By Charles Hector
Malaysians Against Death Penalty and Torture, or Madpet, is appalled by the delay in the Dangerous Drugs (Amendment) Act 2017 coming into force, which will mean that persons now being convicted by the courts for drug trafficking will still be subjected to the mandatory death penalty and not enjoy the possibility of avoiding the death penalty.
The proposed amendment to the law, when it comes into force, will only apply to cases where persons facing trial have yet to be convicted. Therefore, justly, all drug trafficking case trials must not continue until the new law is in force. The delay by the minister concerned has already cost at least five persons to be convicted to death.
It was reported that Malaysian A Sargunan, 42, and four Indian nationals (Sumesh Sudhakaran, Alex Aby Jacob Alexander, Renjith Raveendran and Sajith Sadanandan) were convicted and sentenced to death by the Shah Alam High Court on Jan 17 for drug trafficking under Section 39B (1)(a) of the Dangerous Drugs Act 1952 (The Star, 17/1/2018).
The Dangerous Drugs (Amendment) Bill 2017 was passed by the Dewan Rakyat (House of Representatives) on Nov 30, 2017, and by the Senate (Dewan Negara) on Dec 14, 2017. Royal assent was received on Dec 27, 2017, making this now an act of parliament, but sadly, it only will come into operation on a date to be fixed by the minister by notification in the gazette.
A perusal of the official e-Federal Gazette website on Jan 19 revealed that some other laws that obtained royal assent on the same day, or subsequently, as the Dangerous Drugs (Amendment) Act 2017, have already come into force but not this act. This act has the effect of restoring judicial discretion to impose a sentence for drug trafficking other than the death penalty such as life imprisonment with whipping of not less than 15 strokes.
By reason of the minister’s delay, now A Sargunan and the four Indian nationals have been convicted and sentenced to death, as Section 39B (1)(a) of the Dangerous Drugs Act 1952 still provides for the mandatory death penalty.
Section 3(2) of Dangerous Drugs (Amendment) Act 2017 states, “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 means that any person even already on trial for drug trafficking (Section 39B), so long as they have yet to be convicted, can enjoy the benefits of the Dangerous Drugs (Amendment) Act 2017. But, until the minister concerned does the needful, to ensure this law comes into force, judges will continue to have no discretion but to impose the mandatory death penalty.
The new law, sadly, does 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. As such, justly, all their death sentences should be commuted to imprisonment. Alternatively, a new law is needed that allows for a review of their current sentence. Given the large number involved and other reasons, it would be best that all their death sentences be commuted.
Malaysia must be complemented for this major, long overdue step to abolish the mandatory death penalty for the offence of drug trafficking, and return discretion to judges when it comes to sentencing.
Noted that there are still flaws in this new law which have been raised by the Malaysian Bar, among others, the fact that judges, in exercising their discretion, are limited to just certain considerations. There is also now an unjust mandatory requirement before the exercise of the judge’s discretion – the judge’s assessment of the convicted person’s ability or willingness to assist in disrupting drug trafficking activities. There are many reasons why a convicted person may not be able to provide this assistance, including possible retaliation by kingpins and others on the convicted and/or their families.
The Malaysian Bar, in its statement dated Dec 5, 2017, among others, stated, “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.’
Madpet calls for all trials of persons charged under Section 39B (drug trafficking) to be stayed, or where the trial is over, that courts do not proceed to convict until after the Dangerous Drugs (Amendment) Act 2017 comes into force.
Madpet also calls on the minister to do the needful to ensure that the Dangerous Drugs (Amendment) Act 2017 comes into force without any further delay;
Madpet reiterates the call for Malaysia to speedily abolish all other mandatory death penalty offences, other than drug trafficking, and return sentencing discretion to judges.
Madpet also reiterates the call for a moratorium on all executions, pending the abolition of the death penalty in Malaysia.
Charles Hector is a coordinator with Malaysians Against Death Penalty and Torture (Madpet).
The views expressed are those of the author and do not necessarily reflect those of FMT.