Anda di halaman 1dari 40

C o n t e n t s

F e a t u r e s
a y i n gt h eU l t i ma t eP r i c e 3P

7C h r i s t i a n i t y , I s l a ma n dC a p i t a l
P u n i s h me n t

1 1D r u g s : D a n g e r o u s b u t N o t D e a d l y
e t e n t i o n i s t S t a t e s o f t h eMi d d l e 1 6R r o mt h eO t h e r S i d eo f t h eB e n c h : A n 2 0F I n t e r v i e ww i t h J u s t i c eP r a s a dA b r a h a m E a s t

L e t t e r f r o mt h eE d i t o r
D e a r R e a d e r , Wi t ht h e r e c e n t mo r a t o r i u mo nd e a t h s e n t e n c e s i n v o l v i n gd r u go f f e n c e s i nMa l a y s i a , t h e d e a t hp e n a l t y h a s g e n e r a t e dmu c h d i s c u s s i o nw i t h i na n db e y o n dt h e l o c a l l e g a l f r a t e r n i t y . A s l a ws t u d e n t s a n df u t u r e me mb e r s o f t h e l e g a l p r o f e s s i o n , i t i s v i t a l t h a t w e b e a b l e t o c o n t r i b u t e t ot h e d e b a t e i nme a n i n g f u l a n d t h o u g h t p r o v o k i n gw a y s . I nl i g h t o f t h i s t h e me , t h e n e w s l e t t e r f e a t u r e s a r t i c l e s o nw i d e r a n g i n gi s s u e s t h a t s u r r o u n dt h e d e a t hp e n a l t y . F r o mt h e e c o n o mi c i mp a c t o f c a p i t a l p u n i s h me n t t or e l i g i o u s p e r s p e c t i v e s , f a r o f f h u ma nr i g h t s i s s u e s i nt h e Mi d d l e E a s t t o d r u gl a w s c l o s e r t oh o me , w e h o p e t ob r i n ga f r e s ha n dc h a l l e n g i n go u t l o o k t ot h e s u b j e c t . O f c o u r s e , t h i s e d i t i o no f T h e L e x i c o nw o u l d n o t h a v e b e e np o s s i b l e w i t h o u t my i mme n s e l y t a l e n t e dt e a mo f w r i t e r s , o r my s u b e d i t o r a n d h e r s t e l l a r j o bi nn a l i z i n gt h e v i s i o nf o r t h e l a y o u t . I w o u l da l s ol i k e t oe x t e n dmy b o u n d l e s s g r a t i t u d e t oo u r s t a f f a d v i s o r , Mr . Wi l s o nT a y a n d t ot h e e mi n e n t D e a no f T a y l o r s L a wS c h o o l , Mr . H a r ma h i n d e r S i n g hf o r t h e i r i n v a l u a b l e g u i d a n c e , a s w e l l a s t oa l l t h e v a r i o u s p a r t i e s w h oh a v e h e l p e dma k e t h i s n e w s l e t t e r a s u c c e s s . H a p p y r e a d i n ga n dh a p p y p o n d e r i n g , e v e r y o n e !
B r e nd aC h a n E d i t o r

E v e n t s
4 L a wS p e a k e r S e r i e s 2 0 1 2 2 6 L a wB a l l &A w a r d s C e r e mo n y 2 0 1 22
L a wA w a r e n e s s D a y 2 0 1 22 8 I n t e r n a l Mo o t s Ma r c h2 0 1 2I n t a k e2 9 Ma l a y s i a nI n n e r T e mp l eA l u mn i A s s o c i a t i o n3 0 ( MI T A A ) D i n n e r 2 0 1 2

1 Wo r l dU n i v e r s i t y P e a c eI n v i t a t i o n a l D e b a t e3 ( WU P I D ) 2 0 1 2 2 L a w A s i aMo o t s 2 0 1 2 3 3 R u n , F r e s h i e , R u n !3

L e i s u r e
Q & A : V i e w s o nt h eD e a t hP e n a l t y3 5

9 R e l a x i n gR e a d s3

Paying the Ultimate Price


by Wong He Fa

Almost everyone sees it at one time or another on their favourite crime-themed television show: the murderer of a victim is found through overwhelming forensic evidence. The murderer is caught and then sent through a short court process in which he or she is duly convicted for his or her crimes. A few days later, the murderer is promptly walked through a dark, narrow corridor after which he or she is sent swinging through a trapdoor or administered a lethal cocktail of drugs, as a just and swift reaction to the heinous crime committed. The law is properly served and everyone lives happily ever after, knowing that these unwanted aspects of society are given the treatment they deserve. However, is this rosy image of the death penalty that Hollywood portrays for our viewing pleasure what really goes on in an actual death penalty case? What about the processes in between the trial, or trials? The red tape and bureaucracy needed to sentence someone to death? What about life on death row? Has anyone considered the costs that courts and prison systems incur to carry out these processes? These pressing questions need to be answered before a real, fact-based understanding of the death penalty can be achieved.

This article strives to explain the financial aspects of the death penalty. Due to the complicated procedures that a criminal has to go through in a legal system before the death sentence is administered, the economic cost of implementing the death penalty is staggering. According to the Death Penalty Information Center, state departments in the United States pay up to $1,000,000 more for a death penalty trial compared to one that does not involve the death penalty.3 However, only one in every three trials involving capital punishment results in a death sentence.4 Therefore, the true cost of a death sentence is estimated to be about $3,000,000.5 Looking further down the procedure, statistics from state Judicial Departments in the United States show that only one out of every ten death sentences passed eventually results in an execution, further bringing up the total true costs to around $30,000,000 per execution.6 With this in mind, it is important to understand that it is not the high cost of executing someone that makes the death penalty expensive, or that one successful case on its own necessitates tens of millions of dollars. It is because most capital prosecutions never result in a death sentence, and most death sentences do not even result in an execution. The act of dragging a criminal to court with the intent to slap on a death penalty charge alone immediately escalates the costs required to impose a sentence. How is it that sending a criminal to the gallows can cost so much? In principle, it is due to one thing only: sending a person to death is different from sending a person to prison.

There are several countries that still retain the death penalty, despite a United Nations General Assembly Resolution encouraging these countries to implement a moratorium on all death sentences.1 The death penalty is used in these countries for many different crimes, all listed under The death penaltys the definition of capital crimes. These capital crimes come in effectiveness is arguable, and many forms, ranging from murder so is the question of whether and drug trafficking, to religious the taxpayers are getting their blasphemy and treason.2 However, the death prevent penaltys effectiveness as a deterrent against these crimes is arguable, and so is the question of whether those financing the death penalty the taxpayers are getting their moneys worth investing in it to prevent crimes.

moneys worth investing in it to crimes.

In order to find out exactly what those differences are, we need to look at the steps taken by the federal courts of the United States. In every way, a capital case is more time-consuming and expensive than a case involving an

The Lexicon | 3

Paying the Ultimate Price | Feature

ordinary prison sentence. If the defendant in a capital defendant is not required in non-death penalty cases, case is found guilty of a capital offence, a completely and therefore makes the selection of the panel of jurors different trial is needed, with new witnesses and in a death penalty case much longer.18 The jurors must evidence, in which the jury must decide whether the be willing to accept both possible outcomes of the penalty for the offence should be the death penalty or death penalty and life imprisonment, so they can take 7 life imprisonment without the chance of parole. With both options into serious consideration before voting.19 this, two attorneys would have to be appointed for the People who are not willing to take this point of view are defence of the criminal charges and sentencing excluded from serving.20 Additionally, the prosecutor 8 respectively. The prosecutors would also have to exert and the defence attorneys may also be dissatisfied with greater resources in this case as the panel of jurors and may most capital prosecutions they have to discharge a very high request a change in the panel, burden of proof before the death never result in a death sentence, further prolonging the case.21 9 penalty can be secured. and most death sentences do not As mentioned above, When compared to a life death penalty trials very often do even result in an execution. imprisonment sentence, a death not actually result in the passing sentence needs specialised experts to assess every of the death penalty. The defendant is often acquitted aspect of the case, from forensic officers who examine or given a prison sentence instead.22 This is partly evidence at the scene of the crime to psychiatrists who because there are two different trials: one to determine assess the mental state of the defendant as per whether the defendant is guilty of the crime committed, 10 requirements to impose the death penalty. In a case and another to decide whether the crime warrants a that is defended expertly, evidence deemed mitigating death sentence. and aggravating to the case will need to be compiled In the United States, it is also mandatory for an and examined by the court.11 Experts are brought in to appeal process to begin once a death sentence does examine everything about the defendants life through get handed out, and this appeal is different from an everyone related to or associated with him from birth to ordinary non-death penalty case where the appeal is present day.12 Parents, relatives, teachers and doctors simply against the conviction.23 The appellants for a are interviewed and their testimonies recorded; these death sentence can ask for a full review of their testimonies are then used by the counsel to discuss the sentence as well, meaning that there must be another severity of the offence committed and the appropriate set of jurors and witnesses called in, so that the death penalties.13 sentence may be reversed.24 The mental health of the defendant is also of it is not the death penalty utmost significance, as only a sane person with full knowledge and awareness of the capital offence itself that is so expensive. Rather, committed can be given the death sentence.14 it is the pursuit of it that is. Therefore, mental health experts are needed to assess the mental state of the defendant.15 However, there are The appeal process as a whole can last up to 20 also cases in which the opinions of multiple mental years before the person is executed, and as of the year health experts are required by law to hand out a serious 2007, the average duration was 12.7 years.25 In 2006, sentence, as demonstrated in the 2011 court there were 400 inmates in the United States on death proceedings of Norwegian mass-murderer Anders row for more than 20 years, and some of their cases Behring Breivik, in which the disagreements of several stretched back to crimes committed in 1974.26 This mental health experts threatened to send the man into long stint in a maximum-security prison adds to the a free mental asylum instead of a maximum-security total cost of sentencing a person to death, as will be prison.16 discussed in the subsequent paragraph. Even the selection of the jury is extremely complex in death penalty cases. Each potential juror is interviewed on their stance on the death penalty by the judge, prosecutors and defence attorneys.17 This type of questioning regarding the eventual punishment of the In the United States, inmates on death row are housed in a maximum-security prison, and these prisons are located away from the general prison population. The inmates are kept in their prison cells 23 hours a day, served food through a small door, and

4 | The Lexicon

Feature | Paying the Ultimate Price

kept under strict watch at all times. This means that it videos, making the prospect of death almost nontakes a substantial amount of funds to house just one existent in his contemplation of crime. inmate under maximum security. In the state of The infrequency with which the death penalty is California, it is estimated that it costs the state an extra carried out in the United States is $90,000 per year for each inmate on the prospect of death also one of the reasons why it is not death row compared to one that is housed in the general prison [is] almost non-existent in considered a good deterrent against crime. Since the death penalty was population.27 [a would-be criminals] reinstated in the United States in Life in a regular prison on the contemplation of crime. 1976, some states have never even other hand, would mean that the conducted an execution or have inmate is not locked up in a prison cell most of the day, averaged only one per year.30 Only the state of Texas but is instead made to do activities that are deemed averages more than three executions per year.31 beneficial to society, such as community service, or Therefore, the death penalty can be considered a highly vocational work like craftsmanship and repair work. inefficient and extremely costly form of crime control, These services to society can even subsidise the costs and the mere implementation of it into the state legal needed to house the inmates, as these activities can systems certainly takes a heavy toll on state budgets. bring a sum of money to the state coffers. These In a 2008 study conducted by the California activities also offer the inmate a chance to rehabilitate Commission on the Fair Administration of Justice, the and repent for the crime done, and to give back to state of California was found to be spending society. $137,000,000 per year on the implementation of the Also mentioned in the beginning paragraphs is death penalty.32 The same study also concluded that if the fact that not all death sentences result in an actual the very same inmates were to be given life execution. There are many events that can occur while imprisonment without parole, it would cost the state a person is on death row. Sentences or convictions only $11,500,000 per year, a very modest sum when may be reversed, or the long wait on death row causes compared to that of the death penalty.33 the inmate to die of natural causes, or from suicide, if More importantly, the money saved from the the prison authorities are not vigilant enough. The abolishment of the death penalty could help fund other governor may even grant clemency to the prisoner, or programmes that are considered to be more efficient in entire death penalty statutes may be overturned. This curbing crime. Statistics released would eventually mean a life the state of California by the Federal Bureau of sentence for the inmate anyway, but only after a very expensive [spends] $137,000,000 per year Investigation (FBI) show that states that have abolished the death penalty trial and on the death penalty if the death penalty have consistently subsequent life on death row. lower rates of crime compared to very same inmates were to be Thus, it is not the death ones that retain the death given life imprisonment without penalty itself that is so expensive. penalty.34 For example, in 2011, parole, it would cost the state Rather, it is the pursuit of it that the murder rate for death penalty is.28 states was at 4.89 murders per only $11,500,000 per year. 100,000 people, while the Apart from the high murder rate for non-death penalty states was at 4.13 costs, the effectiveness of the death penalty as a form murders per 100,000 people, making an 18% of deterrent against serious crime is also highly difference between them, albeit not accounting for debatable. With the probable exception of Saudi Arabia social and economic differences.35 where condemned criminals are beheaded publicly in city squares,29 public knowledge of what goes on This obvious difference in the level of crime during the process of execution is generally limited. committed in states which have retained or abolished Even if a would-be criminal does know what goes on the death penalty is in part due to the channelling of the during an execution, the information would seem enormous funds used in the implementation of the detached and irrelevant in real life, seen only in words or death penalty into other, more effective uses for

The Lexicon | 5

Paying the Ultimate Price | Feature

combating crime. As quoted from New Jersey Police Chief James Abbott, I learned that the death penalty throws millions of dollars down the drain, money that I could be putting directly to work fighting crime. Give a law enforcement officer like me that $250 million, and Ill show you how to reduce crime.36 The millions of dollars could be channelled into a whole host of other options for combating crime, such as the training of more highly-skilled police officers to patrol streets in order to reduce crime, purchasing more advanced equipment to combat crime such as bomb squad robots, helicopters or CCTV camera systems, and the running of covert operations to crack down on hardcore illegal activities such as drug cartels and prostitution rings. The funds could also be channelled into social services such as psychological counselling and financial aid, so every human being that people need not has a right to life, and resort to crime to solve their problems. All this could be possible if the death penalty did not consistently exert huge financial pressure on state budgets, as it does and continues to do every year for states that still retain the death penalty. Therefore, the millions of dollars wasted on the process leading to the execution, or rather the non-execution, of the criminal is a strong point for the complete abolishment of this practice. Due to the financial strain on numerous state budgets in carrying out the death penalty and the processes attached to it, states are increasingly looking to its abolishment, particularly after the severe budget cuts in the aftermath of the 2008 global economic crisis.37 Alongside the apparent economic benefits, abolishing the death penalty would also mean a further step towards the protection of human rights under Article 3 of the Universal Declaration of Human Rights.38 That is the ultimate reason in striving for a complete detachment from the wasteful and irrelevant practice of the death penalty: that every human being has a right to life, and no one, not even the long arm of the law, can take that away.


2 Abolitionist and Retentionist Countries, Amnesty International <http://www.amnesty.org/en/death-penalty/abolitionist-andretentionist-countries> accessed 8 February 2013. 3 Richard C. Dieter, Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis (Death Penalty Information Center, October 2009) p 14 <http://www.deathpenaltyinfo.org/documents/CostsRptFinal.pdf> accessed 15 January 2013. 4 Ibid. 5 Ibid. 6 John Roman, Aaron Chalfin, Aaron Sundquist, Carly Knight & Askar Darmenov, The Cost of the Death Penalty in Maryland (The Urban Institute, March 2008) <http://www.urban.org/UploadedPDF/411625_md_death_penalty.pdf > accessed 15 January 2013. 7 Dieter, op. cit., p 20. 8 Ibid. 9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid. 15 Ibid. 16 Kathryn Westcott, Norway Attacks: How will experts assess the killers mind?, BBC News Europe (25 July 2011) <http://www.bbc.co.uk/news/world-europe-14275981> accessed 8 February 2013. 17 Dieter, op. cit., p 21. 18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid. 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid. 26 Ibid. 27 California Commission on the Fair Administration of Justice, Report and Recommendations on the Administration of the Death Penalty in California (30 June 2008) <http://www.ccfaj.org/rr-dp-official.html> accessed 15 January 2013. 28 James S. Liebman, Jeffrey Fagan, Valerie West and Jonathan Lloyd, Capital Attrition: Error Rates in Capital Cases, 1973-1995 (June 2000) 78 Tex L Rev 1839 <http://people.umass.edu/leg485/liebman.htm> accessed 10 March 2013. 29 Saudi Executioner Tells All, BBC News (5 June 2003, 17:44 GMT) <http://news.bbc.co.uk/2/hi/middle_east/2966790.stm> accessed 6 February 2013. 30 Dieter, op. cit., p 22. 31 Ibid. 32 California Commission on the Fair Administration of Justice, Report and Recommendations on the Administration of the Death Penalty in California (30 June 2008) <http://www.ccfaj.org/rr-dp-official.html> accessed 15 January 2013. 33 Ibid. 34 Deterrence: States Without the Death Penalty Have Had Consistently Lower Murder Rates, Death Penalty Information Center <http://www.deathpenaltyinfo.org/deterrence-states-without-deathpenalty-have-had-consistently-lower-murder-rates> accessed 8 February 2013. 35 Ibid. 36 James Abbott, Less money, more pain and injustice Fort Worth Star-Telegram (20 January 2008) <http://ejusa.org/sites/live.ejusa.org/files/attach/docs/Chief%20Abbot t%20Fort%20Worth%20Star%20Telegram%202008.pdf> accessed 8 February 2013. 37 Dieter, op. cit., p 8. 38 The Universal Declaration of Human Rights, United Nations website <http://www.un.org/en/documents/udhr/index.shtml#a3> accessed 8 February 2013.

no one, not even the long arm of the law, can take that away.

General Assembly Adopts Landmark Text Calling For Moratorium on Death Penalty, United Nations General Assembly <http://www.un.org/News/Press/docs/2007/ga10678.doc.htm> accessed 8 February 2013.

6 | The Lexicon

Christianity, Islam and Capital Punishment


A Theological Perspective on the Death Penalty
by Khong Mei-Yan

Belief in God sits at the top of our National Philosophy among four other principles, created by the Majlis Gerakan Rakyat (MAGERAN) post-13th May 1969. Yet, religion is not something Malaysians often talk about. Aristotle once said, It is the mark of an educated mind to be able to entertain a thought without accepting it. In light of the global shift away from a proexecution mindset, it is especially helpful for a pluralistic society like ours to consider what the different religions have to say about the death penalty. All religions uphold the sanctity of life and forbid the taking of anothers life. Yet, offenders need to be punished in one way or another. Justice demands that the more heinous the crime, the heavier the penalty imposed. International concern over the issue has prompted theologians, jurists, scholars and philosophers to contribute to the ongoing debate, ensuring a wealth of arguments on both sides. Christianity and Islam are two of the major religions that provide for capital punishment. This article will look into each in turn.

Accordingly, acts that fell below those standards were worthy of punishment. Genesis 9:6 says, Whoever sheds the blood of man, by man shall his blood be shed. Among the crimes that warranted the death penalty according to Old Testament theocracy were premeditated murder,1 involuntary manslaughter,2 kidnapping, 3 adultery or prostitution, 4 incest, 5 parental abuse,6 homosexuality,7 bestiality, 8 blasphemy,9 sorcery and witchcraft, 10 sacrificing to other gods, 11 and perjury.12 The death penalty was designed to have a deterrent effect, so that all people shall hear and fear, and no longer act presumptuously.13 More importantly, it was intended by God to function as a restorative mechanism to incite repentance in sinners, that they turn from their ways and live.14 Thus, the only capital crime that warranted a mandatory death sentence was premeditated murder; the rest could be given lighter penalties where genuine repentance was shown (i.e. divorce for adultery,15 or a ransom in lieu of punishment for crimes other than murder16). The victim could refrain from prosecuting and if he or she decided to prosecute, it was not obligatory to press for the maximum penalty of death. For example, Hosea embraced his wife who committed adultery, standing thereafter as a model of forgiveness.17

The episode of David and Bathsheba illustrates how certain conditions had to be complied with before a charge could be brought, and that God, who is just, The Christian Bible is divided into two parts: the retained the right to impose the penalty or otherwise Old Testament and the New Testament. They each where He deemed fit. David not only had sexual consist of a variety of literature which unfolds two relations with Bathsheba but also arranged for the distinct covenants made between God and His people. death of Uriah, her husband, The Mosaic Law (or the Torah) when she was found to be with can be found in the Pentateuch, The death penalty was designed child. By law, both David and the first five books of the Old to have a deterrent effect, so that Bathsheba had to face the death Testament. It extends beyond penalty, and the child developing the Decalogue (the Ten all people shall hear and fear, in the womb would have died. Commandments) and includes However, both of them escaped the ceremonial, civil and moral and no longer act the death penalty, though the laws given to Moses directly by child to whom they were not presumptuously. God. The apostle Paul entitled fell sick and died.18 explained its function in Romans In Christianity 7:7, I would not have known what sin was except through the law. For I would not have known what coveting really was if the law had not said, Do not covet. Therefore, these laws were given by God to reflect His own righteous standards. Nevertheless, their lives were spared. Firstly, it was because the minimum requirements of two or three eye witnesses were not met. 19 Secondly, even if Bathsheba and Joab (the messenger who contributed to Uriahs death) had witnessed the crime, it is unlikely
The Lexicon | 7

Christianity, Islam and Capital Punishment | Feature

that they would press charges as both were also involved in the eventual death of Uriah. The son that was born to them later died. David recognised that he was worthy of death and lamented the loss of his son.20 In any case, this instance does not count as an exception to the death penalty, nor does it abrogate the law. God, who is able to read hearts, must have evaluated the genuineness of Davids repentance, and was merciful in allowing both David and Bathsheba to live.

In Islam Islamic Law is a conglomeration of laws originating from various sources. Its most important elements are the Shari'a and the Fiqh. The Quran (consisting of words revealed by Allah Himself), Sunna (consisting of the words and actions of the Prophet Muhammad p.b.u.h.), ijma (Islamic scholarship) and giyas (juristic interpretations of the law) comprise the Shari'a, which refers to the sacred laws and ways of life prescribed by Allah, and are hence regarded as the most important source of Islamic law. Second in importance is the Fiqh (Islamic jurisprudence) which refers to the legal rulings of the Muslim scholars derived from the Sharia. According to Islam, the governing authority is acting on Gods behalf. Accordingly, submission of an individual to the state can be seen as synonymous with submission to God. The concept of rights in Islam is treated very uniquely. One scholar suggested that the individual's lack of rights ... reflects the rejection of individualism in favour of communalism. The individual is placed in the context of the community of believers, which itself has rights as a whole unit.26 One significant result of placing the individual within a community setting would be that the language of duty takes priority over the language of rights. According to this view, a Muslim, upon embracing the religion, would necessarily give up some individual rights in view of duties owed primarily to the community and ultimately to God. Islamic law prohibits the death penalty unless provided for under the Sharia law.27 Surah Al-Ma'idah 5:32 states that if anyone kills a person unless it be for murder or for spreading mischief in the land it would be as if he killed all people. And if anyone saves a life, it would be as if he saved the life of all people. According to the verse, there are two types of crimes punishable by death. The first includes intentional murder. The second, known as Fasad fil-ardh, are crimes committed against the Muslim community that threaten to undermine the ruler or create havoc among believers. (e.g. rape, apostasy, adultery, homosexual behaviour, piracy and terrorism). Sharia lists penalties in Islam under three main categories: hudud, qisas and tazir. We will look into each in turn. Hudud (which means limit) provides fixed punishments set by God for offences committed by individuals directly against God. Not only are these crimes so serious a threat to society that they must be purged from the community, they are also considered a violation of Gods rights or against God. Although punishment under this category is fixed and hence immutable, opinions regarding the defences available and the requirements before a person can be charged with either of the offences differ among the schools of Islam.

the civil government is the servant of God, an avenger who carries out Gods wrath on the wrongdoer.
Due to humanity's failures in keeping with the Mosaic Law, God instituted a new covenant with His people through Jesus Christ. The old covenant which required strict observance of the law became void. 21 Jesus said that he had come not to abolish the law, but to fulfil it. In Matthew 5:38-39 he said, You have heard that it was said, an eye for an eye and a tooth for a tooth. But I say to you, do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also. In saying this, he was not contradicting but correcting the misinterpretation of the Mosaic Law by individuals who, during the time of Jesus, had misused the law for personal revenge.22 Later in Romans 12:19, Paul says, Beloved, never avenge yourselves ... but leave it to the wrath of God. He then says the civil government is the servant of God, an avenger who carries out Gods wrath on the wrongdoer.23 Thus, punishment would only be lawful if administered by the state the agent of God appointed to carry out His wrath upon the wrongdoer,24 and not by private individuals wishing to take matters into their own hands. Christians do not live in a God-ordained theocracy and so are not subject to the Mosaic Law, but are commanded by the Apostle Paul to be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves.25

within a community setting the language of duty takes priority over the language of rights.

8 | The Lexicon

Feature | Christianity, Islam and Capital Punishment

Muslim jurists have differing opinions as to which The Quran commands punishment for hirabah in of the hudud offences are punishable by death. Those Surah al-Ma'ida 5:3334: The punishments of those commonly acknowledged are zina (unlawful sexual who wage war against Allah and His Prophet and strive intercourse), riddah (apostasy) and hirabah to spread disorder in the land are to execute them in an 28 (banditry). Although murder was considered a capital exemplary way or to crucify them or to amputate their crime, it did not come under the category of hudud. hands and feet from opposite sides or to banish them Zina includes extramarital and from the land. Discretion in premarital sex. According to deciding on the method of According to Islam, the traditional Islamic Law as stated punishment is given to judges, in the Hadith, a person caught depending on the severity of governing authority is acting on in adultery is to be stoned to the offence and the condition of Gods behalf. Accordingly, death. 29 Yet the Quran itself the criminal. makes no mention of stoning, submission of an individual to the The second system, although it did prescribe 100 30 qisas (retaliation), concerns lashes for zina. Muslim jurists state can be seen as synonymous only intentional crimes believe that stoning as a penalty with submission to God. committed against an for adultery, as prescribed in the individual. In cases of homicide, Torah (refer above), continue to the charge must be brought by the relatives of the be valid in Islam given that the Prophet had affirmed it.31 victim and penalties are imposed upon the accused by Apostasy is taken very seriously in Islam; the state. The actual harm that was inflicted on the however, Muslim scholars are divided over how the victim is inflicted on the accused by the accuser (or his texts should be interpreted. Ibn Abbaas recorded, The or her heir) under the supervision of a public authority. Messenger of Allah said, Whoever changes his This was based on the principle of lex talionis: life for (Islamic) religion, kill him.32 However, the Quran itself life, eye for eye, nose for nose.38 does not prescribe the death penalty for apostates as it However, Surah Ah-nahl (verse 126) shows that is believed that the sin is punishable by God on the day 33 Islam strongly encourages forgiveness: And if you of judgement. punish (your enemy, O you believers in the Oneness of Anecdotal evidence shows that the Prophet Allah) then punish them with the like of what which you Muhammad and his disciples permitted the death were afflicted. But if you endure patiently, verily, it is sentence for apostasy. 34 Yet there were instances better for As-Sabirin. Clemency was at the option of where the Prophet himself exempted apostates from the victim, which sets aside the punishment completely the death sentence, or where he pardoned potential or provides a lesser punishment to be imposed instead. apostates after they repented and declared their Alternatively, the victim could opt for Diya (blood commitment to Islam. money) as a form of restitution or compensation to the For example, following Sulh victims family, which can be a Al-Hudaibiya (a peace treaty with appropriate alternative in Orthodox Islamic schools hold more the Quraish), the Prophet did not certain circumstances; where a impose the death penalty upon young widow is left behind to the position that an apostate individuals who chose to fend for her children, for may be given three days to renounce Islam. According to the example.39 terms agreed upon, If anyone repent and therefore return to Finally, tazir (punishment) from Quraish goes over to grants discretionary power to Muhammad (PBUH) without his Islam, failing which, the authorities to set their own guardians permission, he should apostate is to be executed punishment for categories of be sent back to Quraish, but crimes not covered by hudud and should any of Muhammads without reservation. qisas . Most Islamic schools find followers return to Quraish, he 35 that the death penalty cannot be imposed for crimes shall not be sent back. Consequently, Abd al-Hakim belonging to this category except in exceptional Hasan al-'Ili proposed that the Prophet had treated circumstances because of the high chance of it being apostasy as a tazir offence by using his discretion.36 used arbitrarily by the state. One such extraordinary Today, orthodox Islamic schools (i.e. Hanafi, case is recidivism the Hanafi and Maliki schools Hanbali, Shafii and Maliki) hold the position that an provide that habitual offenders may be executed.40 apostate may be given three days to repent and therefore return to Islam, failing which, the apostate is to be executed without reservation.37

