Thursday, November 30, 2017

Sometimes the government listens - PP's green light before judge exercise discretion removed?

Human Rights Defenders can speak up and act, and the Media has the capacity of making these voices heard.Positive results can sometimes be achieved - and this is one of them when the government decided to amend the proposed law and return the full discretion when in comes to sentencing to judges - no more the need for 'discretion only if the Public Prosecutor gives the green light'. We await the tabling of these amendments to the Bill, which the Minister assured us will be done during the 2nd reading...

U-turn death penalty for drug traffickers

Gan Pei Ling
U-turn death penalty for drug traffickers
A clause in the Dangerous Drugs Bill (Amendment) 2017 allows public prosecutors to issue a written certification to convicted drug traffickers who helped enforcement authorities disrupt drug distribution activities in or outside the country. – EPA pic, November 29, 2017.
PUTRAJAYA today caved in to public pressure and will return full discretion to judges to mete out the death sentence to drug traffickers.
Minister in the Prime Minister’s Department Azalina Othman Said said in a statement today the government will amend a controversial clause in the Dangerous Drugs Bill (Amendment) 2017.
“The government will carry out an amendment at the committee stage to Section 39B of Act 234 (Dangerous Drugs Act) to give full discretion to the judiciary,” she said. 
The Dewan Rakyat secretary has been notified about the amendment to the bill, which is expected to be tabled for second reading tomorrow, she said.
A clause in the original bill, tabled last Thursday, gave unprecedented powers to public prosecutors to issue a written certification to convicted drug traffickers who helped enforcement authorities to disrupt drug distribution activities within or outside of Malaysia. 
Judges could then decide whether to spare these convicts the mandatory death penalty
However, the judges would have no choice but to mete out the mandatory death sentence to convicts without a written certificate from prosecutors.
Various parties, including the Malaysian Bar, opposition MPs and human rights group Malaysians Against Death Penalty and Torture, have criticised the controversial clause over the past week, saying that it interferes with the judges’ sentencing power.
Azalina said the decision to amend the bill was made after taking into account the views and suggestions of all stakeholders to the government.
“This amendment demonstrates the government’s openness, especially the prime minister who always listens to views from various parties to ensure every policy decision is made inclusively,” she said.
Attorney-General Mohamed Apandi Ali blamed the cabinet today for adding the caveat to give prosecutors the power to issue a written certification to convicted drug traffickers.
“My initial proposal was to give discretion to judges, that is, to pass a death sentence or otherwise. That was my principal advice.
“The certification (by public prosecutors) is another policy matter by the cabinet... I don’t have a say in it,” Malaysiakini reported him as saying. – November 29, 2017, Malaysian Insight
Malaysian Insight also carried MADPET's statement 

Public prosecutor granted ‘too much power’ over life and death, says human rights group 

Bede Hong
A HUMAN rights group is critical of an amendment to the law governing the death penalty, saying it gives too much power to the public prosecutor over the judge in determining who deserved to be sentenced to death.
Yesterday, the bill for the Dangerous Drugs (Amendment) Act 2017 was tabled in Parliament, amending Section 39B of the Dangerous Drugs Act 1952, which pertains to the death penalty. The new law would allow the judge to exercise discretion in meting out life imprisonment instead of the death penalty, which was previously mandatory for those convicted of drug trafficking. 
However, a clause states that the judge may impose a sentence other than the death penalty, only 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 within or outside Malaysia."
"It is wrong to give the public prosecutor the power to decide who dies and who may live," Malaysians Against Death Penalty and Torture (Madpet) coordinator Charles Hector said in a statement today. 
"Remember, that he is also responsible for prosecution in a criminal trial, and the power to the public prosecutor to give or not give the written certification is most dangerous. It may also undermine the right to a fair trial."
According to the proposed amending act, if the public prosecutor does not provide the certification, judges will have no choice but to impose the death penalty.  
Hector said the power of sentencing should rest with the judge alone. 
"The existence of appeals to higher courts helps ensure that there be no errors."
Before sentencing, the judge usually hears and considers the submissions of the prosecution and the convicted person to impose an appropriate sentence. 
"Thus, the question of whether there was assistance or not could be included as one of the listed matters that should be considered by the judge before he decides and pronounces sentence." 
"Some may have no information or very little information, or maybe that information and/or assistance will not help disrupt drug trafficking activities. As, such this really should be for the judge to decide and maybe should be a point to be considered before sentencing."
In a statement today also condemning the law amendment,  Lawyers for Liberty executive director Eric Paulsen said there was little guarantee that the law enforcement agencies and public prosecutor would not abuse such "unfettered and arbitrary power".
"It is basic that the act of prosecution is an executive function of the state and the office of the public prosecutor shall be strictly separated from judicial functions. Therefore it would be a serious miscarriage of justice if the prosecutor could also decide the mode of punishment, and all the so, the punishment of death," he said. 
By compelling judges to impose a life or death sentence based on the public prosecutor’s certification is an "unnecessary fetter" on their discretion and interferes with judicial independence and justice, Paulsen said. 
As of March, there are almost 800 prisoners on death row for drug trafficking offences under Section 39(B), according to Prison Department statistics.
Madpet has called for all death sentences to be commuted to imprisonment. It further calls on the government to impose a moratorium on pending executions and speed up efforts towards the abolition of the death penalty. – November 24, 2017, Malaysian Insight.
**Thereafter several human rights groups, including the Malaysian Bar, and even Opposition MPs raised concerns about the said Bill, being debated at the Dewan Rakyat(House of Representatives) in Malaysian Parliament.

