Thursday, November 30, 2017

U-turn death penalty for drug traffickers(Malaysian Insight)

U-turn death penalty for drug traffickers

Gan Pei Ling
U-turn death penalty for drug traffickers
A clause in the Dangerous Drugs Bill (Amendment) 2017 allows public prosecutors to issue a written certification to convicted drug traffickers who helped enforcement authorities disrupt drug distribution activities in or outside the country. – EPA pic, November 29, 2017.
PUTRAJAYA today caved in to public pressure and will return full discretion to judges to mete out the death sentence to drug traffickers.

Minister in the Prime Minister’s Department Azalina Othman Said said in a statement today the government will amend a controversial clause in the Dangerous Drugs Bill (Amendment) 2017.

“The government will carry out an amendment at the committee stage to Section 39B of Act 234 (Dangerous Drugs Act) to give full discretion to the judiciary,” she said. 

The Dewan Rakyat secretary has been notified about the amendment to the bill, which is expected to be tabled for second reading tomorrow, she said.

A clause in the original bill, tabled last Thursday, gave unprecedented powers to public prosecutors to issue a written certification to convicted drug traffickers who helped enforcement authorities to disrupt drug distribution activities within or outside of Malaysia. 

Judges could then decide whether to spare these convicts the mandatory death penalty

However, the judges would have no choice but to mete out the mandatory death sentence to convicts without a written certificate from prosecutors.

Various parties, including the Malaysian Bar, opposition MPs and human rights group Malaysians Against Death Penalty and Torture, have criticised the controversial clause over the past week, saying that it interferes with the judges’ sentencing power.

Azalina said the decision to amend the bill was made after taking into account the views and suggestions of all stakeholders to the government.

“This amendment demonstrates the government’s openness, especially the prime minister who always listens to views from various parties to ensure every policy decision is made inclusively,” she said.

Attorney-General Mohamed Apandi Ali blamed the cabinet today for adding the caveat to give prosecutors the power to issue a written certification to convicted drug traffickers.

“My initial proposal was to give discretion to judges, that is, to pass a death sentence or otherwise. That was my principal advice.

“The certification (by public prosecutors) is another policy matter by the cabinet... I don’t have a say in it,” Malaysiakini reported him as saying. – November 29, 2017, Malaysian Insight

Malaysian Insight also carried MADPET's statement 

Public prosecutor granted ‘too much power’ over life and death, says human rights group 

Bede Hong
A HUMAN rights group is critical of an amendment to the law governing the death penalty, saying it gives too much power to the public prosecutor over the judge in determining who deserved to be sentenced to death.

Yesterday, the bill for the Dangerous Drugs (Amendment) Act 2017 was tabled in Parliament, amending Section 39B of the Dangerous Drugs Act 1952, which pertains to the death penalty. The new law would allow the judge to exercise discretion in meting out life imprisonment instead of the death penalty, which was previously mandatory for those convicted of drug trafficking. 

However, a clause states that the judge may impose a sentence other than the death penalty, only if and 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."

"It is wrong to give the public prosecutor the power to decide who dies and who may live," Malaysians Against Death Penalty and Torture (Madpet) coordinator Charles Hector said in a statement today. 

"Remember, that he is also responsible for prosecution in a criminal trial, and the power to the public prosecutor to give or not give the written certification is most dangerous. It may also undermine the right to a fair trial."

According to the proposed amending act, if the public prosecutor does not provide the certification, judges will have no choice but to impose the death penalty.  

Hector said the power of sentencing should rest with the judge alone. 

"The existence of appeals to higher courts helps ensure that there be no errors."

Before sentencing, the judge usually hears and considers the submissions of the prosecution and the convicted person to impose an appropriate sentence. 

"Thus, the question of whether there was assistance or not could be included as one of the listed matters that should be considered by the judge before he decides and pronounces sentence." 

"Some may have no information or very little information, or maybe that information and/or assistance will not help disrupt drug trafficking activities. As, such this really should be for the judge to decide and maybe should be a point to be considered before sentencing."

In a statement today also condemning the law amendment,  Lawyers for Liberty executive director Eric Paulsen said there was little guarantee that the law enforcement agencies and public prosecutor would not abuse such "unfettered and arbitrary power".

"It is basic that the act of prosecution is an executive function of the state and the office of the public prosecutor shall be strictly separated from judicial functions. Therefore it would be a serious miscarriage of justice if the prosecutor could also decide the mode of punishment, and all the so, the punishment of death," he said. 

By compelling judges to impose a life or death sentence based on the public prosecutor’s certification is an "unnecessary fetter" on their discretion and interferes with judicial independence and justice, Paulsen said. 

As of March, there are almost 800 prisoners on death row for drug trafficking offences under Section 39(B), according to Prison Department statistics.

Madpet has called for all death sentences to be commuted to imprisonment. It further calls on the government to impose a moratorium on pending executions and speed up efforts towards the abolition of the death penalty. – November 24, 2017, Malaysian Insight.

**Thereafter several human rights groups, including the Malaysian Bar, and even Opposition MPs raised concerns about the said Bill, being debated at the Dewan Rakyat(House of Representatives) in Malaysian Parliament.

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