The Lexicon | 9

Christianity, Islam and Capital Punishment | Feature

Conclusion Although interpretations differ due to the lack of clarity in the original texts, coupled with irregularity in its application during the course of history, it is clear that both Christianity and Islam have traditionally applied the death penalty. As mentioned earlier, however, the death penalty is no longer binding on Christians as it was on the Israelites to whom it was given. In a modern participatory form of government where the people are in power, the notion of governing authority differs radically from the Roman Empire under which Paul lived. It is submitted that Christians today, together with the rest of the citizenry, will have to choose between supporting or opposing capital punishment, each according to his or her own conscience. Some Christians hold the opinion that a fresh start should not be denied to any truly repentant criminal, as promised in Christ Jesus. Others remain in favour of the punishment, varying in opinion on when the penalty should be applied.

The author has taken all reasonable steps to ensure that the sources cited in support of the views herein are fair and accurate. The opinions expressed in this article are strictly personal to the author and do not reflect the views of Taylors Law School or the University.


Genesis 9:5; Exodus 21:12-14; Numbers 35:16-33; Leviticus 24:17; Deuteronomy 19:11-13; 21:1-19. 2 Exodus 21:28-30; Deuteronomy 19:5; Numbers 35. 3 Exodus 21:16; Deuteronomy. 24:7; 1 Timothy 1:10. 4 Leviticus 20:10; 21:9; Deuteronomy 22:21-24; John 8:4-11; 1 Timothy 1:10. 5 Leviticus 20:11-14; 18:6-19, 29. 6 Exodus 21:15,17; Leviticus 20:9; Deuteronomy 21:18-21; Matthew 15:4; Mark 7:10; Proverbs 20:20. 7 Leviticus 18:22; 20:13; Romans 1:32; 1 Timothy 1:10. 8 Exodus 22:19; Leviticus 20:15. 9 Exodus 22:28; Leviticus 24:10-16,23; Acts 25:7-11; 1 Timothy 1:9. 10 Exodus 22:18; Leviticus 20:27. 11 Exodus 22:20. 12 Deuteronomy 19:16-20; 1 Timothy 1:10. 13 Deuteronomy 13:11. 14 Ezekiel 33:11. 15 Deuteronomy 24:1. 16 Numbers 35:31, 32. 17 Hosea bought his wife from slavery (Hosea 3:2) and said to her, You shall stay with me for many days. You shall not play the harlot, nor shall you have a man; so I will also be toward you. (Hosea 3:3). 18 2 Samuel 12:15-18. 19 Deuteronomy 19:15. 20 2 Samuel 12:5. 21 Jeremiah 31:31-34; Romans 6:14. 22 Exodus 21:24; Deuteronomy 19:21. 23 Romans 13:4. 24 Romans 13. 25 Romans 13:1-2. 26 Donna E. Arzt, The Application of International Human Rights Law in Islamic States, (May 1990) Vol. 12/2, Human Rights Quarterly, pp 202-230. 27 Surah Al-'An`am 6:151. 28 Robert Postawko, Towards an Islamic Critique of Capital Punishment, (2002) 1, UCLA Journal of Islamic and Near Eastern Law, 269. 29 Sahih Bukhari 6:60:79; 83:37; Sahih Muslim 17:4192; 17:4196; 17:4206; 17:4209. 30 Surah An-Nur 24:2-9. 31 Surah Al-Ma'ida 5:43. 32 Al-Bukhari 9:57. 33 Surah Al-Kahf 18:29, ...whoever wills - let him believe; and whoever wills - let him disbelieve; Surah Al-Baqarah 2:256, There is no compulsion in religion. The right direction is distinct from error. 34 Surah An-Nisaa, Ayah 89 or Qur'an 4:89 [45]. 35 Ar-Raheeq Al-Makhtum (The Sealed Nectar) by Saifur Rahman alMubarakpuri. 36 Kamali, Mohammad Hashim, op.cit., p.248. 37 'Abdurrahmani'l-Djaziri, Kitabul'l-fiqh 'ala'l-madhahibi'l-'arba'a, (According to the Four Schools of Islamic Law), Vol.5, p.422-440. 38 Surat Al-Ma'idah 5:45. 39 Sahih Al-Bukhari 9.83. 40 Robert Postawko, Comment, Towards an Islamic Critique of Capital Punishment, 1 UCLA Journal of Islamic and Near Eastern Law 269, 307. 41 Generally includes all Malays as defined by Article 160 of the Federal Constitution. 42 Syariah Courts (Criminal Jurisdiction) Act 1965, s 2.
1

It is clear that both Christianity and Islam have traditionally applied the death penalty.
Islamic Law continues to be administered in various countries, and its application varies according to the teachings of the chosen school of Islamic jurisprudence. Although these schools generally agree with the death penalty being one form of possible punishment, there is no unanimity as to the circumstances under which the penalty should be applied. In Malaysia, Islamic law is administered by the Syariah Courts where both parties are Muslims, and it is a separate system from the general civil courts.41 It is based primarily on the texts of the Shafii school. Capital punishment is not within the jurisdiction of the Syariah Courts as provided in the Federal Constitution and the relevant enabling legislation.42 As such, the death penalty according to the Mosaic and Islamic laws cannot be enforced against Christians and, if things remain as they are in this country, against Muslims. Still, capital punishment is used in Malaysia for crimes such as murder, drug trafficking, treason, and waging war against the King. Though we fall very short of the standards imposed by the religions, debate is ongoing as to whether or not to do away with the penalty. Religious perspectives will likely steer the discussion and be a weighty factor in whichever verdict is reached.
10 | The Lexicon

Drugs: Dangerous but Not Deadly


by Alex Kua Tze Zern
The Southeast Asian region has inherited a traditionally strict attitude towards the trafficking of illicit substances. That is, the state takes it upon itself to punish offenders with the harshest of penalties death. Malaysia is a prime example, imposing a mandatory death penalty for drug trafficking. Trafficking is presumed in the event of possession exceeding specific amounts, depending on the substance.1 Thus, if one is arrested in possession of 15 grams (1/2 ounce) of heroin or 200 grams (seven ounces) of marijuana, one will be presumed by law to be trafficking in drugs.2 The question must then be asked: is this an outmoded attitude towards this kind of offence? According to national statistics, the number of detected drug addicts has generally been stable, but sensitive to fluctuations, which suggests that the death penalty has had little significant influence in this arena.3 Moreover, this is merely an account of those who get caught within the dragnet. Other sources estimate a much higher figure which could possibly increase in the following years.4 The fact that it is being driven underground makes it even harder to learn about the drugs true extent and impact. Unsurprisingly, the number of traffickers arrested has risen, and the factors cited by the Home Minister on this matter allude to the ineffectiveness of Malaysias uncompromising approach, involving capital punishment, in deterring such activities.5 An increased number of users obviously translates into higher demand for the product, thereby creating more incentive for potential traffickers to take the risks involved. The best example of this today is the physical harm caused by the sale and consumption of cigarettes as well as its addictive potential, of which should classify it hand-in-hand with the heavily persecuted illegal substances mentioned above. In fact, it is widely established that cigarettes are bad for you and certainly do not serve any practical purpose beyond staving off hunger for ardent dieters or providing a recreational buzz, and not even a very good one at that.6 Yet they can be bought almost anywhere in the world legally, and has a class of users more widespread than Facebook (an estimated 1 billion regular users).7

Rational scale to assess the harm of drugs.8

According to the American Centre for Disease Control, tobacco consumption accounts for At any rate, I would contend that it is difficult to approximately 5 million deaths across the world liken the gravity of smuggling contraband to homicide, annually.9 Five million. That's almost as many European terrorism or even arson where direct physical and Jews exterminated in World War II (6 million). Why does psychological violence has been committed against the state not summarily round up and execute tobacco individuals and the state itself. farmers, or the employees of major tobacco corporations? drug trafficking accounts For one, there is no direct causal link between the rise in for more than half of the Comparable figures can trafficking of, say, cannabis, LSD, hardly be attributed to cannabis, executions carried out in ecstasy or even cocaine, and the which is less harmful by Malaysia. decisions made by people to use magnitudes and actually has a such substances. It would be the variety of tested medical equivalent of punishing the McDonalds Corporation for applications.10 Even properly processed MDMA poses diminishing the lifespan of its customers by selling less risk, and comes with its own plethora of mayonnaise-slathered burgers, or persecuting your psychological benefits in treating acute depression and local vintner for turning your neighbours into alcoholics.
The Lexicon | 11

Drugs: Dangerous but not Deadly | Feature

Post-Traumatic Stress Disorder.11 Touting the medical benefits of these dangerous drugs may seem absurd to the layman, but this point is raised in stark comparison with the severe penalties they warrant in Malaysia; here, judges actually do not have the discretion to mince decisions even in the face of the most extenuating circumstances, due to the mandatory wording of the law.

Interest groups constantly bring up the tired, old arguments of addictive potential, physical harm and moral degradation, but are also blatantly obtuse about the pleasure without a compelling addictive potential of cigarettes There would certainly be less reason. The risk of death, (more so than cannabis or LSD) incentive to risk transporting apparently, is not one. and the social destructiveness of balloons of MDMA pills in ones alcohol consumption. Such stomach if the substance was hypocrisy should not merit the authority to dictate what readily available and regulated by the state. I submit one can and cannot consume, or who should be that few are the instances of people making the punished for it. desperate effort to smuggle bags of compressed tobacco in their bellies. Although smugglers are far from Rather, one must acknowledge the practical blameless, the draconian law has played a huge part in reality that most individuals who seek out such making it more dangerous for people who, for whatever substances are clearly and wilfully creating a demand reason, get caught up in it. for them. Nobody in their right mind who has ever decided to buy a pack of cigarettes, a few grams of By declaring, for example, cannabis illegal and a street coke or a six-pack of beer imagines that putting taboo when there is already a great demand (an these things into their bodies is going to be entirely estimated 160 million users worldwide in 2005)14 and good for them. They know what it is going to do for very little harm involved the state is creating a black them, and to them. market lacuna that is filled by the most unsavoury of individuals. A good example may be found in Mexico: How is it, then, reasonable to put such a after years of criminalization, the Mexican government is stringent burden of blame on mere purveyors or even still waging a ground war against drug cartels, one that those who choose to consume such substances? has resulted in the deaths of tens of thousands of innocent civilians.15 If we concede that few are ever forced into consuming recreational drugs in normal society, just as History has also taught us no one is generally forced to smoke cigarettes, or to have a bottle of wine with dinner, or eat a Supersized important lessons from the Double Cheeseburger, we should be hard-pressed to Prohibition in the 1920s and its consider those who voluntarily partake of them as villains and victims. failures. Clearly, there is a flagrant double standard when it comes to the types of drugs that the state considers dangerous, as opposed to perfectly legal drugs of harmful parity like alcohol and nicotine. This is a glaring fallacy that no rational-minded person should accept. And if we take into account the number of deaths related to tobacco, alcohol or fatty burgers compared to LSD, cannabis or MDMA, this becomes an increasingly untenable argument. The distinction merely exists with regard to the legality of the substance, and how the state and by extension, society at large, treats those who deal in or consume such substances. Moreover, the trafficking laws in Malaysia are such that they tend to target drug mules, even though addressing the drug mule issue only scratches the
12 | The Lexicon

surface of the problem. These mules may be willing or unwilling; in the end it is precisely these coercive and draconian laws that often force the individuals hand pursuing these means out of desperation, greed or through a culture of zealously enforced drug laws, which is something endemic throughout the Southeast Asia region.12 In some circumstances, their disadvantaged positions leave them vulnerable to traffickers.13 Human beings are not going They may be pressured into to stop using something that dabbling in an attempt to pay off debts, feed their families, or even to offers them recreational find a better life in a new country.

