Media Statement-14/2/2018
10 SENTENCED TO DEATH BECAUSE DELAY OF COMING INTO FORCE LAW THAT
ABOLISHES MANDATORY DEATH PENALTY FOR DRUG TRAFFICKING
Abolish Death Penalty
We, the 40 undersigned organisations, groups and trade unions are most
disturbed and saddened that at least 10
persons, as reported in the media, have been been victims of the mandatory
death penalty for drug trafficking
despite the fact that Parliament had already passed the law abolishing
mandatory death penalty and returning sentencing discretion to judges vide the
Dangerous Drugs Amendment Act 2017.
This Act, which was passed by
Parliament and received royal assent on 27/12/2017, cannot now be used by
judges to consider alternatives to the death penalty sentence until the
Minister do the needful that will enable this life saving law to come into
force. A perusal of the Malaysia’s Federal Gazatte website will disclose that
many other laws that have obtained royal assent at the same time as the Dangerous
Drugs Amendment Act 2017(DDAA 2017), or later, are already in force.
Section 3(2) of 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 DDAA 2017, when it comes to
force, will only be applicable for cases where the accused person is not yet
convicted. As such, if the court convicts before the new law comes into force,
then the Judge is left with no choice but to impose the mandatory death
penalty.
To date, based on media reports
only, there are at least 10 persons, 5 Malaysians and 5 foreign nationals, who
have suffered grave injustice by being convicted and sentenced to death simply
because of the Minister’s delay in doing the needful:-
-
S. Pragasam(30) – Ipoh High Court(Malay Mail,
9/2/2018)
-
Ong Cheng Yaw(33) and San Kim Huat(38) – Kuala
Lumpur High Court (Malaysian Insight, 8/2/2018)
-
Jonas Chihurumnanya(Nigerian) – Kuching High
Court (The Borneo Post, 30/1/2018)
-
S. Gopi Kumar(33) – KL High Court( (The Sun
Daily, 24/1/2018)
-
A. Sargunan(42), and four Indian nationals,
namely Sumesh Sudhakaran(30), Alex Aby Jacob Alexander(37), Renjith Raveendran(28),
and Sajith Sadanandan(29) – Shah Alam High Court (The Sun Daily, 22/1/2018)
A perusal of the website of the
Malaysian e-Federal Gazette, discloses that several other Acts that also
received royal assent on 27/12/2017, came into force on 30/12/2017. Some Acts
that received royal assent on 29/12/2018 also came into force on 11/1/2018.
Now, if the Dangerous Drugs Amendment Act 2017, had come into force fast, then
these 10 persons, now on death row, may not even have been sentenced to death.
The new law, when it finally
comes into force, does not provide the Courts, including the Appellate courts,
the power to vary the death sentence of those already convicted by the High
Court to imprisonment, unless the conviction itself is set aside on appeal.
In an ordinary criminal appeal,
the convicted has the right to appeal against the conviction, and also appeal
against the sentence. However, when the law provides for a mandatory sentence,
in this case the death penalty, when the accused person fails in his/her appeal
against conviction, then the courts cannot even review the appropriateness of
the sentence as the law only provides for only one sentence is available – the
death penalty for drug trafficking.
The dilemma facing judges, who
are still denied discretion when it comes to sentencing until the new law is in
force, is reflected by words of the judge that sentenced 5 persons 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.’. (The Sun Daily, 22/1/2018)
When the new law finally do come
into force, the judge will have an option other than the death sentence, being
life imprisonment with whipping of not less than 15 strokes.
Existing Inadequacies No Reason For Delay
There are still many flaws in the
new Dangerous Drugs Amendment Act 2017, including the limitations imposed as to
the matters that the judge can or should consider when deciding on an
appropriate sentence, which goes against normal practice in other criminal
trials where there are almost no restrictions as to the matters that can be
considered by the judge in the exercise of his sentencing discretion. There have
also been criticisms about the limited options that will be available, as it
would certainly be more just for judges to be able to sentence persons to a
lower prison sentence in appropriate cases and not just to life imprisonment only.
The new law, sadly, do not
provide any remedy to those already convicted and/or for the 800 or more
currently on death row by reason of having been convicted for drug trafficking.
Be that as it may, the new law
does abolish the mandatory death penalty, and many who will be convicted after
the law is in force, may end up not being sentenced to death.
There is always the option to
amend laws later to correct any existing defects, and that certainly is no excuse
for delaying the coming into force the DDAA 2017.
It is most disturbing that no
reasons seem to have been given by the government and/or the Minister for this
delay, which adversely affects persons like the 10, who now are facing the
hangman’s noose.
Many of the persons convicted for
this offence may even be first time offenders, young people, and /or persons forced
into crime by reasons of poverty. As such, government may also bear some
responsibility in allowing a situation where the poor are left with no option
but crime just for the wellbeing of themselves and their family.
Some of those convicted and
sentenced to death may also be parents and/or siblings of children, and most
certainly death sentence can never be said to be in the best interest of the
child. Malaysia, being a signatory of the Child Rights Convention(CRC), has an
obligation to ensure also that no
parent, sibling or relatives of children are sentenced to death.
