Friday, January 19, 2018

Minister’s Delay Resulted in Judge Having No Choice but to Sentence A. Sargunan and 4 others to Death



Media Statement – 19/1/2018


Minister’s Delay Resulted in Judge Having No Choice but to Sentence A. Sargunan and 4 others to Death
All 39B(Drug Trafficking) Trials Should Be Suspended until New Law Comes into Force

MADPET(Malaysians Against Death Penalty and Torture) is appalled by the delay of  the Dangerous Drugs (Amendment) Act 2017 coming into force which will mean that persons now being convicted by 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 is yet to be convicted. Therefore, justly all drug trafficking case trials must not continue until the new law is in force. The Minister’s delay has already cost at least 5 persons to be convicted to death.

On 17/1/2018, 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 Wednesday (Jan 17) for drug trafficking under Section 39B (1)(a) Dangerous Drugs Act 1952.(Star, 17/1/2018).

The Dangerous Drugs (Amendment) Bill 2017 was passed by the Dewan Rakyat(House of Representatives)  on 30/11/2017, and by the Senate(Dewan Negara) on 14/12/2017. Royal assent was received on 27/12/2017, making this now an Act of Parliament, but sadly, it only will come into operation on a date to be appointed by the Minister by notification in  the  Gazette.

A perusal of the official e-Federal Gazette website on 19/1/2018, revealed that some other laws that obtained royal assent on the same day as Dangerous Drugs (Amendment) Act 2017, or subsequently have already come into force but not this Act which will have the effect of restoring judicial  discretion to impose a sentence for drug trafficking other than the death penalty, being life imprisonment with whipping of not less than 15 strokes, for the offence of drug trafficking.

By reason of the Minister’s delay, now A. Sargunan and the 4 Indian nationals  have been convicted and sentenced to the death, as  Section 39B (1)(a) Dangerous Drugs Act 1952  still provides for the mandatory death penalty.

Section 3(2) of Dangerous Drugs (Amendment) Act 2017 states, ‘ (2) 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 still enjoy the benefits of Dangerous Drugs (Amendment) Act 2017. But, until the Minister do 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, do 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, or alternatively a new law is needed that allows for a review of their current sentence. Reasonably, given the large numbers 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, amongst others, including the fact that the judges in exercising their discretion is currently limited to just certain limited 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 their statement dated 5/12/2017, amongst 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) be stayed, or where trial is over, that courts do not proceed to convict until after Dangerous Drugs (Amendment) Act 2017 comes into force.

MADPET also calls on the Minister to do the needful to ensure that Dangerous Drugs (Amendment) Act 2017 comes into force immediately without any further delay;

MADPET reiterates the call for Malaysia to speedily abolish all other mandatory death penalty offences, other than drug trafficking, and returning sentencing discretion to judges; and

MADPET also reiterated the call for a moratorium on all executions, pending the abolition of the death penalty in Malaysia.

Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

Note:-
The Official E-Federal Gazette Website
 - http://www.federalgazette.agc.gov.my/eng_main/main_akta.php?jenis_akta=Pindaan


Malaysian, four Indian nationals sentenced to death for drug trafficking




Wednesday, 17 Jan 2018







  • by wani muthiah







    SHAH ALAM: A Malaysian and four Indian nationals were sent to the gallows by the Shah Alam High Court on Wednesday (Jan 17) for drug trafficking.

    Malaysian A. Sargunan, 42, and Indian nationals Sumesh Sudhakaran, Alex Aby Jacob Alexander, Renjith Raveendran and Sajith Sadanandan had faced two charges under Section 39B (1)(a) Dangerous Drugs Act 1952.

    They were found guilty of trafficking 4,252.7 grams of methamphetamine on July 26, 2013 in a house in Sungai Lalang, Semenyih.

    The five men were also found guilty of trafficking 1,506.9 grams of ketamine on the same day and at the same time.

    The five Indian nationals from Kerala had been employed as cleaners and Sargunan, who was a taxi driver, was engaged on a part-time basis to transport them from their accommodation to their workplace daily.

    In their defence, Sargunan said his duty was just to transport the workers and the four Indians said they were merely cleaners who worked on two three-hour shifts at the premises.

    In delivering the sentence, Justice Datuk Ghazali Cha said the prosecution had proven its case beyond reasonable doubt, that the men were aware the premises were used to process drugs.

    Other incriminating circumstantial evidence were the discovery of Sargunan's shirt and towel as well as some of the accused's toothbrushes in the premises, which indicated that they had spent long hours there.

    Initially, there were seven arrests but two of them - Malaysian R. Nagarajan and Indian national Shajahan Thasthagir - were acquitted at the early stages of the trial which started on March 1, 2016.

