Malaysians Against Death Penalty and Torture (Madpet) is pleased that the Dangerous Drugs Amendment Act 2017, which received royal assent on 27 December 2017, has finally, after much delay, come into force on 15 March 2018.
The 8 March gazette notification appointing the date of coming into operation of this new law – which will abolish the mandatory death penalty for drug trafficking, giving judge’s discretion to be able to sentence those convicted of drug trafficking to an alternate sentence of life imprisonment with not less than 15 strokes of the whip – was signed by the minister of health. It was odd that it was not the Minister in the Prime Minister’s Department, Azalina Othman, the de facto law minister or the home minister.
It must be pointed out that this still unexplained delay has resulted in grave injustice to at least 10 individuals who had been sentenced to the mandatory death penalty this year until 15 March 3018, because judges still had no discretion to consider and impose any other sentence other than death penalty until the date the Act came into operation. (It must be noted that not all those convicted and sentenced to death for drug trafficking would have been reported by the media.)
This 10 media-reported cases include give Malaysians and five foreign nationals, being:
- S Pragasam, 30 – Ipoh High Court (Malay Mail, 9 February 2018)
- Ong Cheng Yaw, 33, and San Kim Huat, 38 – Kuala Lumpur High Court (The Malaysian Insight, 8 February 2018)
- Jonas Chihurumnanya (Nigerian) – Kuching High Court (The Borneo Post, 30 January 2018)
- S Gopi Kumar, 33 – KL High Court (The Sun Daily, 24 January 2018)
- A Sargunan, 42, and four Indian nationals, namely Sumesh Sudhakaran, 30, Alex Aby Jacob Alexander, 37, Renjith Raveendran, 28, and Sajith Sadanandan, 29 – Shah Alam High Court (The Sun Daily, 22 January 2018)
This new law, when it came into force, will only benefit those who had not yet been convicted by the High Court. If already convicted and sentenced to death before the law came into force, then even the appellate courts will not have the power to review the death sentence, and impose an alternative sentence for drug trafficking.
The only way that those already sentenced to death can escape the death penalty is if the appellate courts set aside the conviction for drug trafficking.
Even after the amending Act came into force, there are still serious flaws, including limitation on the factors that judges could consider when imposing the appropriate just sentence after conviction. The law now states, that judges “may have regard only to the following circumstances” being a limited list of four matters.
In criminal trials generally, judge will consider all relevant factors and circumstances of the case and/or the relevant convicted persons, including also age and whether he or she is a first time offender, before imposing a just and appropriate sentence.
At present, there is also mandatory requirement “that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia” before a judge can impose a sentence other than death.
This is unjust for it affects an individual’s right to a fair trial, for an innocent person, when convicted at the High Court, may be forced to incriminate himself truthfully and/or falsely simply to avoid the death penalty. This ‘admission’ will also affect his or her right of appeal against conviction and sentence to the appellate courts, be it the Court of Appeal and/or the Federal Court.
The new amendments also failed to deal with the 800-plus persons currently on death row for drug trafficking, including also others who had already been convicted before the amending Act came into force.
Madpet calls for a immediate amendment of the law to ensure full, unfettered discretion be given to judges when it comes to sentencing those convicted of drug trafficking. We also urge that judge’s discretion when it comes to the imposition of imprisonment not to be simply limited to life imprisonment, but to be extended possibly by setting a more just and reasonable minimum sentence of not more than five to 10 years especially for first-time offenders;
Madpet also calls for the abolition of the mandatory death penalty for the about 11 remaining offences in Malaysia, and for the total abolition of the death penalty; and
MADPET also reiterates the call for a moratorium on executions pending abolition of the death penalty in Malaysia.
Charles Hector on behalf of Madpet.