Drug trafficking: New bill removes need for prosecutors’ approval, facilitates judges’ sentencing discretion

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Graphic: amnestyusa.org

Malaysians Against Death Penalty and Torture (Madpet) welcomes the fact that the government has amended the bill to amend section 39B of the Dangerous Drugs Act 1952, which currently provides for the mandatory death penalty for drug trafficking.

The Dangerous Drugs (Amendment) Act 2017, as amended, was passed after the third reading on 30 November 2017 at the Dewan Rakyat.

This amendment bill has been amended to remove the earlier pre-condition of a public prosecutor’s written certification of assistance before judges had the discretion in sentencing to allow the imposition of life imprisonment instead of the death penalty. This amendment through the Dangerous Drugs (Amendment) Bill [amendment in Committee (DR 45/2017)] amended the bill entitled the Dangerous Drugs (Amendment) Act 2017.

After the Dangerous Drugs (Amendment) Act 2017, which was tabled in Parliament on 23 November 2017 for the first reading at the Dewan Rakyat (House of Representatives), many groups and individuals including Madpet (through a statement on 24 November 2017) expressed dissatisfaction that judges would only be able to exercise discretion during sentencing if and only when the “Public Prosecutor certifies in writing to the Court, that in his determination, the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia” (Section 2(b) of the Amending Act).

New amendment removes public prosecutor’s control over judge’s discretion

On 30 November 2017, the need for the public prosecutor’s certification was removed. The words ‘“the Public Prosecutor certifies in writing to the court that in his determination” was removed and replaced with the word that.

This means that one of the points that the judge now must consider before sentence is passed is that “the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia”.

Whilst, this is definitely better, there still remains a concern whether those convicted would really be able to provide such assistance, and when such assistance will be required to be provided.

Rightly, that assistance should be provided only after one has been tried and convicted. To suggest otherwise would be most prejudicial to the accused, and it may be seen as forcing them into doing things that are self-incriminatory, including statements, and that would assist the prosecution in getting a conviction, while the accused are faced with the threat of being sentenced and put to death. This is most unacceptable especially in capital cases, where if one is convicted, it may result in the imposition of the death sentence.

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We know that drug trafficking is usually carried out by kingpins and their criminal organisations, and as such there is also a real risk that any such ‘assistance’ by convicted individuals may bring to them or their families retaliation or harm, more so when the fact of this assistance is made known. Malaysia, as such, must develop a substantive witness protection scheme that will ensure the safety of the convicted as well as their families, if need be.

The other concern is the fact that some of those convicted may have very little information – not sufficient to have “assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia”, noting that the words used – on the face of it – indicate that assistance given “has assisted”.

One can only provide assistance as much as one is able to, and it may sometimes be seen as not being useful or sufficient to assist any enforcement agency. As such, what is expected to escape the death sentence may still be unreasonable.

It may have been better if all that was required was what a person reasonably could have done to assist, irrespective of whether it really assisted the enforcement agency or not. Until there is an amendment, it is hoped that when judges consider this element of ‘assistance’, reasonableness and reality is also considered.

800 on death row, those already convicted not helped by amendments

It was most disappointing that the new amendments to the bill did not address the concern over what would happen to the 800 or more still on death row for drug trafficking. It is best that all their sentences be immediately commuted to imprisonment.

When amendments in force, only a re-trial will do justice

If and when this amendment comes into force, it will apply also to cases where trial has started but the accused have not yet been convicted.

There are serious concerns about trials that have already started. Evidence will have been adduced, challenged and/or rebutted in these trials where both the accused and prosecution were operating under the belief that on conviction, there would only be the mandatory death penalty.

As such, even when the amendment comes into force, it would only be just if there is a new trial before a new judge, given the fact that the strategy and conduct of the trial would most likely be very different as the judges would now (after the amendment comes into force) have the discretion to not sentence the convicted to death.

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In the light of the upcoming amendment to section 39B, Madpet calls for an immediate stop to all section 39B trials pending the coming into force of the amendment that gives judges the discretion to impose a sentence other than the death sentence. There should be new trials before different judges for all these cases.

11 executed, 122 death sentences commuted since 2000

It was also revealed by Minister Azalina Othman Said, as stated in the parliamentary Hansard dated 30 November 2017, that Prison Department statistics revealed that from 2000 until 2017, out of 113 individuals sentenced to death under section 39B of the Dangerous Drugs Act 1952,  only 11 were execute; another 122 individuals have been pardoned and had their death sentence commuted to life imprisonment.

There was, however, no disclosure as to why some were executed and others had their sentences commuted. Did diplomatic concerns or other unacceptable considerations have a part to play in these decisions as to who lives and who is hanged?

Madpet urges that the death sentence of all those on death row, especially for drug trafficking, be immediately commuted to imprisonment.

Death penalty not a deterrent – life imprisonment won’t be, either

The minister also stated that police statistics reveal an increase of drug cases every year despite the drastic measures taken by the police, which we could take as including the fact of the existence of the mandatory death penalty for section 39B of the Dangerous Drugs Act for drug trafficking.

From January 2014 to October 2017, 702,319 individuals were arrested by police for   trafficking and possession of drugs.

A total of 21,731 individuals were arrested under section 39B for drug trafficking). Of these cases, investigation papers were opened for 13,036 individuals and 10,878 were charged in court.

The minister also revealed that 68 drug kingpins were arrested during this period and 106 illegal laboratories were raided resulting in 409 arrests (Hansard, 30 November 2017).

The death penalty for drug trafficking came into force in 1975, and in 1983, there was an amendment that brought in the mandatory death penalty. It is clear now that even the mandatory death penalty has not deterred people from committing the offence of drug trafficking. In face, there has been an increase in the number of those committing this crime.

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As such, the move to merely give judges the discretion between death sentence or life imprisonment (with at least 15 strokes of the whip) also needs to be reviewed. Severe punishment is not serving as a deterrent, and as such, we should be looking at rehabilitation and giving a second chance to those convicted of even drug trafficking.

Our concern should be rehabilitation, and it is certainly most unjust to be sentencing a first-time offender or a young person to life imprisonment.

Madpet suggests that section 39B be further amended setting a minimum sentence of five to 10 years, as this will be more just. Judges will then have the discretion to impose the appropriate sentence depending on the facts and circumstances of each case.

Malaysia also needs to look at the reasons why people commit this crime, which carries a mandatory death penalty crime. One of the main causes may be poverty. Hence, the way forward in reducing the crime of drug trafficking (or other crimes driven by poverty) may be by addressing the socio-economic conditions that drive people to be willing to risk their lives and liberty for money.

Madpet also urges that all those arrested for drug offences to be accorded the right to a fair trial and that detention without trial laws like the Prevention of Crime Act 1959 (Poca) and the Dangerous Drugs (Special Preventive Measures) Act 1985 not be used. The minister revealed that 68 drug kingpins have also been arrested, but sadly there seems to have been little publicity about their trials or convictions.

Madpet would also like to remind the Malaysian government that they were looking at abolishing the death penalty, especially the mandatory death penalty, for all crimes not just for drug trafficking. While we welcome this move to abolish the mandatory death penalty for section 39B, we urge that the abolition of the mandatory death penalty is expedited.

Madpet reiterates its call for the abolition of the death penalty in Malaysia and for the imposition of an immediate moratorium on all executions pending abolition.

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)

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