History has also taught us important lessons from the Prohibition in the 1920s and its failures. The thick skin of human nature is something we ought to give due consideration to. When the United States tried to ban the sale of alcohol, did it reduce its exchanging hands in any real or significant way? Again, the answer was no. They merely provided business opportunities for criminals to monopolize the industry, sparking vastly more harm than good. Empowering criminals and enabling the proliferation of unregulated moonshine, which had varying levels of alcohol content, created a greater environment of danger for everyday people who merely desired a nightcap at the end of the day.16

Feature | Drugs: Dangerous but Not Deadly

The practical point to be made here is that, even with the death penalty, there is little or no difference made to the number of either users or dealers.17 Human beings are not going to stop using something that offers them recreational pleasure without a compelling reason. The risk of death, apparently, is not one. And thus far, throughout the world, we can clearly see that the War on Drugs has failed to present even a marginally adequate alternative.18 To expand on the humanitarian issues raised above, a closer look into what proportion of offences make up the number of executions in Malaysia would be pertinent. It is quite a curious observation that crimes of a vastly more heinous nature often get less court time than drug offences. It is even more perturbing if we compare the latter to the number of murderers, terrorists, arsonists, treasonous persons and armed robbers on death row combined. What would you say would be a reasonable conclusion to draw? Three quarters of violent crime to a quarter drug offences? No, as a matter of fact; drug trafficking accounts for more than half of the executions carried out in Malaysia.19 More recently, though, with the recent Attorney General's report, the Malaysian government has taken a step back on the imposition of the death penalty for drug offences putting a moratorium on all current offences, in order to get a better grasp of the situation.20 Perhaps at this juncture, they've come to realize that this barbaric deterrent is ultimately not producing the desired results, as the number of traffickers has gone up despite its strict implementation.21

Perhaps we have finally learned that adage from Gandhi, something about an eye for an eye making the whole world blind? Whatever their reasons, it is a welcome change of tack. One supposes that the reasoning is, at least, a sound one. Most who suffer under this harsh law here are in reality the mules, petty dealers and tourists. Rarely are the primary players in the criminal industry the socalled drug barons caught in the states broad net approach. As a result, it becomes quite obvious why there is a massive disconnect between the execution of these laws and the actual prevention of the trafficking of dangerous substances.24

By taking the first step to remove the death penalty for trafficking offences, we move towards a more just system
It is an absurd solution, akin to treating a disease by focusing solely on the most obvious and ancillary of symptoms. It is neither a sustainable situation nor a just one; for every footman of the drug empire the state executes, for every mule they put down, scores rise up to take their place. Why is that? The answer must be scarcity. Drugs cost a considerable amount of money, are consistently in demand, and are able to fund criminal and terrorist empires precisely because states have taken such an obdurate approach to the problem without considering the wider implications.25 By making these substances absolutely illegal, these states have more than directly empowered these criminal elements, allowing them a vice-like forgive the pun control of the market, and later, upon realizing the situation is untenable, they begin waging a literal war against these factions.26 This is obviously not the situation in Malaysia, but is it only a matter of time, as it was for other parts of the world that decided on such a tack?

The relevant statutory provision is section 39B of the Dangerous Drugs Act 1952 in our country, and the de facto Law Minister Dato' Seri Mohamed Nazri himself has admitted as much that the use of the death penalty concerning such crimes were disproportionate, and did not seem apt to the crime.22 What a fantastic leap of reason. Though it seems the primary reason behind this For every footman of the drug change of heart are the hundreds In Colombia, where the empire the state executes, for of Malaysians abroad who are cartels have a deep and enduring being charged with similar foothold in the nation, the state is every mule they put down, penalties around the world, as he having serious problems dealing scores rise up to take their goes on to elaborate.23 The with the increasing violence that place. traditional stance is becoming the infighting between these diplomatically inconvenient where groups is causing. It does not help Malaysians convicted in foreign jurisdictions are that these organisations are funded by cocaine money, concerned; the authorities are arguing for the lives of of which there is a nearly limitless supply. And no, their own citizens from an unconvincing platform in discouraging farmers going so far as to arrest them committing to death row the citizens of other and burn down their farms has not proved even a jurisdictions. minimal deterrent. Feeding one's families, it seems, is worth the risk.

The Lexicon | 13

Drugs: Dangerous but not Deadly | Feature

As of now, in their desperation, many Latin American states have seen the only real solution legalisation.27 This may very well sound insane to most regular people, but why should it be? It is a reasonable solution. It takes away power from the criminals and cartels, puts it in the hands of the state and helps regulate the quality of the substances. It possibly even helps raise tax revenue for fighting these criminal organisations as well as for the development of infrastructure.

Of course, the argument for a more libertarian style of legalisation, as in the case for the recreational use of cannabis in the States, may be impractical for now. As it is, however, putting a moratorium on the death penalty for trafficking is a good sign. It shows that we have taken a short but necessary step towards rectifying the archaic position of this nations laws. Further reforms to the current mode of thinking would nonetheless be most welcome.

How would such a radical solution affect Malaysia? There is credible evidence to suggest it has a good chance of improving the situation. By taking the first step to remove the death penalty for trafficking offences, we move towards a more just system, where individuals are not summarily killed even where they have been coerced into being runners and mules.

Ask yourself, has the Netherlands suffered greatly from power from the criminals and its blind eye to the use of In the United States, as of cannabis? The answer is no. It has cartels, puts it in the hands of early 2013, at least two states been a great boon for the state tax the state and helps regulate the have voted democratically to revenue as well as for recreational legalise the recreational use of quality of the substances. smokers and tourists who are cannabis.29 As mentioned above, seeking a haven away from their many South American nations own home state's zealous persecution, and from having have also put forth proposals for a region-wide lifting of to deal with criminals.28 But more to the point, we can the ban on certain classes of drugs, including probably save the lives of scores of Malaysians abroad cannabis.30 in Asia that are being charged with similar crimes, under One cannot readily imagine a conservative similarly dire circumstances, without sounding like Southeast Asian country taking up such liberal social fatuous moral bigots. policies all in one go we can't even abide Reconciling decriminalisation with the prevailing homosexuals and atheists yet but with the current attitudes in society would require a considerable changes already in motion, perhaps we may one day overhaul, of course, but there are several viable refrain from judging those who simply want to relax at solutions to smoothen the transition towards the end of the day with a joint, as many do with a glass legalisation. Perhaps instead of focusing on chasing of wine or a cigarette. The moratorium on the death down addicts and raiding the homes of petty dealers, penalty is a good first step for Malaysia, but it seems the state could institute a program of exchange. A sort like we could do so much more for those incessantly of cash-for-contraband campaign, as it were. victimised under the current, outmoded law. With decriminalisation, if the state were to regulate the industry, the economics of the situation would quickly resolve itself. If someone could buy a pack of cannabis cigarettes from an authorized state dealer, there would be less incentive to patronize underground dealers for unverified and untested products. To be sure, no scheme of regulation can completely eradicate the possibility of smuggling. Still, greater availability through more conventional avenues and quality control will likely draw users away from criminal outfits that provide wholly unregulated and illegal products. It is reasonable to infer that with the convenience and safety of more conventional channels available, the impetus for criminal activity, and therefore criminal activity, should lessen somewhat.
14 | The Lexicon

As a community, it is not as if we are completely permissive of cigarettes; there is still some stigma to it, but we do not generally treat those who choose to consume such substances as pariahs and outcasts. It is submitted that if the state were to adopt a more liberal stance towards the consumption of certain substances no more harmful and addictive compared to cigarettes and alcohol, we might be able to progress more readily towards a tolerant and functional society. Legalisation takes away

Dangerous Drugs Act 1952, s 37(da). Dangerous Drugs Act 1952, ss 37(da)(i) and 37(da)(vi). 3 See, for e.g.,Laporan Dadah, Agensi Antidadah Kebangsaan <http://www.adk.gov.my/web/guest/dadah> accessed 8 March 2013; Agensi Antidadah Kebangsaan, Laporan Dadah Januari 2010, p 2 <http://www.adk.gov.my/html/laporandadah/Jan2010.pdf> accessed 8 March 2013; Jaclyn Martin, Statistics: Drug addicts among youth rising, New Sarawak Tribune (Kuching, 18 July 2010, 09:46) <http://tribune.my/prime/989-statistics-drug-addicts-amongyouth-rising.html> accessed 8 March 2013. 4 Malaysia has an estimated 350,000 drug addicts, which could rise to 500,000 by 2015 - Anuradha Raghu, Malaysia mosque a hope for heroin addicts, Reuters (Kuala Lumpur, 2 May 2012, 11:07pm EDT) <http://www.reuters.com/article/2012/05/03/us-malaysia-mosquemethadone-idUSBRE84205320120503> accessed 5 February 2013.
2

Feature | Drugs: Dangerous but Not Deadly


5

Hishammuddin: 10,500 drug traffickers detained since 2009, The Star Online (Kuala Lumpur, 19 March 2012, 1:51pm) <http://thestar.com.my/news/story.asp?file=/2012/3/19/nation/2012 0319140710&sec=nation> accessed 8 March 2013. 6 Other Health Dangers of Cigarettes for Smokers, <healthliteracy.worlded.org/docs/tobacco/Unit4/3other_health.html> accessed 7 February 2013. 7 Higher world tobacco use expected by 2010, FAO Newsroom (Rome, 8 January 2004) <www.fao.org/english/newsroom/news/2003/26919-en.html> accessed 7 February 2013. 8 By Apartmento2 (Own work) [Public domain], via Wikimedia Commons. <http://commons.wikimedia.org/wiki/File:Rational_scale_to_assess_t he_harm_of_drugs_(mean_physical_harm_and_mean_dependence).s vg> accessed 8 February 2013 9 Smoking & Tobacco Use, Centers for Disease Control and Prevention <www.cdc.gov/tobacco/data_statistics/fact_sheets/fast_facts/> accessed 7 February 2013. 10 Anahad O'Connor, 'Moderate Marijuana Use Does Not Impair Lung Function, Study Finds', The New York Times (11 January 2012, 9:38am) <http://well.blogs.nytimes.com/2012/01/11/marijuanasmoking-does-not-harm-lungs-study-finds/> accessed 24 January 2013; Medical Use of Marihuana, Health Canada <http://www.hcsc.gc.ca/dhp-mps/marihuana/index-eng.php> accessed 9 March 2013. 11 Tom Whitehead, Alcohol and tobacco more harmful than ecstasy and cannabis The Telegraph (29 October 2009, 7:00am GMT) <http://www.telegraph.co.uk/news/uknews/law-andorder/6455260/Alcohol-and-tobacco-more-harmful-than-ecstasyand-cannabis-says-chief-Government-adviser.html> accessed 9 March 2013; Suzi Gage, MDMA Could Be Effective In Treating PTSD Study, The Guardian (27 December 2012, 12:13 GMT) <http://www.guardian.co.uk/science/2012/dec/27/mdma-ecstasypost-traumatic-stress-disorder> accessed 24 January 2013. 12 Sudirman Nasir, Makassar, Misguided drug laws, The Jakarta Post (31 July 2011) <http://www.thejakartapost.com/news/2011/07/31/misguided-druglaws.html> accessed 22 February 2013. 13 Drug mules: Swallowed by the illicit drug trade, United Nations Office on Drugs and Crime <www.unodc.org/southasia//frontpage/2012/october/drug-mules_swallowed-by-the-illicit-drug-trade.html> accessed 8 February 2013. 14 The Beckley Foundation, Cannabis Policy: Moving Beyond Stalemate (The Global Cannabis Commission Report, September 2008) p 13 <http://www.undrugcontrol.info/images/stories/documents/Beckley% 20Cannabis%20Commission%20Report.pdf> accessed 9 March 2013. 15 Jorge Castaeda, Mexico's Failed Drug War (6 May 2010) Economic Development Bulletin No. 13 <http://www.cato.org/publications/economic-developmentbulletin/mexicos-failed-drug-war> accessed 24 January 2013. 16 Radley Balko, The Lessons of Prohibition, Reason (3 December 2008) <http://reason.com/archives/2008/12/03/the-lessons-ofprohibition> accessed 24 January 2013. 17 Laporan Dadah, Agensi Antidadah Kebangsaan <http://www.adk.gov.my/web/guest/dadah> accessed 8 March 2013; Michelle Chun and Dorothy Cheng, Death penalty not effective deterrent, says EU rep, The Sun Daily (Petaling Jaya, 31 October 2012) <http://www.malaysianbar.org.my/legal/general_news/death_penalty _not_effective_deterrent_says_eu_rep.html> accessed 9 March 2013. 18 Richard Branson, War on Drugs a Trillion-Dollar Failure, CNN (7 December 2012) <http://edition.cnn.com/2012/12/06/opinion/branson-end-war-ondrugs> accessed 24 January 2013. 19 Athi Shankar, Time to abolish death sentence, FMT News (George Town, 3 April 2011) <http://www.freemalaysiatoday.com/category/nation/2011/04/03/tim e-to-abolish-death-sentence/> accessed 9 March 2013.

20 Cabinet to get proposal to defer sentences of those on death row for drug trafficking, The Star Online (24 October 2012) <http://thestar.com.my/news/story.asp?file=/2012/10/24/nation/201 21024142743&sec=nation> accessed 24 January 2013. 21 Hishammuddin: 10,500 drug traffickers detained since 2009, The Star Online (Kuala Lumpur, 19 March 2012, 1:51pm) <http://thestar.com.my/news/story.asp?file=/2012/3/19/nation/2012 0319140710&sec=nation> accessed 8 March 2013. 22 Patrick Lee, Drug-related executions on hold, FMT News (Kuala Lumpur, 24 October 2012 <http://www.freemalaysiatoday.com/category/nation/2012/10/24/dru g-related-executions-on-hold/> accessed 10 March 2013. 23 Cabinet to get proposal to defer sentences of those on death row for drug trafficking, The Star Online (24 October 2012) <http://thestar.com.my/news/story.asp?file=/2012/10/24/nation/201 21024142743&sec=nation> accessed 24 January 2013. 24 Patrick Lee, Death Penalty Not Deterring Drug Trade, FMT News (19 March 2012) <http://www.freemalaysiatoday.com/category/nation/2012/03/19/dea th-penalty-not-deterring-drug-trade/> accessed 24 January 2013. 25 Senate of Canada Special Committee on Illegal Drugs, How Drug Prohibition Finances and Otherwise Enables Terrorism <http://www.parl.gc.ca/Content/SEN/Committee/371/ille/presentatio n/oscapella1-e.htm> accessed 24 January 2013. 26 Rory Carroll, Why The War on Drugs in Columbia May Never Be Won, The Guardian (16 February 2010) <http://guardian.co.uk/world/2010/feb/16/colombia-drugs-cocainetrafficking> accessed 24 January 2013. 27 Alfonso Serrano, How Latin America May Lead the World in Decriminalizing Drug Use, Time (9 October 2012) <http://world.time.com/2012/10/09/how-latin-america-may-lead-theworld-in-decriminalizing-drug-use/> accessed 9 March 2013. 28 Dale Gieringer, Economics of Cannabis Legalisation (California NORML, June 1994) <http://norml.org/library/item/revenues-fromlegalisation> accessed 9 March 2013; Andrew Bender, Amsterdam to Weed Smokers: Party On, Forbes (2 November 2012) <http://www.forbes.com/sites/andrewbender/2012/11/02/amsterda m-to-weed-smokers-party-on/> accessed 24 January 2013. 29 Micah Cohen, Marijuana Legalisation and States Rights, The New York Times (8 December 2012) <fivethirtyeight.blogs.nytimes.com/2012/12/08/marijuana-legalisationand-states-rights/> accessed 24 January 2013. 30 Damien Cave, South America Sees Drug Path to Legalisation, The New York Times (29 July 2012) <http://www.nytimes.com/2012/07/30/world/americas/uruguayconsiders-legalizing-marijuana-to-stoptraffickers.html?pagewanted=all&_r=0> accessed 24 January 2013.

