THE Human Rights Commission of Malaysia (Suhakam) has recently expressed its regret over the decision by the Court of Appeal to sentence six former Universiti Pertahanan Nasional Malaysia (UPNM) cadets to death for the murder of Zulfarhan Osman Zulkarnain, calling the decision “a sad and solemn moment in Malaysia’s judicial history.”
One can only wish that Suhakam read the leading case on the imposition of the death sentence in India, the Supreme Court case of Bachan Singh v State of Punjab [1983] SC 957. In that case, the Indian apex court upheld the validity of a capital sentence by a majority decision (4:1).
It was, however, said in no uncertain terms that the death sentence could be imposed only on the “rarest of the rare” cases.
The Supreme Court took to the occasion by laying down some guidelines, namely:
a) the extreme penalty of death need not be inflicted except in the gravest cases of extreme culpability;
b) before opting for the death penalty, the circumstances of the “offender” will be taken into consideration along with the circumstances of the “crime”;
c) life imprisonment is the rule and the death sentence is an exception. In other words, the death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment, having regard to the relevant circumstances of the crime, and only provided that the option to impose a life imprisonment sentence cannot be conscientiously exercised;
(d) a balance sheet of aggravating and mitigating circumstances has to be drawn up. In doing so, the mitigating circumstances have to be accorded full weight and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised;
The Supreme Court then considered the following factors as aggravating circumstances which may attract the imposition of the death penalty:
a) if the murder is a pre-planned murder and involves extreme brutality;
b) if the murder involves exceptional depravity; or
c) if the murder involves a member of any of the armed forces in India, any police force member or any public servant who had committed such offences (i) while they were on duty or (ii) in consequence of anything done or attempted to be done in the lawful discharge of their duty – regardless if at the time of the murder, they were in one of those positions, or had ceased to be in such positions.
The following circumstances have been suggested to justify the death penalty:
a) when the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner, so as to arouse intense and extreme indignation in the community;
b) when the murder is committed for a motive which evinces total depravity and meanness. For example, murder by a hired assassin for money or reward, cold-blooded murder for personal gain by someone in a position of dominance or trust, or murder committed in relation to betraying the motherland;
c) when a murder of a member of a scheduled caste or minority community is committed not for personal reasons but in circumstances which arouse social wrath, or in the cases of “bride burning” or “dowry death” when murder is committed to remarry for the sake of extracting dowry again, or to marry another woman on account of infatuation;
d) when the crime is enormous in proportion. For example, when multiple murders – for instance, all or almost all the members of a family, or a large number of persons of a particular caste, community or locality – are committed;
e) when the victim of murder is an innocent child, a helpless woman, an old or infirm person, a person murdered by someone in a dominating position, or a public figure generally loved and respected by a community. (See 26th edition of Ratanlal & Dhirajlal’s Law of Crimes, page 1635)
The above were referred to in a recent Malaysian case of public prosecutor v Arumugam Sandanam & Anor [2023] MLJU 2304 where judicial commissioner Su Tiang Joo found them “helpful”.
Guided by the above, the learned judge found the facts of the instant case as falling into circumstances (a), (b) and (e) as the murder committed by the accused persons was “extremely brutal, grotesque, diabolical, revolting or dastardly manner, hugely out of proportion, and by persons who are in a dominating position”.
Did the Court of Appeal refer to Bachan’s case and the guidelines above as well as the circumstances justifying the death penalty before sentencing the UPNM cadets to death?
One has to read the full grounds of judgment, which are not publicly available yet. However, media reports of the decision suggested that the appellate court referred to Bachan’s case.
Court of Appeal judge Datuk Hadhariah Syed Ismail who led the three-judge panel, in delivering a 93-page judgment for over three hours, said that the case “is among the rarest of the rare, involving extreme cruelty that poses a grave danger to society, and such inhumane acts must be stopped”.
Section 183 of the Criminal Procedure Code provides that if the accused person is convicted, “the court shall pass sentence according to law”.
Following the Abolition of Mandatory Death Penalty Act 2023 which abolishes the death penalty and has been in force since July 4, 2023, section 302 of the Penal Code (on punishment for murder) reads as follows: “Whoever commits murder shall be punished with death or imprisonment for a term of not less than 30 years but not exceeding 40 years, and if not sentenced to death, shall also be punished with whipping of not less than 12 strokes.”
The death sentence imposed by the Court of Appeal is a sentence according to law.
It is therefore regrettable that Suhakam should call the decision “a sad and solemn moment in Malaysia’s judicial history.”
Suhakam’s grudge on the death penalty should be directed at the legislature, and not the judiciary. – July 26, 2024
Hafiz Hassan reads Scoop