Media Statement – 7/10/2022
Enact and enforce laws repealing mandatory death penalty before Parliament is dissolved
Prevent PM Ismail Sabri’s government’s positive effort from being undermined by an early GE15, which is really due in mid-2023
MADPET(Malaysians Against Death Penalty and Torture) appreciates the action of the Malaysian government under the premiership of PM Ismail Sabri who took the long awaited action of tabling Bills that will amend relevant laws resulting in the abolition of the mandatory death penalty. Death penalty remains but judges will have option to sentence to death OR natural life imprisonment with whipping.
Ismail Sabri Acted When Previous Prime Ministers just talked
It must be noted that the intention of doing away the death penalty in Malaysia had been previously expressed by the Barisan Nasional government under the premiership of Najib Razak, the Pakatan Harapan government under PM Mahathir, the PN-BN Plus government under PM Muhyiddin Yasin but they all failed or procrastinated to do the needful action of enacting of laws. Finally PM Ismail Sabri of the PN-BN Plus government did table the needed Bills. Bills tabled need to still be passed by Parliament and enforced before it becomes effective law.
Noting that there are rumors of dissolution of Parliament and the calling of the next General Elections, MADPET hopes that the said Bills be passed by Parliament and become law before Parliament is dissolved. If not, the tabling of Bills to abolish the mandatory death penalty may simply be perceived as yet another ‘lie’, ‘false promise’ or publicity stunt by PM Ismail Sabri-led government.
GE15 only needs to be held in the middle of 2023, which is more than enough time for Parliament to pass these new laws and for the government to put it in force.
Death Penalty Remains
The abolition of mandatory death penalty does not abolish death penalty. Death penalty still remains a possible sentence, but now judges have the discretion depending on the facts of the case to impose the death penalty or the alternative sentence of imprisonment for natural life plus whipping.
MADPET reiterates its call for the total abolition of the death penalty and also the corporal punishment of whipping.
Malaysia has voted in favour in 2018 and then again in 2020 the United Nations General Assembly Resolution in favour of the abolition of the death penalty, and the imposition of a moratorium on executions pending abolition. Almost 4 years have passed since Malaysia had publicly taken this position at the UN and on 6/10/2022, these Bills to abolish mandatory death penalty was tabled in Parliament.
Drug Trafficking – Bill will restore sentencing discretion to judges
Proposed Amendment to section 39B Dangerous Drugs Act 1952, vide Dangerous Drugs (Amendment) Bill 2022 will rightly delete sections 39B(2A) and 39B(2B) and will restore full discretion to judges when it comes to sentencing. The limited matters that the judge could consider will be removed, including that mandatory requirement ‘…(d)that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia…’ . What this means that judges thereafter will be able to consider all mitigating and aggravating factors, just like in every other criminal trials, before deciding to sentence the convict to death or to imprisonment for life with whipping.
This amendment, if and when it becomes law, would also removes some existing flaws which was affront to one’s right to a fair trial in the Dangerous Drugs Act.
From one mandatory sentence to 2 ‘mandatory sentence’ is still unjust
While the proposed Bills that will abolish the mandatory death penalty, it gives judges the option to just impose only ONE other sentence being ‘…imprisonment for natural life, and if he is not sentenced to death, shall also be punished with whipping of not less than twelve strokes…’, and this remains as an injustice.
MADPET takes the position that alternative prison sentence should be flexible, and not just limited to imprisonment until death.
As an example, the fact that a young person deceived into keeping or transporting a package, which he/she may not even know it was drugs, will still be convicted for drug trafficking and will end up in prison till death seems to be rather unjust. For them, maybe a 5 -10-year prison sentence would be just. On the other hand, for the ‘kingpin’ or bosses of drug trafficking, the sentence of natural life imprisonment may be acceptable.
