as to protect the sovereignty of the state rulers and monarchy. However, both the United Kingdom and Malaysia have taken a different stance in regards to the death penalty with the former choosing to do away with what is deemed not in-line with the European Union’s policies while Malaysia have continued with the practice of capital punishment.
Sir Samuel Romilly speaking to the House of Commons in 1810 said ‘there is no other country on the face of the earth in which there have been so many offences according to law to be punished with death as in England’.
3
Upon gaining entrance into the European Union
(henceforth known as the EU), the United Kingdom was required to abide by certain rules and legislations and in particular the European Convention on Human Rights 1953
(hereinafter referred to as ECHR) which directly affected the practice of capital punishment.
1 Definition of death penalty <http://legal-dictionary.thefreedictionary.com/penalty> (20.12.2011)
2 A brief history of the death penalty <History of Capital Punishment in the UK http://www.stephenstratford.co.uk/capital_hist.htm> (20.12.2011)
3 History of UK law <http://www.stephen-stratford.co.uk/capital_hist.htm> (21.12.2011)

Article 2(1) of the ECHR expressly states that “everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save the execution of a sentence of a court following his conviction of a crime for which his penalty is provided by law.” 4
It is however important to note that prior to the days whence the United Kingdom first entered the
EU many political stalwarts were fully opposed to the human rights organisation that were in favour of completely rejecting the death penalty. The first regional curtailment of the punishment occurred in 1983 when Article 1 of Protocol No.6 to the European Convention of Human Rights affords for the exclusion of the death penalty in times of peace but Article
2 concedes that a nation may, “make provisions in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war.”
5
After several extended years in discourse in which the wartime exception proved convoluted, in 2002, Protocol No. 13 to the Convention was adopted and Article 1 decreed that in all circumstances, “[t]he death penalty shall be abolished” and no one shall be condemned to such penalty or executed.
6
It is of the necessity that one must understand with such a concise and clear phrasing it would seem that the abolishment of the death penalty was in fact irreversible and not succumb to any resultant juxtaposition. However as it is clearly noted that both Protocols provide for abolition of the death penalty, neither specifically amends the text of the Convention Art.2 (1) . The Council of Europe when reviewing the context of both amendments to the Convention as well as its implication stated that the gist of the doctrine remains and that the death penalty is still preserved.
4 E.L Rev. 2009, 34(2), 205-229
5 European Convention on Human Rights 1950 art.2 (1), Protocol 6. Protocol 13
6 Ibid.

However it was not until in 1980 when Carl Lidbom, pioneered a report concerning the abolition of the death penalty explained to the Assembly that due to the punishment failing to show for deterrent effects and that the punishment brutalises society, it has no place in the modern era.
7
Although, Lidbom did restrict the abolition strategy to times of peace because he thought it was realistic to proceed by stages and so in peacetime, the death penalty was to be abolished and no longer seen as an exclusive issue for the state and as Mr Ruperez Rubio of Spain declared, we believe that nobody in this world should have a monopoly or claim the right to put an end to the life of others, not even the state.” 8
And with that, every European country intending to join the European Union which replaced the Council of Europe in 1998 is required to adopt their stance on the abolishment of the death penalty that the United
Kingdom implemented the ECHR into their judicial framework and law in the year 1997.
In Malaysia, the law provides for the implementation of the death penalty as a form of punishment wherein Section 302 of the Penal Code 9 states that “whoever commits murder shall be punished with death.” The Criminal Procedure Code also extends the death penalty as a sentence towards drug-trafficking under Section 39B (2) of the Dangerous Drug Act
1952 (Act 234) 10 which provides any person who contravenes any of the provisions subsections shall be guilty of an offence against this Act and shall be punished on conviction of death. Besides that, abetting a suicide under Section 306 ,
11
kidnapping or abducting with the intent of murder of Section 346 ,
12
and waging war against the Yang Di-Pertuan Agong
(Section 121) 13 are among the few other offences also punishable by death.
7 E.L Rev. 2009, 34(2), 205-229
8 Jon Yorke, ‘The right to life and the abolition of the death penalty in the Council of Europe’ (2009) 34(2) E.L.
Rev 205-209
9 Malaysian Penal Code Section 302<http://www.agc.gov.my/Akta/Vol.%2012/Act%20593.pdf> (20.12.2011)
10 Nor Afizah Hanum Mokhtar, “Should Death Sentence be abolished” (2006) 3 MLJ cxliii
11 Ibid s306
12 Ibid s346
13 Ibid s121