    Datuk N. Sivananthan and Low Huey Theng defended Sargunan while Jayarubbiny Jayaraj defended the other four men. DPP Deepa Nair Thevaharan prosecuted. - Star, 17/1/2018


    Showing page 1 of 12
    No. Publication Date Act No. Title Date of Royal Assent Date of Commencement Download
    1 10-01-2018 A1563 ARBITRATION (AMENDMENT) ACT 2018 29-12-2017 NOT YET IN FORCE   
    2 10-01-2018 A1562 TOURISM INDUSTRY (AMENDMENT) ACT 2018 29-12-2017 NOT YET IN FORCE   
    3 10-01-2018 A1561 MALAYSIAN MARITIME ENFORCEMENT AGENCY (AMENDMENT) ACT 2018 29-12-2017 11-1-2018   
    4 10-01-2018 A1560 INTELLECTUAL PROPERTY CORPORATION OF MALAYSIA (AMENDMENT) ACT 2018 29-12-2017 11-1-2018   
    5 10-01-2018 A1559 MALAYSIAN AVIATION COMMISSION (AMENDMENT) ACT 2018 29-12-2017 NOT YET IN FORCE   
    6 29-12-2017 A1558 DANGEROUS DRUG (AMENDMENT) ACT 2017 27-12-2017 NOT YET IN FORCE   
    7 29-12-2017 A1557 SUPPLY ACT 2018 27-12-2017 30-12-2017   
    8 29-12-2017 A1556 INCOME TAX (AMENDMENT) ACT 2017 27-12-2017 30-12-2017   
    9 29-12-2017 A1555 LABUAN BUSINESS ACTIVITY TAX (AMENDMENT) (NO. 2) ACT 2017 27-12-2017 30-12-2017   
    10 30-11-2017 A1554 PRIVATE EMPLOYMENT AGENCIES (AMENDMENT) ACT 2017 10-11-2017 NOT YET IN FORCE   
    11 30-11-2017 A1553 COMMERCIAL VEHICLES LICENSING BOARD (AMENDMENT) ACT 2017 10-11-2017 NOT YET IN FORCE   
    12 30-11-2017 A1552 LAND PUBLIC TRANSPORT (AMENDMENT) ACT 2017 10-11-2017 NOT YET IN FORCE   
    13 30-11-2017 A1551 MERCHANT SHIPPING (AMENDMENT) ACT 2017 10-11-2017 NOT YET IN FORCE   
    14 17-10-2017 A1550 VALUERS, APPRAISERS AND ESTATE AGENTS (AMENDMENT) ACT 2017 09-10-2017 NOT YET IN FORCE   
    15 17-10-2017 A1549 PREVENTION OF CRIME (AMENDMENT) ACT 2017 09-10-2017 15-12-2017 [P.U. (B) 577/2017]   

    Monday, January 15, 2018

    MADPET - Wrong for a Possibly ‘Tainted’ Federal Court Panel to Uphold Death Penalty of Lahad Datu 9



    Media Statement – 16/1/2018

    Wrong for a Possibly ‘Tainted’ Federal Court Panel to Uphold
    Death Penalty of Lahad Datu 9

    Abolish Death Penalty in Malaysia

    MADPET(Malaysians  Against Death Penalty and Torture) is disappointed that the Federal Court , on 15/1/2018(Malaysiakini – Bernama Report 15/1/2018), decided  to uphold the Court of Appeal decision to sentence to death the  9 Filipino men for waging war against the Yang di-Pertuan Agong in relation to the Lahad Datu intrusion about four years ago. The Court of Appeal, earlier on February 2017,  overturned the natural life sentence meted out by the Kota Kinabalu High Court on July 26 2016 on these 9 men, and sentenced them to death.

    Md Raus Sharif continuing to be Federal Court judge and Chief Justice when being challenged in court

    MADPET is also shocked that Chief Justice Md Raus Sharif chaired this Federal Court 5-judge panel who heard and decided on this appeal. The validity of CJ Md Raus Sharif continuing to be a Federal Court Judge and Chief Justice past 3/8/2017, the day his term in office came to an end when he achieved the age of 66 years and 6 months is currently being challenged in court by amongst others, the Malaysian Bar,  as being unconstitutional(Malay Mail, 17/10/2017)

    As such, MADPET is of the view that he should have not sat in any panel of the Federal Court and decide on any cases until this matter is finally resolved by the courts. If the courts, later decides, that his extended appointment as Federal Court Judge and/or Chief Justice is unconstitutional, null and void, then all decisions of the Federal Court in which he was part of will reasonably be considered invalid.

    MADPET is also of the opinion that when CJ Md Raus Sharif appointment was extended beyond his last date in office, was also a violation of the principle of security of tenure, which is a safeguard to guarantee independence of the judiciary. If the term of judges, can be extended beyond the fixed retirement age by the actions of the Prime Minister, the King and/or some other, the very intention behind the security of tenure principle is violated. 