Prosecution must bear the burden of proof in court for drug trafficking cases
Section 37 (da) DDA now states that ‘…any person who is found in possession of ..’ a certain amount of drugs ‘…otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug…’. Section 37(d) ‘…any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug;..’
One must appreciate that it is almost impossible for any accused to PROVE that he/she did not know the bag/package contained drugs, or even to prove that he is a not a drug trafficker. Such legal presumptions need to be abolished, and the burden of proving all elements of the crime in court must always rest with the prosecution.
Politics should not hinder abolition of mandatory death penalty
MADPET calls on all Members of Parliament and Senators to support the current Bills, which humanely will see an end to the mandatory death penalty, taking note also that those convicted of the said offences can still be sentenced by court to death or the alternative sentence of imprisonment for natural life. Let’s trust the wisdom of our judges when it comes to sentencing.
It is hoped that politicians and parties do not use this long-awaited move to abolish just the mandatory death penalty, not the death penalty, for political motives, simply to oppose PM Ismail Sabri and the BN-PN Plus government, and to prevent the passing of these needed amendments to laws.
There are about 1,337 death row inmates, most of whom have exhausted all rights of appeal. As the Bills did not deal with them, or those who may have committed the offence before the said Bills are passed and comes into force. There is no provision for re-sentencing procedures, or even commutation of sentence in the Bills tabled. How do we resolve this matter is something the government need to look into, for it is unjust for persons to still languish on death row.
MADPET reiterates that Parliament should not be dissolved until all the Bills tabled to abolish mandatory death penalty becomes laws and comes into force. If not, a new government after General Elections may simply undermine this positive effort of PM Ismail Sabri’s government.
MADPET reiterates for the abolition of the death penalty, and the continuation of the moratorium on executions pending abolition.
Charles Hector
For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)
Seven Bills tabled to abolish death sentence
By MARTIN CARVALHO and RAGANANTHINI VETHASALAM
Nation
Thursday, 06 Oct 2022 5:20 PM MYT
Among the laws to be amended are the Dangerous Drugs Act, Kidnapping Act, Arms Act, Penal Code and Firearms (Increased Penalties) Act.
Also to be amended are provisions of the Criminal Justice Act and Criminal Procedure Code.
The amendments cover 33 sections where 11 involve the mandatory death sentence and 22 at the discretion of judges.
Among the major changes to the law involve the offence of murder where judges will be given the discretion to sentence a convicted person to either death or imprisonment for natural life.
The current law under Section 302 of the Penal Code imposes a mandatory death sentence.
The death sentence for kidnapping will also be removed under Section 3 of the Kidnapping Act
However, offenders will be looking at a punishment of imprisonment for life and not less than 12 strokes of the rotan.
Also amended is Section 39B of the Dangerous Drugs Act where judges will be allowed to exercise their discretion on whether to impose the death sentence for drug traffickers without the need to consider certain factors imposed under the current law.
Also abolished are the death sentences for several offences against the King, Ruler or Yang di-Pertua Negri.
The mandatory death sentence for those convicted for terrorism under section 130C of the Penal Code will be abolished.
The punishment will be replaced with imprisonment for natural life and not less than 12 strokes of the rotan.
The proposed amendments will act retrospectively against offenders who were convicted prior to the passing of the laws but have yet to be sentenced.
The Bill was tabled by Minister in the Prime Minister's Department in charge of Parliament and Law Datuk Seri Dr Wan Junaidi Tuanku Jaafar on Thursday (Oct 6).
He informed the House that the proposed amendments are scheduled to be passed during the current meeting.
Wan Junaidi had previously said that the law would be passed provided there was no “disruption” to the Dewan Rakyat proceedings which will end on Nov 29.
Batu Kawan MP Kasthuri s Patto described the tabling of the Bills as a historic day for the nation.
She lauded the government for taking a "valiant step" in making effort to abolish the mandatory death penalty.
"Oct 6 is just four days before the World Day Against the Death Penalty; Malaysia holds her head high as a member of UN Human Rights Council," she said.
