Legal framework, lack of intent and recent reforms make capital punishment difficult to apply, says former S’gor Bar president
PETALING JAYA: Malaysia’s legal constraints in classifying fatal drink-driving offences make the death penalty an unlikely option in such cases, said former Selangor Bar president Kokila Vaani Vadiveloo (pic).
She said the country’s recent legal direction has moved towards limiting the use of capital punishment and restoring judicial discretion.
This makes any move to extend the death penalty to fatal driving under the influence cases difficult both in principle and in law.
“The Abolition of Mandatory Death Penalty Act 2023 reflects a significant shift towards limiting the use of capital punishment and restoring judicial discretion to consider mitigating and aggravating factors.
“From a human rights perspective, there is also no clear evidence that the death penalty serves as an effective deterrent, and the justice system should focus more on rehabilitation where it is appropriate.
“This shows that the principle of proportionality remains relevant, where the punishment must correspond to the harm caused and the offender’s level of culpability,” she told theSun.
Kokila said the position is reinforced by the statutory framework as drink-driving causing death is dealt with under the Road Transport Act 1987 rather than as a capital offence.
She added that Article 5(1) of the Federal Constitution protects the right to life and personal liberty although the protection is not absolute, where punishment is expressly provided by law.
This means Parliament would first have to classify fatal drink-driving as an offence punishable by death before the courts could impose capital punishment, which current laws do not provide for.
She said the biggest legal obstacle remains the issue of intent as murder under Section 302 of the Penal Code requires proof of mens rea (criminal intent).
She highlighted that drink-driving-related deaths generally arise from recklessness or negligence rather than a clear intention to kill.
“In our opinion, intoxication is usually not enough because the prosecution has to prove that the accused has the intention to kill or knew it was virtually certain that his or her act can cause death.
“This is hard to prove because generally, the person under the influence of alcohol is not aware of their conduct, which clearly shows no intention to kill,” she said.
Kokila added that a more practical reform would be to strengthen compensation for victims’ families within criminal proceedings.
She noted that Section 426(1A) of the Criminal Procedure Code allows the court to order compensation to a victim, while Section 426(1B) allows payment to a representative where the victim is deceased.
Strengthening this route would be more workable than requiring families to pursue separate civil action.