    Lahad Datu Incursion 11/2/2013 – 11/3/2013

    This Lahad Datu case is in connection with what happened in February-March 2013, when a group, comprising over a hundred people, who were allegedly followers of self-proclaimed Sultan of Sulu, Jamalul Kiram III entered Sabah allegedly on a mission to ‘reclaim’ part of Borneo as their ancestral land. The Lahad Datu situation reportedly saw a total of 68 deaths – 56 from the Sulu sultanate, nine from the Malaysian authorities and six civilians.(Astro Awani, 30/12/2013)  

    At the High Court in 2016, the court of first instance where the trial was conducted, Judge Stephen Chung, at the Kota Kinabalu High Court, after hearing the case, having the benefit of hearing the witnesses and considering the evidence elected to not sentence the 9 to death, but to life imprisonment.

    ‘…In his judgment, Chung said there was no evidence that the accused were directly involved in the skirmishes that occurred during the intrusion, nor was there proof that they had killed any member of the security force in cold blood or injured anybody. He noted that the key persons in the intrusion, such as Datu Agbimuddin Kiram and 'General Musa' were not brought to justice. "It is indeed an odious task to pass the appropriate sentence for the accused convicted under Section 121 of the Penal Code. "The offence had badly affected the lives of the residents of Kampung Tanduo and those who resided in the nearby villages, as well as the families of the deceased security personnel," he said…’(Malaysian Digest/Bernama 26/7/2016). The said 9 persons were as such sentenced not to death, but to life imprisonment by the High Court.

    It was also reported that the lawyer representing these accused persons that pleaded guilty also ‘told the court that his clients had been promised jobs and identity cards by their leader, General Musa, the chief of staff of Datu Agbimuddin Kiram who was a brother of the self-styled Sulu Sultan.’ (Star, 24/2/2016). It was also reported that ‘although they admitted to being members of a terror group known as the Royal Sulu Force (RSF), they were not involved in its militant activities. He said this was consistent with their statements recorded individually before a Sessions Court judge in Lahad Datu shortly after their arrests sometime in March 2013…’

    As such, MADPET is of the opinion that these 9 persons were certainly not deserving of the death penalty.

    ‘Prisoner of War’ or ordinary criminals?

    Further, a perusal of the history and background of the whole conflict, as reported in the media, questions arise as to whether this should have been considered to be a ‘war’, and, if so, whether it is  proper in such cases to sentence ‘prisoners of war’ to death.

    This seems to be not a simple case of a group of criminals ‘waging war against the Yang di-Pertuan Agong (the King)’.  It was reported also that the reason for the incursion was for the purpose of  ‘reclaiming’ part of Borneo as their ancestral land, that they claimed belonged to the Sulu Sultanate that was ‘….seized by the British from their government.. ‘. It was also reported in the media that Malaysia had been paying annual sums to the heirs of the Sultan of Sulu, which was considered by them as ‘rent’.(Astro Awani, 30/12/2013). Determining finally the very nature of that intrusion that lasted about a month(11/2/2013 – 11/3/2013), is material in determining whether the arrested(or the captured) were prisoners of war or simple criminals.

    As such, MADPET urges that a moratorium on execution be imposed for these 9 persons, and that it be best that their death sentence be commuted to imprisonment;

    MADPET also urges that the Sabah dispute concerning the Sulu Sultanate and Malaysia be finally resolved;

    MADPET also calls  on Chief Justice Md Raus Sharif  to not be part of any Federal Court panel deciding on any cases, especially death penalty cases, until the question of the validity of his position as Federal Court Judge and Chief Justice beyond 3/8/2017 is finally resolved;

    MADPET reiterates the call for Malaysia to impose a moratorium on all executions, commute all death sentences and abolish the death penalty in Malaysia.

    Charles Hector
    For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

     >>>>

     See also earlier statement of MADPET


    MADPET - Commute death sentence on Lahad Datu 9 to life (FMT News)

    MADPET DISAPPOINTED WITH THE COURT OF APPEAL DECISION TO SENTENCE 9 TO DEATH OVERTURNING HIGH COURT’S LIFE IMPRISONMENT SENTENCE IN THE LAHAD DATU WAGING WAR CASE

     

    See also Media Report about what happened in Lahad Datu

    Berita Malaysia

    Lahad Datu invasion: A painful memory of 2013

    KUALA LUMPUR: On Feb 11, 2013, the nation was rocked by news that broke late into the night about the eastern shores of Sabah being invaded by a group of armed men.

    The group, comprising over a hundred people, was quickly identified to be followers of self-proclaimed Sultan of Sulu, Jamalul Kiram III. They were led by Jamalul's brother Agbimuddin Kiram.

