Media Statement – 28/7/2017
Bill To End Mandatory Death Penalty For Drug
Offences Maybe Tabled Before This Parliamentary Session Ends
-Impose Moratorium on Executions Pending
Abolition of Mandatory Death Penalty-
MADPET(Malaysians
Against Death Penalty and Torture) 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 of the Dangerous Drugs Act 1952 that will bring an end to the mandatory death penalty for
drug offences.
On 25/7/2017, whilst speaking at the opening of the Parliamentary
Roundtable and Consultations on the Abolition of the Death Penalty in Malaysia
and in Asia, that was organized 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 will 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’s 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(Star,
24/3/2017).
The
Minister said the Attorney General’s chambers will prepare the Draft Bill,
which will 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.
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 2 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 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 comes from the AG’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.
Whilst 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.
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) (Star, 24/3/2017). Now, there would be more.
The
amendments that will be tabled soon, would impact 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 request 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.
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 25/7/2017, in response to a Parliamentary question by Member of
Parliament N. Surendran, it was revealed that Malaysia had executed 30 persons
from 2007 until 10/7/2017, of which 3 were foreigners. 3 were executed for drug
trafficking, 25 for murder and 2 for firearms offences.
It
would be absurd to continue with executions. 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 finalizing the required Bill that 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 said Bill could be tabled at this session of Parliament, or 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 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
execution.
Charles Hector
For and on behalf
of MADPET(Malaysians Against Death Penalty and Torture)
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