Malaysians Against Death Penalty and Torture (Madpet) notes that despite the Dangerous Drugs (Amendment) Act 2017 receiving royal assent on 27 December 2017, which effectively abolishes the mandatory death penalty for drug trafficking, the failure of the minister to what is necessary to bring the law into force has resulted in Malaysian judges still having no choice but to sentence convicted drug traffickers to death.
“Since there is only one sentence provided for under Section 39B of the Act, the court hereby sentences all the accused to death,” he [Judge Datuk Ghazali Cha] said. (theSun, 22 January 2018).
Until the new Dangerous Drugs (Amendment) Act 2017 comes into force, judges continues to have no discretion but to sentence those convicted to death.
The most recent victim was Malaysian lorry driver S Gopi Kumar, 33, who was sentenced to death (theSun, 24 January 2018).
Earlier, on 17 January 2018, it was reported that five others, Malaysian A Sargunan, 42, and four Indian nationals (Sumesh Sudhakaran, Alex Aby Jacob Alexander, Renjith Raveendran and Sajith Sadanandan ) were convicted and sentenced to death by the Shah Alam High Court that day for drug trafficking under Section 39B (1)(a) Dangerous Drugs Act 1952 (The Star, 17 January 2018).
As not all cases get reported by the media, there may be many others who have been sentenced to death, who otherwise might not have been if not for this ministerial delay.
A perusal of the Malaysian official e-Federal Gazette website on 25 January 2018 shows that the Dangerous Drugs (Amendment) Act 2017, which received royal assent on 27 December 2017, has still not come into force.
In comparison, other laws that received royal assent on the same day like the Income Tax (Amendment) Act 2017 came into force on 30 December 2017. Even some laws that received royal assent later on 29 December 2018, like the Malaysian Maritime Enforcement Agency (Amendment) Act 2018, have already come into force since 11 January 2018.
When the Dangerous Drugs (Amendment) Act 2017 comes into force, it will finally abolish the mandatory death penalty for drug trafficking, which has existed since 1983. Judges, will then have the discretion to impose a sentence for drug trafficking other than the death penalty, ie imprisonment with whipping of not less than 15 strokes, for the offence of drug trafficking.
Section 3(2) of the Dangerous Drugs (Amendment) Act 2017 states:
(2) Any proceedings against any person who has been charged, whether or not trial has commenced or has been completed, and has not been convicted under section 39b of the principal Act by a competent Court before the appointed date, shall on the appointed date be dealt with by the competent Court and be continued under the provisions of the principal Act as amended by this Act.
This means that any person even already on trial for drug trafficking (section 39B), so long as they have not yet been convicted, can still enjoy the benefits of the Dangerous Drugs (Amendment) Act 2017.
But until the minister does what is necessary to ensure this law comes into force, judges will continue to have no discretion but to impose the mandatory death penalty on those convicted before the new law applies.
The new law, sadly, does not provide any remedy to those already convicted or for the 800 or more currently on death row after having been convicted for drug trafficking.
Hence, as of today, Gopi Kumar and possibly five or more who have already been convicted by the High Court before the new law comes into force are victims of a great injustice and may be hanged to death.
As it stands now, under even the new law, after conviction and being sentenced to death by the High Court, the Appellate Courts also will not have the capacity to change the death sentence to imprisonment, unless they choose to acquit them of drug trafficking or possibly elect to convict them for for a lower offence that does not carry the mandatory death penalty.
In light of the inadequacies of the new upcoming drug law, Malaysia must table another new law that will result in the commuting of the sentence of all those currently on death row after having been convicted of drug trafficking – and even other offences that carry the mandatory death penalty. This will be just for the two Malaysians and four foreigners sentenced in 2018.
This new law could be tabled in the coming parliamentary session this March 2018. This is the most reasonable approach, considering that there are more than 800 on death row, and judicial review of the sentence of so many may be a difficult or near impossible task.
It must also be reminded, that Malaysia was looking at abolishing the death penalty, especially the mandatory death penalty. While the new Dangerous Drugs (Amendment) Act 2017 will do away with the mandatory death penalty for just one offence – drug trafficking – the mandatory death penalty still exists for murder and so many other offences, some of which are offences that do not result in any grievous injury or death to victims.
As such, Malaysia needs to speedily table new laws, which will at the very least abolish the mandatory death penalty – returning discretion to judges to mete out appropriate just sentences based on the facts and circumstances of each and every case.
In the meantime, while Malaysia works towards abolition, there must justly be a moratorium on executions.
- Madpet reiterates its call on the minister to do what is necessary to ensure that the Dangerous Drugs (Amendment) Act 2017 comes into force immediately without any further delay;
- Madpet also calls for all trials of those charged under section 39B (drug trafficking) to be stayed or, where trial is almost over, that courts do not proceed to convict until after the Dangerous Drugs (Amendment) Act 2017 comes into force. This will prevent any further injustice to any other person, as had embarrassingly happened to Gopi Kumar and five or more, who have been sentenced to death in 2018 just because of the delay of the law that abolishes mandatory death penalty coming into force;
- Madpet reiterates the call for Malaysia to speedily abolish all other remaining mandatory death penalty offences, other than drug trafficking, and return sentencing discretion to judges; and
- Madpet also reiterated the call for a moratorium on all executions, pending the abolition of the death penalty in Malaysia.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture).