Let Judicial Discretion in Sentencing Lead to the Total Abolition of the Death Penalty (Malaysian Bar)

Press Release | Let Judicial Discretion in Sentencing Lead to the Total Abolition of the Death Penalty

Tuesday, 05 December 2017 09:05am

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. We wish to recognise the Government for having considered public feedback by amending the Bill and removing the requirement of the Public Prosecutor’s certification of the assistance rendered by the convicted person, for the Judge to not pass the death penalty.   However, there remain limits to what the Judge can take into account in exercising his/her discretion in sentencing.  Section 39B(2A) of the Bill, inter alia, requires that the Court: … may have regard only to the following circumstances: [emphasis added] (a) there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested; (b) there was no involvement of agent provocateur; or (c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and (d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia. We are concerned that Judges are being limited in their consideration of the mitigating factors and circumstances that surround each case, before sentencing.  Such mitigating factors can include, and are not limited to, the offender’s age, rehabilitation goals, past criminal record, role played in the offence, mental capacity, reparations made, fear of another person, use of violence, harm done to property or persons, and degree of cooperation with the authorities.  The sentencing process is, and should always remain, within the unfettered domain of the Judiciary. We are also troubled that the determination on whether the death penalty is imposed rests upon an assessment of the convicted person’s ability or willingness to assist in disrupting drug trafficking activities.  A person’s right to life is a fundamental right, not a privilege that can be revoked if that person is deemed not sufficiently “useful” to an enforcement agency. The Malaysian Bar calls upon the Government to further amend the Bill to enable those already convicted and sentenced to death to apply for a review of their sentence.  Meanwhile, the Government should officially declare and implement a moratorium on all pending executions.  The Malaysian Bar remains resolute in our position that the death penalty is an extreme, abhorrent and inhumane punishment.  There are also provisions for the imposition of the mandatory death penalty in the Penal Code and the Firearms (Increased Penalties) Act 1971, and of the discretionary death penalty in the Kidnapping Act 1961. The Malaysian Bar calls upon the Government to act without delay to abolish the death penalty for all crimes, and to uphold the right to life, which is absolute, universal and inalienable. George Varughese President Malaysian Bar 5 December 2017

DDA amendments better, but anti-drug policy needs overhaul(Malaysiakini)

DDA amendments better, but anti-drug policy needs overhaul

Published: 8 Dec 2017, 2:48 pm     Modified: 8 Dec 2017, 5:33 pm

COMMENT | Malaysians Against Death Penalty and Torture (Madpet) 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 third reading on Nov 30 at the Dewan Rakyat.

This amending Bill has been amended to remove the earlier precondition of a Public Prosecutor’s written certification of assistance before judges had the discretion in sentencing, that will allow the imposition of the life imprisonment sentence 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, a number of groups and persons including Madpet expressed dissatisfaction that judges, according to Section 2 of the original amendment Bill, 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".

Proving 'assistence'

On Nov 30, 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 would mean that one of the points that the judge now must consider before sentencing is passed is that "the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia".

Whilst this is better, there still remains the concern whether persons convicted would really be able to provide such assistance, and 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 be seen as forcing accused persons into doing things that are self-incriminatory, including statements that will assist the prosecution to get a conviction in the face of a threat of being sentenced and put to death.

This is most unacceptable especially in capital cases, where if one is convicted, it may result in the imposition of the death sentence.

We know that many a time, 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.

As such, Malaysia must develop a substantive witness protection scheme that will ensure the safety of the convicted as well as their families, if need be.

The other concern is the fact that some of the convicted may have very little information, not sufficient to have "assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia", noting that the words used on the face of it indicate assistance was 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.

Also, it was also disappointing to note 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.

Retrials likely

If and when this amendment comes into force, it will apply also to cases where the trial had started but the accused has not yet been convicted.

There are serious concerns about trials that are 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.

It was also revealed by Minister in the Prime Minister's Department Azalina Othman Said, that prison department statistics revealed that from 2000 until 2017, of 113 persons were sentenced to death under Section 39B, 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 is not a deterrent 

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.

Since January 2014 until October 2017, 702,319 individuals have been arrested by the police for the offence of trafficking and possession of drugs.

A total of 21,731 persons were arrested under Section 39B, 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, while 106 illegal laboratories were raided, resulting in the arrest of 409.

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. On the contrary, there has been an increase of persons committing the crime.

As such, merely giving the judges the option of handing out the death sentence or life imprisonment (with at least 15 strokes of the whip) needs to be reviewed. Severe punishment does not serve 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 concerns 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 to 10 years, as this will be more just. Judges will then 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.

Madpet also would like to remind the Malaysian government that they are looking at abolishing the death penalty, especially the mandatory death penalty, for all crimes, not just 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.

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The views expressed here are those of the authors/contributors and do not necessarily represent the views of Malaysiakini.

Source: Malaysiakini, 8/12/2017

See full statement -GOVERNMENT REMOVES NEED FOR PUBLIC PROSECUTORS APPROVAL BEFORE JUDGE CAN EXERCISE DISCRETION IN SENTENCING DRUG TRAFFICKERS (MADPET - 7/12/2017)

See related posts:- 

Sometimes the government listens - PP's green light before judge exercise discretion removed?

MADPET - JUDGE’S DISCRETION TO NOT IMPOSE DEATH PENALTY ONLY IF PUBLIC PROSECUTOR GIVES CERTIFICATION IS WRONG

 

 

MADPET -GOVERNMENT REMOVES NEED FOR PUBLIC PROSECUTORS APPROVAL BEFORE JUDGE CAN EXERCISE DISCRETION IN SENTENCING DRUG TRAFFICKERS..(7/12/2017)

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 3^rd 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

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

U-turn death penalty for drug traffickers

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Gan Pei Ling Updated 23 hours ago · Published on 29 Nov 2017 6:35PM

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 

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Bede Hong Updated 6 days ago · Published on 24 Nov 2017 1:26PM 

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.

MADPET's Full Statement -  MADPET - JUDGE’S DISCRETION TO NOT IMPOSE DEATH PENALTY ONLY IF PUBLIC PROSECUTOR GIVES CERTIFICATION IS WRONG

**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.

Flawed Section 130JB Penal Code must not be used pending repeal Release Siti Noor Aishah Atam in prison for possession of unbanned books? (15 Groups)

Media Statement – 30/11/2017

Flawed Section 130JB Penal Code must not be used pending repeal

Release Siti Noor Aishah Atam in prison for possession of unbanned books? 

We, the 15 undersigned civil society organisations and groups call for the immediate release of Siti Noor Aishah Atam, who has been found guilty under Section 130JB, and was sentenced to 5 years imprisonment from the date of arrest on 22/3/2016 because the said offence pursuant to section 130 JB(1)(a) Penal Code is not only unjust but is also seriously flawed. Amongst others, the lack of mens rea(intention) in this offence, which was supposed to result in a subsequent amendment that will remedy this flaw is yet to be done. Secondly, the making of possession books, not even banned by Malaysia, as being ‘items associated with any terrorist group or the commission of a terrorist act’ and such a crime is grossly unjust.

Siti Noor Aishah Atam was first arrested on or about 22/3/2016 for the possession of 12 books associated with terrorism, and SOSMA( Security Offences (Special Measures) Act 2012) was used making bail unavailable and she remained in detention. 

She was then charged and tried by the Kuala Lumpur High Court, which acquitted her at the close of prosecution case without even defence being called on 29/9/2016.

The prosecution did then apply to the High Court to be able to continue to detain her pending the filing of the appeal to the Court of Appeal, and the court did rejected the application ordering that she be set free. 

However, on 29/9/2016 , after being set free by the Kuala Lumpur High Court, she was re-arrested under the Prevention of Crime Act(POCA) for allegedly importing IS flags into the country, which was a totally different from the charge levied against her, which was being in possession of 12 books.  To date, she has not yet been charged in court about the alleged importing of IS flags, which raises the question whether the reason used to continue to detain her was even true.

After the Court of Appeal allowed the prosecution’s appeal 27/3/2017, and send the case back to the High Court for continuation of the trial, she continued to be detention under SOSMA. 

The High Court then on or about 26/4/2017 found her guilty, and sentenced her to 5 years in prison beginning from the date of her arrest. It was reported that some of these books were still not banned.(FMT News, 26/4/2017)

Her case is now on appeal before the Court of Appeal. 