In retrospective views regarding the above acts, it makes it almost compulsory for judges to implement the death sentence in all cases where the death penalty provides for as a form of punishment. It is important to note that the Article 5 (1) of the Constitution of the
Federation of Malaya which states that no person shall be denied the right to life or personal liberty except in accordance with the law allows for the death penalty to be executed and that it is not merely a statute which generally does not constitute as the law but is heralded by the main foundation upon the country’s judicial framework. However, the application of this law has come under much scrutiny and criticism with much emphasis given to its inability to reflect the stance of both the United Nations and the European Union. This can be clearly seen when in PP v Lau Kee Hoo [1983] MLJ 157 14 , Malaysia followed the decision of the case of Ong Ah Chuan [1981] AC 684 15 who was prosecuted for drug-trafficking an illegal and banned substance in violation of the Misuse of Drugs Act 1973 16 in Singapore where the death penalty was used in practice.
Ong Ah Chuan was later used in reference to the case of Reyes v The Queen [2002] AC 235, at p257 17 . The defence council for Ong Ah Chuan stated that by merely being in possession of the said drugs did not amount to trafficking and as such the defendant could not be charged within the framework of the 1973 Act. Furthermore, the defence also raised the possibility of the death penalty being unconstitutional and in direct violation of the constitution.
14 K.S Rajah, ‘The Unconstitutional Punishment’ (2003) 3MLJ cxlviii;
15 Ibid.
16 Misuse of Drugs Act 1973 <http://lwb.lawnet.com.sg/legal/lgl/rss/landmark/[1980]_SGPC_6.html>
(21.12.2011)
17 Patrick Reyes v The Queen <http://www.internationaljusticeproject.org/pdfs/Reyes-2.pdf> (22.12.2011)

However, in his judgement, Lord Diplock proclaimed that “no plausible reason has been advanced for suggesting that fixing a boundary at transactions and that there is nothing unconstitutional in the provision for a mandatory death penalty for trafficking in any specific amount of heroin and morphine.”
18
The Privy Council in 2002 when reviewing the appeal of
Reyes who was found guilty of the double murders of Wayne Garbutt and Evelyn Garbutt on
16 th
April 1997 stated that “limited assistance could be gained from the decision of Ong Ah
Chuan for the decision on the constitutionality of mandatory death penalty was made at a time when international jurisprudence on human rights was rudimentary.”
19
In this landmark decision, the courts also made clear that the prerogative that is mercy cannot be considered as just reasoning for it is artificial to view the mandatory sentence separate and apart from the constitutional provisions and as such mercy cannot be carried out by the Executives. Reyes was then sentenced to life imprisonment on two accounts to run concurrently and from this we are able to concur that the Privy Council deemed the death penalty to be infringing on human rights and that the law applied in Ong Ah Chuan be re-examined.
The question then that arises is if the death penalty should be abolished permanently or continued to be regarded as an option in the judiciary. There are several angles in which we must perceive in regards to the positives and negatives of the death penalty. The sole purpose of the death penalty is to invoke retribution and provide for as deterrence to the crimes associated with it.
However the principles of sentencing also involve rehabilitation which in this case is void. In addition to that, a sentence must also take into account public interest if the offender in
18 Jon Yorke, ‘The right to life and the abolition of the death penalty in the Council of Europe’ (2009) 34(2) E.L.
Rev 205-209
19 Facts of case of Patrick Reyes v The Queen < http://www.nswccl.org.au/docs/pdf/speech%20rajah%202005.pdf> (22.12.2011)

