PETALING JAYA: Two opposition MPs said Putrajaya must explain why it does not want to return the discretionary powers of judges to impose the death penalty on drug traffickers.
Bukit Gelugor MP Ramkarpal Singh and Batu Kawan MP Kasthuri Patto asked if there was evidence to suggest that the position before the introduction of the mandatory death penalty in 1983 was a failure that required the removal of such powers.
“Has confidence in the judiciary dropped to such an extent that the courts today cannot be trusted with the sole discretion of imposing the death penalty on a convicted person,” they asked.
Their response came in a joint statement following amendments to the Dangerous Drugs Act 1952 that, among others, allowed the interference of the public prosecutor in the sentencing process.
The change to the law was tabled in the Dewan Rakyat yesterday.
They said many had expected the amendment to return the sentencing discretion of convicted traffickers to the court, after having regard for the facts and circumstances of the case.
Before 1983, judges were given the discretion to impose the death penalty but the law was later amended to only allow the court to pass the capital punishment once the prosecution had proven the accused was a trafficker.
Under the current proposal, judges will only be allowed discretion to impose a sentence other than the death penalty 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.
Both MPs said giving drastic powers to the public prosecutor was not only unprecedented but also brought with it various practical problems which the government must recognise.
They said the amendment was open to abuse and would encourage corruption while law enforcement officers were in the process of conducting investigations.
Both said the amendments also disallowed judicial review of the public prosecutor’s decision not to issue the certificate unless it could be shown that he had acted in bad faith.
They said the proposal allowed the public prosecutor to take part in the sentencing process, which, they noted, was the sole function of the judiciary.
“The public prosecutor has no business in interfering with such a function and in fact, a cornerstone of any adversarial system of jurisprudence is that only the courts have the privilege of deciding on sentence,” they said.
The MPs said the public prosecutor’s role was to prosecute and to allow him to go beyond that amounted to usurpation of judicial powers.
They said another disturbing feature of the proposal was that it would not be applicable to those who had been convicted and were currently on death row.
“Again, such a proposal is not only absurd, but downright cruel,” they added.
There are about 400 Malaysians currently on death row for drug trafficking.
They said the government ought to consider the principle that all persons were equal before the law and allow the amendments proposed to apply to all regardless of when the offence was committed.
The duo said it was inhumane and blatantly discriminatory on the part of the government not to do so.
They proposed that convicted persons be allowed to file review in court to determine if theirs was a fit and proper case for the death sentence to be commuted to life imprisonment.