Media Statement –
15/3/2018
At Last, Mandatory Death Penalty For Drug Trafficking
Abolished With Coming Into Force Amendment Act On 15 March 2018
MADPET(Malaysians Against Death
Penalty and Torture) is pleased that the Dangerous Drugs Amendment Act 2017,
which received royal assent on 27/12/2017, has finally, after much delay, has
come into force as of 15 March 2018.
The gazette notification
appointing the date this new law comes into operation, that will abolish the
mandatory death penalty for drug trafficking, giving judge’s discretion to be
able to sentence those convicted of drug trafficking to an alternate sentence
of life imprisonment with not less than 15 strokes of the whip, dated 8/3/2018
was signed by the Minister of Health. It was odd that it was not the Minister
in the Prime Minister's Department Datuk Seri Azalina Othman, the facto Law
Minister or the Home Minister.
It must be pointed out that this still
unexplained delay has resulted in grave injustice to at least 10 persons, who
had been sentenced to the mandatory death penalty this year until 15/3/3018,
because judges still had no discretion to consider and impose any other
sentence other than death penalty until the date the Act comes into operation.
It must be noted that not all persons convicted and sentenced to death for drug
trafficking would have been reported by the media. This 10 media reported cases
included 5 Malaysians and 5 foreign nationals, being:-
- 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)
This new law, when it comes into
force, will only benefit persons who have yet to be convicted by the High
Court. If already convicted and sentenced to death before the law came into
force, then even the Appellate Courts will not have the power to review the
death sentence, and impose an alternative sentence for drug trafficking. The
only way, that those already sentenced to death can escape the death penalty is
if the Appellate Courts set aside the conviction for drug trafficking.
Even after the amending Act comes
into force, there are still serious flaws, including limitation on the factors
that Judges could consider when imposing the appropriate just sentence after
conviction. The law now states, that judges ‘…may have regard only to the
following circumstances…’ being a limited list of four matters. In criminal trials generally,
judge will consider all relevant factors and circumstances of the case and/or
the relevant convicted persons, including also age, whether he/she is a first
time offender, etc.. before imposing a just and appropriate sentence.
At present, there is also
mandatory requirement ‘…that the person convicted has assisted an
enforcement agency in disrupting drug trafficking activities within or outside
Malaysia…’ before a judge can impose a sentence other than death. This is
unjust for it impacts of an individual’s right to a fair trial, for an innocent
person, when convicted at the High Court may be forced to incriminate himself
truthfully and/or falsely simply to avoid the death penalty. This ‘admission’ will
also impact on his right of appeal against conviction and sentence to the
Appellate Courts, be it the Court of Appeal and/or the Federal Court.
The new amendments also failed to
deal with the 800 plus persons currently on death row for drug trafficking,
including also others who have already been convicted before the Amending Act
came into force.
MADPET calls for the immediate
amendment of the law to ensure full, unfetterered discretion be given to judges
when it comes to sentencing those
convicted of drug trafficking.
We also urge that judge’s
discretion when it comes to the imposition of imprisonment not be simply
limited to life imprisonment, but is extended possibly by setting a more just and reasonable
minimum sentence of not more than 5 -10 years especially for first time
offenders;
MADPET also calls for the
abolition of the mandatory death penalty for the about 11 remaining offences in
Malaysia, and for the total abolition of the death penalty; and
MADPET also reiterates the call
for a moratorium on executions pending abolition of the death penalty in
Malaysia.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and
Torture)
