DDA amendments better, but anti-drug policy needs overhaul
COMMENT |
Malaysians Against Death Penalty and Torture (Madpet) welcomes the fact
that the government has amended the Bill to amend Section 39B of the
Dangerous Drugs Act 1952, which now provides for the mandatory death
penalty for drug trafficking. The Dangerous Drugs (Amendment) Act 2017,
as amended, was passed after the third reading on Nov 30 at the Dewan
Rakyat.
This amending Bill has been amended to remove the earlier
precondition of a Public Prosecutor’s written certification of
assistance before judges had the discretion in sentencing, that will
allow the imposition of the life imprisonment sentence instead of the
death penalty. This amendment vide Dangerous Drugs (Amendment) Bill -
Amendment in Committee (D.R.45/2017) amended the Bill entitled the
Dangerous Drugs (Amendment) Act 2017.
After the Dangerous Drugs (Amendment) Act 2017, a number of
groups and persons including Madpet expressed dissatisfaction that
judges, according to Section 2 of the original amendment Bill, would
only be able to exercise discretion during sentencing if and only 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".
Proving 'assistence'
On Nov 30, the need for the public prosecutor's
certification was removed. The words “the Public Prosecutor certifies in
writing to the court that in his determination” was removed and
replaced with the word “that”.
This would mean that one of the points that the judge now
must consider before sentencing is passed is that "the person convicted
has assisted an enforcement agency in disrupting drug trafficking
activities within or outside Malaysia".
Whilst this is better, there still remains the concern
whether persons convicted would really be able to provide such
assistance, and when will such assistance be required to be provided.
Rightly, that assistance should be provided only after one
has been tried and convicted. To suggest otherwise would be most
prejudicial to the accused person, and it may be seen as forcing accused
persons into doing things that are self-incriminatory, including
statements that will assist the prosecution to get a conviction in the
face of a threat of being sentenced and put to death.
This is most unacceptable especially in capital cases,
where if one is convicted, it may result in the imposition of the death
sentence.
We know that many a time, drug trafficking is usually
carried out by kingpins and their criminal organisations, and as such,
there is also a real risk that any such "assistance" by the convicted
person may bring to them and/or their families retaliation and/or harm,
more so when the fact of this assistance is made known.
As such, Malaysia must develop a substantive witness
protection scheme that will ensure the safety of the convicted as well
as their families, if need be.
The other concern is the fact that some of the convicted
may have very little information, not sufficient to have "assisted an
enforcement agency in disrupting drug trafficking activities within or
outside Malaysia", noting that the words used on the face of it indicate
assistance was given "...has assisted...".
One can only provide assistance as much as one is able to,
and it may sometimes be seen as not being useful or sufficient to assist
any enforcement agency. As such, what is expected to escape the death
sentence may still be unreasonable.
It may have been better, if all that is required was what a
person reasonably could have done to assist, irrespective of whether it
really assisted the enforcement agency or not. Until there is an
amendment, it is hoped that when judges do consider this element of
"assistance", reasonableness and reality is also considered.
Also, it was also disappointing to note that the new
amendments to the Bill did not address the concern as to what will
happen to the 800 or more still on death row for drug trafficking. It
was best that all their sentences be forthwith commuted to imprisonment.
Retrials likely
If and when this amendment comes into force, it will apply
also to cases where the trial had started but the accused has not yet
been convicted.
There are serious concerns about trials that are already
started. Evidence will have been adduced, challenged and/or rebutted in
these trials where both the accused and prosecution were operating under
the belief that on conviction, there will only be the mandatory death
penalty.
As such, even when the amendment comes into force, it will
only be just if there be a new trial before a new judge, given the fact
that the strategy and conduct of the trial would most likely be very
different given the fact judges would now, after the amendment comes
into force, the discretion to not sentence the convicted to death.
In light of the upcoming amendment to Section 39B, Madpet
calls for the immediate stop of all Section 39B trials pending the
coming into force the amendment that gives judges the discretion to
impose a sentence other than the death sentence. There should be new
trials before different judges for all these cases.
It was also revealed by Minister in the Prime Minister's
Department Azalina Othman Said, that prison department statistics
revealed that from 2000 until 2017, of 113 persons were sentenced to
death under Section 39B, only 11 were executed, whilst another 122
persons have been pardoned and had their death sentence commuted to life
imprisonment.
There was, however, no disclosure as to why some were
executed and others had their sentences commuted. Did diplomatic
concerns or other unacceptable considerations have a part to play in
these decisions as to who lives and who is hanged to death?
Madpet urges that the death sentence of all persons on
death row, especially for drug trafficking, be immediately commuted to
imprisonment.
Death penalty is not a deterrent
The minister also stated that the police statistics
reveal an increase of drug cases every year despite the drastic measures
taken by the police, which we could take as including the fact of the
existence of the mandatory death penalty for Section 39B.
Since January 2014 until October 2017, 702,319 individuals
have been arrested by the police for the offence of trafficking and
possession of drugs.
A total of 21,731 persons were arrested under Section 39B,
whereby investigation papers were opened for 13,036 persons and 10,878
persons were charged in court. The minister also revealed that 68 drug
kingpins were arrested during this period, while 106 illegal
laboratories were raided, resulting in the arrest of 409.
The death penalty for drug trafficking came into being in
1975, and in 1983, there was an amendment that brought in the mandatory
death penalty. It is clear now that even the mandatory death penalty has
not deterred people from committing the offence. On the contrary, there
has been an increase of persons committing the crime.
As such, merely giving the judges the option of handing out
the death sentence or life imprisonment (with at least 15 strokes of
the whip) needs to be reviewed. Severe punishment does not serve as a
deterrent, and as such, we should be looking at rehabilitation and
second chances to persons convicted of even the crime of drug
trafficking.
Our concerns should be rehabilitation, and it is certainly
most unjust to be sentencing a first time offender or a young person to
life imprisonment.
Madpet would suggest that Section 39B should be further
amended setting a minimum sentence of 5 to 10 years, as this will be
more just. Judges will then have discretion to impose the appropriate
sentence depending on the facts and circumstances of each case.
Malaysia also needs to look at the reasons why people
commit this mandatory death penalty crime. One of the main causes may be
poverty. Hence, the way forward in reducing the crime of drug
trafficking (or other crimes driven by poverty) may be addressing the
socio-economic conditions that drive people to be willing to risk their
life and liberty for monies.
Madpet also urges that all persons arrested for drug
offences be accorded the right to a fair trial and that detention
without trial laws like the Prevention of Crime Act 1959 (Poca) and the
Dangerous Drugs (Special Preventive Measures) Act 1985 not be used.
Madpet also would like to remind the Malaysian government
that they are looking at abolishing the death penalty, especially the
mandatory death penalty, for all crimes, not just drug trafficking.
Whilst we welcome this move to abolish the mandatory death penalty for
Section 39B, we urge that the abolition of the mandatory death penalty
is expedited.
Madpet reiterates its call for the abolition of the death
penalty in Malaysia, and for the imposition of an immediate moratorium
on all executions pending abolition.
The views expressed here are those of the authors/contributors and do not necessarily represent the views of Malaysiakini.
Source: Malaysiakini, 8/12/2017
See full statement -GOVERNMENT
REMOVES NEED FOR PUBLIC PROSECUTORS APPROVAL BEFORE JUDGE CAN EXERCISE
DISCRETION IN SENTENCING DRUG TRAFFICKERS (MADPET - 7/12/2017)
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