Most embarrassing, when Malaysian de facto Law Minister Wan Junaidi seems to not know that Mandatory Death Penalty for drug trafficking in Malaysia has been abolished since 15 March 2018, when the amendment to Dangerous Drugs Act 1952 came into force. This news about what the Minister said about mandatory death penalty was reported not just in Malaysia but all over the world. [Maybe we need a NEW Law Minister]
TODAY, for the offence of Drug Trafficking, section 39B(2) reads ‘Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than fifteen strokes.’
The availability of the alternative sentence of imprisonment for life with whipping makes drug trafficking no longer a mandatory death penalty offence. - yes, it is still a death penalty offence as you still can be sentenced to death if found guilty of drug trafficking...
But the problem that still remains with this drug trafficking offence is that CONDITIONS before judges can impose the ALTERNATIVE sentence to the death sentence is simply absurd - and is also a violation of the Right To Fair Trial.
The Courts are allowed only to take certain matters into consideration as stated in section 2A.... In normal criminal cases, there is NO LIMIT imposed on what Judges can consider before they decide on the appropriate sentence. They can consider all mitigating and aggravating matters. They can consider AGE, whether it was a first time offense, mental illness, etc .. it is not limited.
But, subsection 2A limits the consideration to JUST 4 matters ... it says the Court '...may have regard only to the following circumstances...' and this amendment failing to really restore FULL discretion to the judges. Section 39B(2A) has to be REPEALED and we have to TRUST our judges appointed by the King will act justly...
39B(2A) In exercising the power conferred by subsection (2), the Court in imposing the sentence of imprisonment for life and whipping of not less than fifteen strokes, may have regard only to the following circumstances:
(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.
And, worst is that 'mandatory requirement' (d) - '...has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia...'
An innocent person certainly will not be able to fulfill this requirement as he certainly does not have anything to help the enforcement agency...Would even ordinary 'mules' have the capacity to render sufficient assistance to disrupt drug trafficking activities inside and outside Malaysia? Worse, is the fact of whether one has satisfied this requirement maybe up to the enforcement agency.
Right To Fair Trial - includes right to 2 Appeals
Now, in a criminal trial - after being convicted at the court of 1st instance, in Malaysia, one has the right to 2 appeals...that means, that if High Court convicts and sentences you, you can appeal to the Court of Appeal, and still can appeal to the Federal Court..
As an example, Najib was convicted and sentenced by the High Court...he appealed to the Court of Appeal, and the Court of Appeal dismissed his appeal and affirmed the High Court's conviction and sentence, and now Najib is appealing to the Federal Court..
To satisfy the requirement of assisting enforcement agency means that after conviction by the High Court(or before) means reasonably that the accused(or convicted) is GUILTY or providing incriminating evidence of his/her guilt - and if he does that he will most certainly impact his/her rights to appeal to the Court of Appeal, and thereafter to the Federal Court if he/she so desires.
Hence, the available right to 2 appeals which is part of one's RIGHT TO A FAIR TRIAL is extinguished as a convicted tries to avoid being sentenced to DEATH....worse still, is that even if he assists, and impacts negatively his right to 2 appeals, the enforcement agency may still say that assistance provided is insufficient to ' disrupting drug trafficking activities within or outside Malaysia'
How many persons convicted for drug trafficking under the new law managed to be sentenced to life imprisonment - is there anyone? This information is not available to me. In Malaysia, we can get such answers only if a MP or a Senator ask this question to the Minister in Parliament - but how many MP/Senator will do this and ask these important questions..
Now, reasonably, a 'guilty' drug trafficker is more likely to assist the authorities right at the beginning, and for so doing, he/she may never even be charged, tried or even convicted as the State may want to use him as a prosecution witness to go after a bigger fish.
Now, Malaysian Cabinet has decided to abolish all remaining MANDATORY death penalty, and will be putting forward 'alternative sentences', with the death sentence still remaining as one possible sentence - BUT if it is going to be just like the alternative sentence introduced for drug trafficking in March 2018(before GE14), then it may simply be useless...
Parliament must TRUST Malaysian Judges - and DO NOT limit their powers when it comes to sentencing. Judges then will know who deserves to be sentenced to death and who to some alternative sentence...
If for offences, where no one was killed or grievously injured, the perpetrators should rightly not be sentenced to DEATH.