SOSMA ALLOWS INADMISSIBLE EVIDENCE TO BE USED

SOSMA, just like the Essential (Security Cases) (Amendment) Regulations 1975, allows the rules of practice and procedure set out in the Criminal Procedure Code, the requirements and standards in the Evidence Act, and other relevant law, that have been put in place to ensure a fair trial, is very wrong.

In Siti Noor Aishah Atam’s case, SOSMA was used to admit evidence which normally will not be admissible under the Evidence Act and the Criminal Procedure Code in normal trials. It must be understood, that laws that stipulate what evidence can/or cannot be admitted is to ensure no miscarriage of justice, and as such ignoring the standards and requirements in the Evidence Act, Criminal Procedure Code and other relevant law, that have been put in place to ensure a fair trial, is very wrong.

One such evidence admitted was that Siti Noor Aishah Atam allegedly told the arresting officer that the books, amongst others, belonged to her. There were not even witnesses to this alleged conversation. There was also no subsequent statement or records that such a statement was ever made to the arresting officer. However, when SOSMA is used, such normally unaccepted and questionable evidence was accepted as proof that all the things into the room, including the 12 books, belonged to Siti Noor Aishah Atam. 

Bound by the decision of the Court of Appeal, the High Court continued the trial and asked Siti Noor Aishah Atam to present her defence.

SECTION 130JB DEFECTIVE AS IT DO NOT CONTAIN THE MENS REA(INTENTION) ELEMENT

It was revealed in the High Court judgment dated 26/4/2017, that there was a defect in section 130JB Penal Code. This particular section, unlike the other offences in the new Chapter VI, starting with Section130D, 130E, 130F, 130FA, 130FB, 130G, 130H, 130I, 130J, 130JA, 130JC, 130JD, 130K, 130M, 130N, 130O, 130P, 130Q, 130R and130S, had words like "knowing", "intentionally" and/or  "having reason to believe", which clearly provided for the need of the mens rea(intention) element.  

The High Court in its judgment, also referred to the Hansard(record of Parliamentary Debate), and it was revealed that this defect was brought to the notice of the Minister, who apparently acknowledged the insdequacy, and said that he would do the needful with regard the missing  mens rea(intention) element. He said he could do it now, but he gave the assurance that he will raise this matter first with the Attorney General before any possible subsequent amendment. The indication was that the amendment will be done at a later time after the law, as it stood then, was passed but until now, there was no amendment to the said section 130JB offence, for which Siti Noor Aishah Atam was charged, tried and convicted. There has also been no reported news on this expected amendment, and we hope that an amendment will come soon, adding at the very least, the intention element of the said crime.

A part of the relevant extract from the Hansard, that was quoted in the High Court judgment dated 26/4/2017 in the Malay language is as follows:-

“…Saya mendengar hujah daripada Ahli-ahli Yang Berhormat berhubung dengan satu seksyen yang banyak dibangkitkan iaitu Seksyen 130JB(1) iaitu seksyen yang berhubung dengan possession of item. Saya sendiri pun mempunyai kecurigaanjuga, Yang Berhormat. Saya memahami apa yang Yang Berhormat sebut berhubung dengan possession ini dan Yang Berhormat sebut juga, itu yang asas sekali dalam sudut undang-undang, actus reus dan mens rea itu, ia tidak ada soalan mens rea proof. Asalkan ia mempunyai atau ada benda-benda macam itu, kalau dilihat secara literal undang-undang ini, boleh dihukum dan boleh dibawa ke mahkamah.............Yang Berhormat, oleh kerana saya juga peka dengan proses pemindaan Yang Berhormat. Kalau saya boleh buat sekarang pindaan itu, saya boleh ubah. Masuk apa yang disebut oleh itu tadi supaya soalan mens rea itu akan dimasukkan dalam seksyen 130JB ini. Akan tetapi saya beri assurance satulah sebagaimana yang dipinta oleh Yang Berhormat Shah Alam, saya akan bincang dengan AG selepas kelulusan itu nanti untuk kita membincangkan soal pindaan kepada 130JB ini............"