The Lexicon | 15

Retentionist States of the Middle East


by Mohadese Barikbin
Capital punishment is the act of condemning a person, or persons, to death for certain capital crimes. It has been used by most societies in the past. To date, the death penalty still persists, and it is believed that over 60% of the worlds population live in countries practicing it.1 Although many countries around the world are abandoning the practice, increased use of the death penalty in the Middle East has flown in the face of that trend. Jan Wetzel, adviser to Amnesty International on the death penalty, has said of these countries: This is a very small number within the larger number of prodeath penalty states, which shows that even in that group, they are very isolated but they do account for a large number of executions.2 fourteen,6 rape, and in rare cases, blasphemy.7 In Iraq, capital punishment can be carried out for as many as 48 crimes including non-injurious offences such as damage to public property.8 Although the laws in these countries specifically state the crimes punishable by death, countries like Iran and Saudi Arabia have allegedly used these laws for political reasons. For example, it has been alleged that accusations of crimes such as Moharebeh (waging war against God or people) and Mofsede-fel-arz (spreading corruption on earth) are political charges disguised as religious crimes.9 In Iran, at least 30 individuals were executed since January 2010 on charges of Moharebeh, allegedly for their ties to armed or terrorist groups.10 Iran is one of the worlds leading abusers of the death penalty and commonly applies the penalty to political dissidents, said Eric Goldstein, deputy Middle East director at Human Rights Watch.11 Additionally, illegal importing, exporting, sale, and possession of drugs constitute capital offences in most Middle Eastern countries such as Yemen, the UAE, Syria, Saudi Arabia, Pakistan, Iran, and Egypt. 12 In Saudi Arabia for instance, based on a 1987 ruling by the Ulama, those who receive and distribute drugs from abroad are subject to the death sentence for bringing corruption into the country.13 In support of these harsh laws, officials in Saudi Arabia have claimed that the kingdom has the lowest rate of drug addiction in the world, which has been credited to the tough penalties under the drug laws and the strong faith of its citizens.14

Middle Eastern countries rank amongst the top countries that retain capital punishment, in terms of the numbers of executions reported
This article focuses on capital punishment in several Middle Eastern countries namely, Iran, Iraq, Saudi Arabia, Afghanistan, and Pakistan. The great number of executions and the wide range of crimes for which the death penalty can be passed make these countries a proper subject of international scrutiny. Even with considerable media coverage and human rights organizations raising awareness, not much has been done to abolish the death penalty in these countries. Taking a closer look at the reasoning behind capital punishment in these countries is the first step to understanding the issue. Generally, the death penalty is carried out for crimes such as murder, espionage and treason, but in the Middle East, Islamic countries like Iran and Saudi Arabia follow strict interpretations of the Sharia or Islamic law. Crimes punishable by death in Iran and Saudi Arabia are not limited to the usual capital offences such as murder, but also include rape, adultery, pedophilia, sodomy, drug trafficking, armed robbery, kidnapping, terrorism and treason.3 In Pakistan, death sentences are provided for drug trafficking, kidnapping for ransom,4 kidnapping for unnatural lust, 5 kidnapping anyone under the age of

In Iraq, capital punishment can be carried out for as many as 48 crimes including non-injurious offences
A persistent human rights issue has also arisen in some of these countries in the form of juvenile executions convicts who were under the age of majority at the time of the crime. Despite ratifying the Convention on the Rights of the Child and International Covenant on Civil and Political Rights, Iran has continued executing juveniles as well as persons convicted of committing crimes while they were still

16 | The Lexicon

Feature | Retentionist States of the Middle East

juveniles. 15 The execution of Mahmoud Asgari is a famous example of a juvenile execution, for which Iran was highly criticised and subjected to international condemnation. Asgari was 16 years old when he was publicly hanged in Edalat Square in Mashhad in 2005.16

it has still occurred in areas beyond the control of the Afghan state.27 In recent years, Afghanistan and Iran no longer sentence adulterers to death by stoning. However, in Iran, the death penalty is still the punishment for adultery or any other form of sexual relations between unmarried people, and it is believed Iran has used the death penalty on minors at that stoning is still a reality although it has been least three times in recent years, amended out of the penal in violation of international laws.17 code.28 Iran has used the death penalty Saudi Arabia is also known to on minors at least three times in have executed two juvenile Middle Eastern countries offenders.18 Those juveniles were rank amongst the top countries recent years, in violation of put to death for charges ranging that retain capital punishment, in international laws. Saudi Arabia terms of the numbers of from murder to adultery and sodomy (in Iran), sorcery (in Saudi executions reported in these is also known to have executed Arabia) and drug offences.19 countries. Iran is reported to two juvenile offenders. have executed 1,663 people Different methods are used between 2007 and 2011, but by these countries to carry out executions, but the most some believe that this number is an underestimate, with common way is hanging. Hanging is sometimes carried more executions going unreported.29 out publicly at the scene of the crime, to serve as an example to others and to provide public closure. Iran is Saudi Arabia has had 423 executions in the an example of a country in the region that practices same time frame making it the third country after Iran.30 public hanging.20 The reports also show that the number of executions in Saudi Arabia, Iran and Iraq has increased. 31 Iraq Beheading is another form of capital punishment. acknowledged only one execution in 2010, but has It was used in Iraq by Saddam Husseins government used the death penalty at least 68 times in the to execute as many as 50 prostitutes and pimps in the subsequent year.32 21 late 2000s. Other than these countries, Qatar and Saudi Arabia are also known to use this method.22 Human rights activists and organizations have declared their concerns about the violation of human The most controversial method of execution is rights in this region. Among these concerns is the stoning, where stones are thrown at the convicted obscure nature of these countries judicial systems that person by a group until he or she dies. Stoning is part allows these countries to carry out executions after of Sharia law, but in the Quran it is only mentioned judicial processes of questionable fairness. The that any kind of sexual engagement outside of marriage disturbing case of Seyyed Reza Hejazi in Iran drew is sinful, and there is no international attention to this implication that adulterers should matter. In 2008 the Iranian The growing use of the death be put to death in this way. 23 authorities executed Seyyed Reza penalty in the Middle East is Stoning has been taken from Hejazi for his role in a murder Hadith (accounts of the prophets seen as a tactic used by the committed in 2003 when he was sayings) and it is also specific to 15, an adult under Iranian but not authorities to discourage adultery and not fornication.24 international law. Hejazi's lawyer dissidents from participating was not notified of the execution The very public and until after the event.33 in pro-democracy disturbing stoning of Du'a Khalil movements. Aswad, a 17-year-old Iraqi girl In Saudi Arabia, the practice while a local security force looked of witchcraft is considered a capital on, was highly condemned by international human crime and is punishable by death. 34 Successful rights organizations such as Amnesty International, convictions for witchcraft have taken place; in 2011, a Human Rights Watch and International Committee Sudanese man and a Saudi woman were beheaded for against Stoning (ICAS). 25 Various womens rights practicing witchcraft.35 activists formed the Stop Stoning Forever Campaign after a man and a woman were stoned to death in Iraqs anti-terror law, passed in 2005, provides a Mashhad in May 2006.26 The campaign's main goal is mandatory death penalty for terrorist acts as well as to legally abolish stoning as a form of punishment for those who provoke, plan, finance and enable adultery in Iran. terrorists. 36 The vagueness of the definitions of these terms allow for the arbitrary use of the death penalty, In Afghanistan, the United States-led occupation since even peaceful political protests have been ended stoning as a matter of official state practice, but considered to fall under the heading of terrorism.37
The Lexicon | 17

Retentionist States of the Middle East | Feature

The Iraqi authorities insistence on carrying out this outrageous string of executions, while unwilling to reveal all but the barest of information, underlines the opaque and troubling nature of Iraqs justice system, said Joe Stork, deputy director of the Middle East and North Africa division at Human Rights Watch. Rather than executing people, Iraq should focus on reforming its security and judicial systems to protect its citizens from increasing human rights violations.38


10 World Report 2012: Iran, Human Rights Watch <http://www.hrw.org/world-report-2012/world-report-2012-iran> accessed 23 February 2013. 11 Iran: Stop Dissidents Execution, Human Rights Watch (Beirut, 8 September 2012) <http://www.hrw.org/news/2012/09/08/iran-stopdissident-s-execution> accessed 10 March 2013. 12 Rick Line, The Death Penalty for Drug Offences: A Violation of International Human Rights Law (International Harm Reduction Association, 2007) p 8 <http://www.ihra.net/files/2010/07/01/DeathPenaltyReport2007.pdf> accessed 10 March 2013. 13 Saudi Arabia Crime and Punishment, Mongabay (December 1992) <http://www.mongabay.com/history/saudi_arabia/saudi_arabiacrime_and_punishment.html> accessed 23 February 2013. 14 Ibid. 15 Iran executes juvenile offender, Amnesty International News (18 January 2013) <http://www.amnesty.org/en/news/iran-executesalleged-juvenile-offender-2013-01-18> accessed 6 March 2013. 16 2005: Mahmoud Asgari and Ayaz Marhoni, gay teens, ExecutedToday.com (19 July 2009) <http://www.executedtoday.com/2009/07/19/2005-mahmoudasgari-ayaz-marhoni-gay-teens-iran/> accessed 23 February 2013. 17 Death penalty 2011: Alarming levels of executions in the few countries that kill, Amnesty International News (27 March 2012) <http://www.amnesty.org/en/news/death-penalty-2011-alarminglevels-executions-few-countries-kill-2012-03-27> accessed 23 February 2013. 18 Human Rights Watch, The Last Holdouts: Ending the Juvenile Death Penalty in Iran, Saudi Arabia, Sudan, Pakistan, and Yemen (September 2008) p 1 <http://www.essex.ac.uk/armedcon/story_id/the%20last%20holdout s.pdf> accessed 23 February 2013. 19 Saeed Kamali Dehghan and Ed Pilkington, Arab Spring leads to wave of Middle East state executions The Guardian (27 March 2012) <http://www.guardian.co.uk/world/2012/mar/27/arab-spring-middleeast-executions> accessed 23 February 2013. 20 Thomas Erdbrink, Iran Resorts to Hangings in Public to Cut Crime The New York Times (Tehran, 20 January 2013) <http://www.nytimes.com/2013/01/21/world/middleeast/iran-resortsto-hangings-in-public-to-cut-crime.html?_r=0> accessed 23 February 2013. 21 Wendy McElroy, Iraqi Women Brutalized by Saddam Fox News (11 February 2003) <http://www.foxnews.com/story/0,2933,78126,00.html> accessed 10 March 2013. 22 Prosecutor Calls for Beheading of Failed Qatar Coup Leader, Albawaba News (17 September 2000); Russell Goldman, Saudi Arabias Beheading of a Nanny Followed Strict Procedures ABC News (11 January 2013) <http://abcnews.go.com/US/saudi-arabiasbeheading-nanny-strict-procedures/story?id=18182757> accessed 10 March 2013. 23 Qur'an An-Nur 24:2-9. 24 Hadith Muslim 17:4192; see also Bukhari 6:60:79; Bukhari 83:37; Muslim 17:4196; Muslim 17:4206; Muslim 17:4209; Ibn Ishaq 970. 25 The moment a teenage girl was stoned to death for loving the wrong boy Daily Mail (3 May 2007) <http://www.dailymail.co.uk/news/article-452288/The-momentteenage-girl-stoned-death-loving-wrong-boy.html> accessed 23 February 2013. 26 Rochelle Terman, The Stop Stoning Forever Campaign: A Report (Women Living Under Muslim Laws, November 2007) p 2 <http://www.violenceisnotourculture.org/sites/default/files/StopStonin gForever.pdf> accessed 23 February 2013. 27 Amir Shah, Taliban stone couple to death for adultery NBCNews.com (Kabul, 16 August 2010) <http://www.nbcnews.com/id/38724568/ns/world_newssouth_and_central_asia/> accessed 23 February 2013. 28 Saeed Kamali Dehghan, Iran misleading international community with death penalty claims, The Guardian (13 February 2012) <http://www.guardian.co.uk/world/2012/feb/13/iran-misleadingdeath-penalty-claims> accessed 10 March 2013.

Abolishing the death penalty is especially controversial in this region because it is an Islamic practice based on the eye for an eye ( Qisas) belief.
The growing use of the death penalty in the Middle East is seen as a tactic used by the authorities to discourage dissidents from participating in prodemocracy movements. 39 This has figured heavily in Iran where the state has executed a large number of political prisoners, accusing them of Mofsede-fel-arz and giving little explanation for the grounds for the charges.40 Abolishing the death penalty is especially controversial in this region because it is an Islamic practice based on the eye for an eye (Qisas) belief.41 It is hoped that the close international attention paid to the practice of capital punishment in these countries will help to minimize the number of executions there.

