Saturday, December 09, 2017

Let Judicial Discretion in Sentencing Lead to the Total Abolition of the Death Penalty (Malaysian Bar)

Press Release | Let Judicial Discretion in Sentencing Lead to the Total Abolition of the Death Penalty

Tuesday, 05 December 2017 09:05am
ImageThe Malaysian Bar welcomes the removal of the mandatory death sentence for drug offences and the restoration of judicial discretion in sentencing with the passing of the Dangerous Drugs (Amendment) Bill 2017 (“the Bill”) by the Dewan Rakyat on 30 November 2017.

We wish to recognise the Government for having considered public feedback by amending the Bill and removing the requirement of the Public Prosecutor’s certification of the assistance rendered by the convicted person, for the Judge to not pass the death penalty.  

However, there remain limits to what the Judge can take into account in exercising his/her discretion in sentencing.  Section 39B(2A) of the Bill, inter alia, requires that the Court:

… may have regard only to the following circumstances: [emphasis added]

(a) there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested;

(b) there was no involvement of agent provocateur; or

(c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and

(d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.

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.

We are also troubled that the determination on whether the death penalty is imposed rests upon an assessment of the convicted person’s ability or willingness to assist in disrupting drug trafficking activities.  A person’s right to life is a fundamental right, not a privilege that can be revoked if that person is deemed not sufficiently “useful” to an enforcement agency.

The Malaysian Bar calls upon the Government to further amend the Bill to enable those already convicted and sentenced to death to apply for a review of their sentence.  Meanwhile, the Government should officially declare and implement a moratorium on all pending executions. 

The Malaysian Bar remains resolute in our position that the death penalty is an extreme, abhorrent and inhumane punishment.  There are also provisions for the imposition of the mandatory death penalty in the Penal Code and the Firearms (Increased Penalties) Act 1971, and of the discretionary death penalty in the Kidnapping Act 1961.

The Malaysian Bar calls upon the Government to act without delay to abolish the death penalty for all crimes, and to uphold the right to life, which is absolute, universal and inalienable.

George Varughese
Malaysian Bar

5 December 2017
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