SECTION 130JB – VAGUE AND CAN LEAD TO INJUSTICE

Section 130JB, as it is now, is as follows:- 

 Section 130JB Possession, etc. of items associated with terrorist groups or terrorists

(1) Whoever -

(a) Has possession, custody or control of; or
(b) Provides, displays, distributes or sells,

Any items associated with any terrorist group or the commission of a terrorist act shall be punished for a term not exceeding seven years, or with fine, and shall also be liable to forfeiture of any such item

‘‘items associated with any terrorist group or the commission of a terrorist act’?

The second concern is whether books and articles should even be considered ‘items associated with any terrorist group or the commission of a terrorist act’. Well, naturally firearms, explosive devices and items that could be used to build bombs would be ‘items’ but the question is whether books, articles and other literary material that mentions and/or discusses ‘terrorist groups’ and/or ‘terrorist acts’ should be included. 

In the fight against terrorism, it really must be responsibility of all persons, and as such knowledge of the motivations and ideology of persons who resort to such violence is essential for everyone if we want to assist in the combating of such thinking. How can we argue or debate against such thinking, if we ourselves is ignorant of the subject matter. Hence, the act of a person reading or in possession of such literature must never be criminalized, as is now happening with section 130JB Penal Code.

  

However, if such books and literature are proven to be used for the purpose of recruiting others into terrorist  groups or committing violent acts, then maybe it may be made into a criminal offence. It must be pointed out that incitement and/or preparation to commit an offence is already a crime in Malaysia, and as such, one need to consider whether there is really any need to even have specific laws to deal with ‘terrorist act’ and/or ‘terrorism’.

‘associated with’?

Likewise, the  words ‘associated with’ is rather vague. Would it also include books and material critical of  or against the motivation and ideologies of terrorist groups or acts of terrorism?

In brief, the offence as it is set out in section 130JB today has just too many inadequacies, and it would be unjust to charge someone like Siti Noor Aishah Atam for the mere possession of books. Such laws can easily be abused or wrongly used by authorities against innocent people, and justice may not be done.

In the case of Siti Noor Aishah Atam, one most disturbing fact was the fact that these books were not even banned by the Government of Malaysia at the material time. In fact, it was revealed that some of the said books were obtained from local distributor and are available for purchase in Malaysia. We have not seen any news about actions taken against this distributor and/or sellers. We have also seen no action by the Malaysian government to even try to trace and recover all the said titles, who may be in possession of many unknowing persons in Malaysia. Will they all also be one day arrested and charged under section 130JB Penal Code.

Siti Noor Aishah Atam may be guilty of many other offences, but what matters here is whether she is guilty of the offence that she is currently being charged for – the possession of these 12 books. For other offences, she must be charged and tried. It is wrong and most unjust to convict and sentence a person for things that she may or may not have done that is different from the current charges, just because we, the police or the government thinks that someone is a ‘bad’ person. The right to a fair trial must be respected.

Hence, we call for 

a)      The immediate repeal and/or removal of section 130JB of the Penal Code, which is not only too vague but is also unjust by reason of not having a mens rea(intention) element to the said offence;

b)      That pending the repeal or deletion of section 130JB of the Penal Code, it not be used again, and certainly not for simply being in possession of books; 

c)       The immediate release of Siti Noor Aishah Atam and all persons currently being detained, imprisoned and/or being tried for the  section 130JB offence;

d)      That  SOSMA( Security Offences (Special Measures) Act 2012) be repealed, and pending repeal, it will not used to undermine the standards and requirements in the Evidence Act, Criminal Procedure Code and other relevant law, that have been put in place to ensure a fair trial;

e)      That the Malaysian judiciary uphold the cause of justice without fear or favour;

Charles Hector

For and on behalf of the 15 listed groups

ALIRAN

Center for Prisoners' Rights Japan

Christian Development Alternative ( CDA), Bangladesh

Dutch League for Human Rights

Japan Innocence and Death Research Center

KL Selangor Chinese Assembly Hall - Civil Rights Committee

MADPET(Malaysians Against Death Penalty and Torture)

Malaysian Physicians for Social Responsibility (MPSR)

North South Initiative

Rescue Alternatives Liberia (RAL)

Saya Anak Bangsa Malaysia (SABM) 

Teoh Beng Hock Trust for Democracy

Women’s Criminal Justice Network

WH4C (Workers Hub For Change)

Association of Human Rights Defenders and Promoters- HRDP, Myanmar