The four most populated nations in the world China, India, the United States of America and Indonesia, all practice the death penalty. 2 Richard Solash, Amnesty International Says Executions Up In Middle East, Fueling Global Increase Radio Free Europe/Radio Liberty (Washington, 27 March 2012) <http://www.rferl.org/content/amnesty_international_executions_risin g_middle_east_global_increase/24528317.html> accessed 23 February 2013. 3 Iran Refugees Alliance Inc, Table of Capital Offences in the Islamic Republic of Iran and their Sources in Statue Law and Islamic Law (The Project on Extra-Legal Executions in Iran, November 2010) <http://www2.ohchr.org/english/bodies/hrc/docs/ngo/NGO_submissi on_ELEI_Add.1.pdf> accessed 23 February 2013. 4 Pakistan Penal Code (Act XLV of 1860), s 365-A. 5 Pakistan Penal Code (Act XLV of 1860), s 367-A. 6 Pakistan Penal Code (Act XLV of 1860), s 364-A. 7 Pakistan Penal Code (Act XLV of 1860). 8 Pillay condemns Iraqs execution of 34 individuals in a single day, United Nations Human Rights DisplayNews (Geneva) <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?N ewsID=11774&LangID=E> accessed 10 March 2013. 9 Peter Walker, Iranian court jails human rights activist for 'waging war against God, The Guardian (19 September 2010) <http://www.guardian.co.uk/world/2010/sep/19/iranian-court-jailshuman-rights-activist> accessed 10 March 2013.

18 | The Lexicon

Feature | Retentionist States of the Middle East


29

Richard Johnson, The Death Penalty, National Post (April 2012) <http://nationalpostnews.files.wordpress.com/2012/04/na0428_deat hpenalty.pdf> accessed 23 February 2013. 30 Ibid. 31 Saeed Kamali Dehghan and Ed Pilkington, Arab Spring leads to wave of Middle East state executions The Guardian (27 March 2012) <http://www.guardian.co.uk/world/2012/mar/27/arab-spring-middleeast-executions> accessed 23 February 2013. 32 Ibid. 33 Human Rights Watch, The Last Holdouts: Ending the Juvenile Death Penalty in Iran, Saudi Arabia, Sudan, Pakistan, and Yemen (September 2008) p 6 <http://www.essex.ac.uk/armedcon/story_id/the%20last%20holdout s.pdf> accessed 23 February 2013. 34 Leo Igwe, Witchcraft and the Death Penalty in Saudi Arabia, Institute for Ethics and Emerging Technologies (11 May 2012) <http://ieet.org/index.php/IEET/more/igwe20120511> accessed 23 February 2013. 35 Ibid. 36 Iraq: Urgent Need for Death Penalty Moratorium, Human Rights Watch (Beirut, 10 October 2012) <http://www.hrw.org/news/2012/10/10/iraq-urgent-need-deathpenalty-moratorium> accessed 23 February 2013. 37 Ibid. 38 Ibid. 39 Saeed Kamali Dehghan and Ed Pilkington, Arab Spring leads to wave of Middle East state executions The Guardian (27 March 2012) <http://www.guardian.co.uk/world/2012/mar/27/arab-spring-middleeast-executions> accessed 23 February 2013. 40 Iran: Stop Execution of Ahwazi Arab Political Prisoners, Human Rights Watch (London, 24 January 2013) <http://www.hrw.org/news/2013/01/24/iran-stop-execution-ahwaziarab-political-prisoners> accessed 10 March 2013. 41 Sura 2, Al-Baqarah, 178.

The Lexicon | 19

From the Other Side of the Bench


An Interview with Justice Prasad Abraham

by Shalini Julia John

For millennia, capital punishment has been implemented in every civilization known to mankind. However, in the last 50 years, the world has slowly started to move away from the idea of applying such a punishment and many countries have even chosen to fully abolish the death penalty. There are only a handful of countries that have yet to follow suit. Malaysia is one of them. Recently however, there have been numerous calls for the abolishment of the death penalty in this country. Although many within the legal community echo the sentiments of these groups in believing that the country should rethink the death penalty and come up with a more humane alternative, there are just as many who feel quite differently. With these conflicting opinions in mind, I turned up at the Shah Alam High Court for an interview with The Honourable Justice Dr. Prasad Abraham, hoping to gain more insight into the issues surrounding it. The Honourable Dr. Prasad Sandosham Abraham was appointed to his current post as a High Court judge in 2010 after having been a distinguished and prominent member of the legal fraternity for some time. As such, Justice Prasads perspective was of utmost interest to me. Praying that 45 minutes would be sufficient to explore his insights, I was met by Justice

Prasads secretary at the entrance of the colossal building and led into the judges chambers. Justice Prasad himself joined me a few minutes later. My opening query could not have been a surprise to anybody, of course. What are your thoughts on the death penalty? Beginning with his general views on the death penalty system in Malaysia, Justice Prasad set the tone for the rest of the interview thus: The death penalty has been with us for a long time. We cannot compare our situation with the justice systems in other countries because here, we have punishment for crimes such as murder, drug trafficking and recently, terrorism. To say, in absolute terms, that the death penalty should be abolished here I would have to disagree. I suppose that we could consider relaxing the death penalty for certain types of offences, but I do not think it should be fully abolished. Justice Prasad elaborated his point of view by referring to the drug-trafficking scene in the country. Despite some strong arguments relating to the cruelty and inhumanity of the death sentence, it is undeniable that we are living on the border of the Golden Triangle of illegal drug production and as a result, it is sensible to impose a heavy sentence such as the death penalty to deter such illicit activities.

20 | The Lexicon

Interview | From the Other Side of the Bench

Also, the possible ramifications that abolition would have on the current prison system were very much an important part of the discussion. The burning question is whether or not our [prison] system can cope with this. We are already choked and severely shortstaffed as it is. We dont have a situation where we have a developed prison system like countries in the West, where they can provide [effective] counselling and other forms of rehabilitation. Does that mean then, that our prison system can be considered inadequate when looking at the general context of prison systems all around the world? I asked.

Thus far, the discussion has been weighted heavily on the side of retribution for the wronged. The issue of the mental anguish that inmates face on death row as a form of punishment gave the honourable judge pause, however. Creases appeared on his forehead just above the eyebrows as he carefully mulled over it.

I am not saying that we are inadequate, but when you [effective] counselling and other consider removing the death If the court rejects his forms of rehabilitation. penalty, it just cannot be done on mitigation and still orders an the basis of protests and the execution, it means that the opinions of those who deem it an archaic form of court has already discounted any other form of protest, punishment. I think each country has to look at its as the perpetrator was unable to prove to the court that current situation in its own context to determine what he was truly and deeply sorry for his crime. Hence, if kind of justice system is needed. No doubt there have the accused cannot convince a judge that he deserves been reforms to the prison system recently, but my own a lesser sentence, then it is up to the court to view is that the death penalty should not be completely administer justice as provided for under the law. abolished. To Justice Prasads mind, the system as it Still, if any step is to be taken in regards to this, stands is balanced in consideration of the victim, the Justice Prasad recommends a complete detailed study accused and the needs of society for retribution or to be done, and all the affected judicial stakeholders deterrence. We can still always tweak the system a consulted. Recently, Singapore amended some of its little to make it work better on a case-by-case basis, mandatory death penalty offences to allow for judicial but the crux of the matter is that we have to look at the discretion in sentencing. 1 The honourable judge society we live in to determine the necessity for such a suggested Malaysia could model its reforms after this penalty; and in this country, we still need it. stance. Indeed, under the current system, judges still Even then, should the families of victims be have a role to play in assisting the convict on death row, allowed to express their views on the matter? as they have to prepare reports for the cases that go to Parliament has actually already provided for this the Pardons Board for appeals for clemency from the through the amendment of the Criminal Procedure King. One of the factors that the Board takes into Code. Thanks to this, we now have the Victim Impact account is the report from the judge. Statement (VIS) that has been available in Malaysian courts since June 2012. It allows the victims and their Our system is such that people families to come forward and address the court and to relate their experiences of the crime before the court generally do not respect the passes the [sentence]. According to Justice Prasad, the system now enables the court to allow the victims family to voice their grievances in cases of heinous crime. The judge would be entitled to take into consideration the familys views and how they have been affected by the crime. All the same, even with such measures in place, it makes one wonder if justice for the victims can ever be adequately served by a death sentence. . .

You see he began, It is all a question of balance. Within the process of the trial itself, there is an element of mitigation where the perpetrator is allowed to address the court pertaining to actions. In this instance, the We dont have a situation where his perpetrator can attempt to sway the court in his favour by we have a developed prison expressing his remorse, system like countries in the promising that he would never commit such crimes again, and West, where they can provide so on and so forth.

authorities unless punishment for crime is properly enforced.


Interestingly, Justice Prasad also made it clear that the system does contemplate the impact on the convicts family if he is sentenced to certain punishments, although the process is not as detailed as that of a VIS. During mitigation, the concerns of the

The Lexicon | 21

From the Other Side of the Bench | Interview

convict and his family can be taken into consideration before the death penalty is passed.

Of course, there is no mitigation process in cases where the death penalty is mandatory, such as for drug trafficking. In these situations the anguish of the perpetrator and his family will have to go unaddressed. But even with mitigation, one wonders how these concerns could be put across convincingly before the court if their account is not as detailed as a VIS?

system is such that people generally do not respect the authorities unless punishment for it just cannot be done on crime is properly enforced. He emphasized that as an Asian society, the basis of protests and the we should not blindly follow what on in the Western countries. opinions of those who deem goes Things like these should not be done in haste; careful studies must be it an archaic form of conducted at each step to foresee punishment. the possible ramifications. A quick glance at the wall: time was almost up. Sensing my hesitance, Justice Prasad encouraged a last question from me. Here I shared with Justice Prasad the results of my personal research on the subject matter the increasing number of people who feel that the death penalty is a medieval form of punishment, and the fact that many nations that practice capital punishment are considering its abolishment. If this change of perception were to happen in Malaysia, what alternatives do we have?

In order to make a real mark, I feel that something like the VIS, but for the other party (the convict and his family) can be introduced. [However] we do not have it at the moment and it may take some time before it can ever come into existence. Our society is such that it would be difficult to try and persuade them to give mercy to perpetrators. We usually feel that they deserve to be punished for the crimes they have committed, and we just may not be ready for something like this.

Lets look at a couple of crimes that would be punishable by death treason and waging war against the King. Both of these crimes boil down to the It was easy to agree with that view. As a society, question of your national philosophy. These offences go we rejoice at the wonderful things that happen in our against the very root of your statehood; therefore, the country and cry together when we are faced with crises death penalty must be in place because it acts as a that strike deep into our moral values. The tragic story deterrent. If you dont give them a reason for not doing of Nurin Jazlin Jazimin who was sexually assaulted and it, they will do it. The anti-terrorism laws implemented brutally murdered in 2007 comes to mind.2 The whole in the USA after the 9/11 attacks, such as the Patriot country was outraged by the crime and called for the Act 2001, covered offences that would have merited death of her murderer without hesitation. The media the death penalty in Malaysia, exploded with reports and for example. Of course, as Whatever current or alternative Justice Prasad goes on to articles about bringing the perpetrator to justice and punishment that the court passes maintain, it is important to look avenging the death of this at the prevailing conditions in innocent girl. on the convicted, you can rest each country before deciding on appropriate penalties. assured that their main concern Six years on, her killer still walks free, but the gaping wound But more importantly, is for the victim and that justice that this crime left on our society could any alternative to the has yet to heal. 3 With that in will be served. death penalty provide justice to mind, it would be unfathomable the victims? Whatever current for most of us to be faced with such a drastic change in or alternative punishment that the court passes on the the justice system, where the perpetrator is allowed a convicted, you can rest assured that their main concern liberal platform to give the other side of the story. is for the victim and that justice will be served. Nevertheless, we must look to the future. It was with this conviction that I soldiered on with the next point: could Malaysia possibly emulate the actions of other countries that have abolished the death penalty in the near future? We, as Malaysians, cannot use the West as a compass for the way we conduct ourselves in relation to our laws. The Malaysian way of thinking and culture is very, very different from that of the West. Our history of crime and the way we administer justice has always been through deterrence and stringent punishment. Our
22 | The Lexicon

Our interview ended on this stirring theme, and as I left, I promised to do his interview justice.


Where indicated, the views expressed in this article are personal to the interviewee, who is not an acting criminal judge.

Interview | From the Other Side of the Bench

Sharon Chen, Singapore Amends Death Penalty Laws to Exempt Some Offences, Business Week (Kuala Lumpur, 24 February 2013) <http://www.businessweek.com/news/2012-11-14/singaporeamends-death-penalty-law-to-exempt-some-offences> accessed 24 February 2013. 2 Girl, 8, found dead in sports bag, The Age (Kuala Lumpur, 21 September 2007) <http://www.theage.com.au/news/world/girl-8found-dead-in-sports-bag/2007/09/21/1189881724247.html> accessed 8 February 2013. 3 Isabelle Lai, Nurins death an open wound, The Star (Kuala Lumpur, 26 January 2013) <http://thestar.com.my/news/story.asp?file=/2013/1/26/nation/1263 0900&sec=nation> accessed 8 February 2013. Image courtesy of Tengku Mohd Hazwan Dato Tengku Hassan, Istana Kehakiman (Court of Justice}, Putrajaya, Malaysia (The Hazuism, 31 July 2011) <http://hazuism.blogspot.com/2011/12/july31-2011-istana-kehakiman-court-of.html> accessed 27 April 2013.

The Lexicon | 23

Law Speaker Series 2012:


Students Learn about the Competition Act
On October 12th 2012, Dr. Cheah Chee Wah shared his insights on the Competition Act 2012 with the staff and students of Taylors Law School. The roles of the Act in promoting a competitive business environment, protecting consumers interests, stimulating economic growth and giving foreign investors more confidence in the country's business practices were discussed. This edition of the Law Speaker Series entitled, Competition Act 2010: What, Why and How also addressed details of the Competition Act, attracting immense interest from the students especially with the recently-adjudicated patent law litigation between Apple and Samsung in the United States on everyones minds. Dr. Cheah Chee Wah is Advisor to the Malaysian Competition Commission (MyCC) on the implementation and enforcement of competition law. He is also the Director and Principal of JayCee Asia-Pacific Pty Ltd, an independent consultancy firm that specialises in competition law.