question could be rehabilitated and be able to intersperse with society once more.
20
The death penalty is also deemed to be lacking the core effects of rehabilitation and deterring criminals as they would already be put to death. Corrective measures then prove futile as every wrongdoer is not given the chance to repent or understand the errors of their ways.
Furthermore it is also plausible that an error in judgement cannot be reversed should the defendant be subjected to the death penalty and the opportunity to right a wrong be lost if the sentencing has already taken place. This is clearly shown in the case of Karthigesu
Sivapakiam v PP [1979] .
21
The defendant was charged with the murder of Jean Perera and was found guilty and sentenced to death but later acquitted when one of the jury admitted to perjury.
22
This proves that the death penalty is irreversible and if a mistake was made but only realised after the punishment has been meted out, there would be no possible way of correcting the said judgement and the very institution that was meant to protect the people would be guilty of taking away a person’s life without reason.
Besides that, the death penalty has long been known to only further dehumanize an already modernized, ethical and justified society. The aim of the courts should be that of a more humane and just institution in which a punishment is supposed to solve a problem and deter future offenders as well as rehabilitate current ones. The concept of retribution will only further deny any moral growth and the cycle of violence will never end. In addition to that, according to research conducted by the United States Death Penalty Information Centre, the death penalty has little effect on murder rates as felons tend to commit the said crime without contemplating the consequences of their actions.
23
20 Nor Afizah Hanum Mokhtar, “Should Death Sentence be abolished” (2006) 3 MLJ cxliii
21 Malaysian Court Practice: 2011 Desk Edition: High Court Practice Volumes II. Petaling Jaya: LexisNexis, 2011
22 http://sundaypeople.nst.com.my/article/Features/20091219164623/Article/index_html
23 http://www.deathpenaltyinfo.org/documents/FactSheet.pdf

As such, the efficacy of the death penalty is severely reduced as it fails to deter wrongdoers.
The aim of a punishment should be to allow for understanding of one’s crime and how that person is made to pay for his actions via learning the hard way and not taking the easy way out through painless death. Furthermore, the death penalty is also deemed to negate the value of human life in the sense that it is void of the ability to believe that human beings can change for the better. The age old adage, “No man should play God” is especially appropriate here as it would be wrong to take away a person’s life however serious the offence committed for it will send out a similar signal that we a society as a whole are of equal standards with the person in question. It is a proven fact that no legal system in the world is faultless. The courts have evolved over the centuries and what may have been wrong then is deemed correct now and vice versa. Human made errors are bound to occur as no one is perfect and until recently exemptions by Deoxyribonucleic Acid (DNA) have not been accepted by the courts but slowly as the winds of change blow more and more cases especially those involving rape have been shed light by DNA testing where before a person may have been falsely convicted.
24
As with a coin, every anecdote will have two varying and opposite sides and the same goes for the death penalty. Those who advocate this doctrine of punishment will point out that the death penalty has indeed prevented crimes such as drug-trafficking from escalating. In regards to the World Office on Drugs and Crimes, research has shown that fewer people enter countries with the death penalty as a sentence for the fear of the severity of the punishment.
25
24 Abolition of Death Penalty in Malaysia <http://www.theborneopost.com/2011/10/30/abolition-of-deathpenalty-in-malaysia/> (23.12.2011)
25 Death Penalty Statistics <http://www.unodc.org/unodc/en/data-and-analysis/WDR-2010.html> (23.12.2011)

Besides that, on a more personal level, the taking of life of a criminal will send out a strong message to society in general that certain kinds of crimes simply will not be tolerated. It will also serve as retribution and provide for a sense of justice to the families of those who lost their lives in murder cases for instance and allow them closure and the peace of mind that the law is there to protect them. Also, the possibility of a criminal who has served his sentence and later released to repeat his crime is present and this will in turn jeopardise the safety of the general public. In the context of terrorism, a terrorist may be used as levy in a ransom wherein said person has to be freed or else a threat be placed upon the country and its people.
In these circumstances, the death penalty will serve as a useful entity in which we will not have to worry for the safety of the public or any other unexpected events which may bring harm to others.
Moreover, as Edward Koch puts it, “the death penalty will further affirm that there is nothing more valuable than the life of a human in which the ultimate punishment for said crimes will be by taking away one’s right to life.”
26
In addition to the facts thus far, the cost to maintain a criminal for crimes such as murder, rape and drug-trafficking will be a burden to the state as each would carry a life sentence behind bars. The facilities provided for prisoners today are state of the art and every prison follows strict guidelines on health and welfare conditions.
This somewhat lavish lifestyle accorded to a criminal would be tantamount rewarding a child with candy for being naughty and will have almost little deterrence factor when compared to the enforcement of the death penalty.
26 Ideologies on the death penalty <http://aliran.com/archives/monthly/2003/6k.html> (23.12.2011)