For drug trafficking, sentences should vary depending on the amount of drugs involved - for someone convicted for drug trafficking involving 100 grames, he/she should receive a much lower sentence that someone with a kilogram or more drugs. To say that all should be sentenced to death or life imprisonment is just not right.
A Minister who was corrupt, and 'stole' the peoples' monies ought to be imposed a higher sentence compared to some ordinary person who corruptly stole from some private company...
Note Malaysia is again talking about just abolishing the MANDATORY DEATH PENALTY - this means the Death Penalty still remains as a sentence but Judges will be able to use alternative sentences like imprisonment for deserving cases..
Even for MURDER - the boss who ordered/paid for the killing really ought to receive the highest sentence, the one who actually did the killing a lesser, and others who assisted in some way or another even lesser... This approach to sentencing would be fairer..
I state that my position is that the DEATH PENALTY must be totally abolished - the reasons have been stated before. You can never be 100% sure that the person convicted and hanged is the really 100% the guilty one who deserves to be hanged. ... The risk of miscarriage of justice is simply too great. We have to emphasis repentance, rehabilitation, 2nd chances and reintroduction into society. Death penalty is certainly no DETERRENCE...
The idea of asking all of us to KILL people convicted of certain crimes is really wrong.
Mandatory death penalty to be abolished
PETALING JAYA: The government has agreed to abolish the mandatory death penalty, giving judges discretion in sentencing.
Law minister Wan Junaidi Tuanku Jaafar said the decision was reached after he presented a report on substitute sentences for the mandatory death penalty at Wednesday’s Cabinet meeting.
He said the Cabinet had also agreed for a further study to be carried out on the proposed substitute sentences for 11 offences carrying the mandatory death penalty, one of which is under Section 39B of the Dangerous Drugs Act 1952.
“This shows the government’s emphasis on ensuring that the rights of all parties are protected and guaranteed, thus reflecting the transparency of the country’s leadership in improving the country’s criminal justice system,” he said in a statement.
Wan Junaidi said the government has also accepted in principle the recommendations of the special committee to review alternative sentences to the mandatory death penalty, chaired by former chief justice Richard Malanjum.
“The government also expresses its appreciation for the commitment given by the committee in producing this report, which will be the basis for more systematic and effective change in the country’s criminal justice system,” he said.
Malaysia voted in favour of two United Nations General Assembly resolutions calling on states to establish a moratorium on executions in 2020.
Lawyers and interest groups had called for a moratorium on the execution of death row inmates until Parliament votes on a bill seeking the abolition of the death penalty.
A total of 1,359 people were reported to be on death row as of November last year. - FMT, 10/6/2022
Report: Gov’t agrees to abolish mandatory death penalty, says Wan Junaidi
THE Government has agreed to abolish the mandatory death penalty, thus giving judges the discretion in sentencing, said Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Dr Wan Junaidi Tuanku Jaafar.
He said the decision was reached after he presented a report on substitute sentences for the mandatory death penalty at Wednesday’s Cabinet meeting.
In a statement on Friday (June 10) Wan Junaidi further noted that the Cabinet had also agreed for a further study to be carried out on the proposed substitute sentences for 11 offences carrying the mandatory death penalty, one of which is under Section 39B of the Dangerous Drugs Act 1952.
“This shows the Government’s emphasis on ensuring that the rights of all parties are protected and guaranteed, thus reflecting the transparency of the country’s leadership in improving the country’s criminal justice system,” he said.
Mandatory death penalty means the judge can only sentence the accused to death upon conviction, except if the accused has a mental disorder.
Wan Junaidi further pointed out that the Government has also accepted in principle the recommendations of the special committee to review alternative sentences to the mandatory death penalty, chaired by former chief justice Tun Richard Malanjum.
“The government also expresses its appreciation for the commitment given by the committee in producing this report, which will be the basis for more systematic and effective change in the country’s criminal justice system,” he added.
Currently, there are 11 offences under the Penal Code and one under the Dangerous Drugs Act that carries the mandatory death sentence. They include crimes such as murder with intent to kill, drug trafficking, and possession of firearms.
For the remaining crimes, the punishment is at the judge’s discretion.
Meanwhile, a total of 1,359 people were reported to be on death row as of November last year. – June 10, 2022 , Focus Malaysia
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