The case for judicial discretion

The Star 
Brave New World BY AZMI SHAROM

In recent surveys, most Malaysians backed the death penalty – but not the mandatory version.

IN principle I have no problems with the death penalty. There are three basic theories of punishment: deterrence, rehabilitation and retribution.

I am uncomfortable with the concept of deterrence because I am uncertain that fear of punishment is necessarily the primary factor when a person commits a crime.

Furthermore, taken to its logical conclusion, the punishment can be extremely disproportionate to the crime in order to make it “scarier”.

Neither am I convinced by the idea of rehabilitation; after all, who is to determine when a person is rehabilitated or not.

I believe in the retribution theory of justice, which is to say, you are simply punished for the crime you committed, not as an example to others and not subject to the whims of authorities who may or may not believe that you have repented and are now a good person.

And in violent crimes, then a simple punishment would be equally violent.

After all, you reap what you sow.

In practice, however, I do not believe in the death penalty.

This is because the justice system is run by humans and humans are fundamentally flawed.

Therefore, there will always be a chance that an innocent person is convicted. That is a chance I am not willing to take.

The Death Penalty Project in association with the Malaysian Bar Council completed earlier this year a report which was the analysis of over 1,500 surveys conducted amongst Malaysians.

The result of the survey was astonishing. Basically it was trying to gauge the Malaysian public’s view on the death penalty.

What was to be expected was that a vast majority of the respondents agreed with the death penalty.

What was unexpected, to me at least, was that the majority was not in favour of mandatory death penalty sentences, especially for drug and firearms offences.

Let us be clear on the distinction.

A mandatory death penalty means that if a person is found guilty of an offence which carries such a punishment, then the judge will have absolutely no choice but to mete out said penalty.

This means that the discretion of the judge to take into account the surrounding factors of the case is non-existent.

This can lead to cruel decisions and it could, oddly enough, lead to decisions where a person who has committed a crime is let off on slight technicalities because a judge is loath to send a person to his death.

The resentencing of Yong Vui Kong, the young Malaysian found guilty of drug trafficking in Singapore, is an example of how a change in the law has avoided what could have been a most unjust killing.

By most accounts, Vui Kong was very young, naïve and not particularly bright: a candidate who in most likelihood is the perfect mule for the drug kingpins who want their product moved.

Not a hardened criminal, he was to suffer for the activities of more nefarious parties who, of course, would not be caught in such a compromising position.

It is a great relief, particularly to the hard-working and persistent Save Vui Kong group who have been fighting tirelessly for his pardon, that this Malaysian youth will not die as the Singaporeans amended their laws by taking away the mandatory death sentence and giving the judge discretion as to the punishment he sees fit.

It is noted that even the Malaysian Government had tried to appeal to the Singaporeans for clemency.

If they could see the potential injustice of a mandatory death sentence and if the majority of the Malaysian public are not in favour of it as shown by the Death Penalty Project report, isn’t it time we had a serious rethink of our own mandatory death penalty laws?

> Azmi Sharom (azmisharom@yahoo.co.uk) is a law teacher. The views expressed here are entirely the writer’s own.