Having looked at the positives and negatives of the death penalty in general, we now must assess the fundamental differences between the United Kingdom and Malaysia. To first understand this we must compare the dissimilarities between the judicial framework of the
United Kingdom and Malaysia, the standards of varying societal norms considered acceptable in both countries and external restrictions that may be sanctioned towards either country basing on the policies the choose to adopt.
One of the main reasons the United Kingdom cannot bring into effect the death penalty is because as stated earlier, the prime condition of a European country intending to enter and join the European Union is that the said country abide by a unanimous governing body which covers the areas of law. The European Union in their landmark European Convention on
Human Rights expressly states that everyone has a right to life and the United Kingdom had to adopt this policy upon gaining entrance as a member of the European Union. The lucidity behind this was that a law which enforces the death penalty would be the law which sanctions the very act that it sought to inhibit and as such be deemed inappropriate in modern society.
There are certain quarters who argue that the sovereignty of the United Kingdom was challenged when they were required to alter their laws to be in line with the EU standards.
However, for economic reasons, it was vital that the United Kingdom joined the EU for the betterment of their socio-economy.
In Malaysia, there are no such restrictions and as a country with a written constitution, there is very little left to be considered as grey. The government’s stance on it has been firm and for political reasons unknown, our system has produced a single party leadership for the past five decades in comparison with the UK who change regularly from Conservative to Liberal leadership. Thus it can be said political factor does play a part in the deciding factors of the legislation of law.

Besides that, one must also understand that the morality involved is perceived from the paradigm shifts of two different cultures. What may be acceptable in one country may not be in the other and as such is the dogma that is the death penalty. Asian countries tend to be more reserved in their way of thinking wherein capital punishment is more widely accepted than European countries who champion the cause of human rights very seriously.
The fact that the United Kingdom has a blanket ban on corporal punishment including punishments such as caning shows the difference in mentality. It is common for an Asian child to be caned if he misbehaves and is visibly in practice by Malaysia in Section 377 B of the Penal Code for Unnatural Offences 27 which carries a maximum sentence of 20 years in prison or caning or both. Besides that, as members of the United Nations both countries are supposed to adhere to the Universal Declaration of Human Rights (UDHR) as a common standard of achievement for its society and country. While it is similar to the ECHR for the
United Kingdom, Malaysia could be deemed infringing on human rights for according to
Article 3 of the UDHR 28 which states that everyone has a right to life, liberty and security.
In this instance, the legality of the death penalty once more comes into question and can only be answered by the reasoning of what is just to one person may not be to another.
To conclude, the era in which the death penalty was used as a means of punishment is long gone. Society has progressed and the emphasis today is encompassed in reformation compared to retribution. There is a fine line that should not be crossed when the life of a person is involved and stance taken by the United Kingdom is commendable. There have been many proven alternatives that can replace the death penalty and its necessity is no longer required.
27 Section 377 B of the Penal Code
<http://www.malaysianbar.org.my/news_features/dangerous_liaisons.html> (23.12.2011)
28 Article 3 of the UDHR <http://www.un.org/en/documents/udhr/> (23.12.2011)

When taking into consideration of the circumstances and society of Malaysia, the death penalty should be rescinded gradually to ensure decorum and to put in place alternative punishments for it is undeniable that in the current state of law, almost all convicts in the death row do not have access to proper legal aid and this can result in the miscarriage of justice. To take a life because another life has been lost is not justice and it is because of this that it is imperative for the judiciary to ensure that the values of fairness and justice and the underling ethos of the system in the legal system are not lost.
(3220 words)