    Hailing from Pulau Simunul of Tawi-Tawi in the southern Philippines, the group first entered Malaysian waters by boat on Feb 9 and gathered in stages at Felda Sahabat 17 in Kampung Tanduo, Lahad Datu, as a means of ‘reclaiming’ part of Borneo as their ancestral land. This forced some eighty locals to flee from 15 homes.

    Lahad Datu 3

    Upon being discovered by fishermen, the Filipino rebels broke into smaller groups and entered several locations in the village, including Kampung Sungai Bakau.

    On Feb 14, Prime Minister Datuk Seri Najib Razak said the Malaysian government would negotiate with the group before ousting them from the area. Then Inspector General of Police Tan Sri Ismail Omar said negotiations with the group were in progress to find the best solution without bloodshed.

    Lahad Datu 4

    Two days later, then Home Minister Datuk Seri Hishammuddin Tun Hussein made a statement that played down the situation; the group merely comprised ‘malnourished’ and elderly men in sarongs and slippers, mostly unarmed, he said.
     
    The tussle between Malaysia and the Philippines over Sabah had been a long-standing one. The Suluks wanted Sabah to be returned to them, claiming it was seized by the British from their government. But Malaysia had always rejected the Philippine's territorial claim to Sabah as it deemed that Sabah residents had exercised their right to self-determination when they voted to join the Malaysian federation in 1963.

    Lahad Datu 5

    The Sulu sultanate also lost their rights in the Madrid protocol of 1885 when their predecessors Spain relinquished all their claims to Sabah, giving all control to Malaysia’s predecessors, the British.

    However, it was subsequently learnt that the Malaysian Embassy in the Philippines were issuing cheques for RM5,300 to the legal counsel of the heirs of the Sultan of Sulu in keeping with the terms of an 1887 agreement. While Malaysia considered it as annual cession payment for the disputed state, the sultan’s descendants considered it as “rent”.

    Many then called for the Malaysian government to reduce or stop the cession payment altogether, including former premier Tun Dr Mahathir Mohamad and opposition lawyer Karpal Singh.

    The first shootout between Malaysian security forces and the small group of Filipino rebels broke out on March 1 when the latter tried to break a police blockade in Kampung Tanduo. Najib confirmed that the event had left two police commandos dead while Sabah police commissioner, Datuk Hamza Taib, confirmed that 12 of Kiram’s followers were killed.

    At this juncture, the Philippines government seemed to totally leave the fate of the royal Sulu army in the hands of the Malaysian security forces.

    Lahad Datu 1.5

    In the early hours of March 3, a group of Filipino gunmen, believed to be less than 10, ambushed the police in a village in Semporna, Sabah. The media reported that six Malaysian police officers and seven assailants were killed. It was also reported that four of the policemen had their bodies mutilated, with one beheaded.

    On March 5, three F-18 and five Hawk aircraft filled the Kampung Tanduo skies in an airstrike against the Filipino rebels at dawn in an effort to flush them out. Thirteen of the Sulu gunmen were killed in the process. The deaths were confirmed by then Defence Minister Datuk Seri Ahmad Zahid Hamidi.

    Codenamed Ops Daulat, the ‘mopping up’ stage also saw ground troops going door-to-door to sniff out the intruders. However, none were caught.

    Kampung Tanduo was finally secured by Malaysian forces on March 11, with the bodies of 22 Sulu gunmen recovered. Despite the deaths, the Kiram family insisted that its army stay put in Sabah and not surrender.

    Between March 20 and April 1, 15 Filipino nationals were charged in court over the incursion – eight of them in the Tawau High Court while the rest in the Lahad Datu Magistrate’s Court.
    Lahad Datu 2

    A Malaysian Special Branch officer, Corporal Hassa Ali Basari, was also charged and convicted for intentionally refraining from disclosing information on terrorist acts by the Sulu gunmen in Lahad Datu.

    Ops Daulat ended on June 29 when it was replaced by the Eastern Sabah Security Command (ESSCOM). The body is now responsible for security arrangements in the area, covering all operations from northern Kudat to south-eastern Tawau. This is to ensure that Sabah’s eastern sea borders remain safe. A 24-hour ESSCOM operations room was also announced on Aug 12.

    The Lahad Datu standoff reportedly saw a total of 68 deaths – 56 from the Sulu sultanate, nine from the Malaysian authorities and six civilians.- Astro Awani, 30/12/2013

    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
    President
    Malaysian Bar

    5 December 2017

    Friday, December 08, 2017

    DDA amendments better, but anti-drug policy needs overhaul(Malaysiakini)


    DDA amendments better, but anti-drug policy needs overhaul

    Published:     Modified:


    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.



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