Abolition of Death Penalty and Mandatory Death Penalty
Minister in the Prime Minister's
Department Datuk Seri Azalina Othman, the new de facto Law Minister, during the
Parliamentary session on 2/11/2016 clarified that Malaysia was not just looking
at the mandatory death penalty, but all death penalty.( "(The Sun Daily,
3/11/2016)
Currently in Malaysia, even after
the mandatory death penalty is abolished for drug trafficking, there still remains
about 11 other offences that provide for the mandatory death penalty, while
about 20 other offences are punishable by a discretionary death penalty. Some
of these mandatory death penalty offences are offences that do not even cause
the loss of life or grievous bodily harm.
Malaysia must expedite the
abolition of the death penalty, especially the mandatory death penalty.
THEREFORE, we
a) Call on Malaysia to
immediately put into force the Dangerous Drugs Amendment Act 2017, which to
date the delay has already caused at least 10 persons to be sentenced to death
because drug trafficking is still a mandatory death penalty offence until the
new law is in force;
b) Call on Malaysia to
immediately cause to stay criminal trials of alleged drug traffickers until the
new law is in force, which would give judges discretion to impose a sentence
other than the death penalty;
c) Call on Malaysia to expedite
the abolition of death penalty, especially the mandatory for all remaining
death penalty offences;
d) Call on Malaysia to impose a
moratorium on executions, pending abolition of the death penalty.
Charles Hector
Ngeow Chow Ying
For and on behalf of the 40 groups and organisations
listed below
ALIRAN
(Persatuan Aliran Kesedaran Negara)
ADPAN
(Anti Death Penalty Asia Network)
Australians
Against Capital Punishment (AACP)
ECPM
(Together against the Death Penalty [Ensemble contre la peine de mort])
Center
for Prisoners' Rights Japan
Center
for Alliance of Labor and Human Rights (CENTRAL) Cambodia
Democratic
Commission for Human Development, Pakistan
FIDH
- International Federation for Human Rights
Hands
off Cain
Japan
Innocence and Death Penalty Information Center
KLSCAH-Civil
Rights Committee
Global
Women's Strike, UK
Legal
Action for Women, UK
Liberia
Coalition of Human Rights Defenders (LICHRD)
MADPET
(Malaysians Against Death Penalty and Torture)
Malaysian
Physicians for Social Responsibility
MARUAH,
Singapore
Migrant
Care
Odhikar,
Bangladesh
Parliamentarians
For Global Action
Paris
Bar (Barreau de Paris)
Parti
Sosialis Malaysia (PSM)
Payday
Men’s Network, UK
Payday
Men’s Network – US
Persatuan
Komuniti Prihatin Selangor & KL
PROHAM(Society
for the Promotion of Human Rights, Malaysia)
Refusing
to Kill, UK
Rescue
Alternatives Liberia (RAL)
SMU
Human Rights Program, Dallas, Texas, USA
Suara
Rakyat Malaysia (SUARAM)
Teoh
Beng Hock Trust for Democracy
Terai
Human Rights Defenders Alliance (THRD Alliance), Nepal
The
Julian Wagner Memorial Fund (JWMF)
The
Rights Practice
Think
Centre, Singapore
We
Believe in Second Chances, Singapore
WH4C
(Workers Hub For Change)
Women
of Colour in the Global Women's Strike, UK
Women's
Rights and Democracy Centre (WORD Centre), Liberia
World
Coalition Against the Death Penalty
Note: - A check of the
website of Malaysian e-Federal Gazette confirms that the Dangerous Drugs
Amendment Act 2017 is still not in force
No. Publication
Date Act No. Title Date of Royal Assent Date
of Commencement Download
1 10-01-2018
A1563 ARBITRATION (AMENDMENT) ACT 2018 29-12-2017
NOT YET IN FORCE [National Language] [English]
2 10-01-2018
A1562 TOURISM INDUSTRY (AMENDMENT) ACT 2018 29-12-2017 NOT
YET IN FORCE [National
Language] [English]
3 10-01-2018
A1561 MALAYSIAN MARITIME ENFORCEMENT AGENCY (AMENDMENT) ACT 2018 29-12-2017 11-1-2018
[National Language] [English]
4 10-01-2018
A1560 INTELLECTUAL PROPERTY CORPORATION OF MALAYSIA (AMENDMENT) ACT 2018
29-12-2017 11-1-2018 [National Language]
[English]
5 10-01-2018
A1559 MALAYSIAN AVIATION COMMISSION (AMENDMENT) ACT 2018 29-12-2017 9-2-2018
[P.U. (B) 66/2018] [National
Language] [English]
6 29-12-2017
A1558 DANGEROUS DRUG (AMENDMENT) ACT 2017 27-12-2017 NOT
YET IN FORCE [National
Language] [English]
7 29-12-2017
A1557 SUPPLY ACT 2018 27-12-2017
30-12-2017 [National Language]
[English]
8 29-12-2017
A1556 INCOME TAX (AMENDMENT) ACT 2017 27-12-2017
30-12-2017 [National Language]
[English]
9 29-12-2017
A1555 LABUAN BUSINESS ACTIVITY TAX (AMENDMENT) (NO. 2) ACT 2017 27-12-2017 30-12-2017 [National Language]
[English]
