Putting an end to mandatory death penalty for drug offences

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Graphic: amnestyusa.org

Malaysians Against Death Penalty and Torture (Madpet) appreciates the commitment expressed by Minister in the Prime Minister’s Department Azalina Othman Said, also the Minister of Law, to move fast and try to table the amendments to the Dangerous Drugs Act 1952 that will bring an end to the mandatory death penalty for drug offences.

On 25 July 2017, while speaking at the opening of the Parliamentary Roundtable and Consultations on the Abolition of the Death Penalty in Malaysia and in Asia, which was organised jointly by Parliamentarians for Global Action (PGA), Anti Death Penalty Asia Network (Adpan) and Together against the Death Penalty (Ensemble contre la peine de mort – ECPM) at the Malaysian Parliament, Azalina said that she would try to get the proposed amendments tabled in this session of Parliament, if not by the next session of Parliament.

Madpet’s Charles Hector presented a paper on the situation of the death penalty in Malaysia at this parliamentary roundtable.

Azalina mentioned that when section 39B of the Dangerous Drugs Act was first introduced in 1975, the sentence prescribed then was the death penalty or life imprisonment. However, in 1983, there was an amendment that brought in the mandatory death penalty for section 39B.

In March 2017, the Malaysian cabinet approved the review the Dangerous Drugs Act 1952 to allow judges to use their discretion in senten­cing offenders instead of imposing the mandatory death sentence (The Star, 24 March 2017).

The minister said the Attorney General’s Chambers would prepare the draft bill, which wouldl then be sent back to cabinet for its approval before it is tabled in Parliament. Azalina’s hope is that all parties will act speedily, and she hopes that the bill could be tabled in Parliament before this parliamentary session ends, if not, by the next session.

Madpet hopes that all parties involved in the process, which will end up with the tabling of the bill to abolish the mandatory death penalty and return the discretion to judges when it comes to sentencing, would make this a priority and expedite matters.

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Malaysia should not make the mistake Singapore did

In 2012, Singapore amended its drug offences law that carried the mandatory death penalty, providing the possibility that in certain cases, sentencing discretion is returned to the judges.

In Singapore, to escape the mandatory death penalty for drug offences, the accused needed to satisfy two conditions:

(1) must get a certificate of substantive assistance from the Attorney General’s Chambers, and

(2) prove on a balance of probabilities, that his or her involvement in the offence …was restricted — to transporting, sending or delivering a controlled drug; to offering to transport, send or deliver a controlled drug; to doing or offering to do any act preparatory to or for the purpose of his transporting, sending or delivering a controlled drug; or to any combination of activities above.

Hence, without a certificate of substantive assistance from the AG’s Chambers, judges in Singapore will still not have the discretion when it comes to sentencing, and this condition is unacceptable, as judges alone should be given the discretion when it comes to sentencing. Even the question of whether the accused provided substantive assistance and/or assistance should be decided by the judge alone, not the attorney general.

Hopefully, the bill tabled in the Malaysian Parliament in the near future, will not have similar flaws, and all discretion will rest with judges alone when it comes to sentencing. Remembers that prosecutors in criminal cases come from the Attorney General’s Chambers, where in Malaysia the attorney general is also the public prosecutor, and, as such, it is unthinkable that they be given the power to decide whether discretion be given to judges to impose a sentence other than the death sentence, or not.

While the amendment to the law will return discretion to the judges when it comes to sentencing in cases after the amendment comes into force, the question that remains is what will happen to those now on death row for the offence of drug trafficking.

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Persons currently on death row – Commute their sentence

In March, Minister Azalina said that according to Prison Department statistics, there are almost 800 prisoners on death row for drug trafficking offences under Section 39(B) (The Star, 24 March 2017). By now, there would be more.

The amendments that will be tabled soon will have an impact on cases now being tried before the courts and future cases, but then it would be rather unjust to continue to execute those currently on death row for drug trafficking offences.

In Singapore, the solution was to send back such cases to the High Court that first heard the case, for the purpose of re-sentencing. However, this solution was flawed, as the evidence tendered and the submissions made when the case was being heard then by both the prosecution and the accused, was based on the law as it was at that point of time, and as such it would be unjust to simply review the case just for the purpose of re-sentencing under upcoming new laws. Only a re-trial before a different judge would do justice.

As such, the best solution forward would be the immediate commutation of all death sentences to imprisonment. Of course, the length of imprisonment would depend on the relevant facts and circumstances of each case. It would be grossly unjust for a ‘mule’ conned into transporting drugs, most likely by reason of poverty, to be sentenced to life imprisonment.

Many also may not even have known that they were transporting drugs. Many a good person will help even an acquaintance who requests a favour to send a package (or present) to someone else. Being Malaysians, they would, of course, respect the privacy of the other and not even look into the package being transported.

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Moratorium on executions pending the tabling and coming into force these new laws

Immediately, there needs to be a moratorium on executions, especially since the Malaysian cabinet has already agreed, and all that remains are technical and procedural matters.

On or about 25 July 2017, in response to a parliamentary question by member of Parliament N Surendran, it was revealed that Malaysia had executed 30 persons from 2007 until 10 July 2017, of which three were foreigners. Three were executed for drug trafficking, 25 for murder and two for firearms offences.

It would be absurd to continue with executions. The cabinet’s recent decision on drug offences is indicative of what may be the decision with regard to all other mandatory death penalty offences in other laws. The same principle applies, being that discretion must be returned to judges when it comes to sentencing. It is hoped that Malaysia will go even further and abolish the death penalty.

As such, Madpet calls for all parties concerned in preparing and finalising the required bill, which will have the effect of removing the mandatory death penalty from drug offences and returning discretion to judges when it comes to sentencing, to act with haste so that the bill can be tabled at this session of Parliament or at the latest, the next session.

Madpet calls for an immediate moratorium on executions, pending the abolition of the mandatory death penalty in the Dangerous Drugs Act 1952.

Madpet reminds the Malaysian government that the disclosed intention of the review was towards the abolition of the death penalty, not just the mandatory death penalty, and urges the government to also now move forward and abolish the mandatory death penalty in all other laws.

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

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

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