Professor Cardwell Explains the Nature of the UKs Constitutional Law

Professor Paul Cardwell, Deputy Head of the School of Law, University of Sheffield sheds some light on the United Kingdoms Constitutional Law.

On November 6th 2012, Professor Paul Cardwell, Deputy Head of the School of Law at the University of Sheffield, United Kingdom (UK) was invited to Taylors Law School Law Speaker Series to share his thoughts on the nature of the United Kingdoms constitution with staff and students from the School. Professor Cardwell discussed the key issues within this area of the law and how the UK constitution has changed since 1977. He enlightened students about the UKs unbroken constitutional history and the extent to which Constitutional Law has influenced the area of human rights in the UK. A comparison of how Constitutional Law was administered under the most recent British Prime Ministers Tony Blair, Gordon Brown and David Cameron was also provided. Professor Paul Cardwell is currently the Deputy Head of the School of Law at the University of Sheffield, United Kingdom with specific responsibility for internationalisation. He is also the Director of the Sheffield Centre for International and European Law, which hosted the International Law Association (ILA) British branch conference in 2011, and is a member of the Centre for the Study of Law in Society.

24 | The Lexicon

Law Speaker Series 2012:


UK Expert Shares about Tort Law
On November 9th 2012, Professor Richard Lewis, Course Director for the Law of Tort at Cardiff University, United Kingdom (UK) spoke on some current issues and myths revolving around Tort Law. Professor Lewis enlightened students on how Tort Law applies to personal injury cases and challenged students to think about whether the cases in this area of the law have been treated with due fairness.

Dr. Venkat Iyer Explains the Intricacies of Constitutionalism

Dr. Venkat Iyer, Barrister and Academic explaining what constitutionalism entails.

Professor Richard Lewis discusses Tort Law.

Professor Richard Lewis was educated at West Mon School, Pontypool, and Lincoln College, Oxford. After obtaining a first class degree from Oxford University, he joined the solicitors firm of Norton Rose in London. However, he interrupted his employment to take up a position at Northwestern Law School in Chicago. He then joined the University of Wales in 1974. Professor Richard is currently the Course Director for the Law of Tort at Cardiff University, and also the Director of Overseas Recruitment, often representing the Law School abroad.

On December 6th 2012, Dr. Venkat Iyer presented an installment of the Taylors Law School Law Speaker Series, titled Constitutions, Constitutionalism and the Rule of Law. Dr. Iyer shared about interesting cases such as the Naomi Campbell case and the Catherine Zeta-Jones case. Attendees at the talk were able to get an in-depth view of current issues pertaining to constitutionalism and the rule of law in the United Kingdom. Dr. Venkat Iyer is a barrister and an academic. He is attached to the School of Law at the University of Ulster where he teaches constitutional law, media law, and business law. A former Nuffield Press Fellow at Cambridge University, Dr. Iyer has lectured in a number of foreign universities and acted as consultant to several governments and non-governmental organizations. Dr. Iyer is also the author of a number of books and articles, and the Editor of The Commonwealth Lawyer and The Commonwealth Journal of International Affairs, both published in London.

The Lexicon | 25

Law Ball & Awards Ceremony 2012


20th Anniversary Celebration with Industry Partners and Alumni

Taylors Law School staff and students take a snapshot together to commemorate the event.

Treading the path of success in producing qualified and high-calibre law graduates, Taylors Law School (TLS) celebrated its 20th anniversary on August 5th 2012 at the Empire Hotel with a gala Law Ball & Awards Ceremony 2012, which was themed Committed to Excellence and was well-attended by industry partners as well as Taylors alumni. The President of the Malaysian Bar Council, Mr. Lim Chee Wee, was the Guest of Honour at the event. The event also saw top students receiving book prizes and internship opportunities with some of the top legal firms in the country. Ebbie Wong and Mavinthra Jothy were named as the recipients of the High Achievers Award for Best Overall Performance for Year 1 and Year 2 respectively. In addition to the book prize, Ebbie Wong secured an attachment opportunity with Zaid Ibrahim & Co. while Mavinthra will have the chance to intern at Shearn Delamore as well as Shook Lin & Bok. Recognising the contributions of its alumni to the faculty, Taylors Law School also presented the
26 | The Lexicon

Outstanding Young Alumni Award to Aizad bin Abdul Khair, who is currently a pupil in chambers with Zaid Ibrahim & Co. The Distinguished Alumni Award went to Lim Siew Ming, a partner in Raja, Darryl & Loh, for her numerous contributions to the schools events and her active role in the Industry Advisory Panel (IAP) of Taylors Law School. Also speaking at the Law Ball & Awards Ceremony 2012 was Christie Wong Yi Shen, President of the Taylors Law Society. With strong partnerships established with top-ranked legal firms, we students have opportunities to gain insight on the industry and to experience industrial attachments and internships. We also have various opportunities to network with legal practitioners throughout the course of our studies, she said. Moving in line with Taylors Universitys mission of becoming Top Employers Top Choice University by 2016, Taylors Law School constantly ensures that students engage with top-ranking industry players in the country to increase opportunities in internship and

Event | Law Ball & Awards Ceremony 2012

employment for its students and alumni. The school will also spread its wings to strengthen its partnership with the industry players for alternative careers in law such as in banking, insurance, medico-legal, construction, engineering and oil and gas sectors, to name a few.


With its proven track record of producing successful graduates who are well-rounded and have

excelled academically, Taylors Law School takes pride in its accomplishments in educating aspiring legal practitioners to become future leaders in the industry. The celebration of its 20th anniversary marks its sustained success thus far and its continuous effort to realize its vision and mission.

Mr. Lim Chee Wee, President of the Bar Council Malaysia graced the Law Ball & Awards Ceremony 2012.

Presenting the alumni awards to En. Aizad bin Abul Khair (second from left) and Ms. Lim Siew Ming for their outstanding achievements and contributions to the school. With them are Mr. Harmahinder Singh, Dean of Taylors Law School and Mr. Lim Chee Wee, President of the Bar Council Malaysia.

The high achievers for Year 1, Ebbie Wong and Year 2, Mavinthra Jothy (both centre) with industry partners, (from left) Mr. Jimmy Liew, Shearn Delamore; Mr. Yong Hon Cheong, Zaid Ibrahim & Co and Mr. Steven Thiruneelakandan (right), Shook Lin & Bok.

Mr. Lim Chee Wee, President of the Bar Council Malaysia and Mr. Harmahinder Singh, Dean of Taylors Law School in discussion with Dato Mahadev Shankar, Adjunct Professor of Taylors Law School.


The Lexicon | 27

Law Awareness Day 2012


by Stella Chai Han Qin
Taylors Universitys Law School continued a tradition this year with the organising of its annual Law Awareness Day on the 31st of October 2012. As the name suggests, the event aims to shine a spotlight on key legal issues in Malaysia, bringing these to the attention of law students and the rest of the university alike. Law Awareness Day 2012 was themed Death Penalty Yes or No, with the mandatory death sentence practiced in Malaysia for crimes such as drug trafficking, murder and treason, and the campaign towards the reform or abolition of the death penalty, given centre stage. Attendees were also offered a rare glimpse at the grief faced by the family of a prisoner on death row. The event was co-organised by the Delegation of the European Union to Malaysia, the Malaysian Bar Council and the National Human Rights Commission (SUHAKAM).
Mr. Luc Vandebon, Ambassador and Head of the Delegation of the European Union to Malaysia, giving his speech.

of the European Union to Malaysia; Puan Hendon Mohamed from the Bar Council; Mr. Fork Yow Leong from Red Cross International; industry professionals and lecturers and students of Taylors Law School.

Law Awareness Day allows our students to go beyond the normal classroom learning, to engage with the industry in the effort to expose them to real life issues beyond the pages of their textbooks and the walls of their classroom, thus developing them into wellrounded and holistic graduates, who will excel in the global workplace, explained Mr. Pradeep Nair, the Deputy Vice Chancellor.

The Deputy Vice Chancellor, Mr. Pradeep Nair delivering his opening address.

This year also marks the 10th Anniversary of World/European Day Against the Death Penalty, commemorated by various events all over the world throughout the month of October. Taylors Law School is proud to be one of the private universities to host one such event, the Pleadings Competition, in conjunction with Law Awareness Day. The top two winners, Evan Lee Sian Wen and Nilupuli Ariyaratne, represented Taylors University at the National level Grand Finals on December 10, 2012 where they finished as runners-up. Event attendees included Mr. Luc Vandebon, Ambassador and Head of the Delegation of the European Union to Malaysia, who gave the opening speech; Mr. Pradeep Nair, Deputy Vice Chancellor of Taylors University; Dr. Apostolov Ivo of the Delegation

Participants of the Pleadings Competition together with Mr. Harmahinder Singh, Dean of Taylors Law School, Ms. Anne Chrishanthani Vergis, Deputy Dean of Taylors Law School, and special guests Pn. Hendon Mohamed, Dr. Apostolov Iyo and Mr. Fork Yow Leong.

28 | The Lexicon

Internal Moots March 2012 Intake


by Alex Kua Tze Zern
The day of our first ever moot all nineteen of us, dressed and pressed as best we could. A quiet Saturday at Taylors. Peaceful, almost. As among the first teams to go on show, the anticipation was palpable. Looking around, everyone was buzzing busily with their paperwork, rehearsing their interesting anecdotes. Nobody had any panic attacks though. I was hungry. As we prepped the bundles for the judges, my co-counsel and I sat down, sharing a nervous smile with opposing counsel to the left. Moments passed as we awaited the judges, and then they came. A panel of three: two in suits looking dignified, the other an activist lawyer, looking a little dishevelled and tired, not even a tucked shirt. Brazen. But at least interested, I hoped. Opposing counsel, being the appellants, went first. It was all fairly rehearsed to be sure; we all knew the case itself well enough. Not to the point of a foregone conclusion, but close enough. There were some small hiccoughs along the way, especially when it came to the ad hoc questions by the panel. At one point, for instance, I was asked to distinguish a minor case the appellants had brought up alas, I had not read that one. Thirty seconds of awkward silence later, I managed to produce a satisfactory answer. A few more speeches and rebuttals, and it was the end. At this point, it was all smiles and handshakes, everyone in the room just relieved that it was over. We milled out, awaiting judgment. In the meantime, we poked around our coursemates moots. Some were roped into helping out with the subsequent round of moots. Being a bailiff in the moot court is honestly not the most engaging task. Upon observance, there were definitely different approaches in how the different judges handled things some were more helpful than others, and some were doing rounds of evisceration with us poor lambs. I'm a firm believer in tough love myself. Other than that, it was definitely educational. At the end of it all, we were rendered judgement. It was less ominous than it sounds, actually. Apparently we had all performed startlingly well. Phrases like Why, I don't think I could have done what you lot did when I was in my first year," and "That was surprisingly good! were most inspirational to our first-year ears. Not all of it positive obviously, but critical at least. Those looking more dejected likely got some good advice on how they might improve. Still starving at this point, I was just glad it was finally over.

Photo courtesy of Chong Yin Fong

Rookie mooters in their robes pose for a photo with invited judges (from left to right) Mr. Colin Pereira, Goh Wong Pereira, Mr. Steven Thiruneelakandan, Shook Lin & Bok, and Ms. Aarthi Jeyarajah, Shearn Delamore.

All in all, it was a bracing experience. Something I would most definitely do again. It was a great opportunity to practice court etiquette, answer devious offhand questions creatively and dress up like real lawyers.

First year law students with Mooting Lecturer Mr. Lai Mun Onn, who dispensed much sound knowledge and guidance.

In a sentence: mooting is something any firstyear will relish. I certainly did. But the most important lesson? Never leave home without having a bit of breakfast!
The Lexicon | 29


Photo courtesy of Chong Yin Fong

Exquisite Dining Experience with MITAA


Taylors Law School hosted the Malaysian Inner Temple Alumni Association (MITAA) dinner for the third consecutive year on March 7th 2012. Students of Taylors Law School had the privilege of experiencing an ancient dining tradition with the members of MITAA, consisting of High Court judges and lawyers, at Taylors University Lakeside Campus. This dining tradition has been practiced by the law fraternity for centuries since 1388 in England. All dressed in their black robes, the students took this opportunity to meet and network with the MITAA members for valuable insights on the legal profession. We encourage students to attend this dining session as it provides a good opportunity for them to meet and mingle with industry professionals. This will also instil a sense of pride in students of being part of the law profession, said Harmahinder Singh, Dean of Taylors Law School.

Tan Sri James Foongs speech captured the attention of the audience.

Tan Sri James Foong (right), President of MITAA, mingling with law students before the dinner starts.

The night ended well with a closing address by Ms. Rachel Ng, a legal associate with Skrine & Co. She gave an overview to students on what is required of a law graduate and how to stand out amongst other law graduates. Employers are looking for graduates with confidence, who are able to mingle with people and dare to question the legal fraternity; those who have the willingness to learn and the inquisitiveness to know more about the legal profession. Most importantly, graduates must be prepared to tell the employers how they will be able to contribute to the firm, shared Ms. Ng. She further added that students should intern in as many firms as possible because such an experience would be a good head start for a career in law. It was certainly a night to remember, being given the chance to dine with renowned legal professionals who are willing to spend time with us and share on what to expect from the legal profession, said Wong Jing Ting, a second-year law student in Taylors Law School.

This evenings event is another exemplary effort by Taylors Law School in building strong links with the industry, as the opportunity that the students have to engage with the Bench and the Bar will be an invaluable learning experience. It is time for you all to speak up and speak out as you are surrounded by prominent members of the Malaysian legal fraternity here, said Professor Dato Dr. Hassan Said, Vice Chancellor and President of Taylors University, during his welcome address. The dining experience is a yearly affair for the students to cultivate a sense of respect for the law and the ethical requirements of the legal profession. Apart from excelling in studies, students at Taylors are also expected to shine in eloquence and mannerisms.

