Media
Statement – 7/12/2017
GOVERNMENT REMOVES NEED
FOR PUBLIC PROSECUTORS APPROVAL BEFORE JUDGE CAN EXERCISE DISCRETION IN SENTENCING
DRUG TRAFFICKERS
Amendment
to end mandatory death penalty for drug offences amended again
MADPET(Malaysians
Against Death Penalty and Torture) welcomes the fact that the government has
amended the Bill to amend Section 39B of the Dangerous Drugs Act 1952, which now
provides for the mandatory death penalty for drug trafficking. The Dangerous
Drugs (Amendment) Act 2017, as amended, was passed after the 3rd
reading on 30/11/2017 at the Dewan Rakyat.
This
amending Bill has been amended to remove the earlier pre-condition of a Public
Prosecutor’s written certification of assistance before judges had the discretion
in sentencing, that will allow the imposition of the sentence of life
imprisonment instead of the death penalty. This amendment vide Dangerous
Drugs(Amendment) Bill – Amendment in Committee(D.R.45/2017) amended the Bill
entitled the Dangerous Drugs (Amendment) Act 2017.
After
the Dangerous Drugs (Amendment) Act 2017, which was tabled in Parliament on 23/11/2017
for the first reading at the Dewan Rakyat(House of Representatives), a lot of
groups and persons including MADPET(see
Media Statement dated 24/11/2017) expressed dissatisfaction that judges would
only be able to exercise discretion during sentencing if and only 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.’(Section 2(b) of the Amending Act).
NEW AMENDMENT REMOVES
PUBLIC PROSECUTOR’S CONTROL OVER JUDGE’S DISCRETION IN SENTENCING
On
30/11/2017, the need for the Public Prosecutor’s certification was removed. The
words ‘“the Public Prosecutor
certifies in writing to the court that in his determination” was removed and replaced with the word,
“that”. This means that
one of the points that the judge now must consider before sentence is passed is
that ‘the person convicted has
assisted an enforcement agency in disrupting drug trafficking activities within
or outside Malaysia.’
Whilst,
this is definitely better, there still remains a concern whether persons
convicted would really be able to provide such assistance, and the when will
such assistance be required to be provided.
Rightly,
that assistance should be provided only after one has been tried and convicted.
To suggest otherwise would be most prejudicial to the accused person, and it
may seen as forcing accused persons into
doing things that are self incriminatory, including statements, that will assist
the prosecution get a conviction, in the face of a threat of being sentenced and
put to death. This is most unacceptable especially in a capital cases, where if
one is convicted, it may result in the imposition of the death sentence.
We
know that many a times drug trafficking is usually carried out by kingpins and
their criminal organisations, and as such there is also a real risk that any
such ‘assistance’ by the convicted person may bring to them and/or their
families retaliation and/or harm, more so when the fact of this assistance is made
known. Malaysia, as such, must develop a substantive witness protection scheme
that will ensure safety of the convicted as well as their families, if need be.
The
other concern is the fact that some convicted will in fact may have very little
information, not sufficient to have ‘assisted an enforcement agency in
disrupting drug trafficking activities within or outside Malaysia’, noting that
words used on the face of it indicates that assistance given ‘..has assisted..’.
One can only provide assistance as much as one is able to, and it may sometimes
be seen as not being useful or sufficient to assist any enforcement agency. As
such, what is expected to escape the death sentence may still be unreasonable.
It may have been better, if all that is required was what a person reasonably
could have done to assist, irrespective of whether it really assisted the
enforcement agency or not. Until there is an amendment, it is hoped that when
judges do consider this element of ‘assistance’, reasonableness and reality is
also considered.
800 OR MORE ON DEATH ROW
AND THOSE ALREADY CONVICTED NOT HELPED BY AMENDMENTS
It
was most disappointing that the new amendments to the Bill did not address the
concern as to what will happen to the 800 or more still on death row for drug
trafficking. It was best that all their sentences be forthwith commuted to
imprisonment.
WHEN AMENDMENTS IN
FORCE, ONLY A RE-TRIAL WILL DO JUSTICE
Although,
if and when this amendment comes into force, it will apply also to cases where trial
had started but the accused has not yet been convicted.
