The Death Penalty Is Not Proven To Be Effective In Reducing Crime, It Needs To Be Modified

JAKARTA The Malaysian Parliament's Lower House amended a number of articles of mandatory death penalty. The enactment of this new rule is just waiting for approval from the State Council.

Later, the judge will have another option to indict criminal acts that were previously required to be subject to a maximum charge of the death penalty, a prison sentence of up to 40 years and a caning sentence.

"The death penalty has not yet brought the expected result. We cannot arbitrarily ignore the existence of the right to life inherent to each individual," said Deputy Minister of Law of the Malaysian Government, Ram kapal Singh as quoted by Bernama on April 4, 2023.

The decision, according to Singh, is the right step to create a dynamic, progressive, and relevant legal system with current needs.

However, that does not mean that the death penalty is completely removed, only 11 of the 34 types of criminal acts, including a number of serious crimes that do not lead to deaths such as kidnappings, drug trafficking, and arms trafficking.

Former Malaysian judge and diplomat Dato' Noor Farida Binti Mohd Ariffin also said the death penalty remains in effect. It's just that judges have more flexibility to impose penalties and not only lead to the death penalty.

That is of course a step forward for Malaysia, especially when the death penalty in the international community has now been much reduced. In Amnesty International's notes, 142 countries have abolished the practice of the death penalty.

There is no evidence that the death penalty is more effective in reducing crime than life imprisonment. The death penalty tends to be used as a political tool.

"I am of course happy that the Malaysian Parliament has passed a law to abolish the mandatory death penalty. The Malaysian Bar Council and other NGOs have been fighting for this for a long time," he said as quoted by BBC Indonesia on April 5, 2023.

In Indonesia, the punishment for the death penalty was pro-contra. When referring to the results of the Kompas Research and Development poll on October 5-8 2021, 50.2 percent of respondents agreed to the application of the death penalty and 6.2 percent strongly agreed.

Only 41.8 percent of respondents disagreed, another 1.8 percent strongly disagreed.

Those who agree and strongly agree that the death penalty can have a deterrent effect, a form of legal firmness, in accordance with religious law, in accordance with their actions, and not in conflict with human rights for serious crimes.

Especially for cases of terrorism, narcotics, corruption, and premeditated murder.

Meanwhile, those who disagree and strongly disagree reason that the death penalty is against human rights, inhumane, is not in line with the direction of the criminal law, and is not in accordance with the Constitution.

In particular, Article 28i of the 1945 Constitution, The right to life, the right not to be tortured, the right to freedom of mind and conscience, the right to religion, the right not to be humiliated, the right to be recognized as a person before the law, and the right not to be prosecuted on the basis of the law that applies retroactive is a human right that cannot be reduced under any circumstances and by anyone.

However, if you look at narcotics trafficking cases, the implementation of the death penalty seems necessary. Because, the impact is very fatal for the country's sustainability.

The Constitutional Court (MK) once rejected the judicial review of the death penalty in the Narcotics Law. In its considerations, as reported by Antara, the MK assessed that the death penalty in the Narcotics Law does not conflict with the right to life guaranteed by the 1945 Constitution, because the human rights in the 1945 Constitution are not absolute, including human rights regulated in Article 28 paragraph (1) of the 1945 Constitution.

According to the Constitutional Court, human rights in the constitution must be used by respecting and respecting the human rights of others for the sake of public order and social justice. Thus, human rights must be limited by the instrument of law, namely that the right to life should not be reduced, unless it is decided by the court.

On the other hand, Indonesia has also recognized narcotics crime as an extraordinary serious crime against humanity so that its enforcement requires special, effective and maximum treatment.

Moreover, the application of severe penalties through the death penalty for serious crimes such as narcotics does not violate any international agreements, including the ICCPR which advocates the abolition of the death penalty.

Even the Constitutional Court emphasized that Article 6 paragraph 2ICCPR itself allows the death penalty to the participating countries, especially for the most serious crimes. This means that the death penalty is a form of state protection for citizens, especially the rights of victims.

That is also not raw. People who are sentenced to death by the court still have other legal remedies so there is still a chance not to be sentenced to death.

The government in Law Number 1 of 2023 concerning the Criminal Code (KUHP) or the new Criminal Code seems to take a middle ground by making the death penalty no longer the main punishment, but rather a special crime that is threatened alternatively. Thus, the implementation process is also different.

This can be seen in Article 100 of the new Criminal Code:

(1) The judge sentenced the defendant to death with a probationary period of 10 (ten) years by paying attention: a. the defendant's regret and there is hope to improve himself; or b. the defendant's role in a criminal act.

(2) The death penalty with probation as referred to in paragraph (l) must be included in the court's decision.

(3) The trial period of 10 (ten) years begins 1 (one) Day after the court's decision obtains permanent legal force.

(4) If the convict during his probationary period as referred to in paragraph (1) shows a commendable attitude and act, the death penalty can be changed to life imprisonment with a Presidential Decree after receiving consideration from the Supreme Court.

(5) Life imprisonment as referred to in paragraph (4) is calculated since the Presidential Decree is enacted.

(6) If the convict during his probationary period as referred to in paragraph (1) shows no commendable attitude and actions and there is no hope for improvement, the death penalty can be carried out on the orders of the Attorney General.

This means that Malaysia and Indonesia apply a principle that is not much different in implementing the death penalty. Through its new rules, Malaysia also does not completely eliminate the application of the death penalty, only giving freedom to judges to impose lower sentences in certain cases. Likewise, Indonesia, the application of the death penalty is still applied with a different mechanism.