30 | The Lexicon

One for the album law students and lecturers in full regalia with MITAA members.

World University Peace Invitational Debate 2012


by Nicole Jo Pereira
Taylors University was the first private university to host the renowned World Universities Peace Invitational Debate (WUPID) in 2012, an event which saw the participation of universities from around the world. The annual debate tournament, which ran from the 1st to the 4th of December, gathered a total of 120 debaters from 25 universities. As part of the WUPID team, Taylors Law School students Nicole Jo Pereira, Ebbie Wong, Nicole Kimberly Tan, Dennis Chung, Zarqali Muhammad, Goh Karman, Villea Chuan and Yap Han Lun were given the privilege to sit as adjudicators for the preliminary rounds of the competition. This event was organised by Yayasan Orators Chairman, Badrulhisam Che Kasim. The highly anticipated finals held on the 4th of December were witnessed by the Deputy Minister of Higher Education, Dato Saifuddin Abdullah; Vice Chancellor and President of Taylors University, Professor Dato Dr. Hassan Said; industry partners and members of the public. The finalists for WUPID 2012 were the University of Witwatersrand from South Africa, the University of Cambridge, the National University of Singapore (NUS), and the Victoria University of Wellington. All the teams put forth their arguments in an eye-opening, lively, and interesting manner, supporting their respective stands on the motion This House Believes That The United Nations Should Grant Palestine Full Membership Status. The University of Witwatersrands Christopher Wood and Michael Macklin emerged champions after a truly engaging debate session. All in all, it was a truly inspirational and educational experience for all those who partook in WUPID 2012, whether actively or as observers.

The Lexicon | 31

LawAsia International Moot Competition 2012


by Ebbie Wong
On the 28th and 29th of September 2012, mooters from law schools throughout Malaysia competed intensely in an arbitration setting at the Kuala Lumpur Regional Arbitration Centre (KLRCA). Taylors Law School was represented by two teams of mooters made up of fresh, enthusiastic first-year law students. The subject matter of the moots was primarily concerned with the contentious area of Conflict of Laws, though it also involved Contract Law and International Human Rights Law. The first team from Taylors was comprised of Christie Wong, Laura Tan and Saw Lilian, while Denise Teoh, Yap Han Lun and Ebbie Wong made up the second team. At the KLRCA, the teams mooted before prominent lawyers including Mr. Christopher Leong, Puan Hendon Mohamed, Mr. Robert Lazar and Ms. Low Beng Choo. It was an honour or to put it colloquially, it was awesome to moot in front of respected members of the Malaysian legal fraternity. This moot competition brought about a number of firsts: it was the first time the participants in the two teams ever mooted at a national level competition, and it was also the first time the participants grappled with Conflict of Laws and International Law. And although only one team made it to the final round of the competition, the other team won the Spirit of LawAsia Team Award, another first for Taylors Law School. Much invaluable experience and precious gems of wisdom were received over the course of preparing for and participating in the LawAsia International Moots. It can be said with confidence that this experience provided us with priceless exposure in our legal education, and better equipped us to take our place as effective members of the legal fraternity.

Team no. 1206, (from left to right) Saw Lilian, Laura Tan Jia Jia and Christie Wong Yi Shen giving it their best during the final round of the competition.

In the time leading up to the competition, much research and intense preparation went underway as the two teams readied themselves for the moots, under the watchful guidance of our Moot Coach and Lecturer, Mr. Lai Mun Onn. Preparing for the moots was definitely no stroll in the park. It shook us out of our comfort zone. With each team having to moot on both sides of the dispute, the mooting stretched our capacities, making us think out of the box to find creative legal solutions. And it goes without saying that the mooting definitely honed our advocacy skills and quickened our critical thinking skills.

Mr. Christopher Leong (far left), Vice-Chairman of the Malaysian Bar, poses with Moot Coach & Lecturer Mr. Lai Mun Onn and Team no. 1214, (from left to right) Yap Han Lun, Ebbie Wong and Denise Teoh, winners of the Spirit of LawAsia Team Award.

32 | The Lexicon

Run, Freshie, Run!


by Kelvin Lee Choon Kit

On the 7th of December 2012, Taylors Universitys Law Society organised their annual bonding day when students from all intakes of the law school had the chance to put aside their law books and spend time getting to know their fellow brothers and sisters in the law better. The event received an encouraging response as nearly fifty-five students turned up for it.

This years activities involved a treasure-huntcum-obstacle-course-type game, mimicking popular reality shows such as The Amazing Race and Running Man, and was cheekily named Run, Freshie, Run!. Students were divided into teams of five or six members and had to solve clues that would lead them to different checkpoints containing tasks to be completed. The teams, named after famous English judges, were Team Denning, Team Atkin, Team Eldon, Team Cockburn, Team Bingham and Team Woolf. The teams rushed to complete all their tasks under a sudden downpour of rain. Typical Malaysian weather! Once they had successfully done so, the clue to finding the final checkpoint was revealed to them. Run, Freshie, Run! culminated in a neck-to-neck race between Teams Denning and Atkin to the final checkpoint where Team Denning emerged victorious. .

Turning a fellow law student into a toilet-roll mummy.

Forming human pyramids under the pouring rain.

The Lexicon | 33

Run, Freshie, Run! | Event

year law students Yap Han Lun, Neo Hwee Yong and Jeremy Ongs heartfelt rendition of Aerosmiths I Dont Want to Miss a Thing.

Victorious Team Denning.

Once the main event was over, the students gathered to mingle while dinner and entertainment were provided by the Law Society and their talented coursemates. The evening ended on a high note with students and lecturers alike singing along to second-

Multi-talented Neo Hwee Yong, Yap Han Lun and Jeremy Ong (not pictured) serenading students and lecturers.


A group photo of law students and lecturers to commemorate the event.

34 | The Lexicon

Q&A: Views on the Death Penalty


by Stella Chai Han Qin

The death penalty has become a hotly-debated topic in recent times almost everyone has an opinion on the issue! We decided to look both within and beyond the Law School to find out what some students and academics from other universities and disciplines have to say about it.

I think the death penalty should be abolished as everybody deserves a second


chance." Lai Mun Onn, Lecturer (LLB)

I believe that the death penalty is serving its purpose, and since I am unable
to think of a better alternative, I am wary of criticising the system. It keeps dangerous criminals off the streets in a way that does not clog up the prison system and use up even more of taxpayers money. David Sia, Bachelor of Culinary Arts and Food Service Management

My opinion is more influenced by religion,


who dies. Maria Chong, Bachelor of Psychology

so I would say that I'm not really a

massive supporter of the death penalty, since we dont really have the right to judge who lives and

I dont disapprove of the death penalty because it is inhumane. I actually


think it is quite humane, but I disapprove of it because of the ultimateness of the punishment. If you die, you die. No one can reverse the act. Lim Ya Wen, NUS High School of Mathematics and Science Diploma

The Lexicon | 35

Q&A: Views on the Death Penalty | Leisure

I have somewhat mixed views on this. On the one hand, I think it is good because if
we do not have the death penalty, serious offenders get the chance to possibly commit crime more than once. I feel though that it is more of a general deterrent than an individual deterrent. A hardened, repeat criminal might not be deterred even if there is capital punishment in place. Furthermore, some statistics have shown that it is not necessarily an effective deterrent of crime. But on the other hand, I also feel that from a religious perspective, we ought not to have the right to take life away. It would be hypocritical for society to do the same thing that it condemns in a murderer, for example! Equally, there are statistics which show that people want the death penalty to be reinstated but such statistics can only be trusted if it is reflective of opinion across the board as opposed to only a particular segment of society. Shanthi Ramachandran, Former Senior Lecturer & Programme Director (LLB), Taylors Law School

Murder.

I just cant imagine anyone being lenient enough to let a former murderer out on the

streets. What if he or she kills again or seeks revenge? However I think the death penalty for drug trafficking should be abolished and replaced by a lengthy prison sentence and perhaps probation following that. Sharlyn Chu, American Degree Transfer Program

I think only murder and rape warrant the death penalty. Why rape, you ask?
To me, rape is pure cruelty. It is both unfair and incredibly traumatising to the victim, be it male or female, to know that their perpetrators are still breathing. The death penalty would serve as both a reassurance to victims and a strong deterrent to rapists. Low Jia Yee, Bachelor of Chemical Engineering

I think the penalty carried out depends on the crime.

In cases of, say,

kidnapping and subsequent murder, I dont think the criminal deserves a chance at all. This is as opposed to drug trafficking, where the person is not taking anyones life. I think the death penalty for drug trafficking is too harsh and that drug traffickers deserve a chance to be rehabilitated. Andrea Choong, Bachelor of Medicine and Surgery
36 | The Lexicon

Leisure | Q&A: Views on the Death Penalty

The death penalty is more like a gift to the prisoner because


the electric chair or its equivalent. Maria Chong, Bachelor of Psychology

it is over in a flash. I

think it is mostly to appease the publics sense of vengeance, to hear that a serial killer was fried on

Life imprisonment causes problems with space in prisons, money spent on food
and medical bills. So maybe in modern times, the death penalty is serving more of a practical purpose than the one it used to. Sharlyn Chu, American Degree Transfer Program

Knowing that one is facing a death sentence might scare some people
are faced with death. Lim Ya Wen, NUS High School of Mathematics and Science Diploma

into

changing for the better. Some people dont really see things the way we want them to unless they

I think it acts as a deterrent. Generally I dont agree with taking a life but when someones
life is taken, like in a murder, there will definitely be a strong desire for vengeance. Plus, speaking as a parent, I would be prepared to use all means including taking life, if a criminal were to threaten my children! There is truth behind the saying, an eye for an eye. Anonymous Lecturer

The death penalty is not an effective deterrent.

There are worse things than death.

For a criminal who has thoroughly messed up his life and sees no way out, the death penalty might as well be a relatively painless and legal way to kill himself. Lim Ya Wen, NUS High School of Mathematics and Science Diploma

I know the main reason for the death penalty is as a deterrent,

but I dont

actually think criminals care about the death penalty. By hook or by crook they must be punished, but I think the death penalty only half serves its purpose as a punishment, for the very reason that they arent afraid to die. Sharlyn Chu, American Degree Transfer Program

The Lexicon | 37

The Lexicon | 37

Q&A: Views on the Death Penalty | Leisure

With life imprisonment, convicts may be released on parole for good behaviour. I believe that the heavier crimes should be punished accordingly.
Hence, I do not believe a murderer should ever walk free, no matter how much he claims to have repented. David Sia, Bachelor of Culinary Arts and Food Service Management

I prefer life sentences in prison over the death penalty. Besides, what better way
to punish a man than to let him slowly rot in prison? Solitary confinement can damage the mind more than the fear of death. And most hardened criminals dont even fear death anymore because they are that twisted. But put them in a room with no stimulation, and their mind will deteriorate slowly. Of course, it might create a problem of how or where to hold them all, especially with the ever-increasing crime rates. Maria Chong, Bachelor of Psychology

Instead of looking at it from the victims side and whats better for the victim, lets look
at it from the publics point of view instead. The law is used to protect the people. Why do the very people that these criminals threaten have to pay for their expenses in prison? Tan Aik Yong, Bachelor of Applied Science (Marine Environment)

If retaining the death penalty means a lower crime rate and less murderers on the loose,
then I suppose wrongful convictions are an unfortunate but necessary evil. Isnt it usually the case that there is huge outrage from the victims family and the public when a murderer isnt convicted and sentenced to death? Sharlyn Chu, American Degree Transfer Program

As for the potential failings of the judicial system I do not think it is ever good to
kill an innocent person, but I will always agree that it is better than letting ten dangerous, guilty ones go free. David Sia, Bachelor of Culinary Arts and Food Service Management
38 | The Lexicon

Relaxing Reads
by Kelvin Lee Choon Kit

Law isn't always stuffy, serious and formal. Here are some real cases from the funnier side of the law.
Avista Management v. Wausau Underwriters Insurance, U.S. Dist. Court Mid. Dist. Fla. (June 6, 2006) This contentious case saw both parties mired in disagreements from the beginning of the claim. However, it reached a high point when both attorneys could not agree on a venue to depose (examine) the witness, and the court was asked to intervene. Distinctly unamused, District Judge Gregory A Presnell chastised the attorneys and gave this gem of a ruling: "[T]he Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the [Courthouse]. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of 'rock, paper, scissors.' The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006."

MCA initially agreed to a disclaimer on album covers that stated the song was "social commentary and not created or approved by the makers of the doll." Mattel countered this, saying that it was unacceptable and akin to a bank robber handing a note of apology to a teller during a heist. It neither diminishes the severity of the crime nor does it make it legal." This led to MCA filing a counter-claim for defamation against Mattel for the use of words such as "bank robber," "heist," "crime," and "theft." The court in dealing with MCAs counter-claim, stated that "All of these terms are variants of the invective most often hurled at accused infringers, namely 'piracy'. No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eye-patches and peg legs who board galleons to plunder cargo." MCA ultimately won and the song was deemed non-infringing. The court's opinion aptly ends: "The parties are advised to chill."

Carter v. United States, 530 U.S. 255, 185 F.3d 863 (2000) Mattel v. MCA Records, 296 F.3d 894 (9th Cir. 2002) Following the success of hit song Barbie Girl performed by the band Aqua, Mattel filed an infringement suit against MCA Records for the unfair use of the name Barbie because the song did not portray the doll in the best light.
Source: Humorous Legal Cases, Gavel2Gavel, <http://www.request.net/g2g/humor/cases/index.htm> (Accessed 6 February 2013)

In a dissenting judgment, Justice Ruth Ginsberg wrote, "The Court's woodenly literal construction gives rise to practical anomalies and effectively shrinks the jury's choices while enlarging the prosecutor's options." Quite a suggestive innuendo there

The Lexicon | 39

Anda mungkin juga menyukai