Once again, the Bar Council has shown their professional mettle by taking the lead in jurisprudential activism. This time around, they have proposed that the death penalty be abolished.

This emotive issue has engulfed the global scene, not least of which the USA. Amnesty International has campaigned tenaciously and tirelessly against capital punishment for decades.

Thanks to them, and to the changing climate of the time, 120 or so nations have since exiled the noose, the electric chair and lethal injection from their statue books. The truly barbaric forms of execution, the guillotine and the chopping block have long ago disappeared, or become mere historical relics on display in museums of horror only!

Nevertheless, the death penalty remains alive and well in our Bolehland. We maintain the dubious distinction of one among the 70 odd nations that still believe in snuffing out criminals.

The Bar Council is the right party to call for such a drastic review of our nation's long-standing addiction to the questionable belief that extreme punishment is the key to law and order. After all, together with the Bench, the bar is responsible for the administration of justice in the country.

The timing also seems right, as there are indications of a mild thaw from the Mahathirean winter which had frozen any feeble stirring towards justice for decades. Why, even a cabinet minister has come out in support of the Bar Council's proposal to banish capital punishment from Malaysia! He would have been far more reticent and prudent under the previous regime.

Nevertheless, despite the wisdom, the courage and the foresight of the leading lights in the Bar Council, their proposal to outlaw the noose and the hangman in Malaysia works against the grain of the Malaysian ethos.

The problem is not merely one of working within a political system long steeped in patriarchal soft authoritarianism. The general conservative impulse heaving in the sub-conscious of our political elite is but a reflection of the conservatism of the rakyat at large.

Nowhere is this conservatism more apparent then in the letter-columns of the national dailies and the various net portals. Whenever an issue is highlighted in the media from bad drivers, illegal dumping of waste, to changing to the new identity card - there is inevitably an upsurge of calls from perfectly reasonable citizens for more restrictive and punitive legislation, and harsher stricter implementation of the laws.

The assumptions there are simple: the most important function of justice is the maintenance of public order, people will obey laws only out of fear for the retribution of the Law, and the state monopoly in the use of violence against citizens must be maximised.

The ultimate deterrent?

These are the social tendencies that nourish and entrench authoritarian governments. They are also the sort of presuppositions that will logically lead to staunch support for the continuation of capital punishment.

As I said, this issue is an old one on the global stage. Those of us who have been following the debate would be familiar with all the arguments on both sides of the hanging fence.

Invariably, those against the death sentence speak from a pro-life platform, arising from a confluence of the Western liberal humanistic tradition and the legacies of European Enlightenment. They are often portrayed by their opponents as bleeding-heart liberals who are more sympathetic to convicted criminals than to the victims of the crime.

On the other hand, those who support the death sentence argues for capital punishment as the ultimate deterrent, even if it is now well known that there is no substantive scientific proof that punishment alone deters crime to any significant extent. They will dismiss this lack of evidence with the rejoinder that without the death sentence, the crime rate would have been much higher anyway.

In any case, they will demand death to the criminals simply because they perceive justice as a kind of revenge for the victim's bereaved family. "An eye for an eye", they would quote from the holy book, especially in response to those who also quote the Commandment that says: "Thou shalt not kill"!

The outbursts of emotion sometimes border on the hateful. The NST carried some SMS messages from their readers everyday. The following messages are quite sobering in their near vindictiveness. "Let's debate on the method of execution. I think a murderer should be beheaded as it is more human and the pain is minimal." "Killing criminals is not merely to deter. To clothe them and feed them in prison is the greatest travesty of justice." "Hardcore criminals do not value life, so give them the death sentence and let them reincarnate into something else."

As to the possibility of executing innocent people who have been wrongly charged, trailed and convicted, these law-and-order proponents will simply retort that, well, in a war on crime, "collateral damage" is unavoidable. The Bush administration in the US must feel delighted if only they realise that in humble Malaysia too, they have no shortage of neo-con allies! For the greater good of the general will, the loss of innocent lives is a small price to pay, as long as you are not the one to pay that price!

Sim Kee Chong's case

There was a saner voice from the First World though, 30 years ago. I was studying and working in Canada then, and I remember the raging debate on this very same issue in that frozen landscape. The Canadian PM then, Pierre Eliot Trudeau, speaking in support of abolition, said that even if one innocent man had been wrongly executed, it would have subverted the moral legitimacy of the entire state and its juridical-penal system.

About two decades ago, I, together with more than ten political colleagues at the time, went on a hunger strike, in protest against, and in appeal for the commuting of death sentence imposed upon one Sim Kee Chong (no relation of mine). Found guilty of illegal possession of firearms, and charged under the ISA, he was given the mandatory death sentence. If my ageing memory serves me right, he had exhausted all appeals, and was awaiting execution pending his last resort to a royal pardon.

The hangman was ready. We started our fast at a temple not far from the dreaded Pudu jail gallows. Thousands of people came around to give their support, and they signed a petition for the prisoner's reprieve from death. We were discussing whether to fast to death, since the government at that time was not likely to give in to any opposition demand.

(One of the chaps joked that, if we had tried to fast to death, the police would probably storm in, arrest us, force feed us, and then charge us with attempted suicide or something!)

I was particularly appalled by the mandatory death sentence. It gave the judge no discretionary power to temper justice with mercy. It was obviously a law that tied the hands and curtailed the independence of the judiciary.

In any case, a person in possession of firearms, even if he had no more than a few bullets, could be charged under the Firearms Act, under which he could be given a jail sentence only. So why this discretionary power of the AG to charge him under the ISA provisions that carry a mandatory death sentence?

At the same time, I was aware that going without food and water could prove fatal beyond 72 hours. More than 44 hours after the hunger strike started, news came that the death sentence of Sim Kee Chon had been called of at the last minute.

The hunger strike ended. Some kind soul helped me to my feeble feet and offered a warm glass of soft drink I think it was Horlicks. It was the tastiest thing that had gone through my lips in my whole life.

The story does not have a happy ending. Sim Kee Chon's appeal for a royal pardon was rejected. He was hanged not long afterwards.

Err on caution

Now, two decades later, as we ponder upon this deadly issue, and the political climate more open to free expression, it would be a pity if the discourse does not turned to more enlightening narratives, rather than mere platitudes, clichs and prejudices.

Is it not an opportunity for us to extend the horizon of our concern, by inquiring into what justice ought to mean to all of us citizens, beyond what it means to the criminals and their victims?

Crime, guilt, and punishment are as old as prostitution, and as old as human civilisation itself. They are part and parcel of this complex enigma we call "human beings". With them, has arisen this idea of justice and Law, which are the highest and noblest attainment of humankind. To reduce justice to a matter motivated and explained by fear, hate and vengefulness will diminish our humanity.

The monopoly on coercive violence surrendered to the state is a terrible thing. It can do great good, and it can inflict great evil. Perhaps, all things considered, it is to the interest of private citizens that they should err on the side of caution against possible evil.

Banish the noose from Malaysia, I say!