There
are serious concerns about trials that have already started. Evidence will have
been adduced, challenged and/or rebutted in these trials where both the accused
and prosecution were operating under the belief that on conviction, there will
only be the mandatory death penalty. As such, even when the amendment comes
into force, it will only be just if there be a new trial before a new judge,
given the fact that the strategy and conduct of the trial would most likely be very
different given the fact judges would now, after the amendment comes into
force, the discretion to not sentence the convicted to death.
In
light of the upcoming amendment to section 39B, MADPET calls for the immediate
stop of all section 39B trials pending the coming into force the amendment that
gives judges the discretion to impose a sentence other than the death sentence.
There should be new trials before different judges for all these cases.
11 EXECUTED AND 122
DEATH SENTENCES COMMUTTED SINCE 2000
It
was also revealed by Minister Azalina
Dato’ Othman Said, as stated in the Parliamentary Hansard dated 30/11/2017,
that the prison department statistics revealed that from 2000 until 2017, 113
persons were sentenced to death under section 39B of the DDA 1952, whereby only
11 were executed, whilst another 122 persons have been pardoned and had their death
sentence commuted to life imprisonment. There was, however, no disclosure as to
why some were executed and others had their sentences commuted. Did diplomatic
concerns or other unacceptable considerations have a part to play in these
decisions as to who lives and who is hanged to death?
MADPET urges that the death sentence of all persons
on death row, especially for drug trafficking, be immediately commuted to
imprisonment.
DEATH
PENALTY NOT A DETERENT – SO TOO WILL LIFE IMPRISONMENT NOT BE
The
Minister also stated that the police statistics reveal an increase of drug
cases every year despite the drastic measures taken by the police, which we could
take as including the fact of the existence of the mandatory death penalty for
section 39B DDA 1952 – drug trafficking.
Since
January 2014 until October 2017, 702,319 individuals for arrested by the police
for the offence of trafficking and possession of drug.
A
total of 21,731 persons were arrested under section 39B DDA 1952(drug
trafficking), whereby investigation papers were opened for 13,036 persons and 10,878
persons were charged in court. The Minister also revealed that 68 drug kingpins
were arrested during this period. 106 illegal laboratories were also raided
resulting in the arrest of 409. (Hansard
Dewan Rakyat, 30/11/2017)
The
death penalty for drug trafficking came into being in 1975, and in 1983, there
was an amendment that brought in the mandatory death penalty. It is clear now that
even the mandatory death penalty has not deterred people from committing the
offence of drug trafficking, and in fact there has been an increase of persons
committing this crime.
As
such, merely giving the judges the option of death sentence or life
imprisonment (with at least 15 strokes of the whip) also needs to be reviewed. Severe
punishment is not serving as a deterrent, and as such, we should be looking at
rehabilitation and second chances to persons convicted of even the crime of
drug trafficking.
Our
concern should be rehabilitation, and it is certainly most unjust to be
sentencing a first time offender or a young person to life imprisonment.
MADPET
would suggest that section 39B should be further amended setting a minimum
sentence of 5-10 years, as this will be more just. Judges then will have
discretion to impose the appropriate sentence depending on the facts and
circumstances of each case.
Malaysia
also needs to look at the reasons why people commit this mandatory death
penalty crime. One of the main causes may be poverty. Hence, the way forward in
reducing the crime of drug trafficking (or other crimes driven by poverty) may
be addressing the socio-economic conditions that drive people to be willing to risk
their life and liberty for monies.
MADPET also urges that all persons arrested for drug offences be accorded the right to a fair trial, and that detention without trial laws like the Prevention of Crime Act 1959 (POCA) and the Dangerous Drugs (Special Preventive Measures) Act 1985 not be used. The Minister revealed that 68 drug kingpins have also been arrested, but sadly there seem to have been little publicity about their trials and/or convictions.
MADPET
also would like to remind the Malaysian government that they were looking at
abolishing the death penalty, especially the mandatory death penalty, for all
crimes not just for drug trafficking. Whilst, we welcome this move to abolish
the mandatory death penalty for section 39B, we urge that the abolition of the
mandatory death penalty is expedited.