Kasthuri, who is Parliamentarians for Global Action president, urged the government to continue with the moratorium in carrying out the death sentence on more than 1,300 inmates on death row. - Star, 6/10/2022
The government has agreed to replace the death penalty with alternative punishment for 23 offences, including a drug offence which currently carries a mandatory death sentence.
It also agreed to impose a moratorium on the death penalty, affecting 1,337 death row inmates.
This was decided in two meetings chaired by Minister in the Prime Minister's Department (Parliament and Law) Wan Junadi Tuanku Jaafar (above) on Sept 6 and Sept 13.
A memorandum will soon be tabled at the cabinet meeting for approval, before amendments to relevant laws can be tabled for first reading when the Dewan Rakyat convenes on Oct 4 and for second reading on Nov 22, he said.
"The government will hold an engagement session with members of the Dewan Rakyat soon on the implementation of alternate penalties on offences carrying the mandatory death penalty.
"The government is always committed towards more just and compassionate laws pertaining to the issue of caning and the implementation of the death sentence," Wan Junaidi said in a statement.
No evidence death penalty a deterrent
Among laws which will need to be amended are the Dangerous Drugs Act, for which offences under Section 39B carry the mandatory death sentence.
The section pertains to the trafficking of drugs.
The act also states that those found with a certain amount of drugs on them are presumed to be trafficking.
This issue has been especially contentious in the case of marijuana.
In at least one high-profile case, a cancer patient who was charged for possession of marijuana above the threshold for the presumption of trafficking said he was using it for medical reasons.
Research shows there is no evidence that the death penalty is an effective deterrent to the drug trade, said Harm Reduction International, an NGO working on reducing the negative impact of drug policies.
"In fact, according to available estimates, drug markets continue to thrive around the world, despite drug laws in almost every country being grounded in a punitive approach," it said.
In 2018, 120 countries
voted in favour of a resolution on a moratorium on the use of the death
penalty at the 73rd Session of the United Nations General Assembly. - Malaysiakini, 13/9/2022
We voted for a moratorium on the death penalty
Wednesday, 23 Dec 2020
ON Dec 16, Malaysia voted in support of the resolution calling for a moratorium on the use of the death penalty at the United Nations General Assembly (UNGA).
The UNGA adopted the resolution with 123 votes in favour, 38 against and 24 abstentions.
The assembly also called on states to “respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of May 25,1984”.
The adoption of this resolution demonstrates a growing trend towards the abolition of the death penalty. In 2018, a similar resolution only had 121 votes in favour, which also included Malaysia. In 2007, there were 104; in 2008, it was 106; in 2010, it was 108. In 2012, it jumped to 111, and in 2016, it was 117. Malaysia voted in favour in 2018 and now again in 2020.
On the same day, the UNGA also adopted a resolution on extrajudicial, summary or arbitrary executions by a vote of 132 in favour to none against, with 53 abstentions. The assembly “demanded that states ensure the practice of extrajudicial, summary or arbitrary executions is brought to an end”.
Malaysia should have already taken the first step with the abolition of the mandatory death penalty earlier in the year but was unfortunately delayed by Covid-19 and changes in government.
Malaysians Against the Death Penalty and Torture (Madpet) urges the government to expedite the abolition of the mandatory death penalty, which will then rightfully return the power to the courts to determine the most appropriate sentence based on the facts and circumstances of each case. A mandatory penalty removes a role that should be left to the judiciary in a democracy.
As a next step, Madpet also calls on Malaysia to immediately abolish the death penalty from all offences that do not result in any deaths.
Madpet also calls for the criminalisation of extrajudicial, summary or arbitrary executions, and for the abolition of all detention without trial laws as well. No one should be detained, restricted and/or punished without being accorded the right to a fair trial.
CHARLES HECTOR
On behalf of Malaysians Against the Death Penalty and Torture (Madpet) - Star, 23/12/2020
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