1 comment:

Hakimi Abdul Jabar said...


Article 10(1)(a) of the Federal Constitution guarantees Malaysian citizens the right to freedom of speech and expression.

The Malaysian constitutional provision is in pari materia with Article 19(1)(a) in the Constitution of India, its Indian brethren which holds that “all citizens shall have the right to freedom of speech and expression”.

Decades before 12th October, 2005 in which the Indian Right To Information Act 2005 came into force, the Indian Supreme Court had already ruled in State of U.P. vs Raj Narain case (1975) 4 SCC 428 that :
“In a government of responsibility like ours, where all the agents of public must be responsible for their conduct, there can be but few, secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public, functionaries. They all entitled to know the particulars of every public transaction in all its bearing.”

In People’s Union for Civil Liberties vs Union of India (AIR 2004 SC 1442), Justice S.B. Sinha and Justice B.M. Khare held that :
“Right to Information is a facet of the freedom of ‘speech and expression’ as contained in article 19(1) (a) of the constitution of India. Right to Information, thus, indisputably is Fundamental Right.”

In Govt. of India vs The Cricket Association of Bengal (1995) 2 SCC 161, the Supreme Court decided that :
“the freedom of speech and expression includes right to acquire information and disseminate it. It enables people to contribute to debate on social and moral issues. Right to freedom of speech and expression means right to education, to inform, to entertain and right to be educated, informed and entertained. Right to telecast is, therefore, within the ambit of Article 19 (1) (a).”

Recently, the Malaysian apex court, the Federal Court in its decision in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 5 CLJ 526 had referred to and reaffirmed the decisive ruling in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333, 342 where Gopal Sri Ram FCJ said :
“… Further it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional.”

In that same latter corum consisting of Federal Court Justices - Sri Ram, Zulkifli Makinuddin & Malanjum had unanimously and decisively ruled that "the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution."

The Indian Supreme Court in Kesavananda Bharati v State of Kerala [1973] AIR SC 1461 which had propounded the basic structure doctrine was recognised and referred in the very same Federal Court decision in Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 333.

Needless to say, Article 10(1)(a) of the Federal Constitution falls under Part II of the same. The Malaysian Constitutional Right To Information is implicit and a corollary right entrenched in the same provision.

The UK Supreme Court in Kennedy v Charity Commission (2014) UKSC 20, 20 WLR 808, ruled that the common law right to information was based upon the basic principles of transparency. The brilliant judgment made two clearly distinguished observations :
1) the existence of a Common Law Right To Information, and
2) General Common Law Duties of Opennes and Transparency on Public Authorities.

the Privy Council held that "Modern English authorities may be persuasive....".

In light of the aforesaid constitutional provision and caselaw authorities, it is submitted that the Right To Information and the Right To Transparency form part of our Constitutional Guarantees and Common Law.