MADPET
reiterates its call for the abolition of the death penalty in Malaysia, and for
the imposition of an immediate moratorium on all executions pending abolition.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death
Penalty and Torture)
* Some relevant extracts from 30/11/2017 Hansard, where the Bill was passed..
Pelbagai langkah drastik yang diambil oleh kerajaan. Namun begitu
statistik Polis Diraja Malaysia tetap menunjukkan peningkatan kes pada setiap
tahun. Dari Januari 2014 sehingga Oktober 2017, seramai 702,319 orang individu
ditahan polis di atas kesalahan mengedar dan memiliki dadah. Seramai 21,731
individu ditangkap di bawah seksyen 39B, Akta Dadah Berbahaya 1952 disemak
1980, Akta 234...
...Seterusnya
sebanyak 13,036 orang kertas siasatan ke atasnya telah dibuka dan sebanyak
10,878 orang kesnya telah dituduh di mahkamah dalam masa yang sama. Lebih
membimbangkan adalah sebanyak 1,743 tangkapan melibatkan penuntut sekolah dan
sebanyak 1,953 tangkapan melibatkan penuntut institusi pengajian tinggi di
bawah Akta 234 dari Januari 2014 sehingga Oktober 2017. Pada masa yang sama,
sebanyak 68 kingpin telah ditangkap dalam tempoh tersebut. Lebih parah
lagi, sebanyak 106 makmal haram memproses dadah yang beroperasi secara aktif
telah diserbu oleh pihak berkuasa dengan tangkapan mereka yang mengendalikan
makmal itu seramai 409 orang....
...Jika
dilihat daripada statistik pihak penjara dari tahun 2000 hingga tahun 2017,
seramai 113 orang yang telah dikenakan hukuman mati di bawah seksyen 39B DDA
1952, hanya 11 orang yang telah dihukum gantung iaitu 82 peratus. Manakala
sebanyak 91.7 peratus, seramai 122 orang yang telah diberikan pengampunan dan
keringanan hukuman iaitu dikenakan hukuman penjara seumur hidup....
...6.21 ptg.
Menteri di Jabatan Perdana Menteri [Dato’ Sri Azalina Dato’ Othman
Said]: Tuan Pengerusi, sub
fasal 2(b) rang undang-undang ini akan memasukkan subseksyen 39B(2A), (2B) dan
(2C) ke dalam Akta Ibu dipinda:-
(a) dalam perenggan 39B(2A)(d) yang dicadangkan
dengan menggantikan perkataan “the Public Prosecutor certifies in writing to
the court that in his determination”, dengan perkataan “that”;
(b)
dengan memotong subseksyen 39B(2B);
(c)
dengan menomborkan semula subseksyen 39B(2C) sebagai subseksyen 39B(2B); dan
(d) dalam perenggan 39B(2B) yang dinomborkan
semula, dengan menggantikan perkataan “For the purposes of subsections (2A)
and (2B)”, dengan perkataan “For the purposes of subsection (2A).
Pindaan kepada subfasal 2(b) rang undang-undang bertujuan untuk
meniadakan perakuan daripada pendakwa raya tentang bantuan yang diberikan oleh
orang yang disabitkan....
...[Rang undang-undang dilaporkan dengan ada pindaan; dibacakan kali yang
ketiga, disokong oleh Timbalan Menteri Perdagangan Antarabangsa dan Industri
(Datuk Haji Ahmad bin Haji Maslan) dan diluluskan]...
– Hansard Dewan Rakyat, 30/11/2017
DEWAN RAKYAT
PARLIMEN KETIGA BELAS
PENGGAL KELIMA
MESYUARAT KETIGA
Bil. 57
Khamis
30 November 2017
The
Malaysian Bar welcomes the removal of the mandatory death sentence for
drug offences and the restoration of judicial discretion in sentencing
with the passing of the Dangerous Drugs (Amendment) Bill 2017 (“the
Bill”) by the Dewan Rakyat on 30 November 2017.
