Malaysians Against Death Penalty and Torture (Madpet) appreciates the action of the Malaysian government under Prime Minister Ismail Sabri Yaakob, who took the long-awaited action of tabling bills that would amend relevant laws to abolish the mandatory death penalty.
The death penalty remains, but judges will have an option to [impose a death] sentence or life imprisonment with whipping.
Ismail Sabri acted when previous PMs just talked
It must be noted that the intention of doing away the death penalty in Malaysia had been previously expressed by the Barisan Nasional government under Najib Razak, the Pakatan Harapan government under Dr Mahathir Mohamad, the Perikatan Nasional-BN-plus government under Mahiaddin Yasin. But they all failed or procrastinated to do [to take the necessary] action of enacting laws.
Finally, Prime Minister Ismail Sabri of the PN-BN-plus government tabled the bills that were needed.
The bills tabled need to still be passed by Parliament and enforced before they become effective law.
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Noting the rumours about a dissolution of Parliament and the calling of the next general elections, Madpet hopes that the bill would be passed by Parliament and become law before Parliament is dissolved.
If not, the tabling of the bills to abolish the mandatory death penalty may simply be perceived as yet another ‘lie’, ‘false promise’ or publicity stunt by the Ismail Sabri-led government.
The general election only needs to be held by the middle of 2023, which is more than enough time for Parliament to pass these new laws and for the government to put them into force.
Death penalty remains
The abolition of the mandatory death penalty does not abolish the death penalty. The death penalty remains as a possible sentence, but now judges have the discretion depending on the facts of the case to impose the death penalty or a sentence of imprisonment for natural life plus whipping.
Madpet reiterates its call for the total abolition of the death penalty and the corporal punishment of whipping.
Malaysia has voted in favour in 2018 and then again in 2020 of a UN General Assembly resolution in favour of the abolition of the death penalty and the imposition of a moratorium on executions pending abolition.
Almost four years have passed since Malaysia publicly took this position at the UN and on 6 October 2022, these bills to abolish the mandatory death penalty were tabled in Parliament.
Restoring sentencing discretion to judges
The proposed amendment to Section 39B of the Dangerous Drugs Act 1952, through the Dangerous Drugs (Amendment) Bill 2022 will rightly delete Sections 39B(2A) and 39B(2B) and will restore full discretion to judges in sentencing.
The limited matters that the judge could consider will be removed, including that mandatory requirement “(d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia”.
What this means is that judges [would then] be able to consider all mitigating and aggravating factors, just like in every other criminal trial, before deciding to sentence the convict to death or to imprisonment for life with whipping.
This amendment, if and when it becomes law, would also remove some existing flaws, which are an affront to a person’s right to a fair trial, in the Dangerous Drugs Act.
While the proposed bills will abolish the mandatory death penalty, they give judges the option to just impose only one other sentence, ie “imprisonment for natural life, and if he is not sentenced to death, shall also be punished with whipping of not less than twelve strokes” – and this remains as an injustice.
Madpet takes the position that the alternative prison sentence should be flexible, and not just limited to imprisonment until death.
[For example], a young person [could be] deceived into keeping or transporting a package, which he or she may not even know [contained] drugs. He or she would still be convicted of drug trafficking and would end up in prison till death, [and this] seems to be rather unjust. For them, maybe a five to 10-year prison sentence would be just.
On the other hand, for the ‘kingpins’ or bosses of drug trafficking, the sentence of natural life imprisonment may be acceptable.
Prosecution must bear burden of proof
Section 37(da) of the Dangerous Drugs Act now states that “any person who is found in possession of” a certain amount of drugs “otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug”.
Section 37(d) states that “any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug”.
One must appreciate that it is almost impossible for any accused to prove that he or she did not know the bag or package contained drugs or even to prove that he or she is a not a drug trafficker.
Such legal presumptions need to be abolished, and the burden of proving all elements of the crime in court must always rest with the prosecution.
Politics should not hinder abolition
Madpet calls on all MPs and senators to support the current bills, which humanely will see an end to the mandatory death penalty, taking note also that those convicted of the said offences can still be sentenced by court to death or the alternative sentence of imprisonment for natural life. Let’s trust the wisdom of our judges in sentencing.
It is hoped that politicians and parties do not use this long-awaited move to abolish just the mandatory death penalty – not the death penalty – for political motives, simply to oppose Prime Minister Ismail Sabri and the BN-PN-plus government and to prevent the passing of these needed amendments to laws.
There are about 1,337 death row inmates, most of whom have exhausted all rights of appeal. The bills did not deal with them or those who may have committed the offence before the bills are passed and come into force. There is no provision for re-sentencing procedures or even commutation of sentence in the bills tabled.
How do we resolve this matter is something the government needs to look into – for it is unjust for persons to still languish on death row.
Madpet reiterates that Parliament should not be dissolved until all the bills tabled to abolish the mandatory death penalty become laws and come into force. If not, a new government after the general elections may simply undermine this positive effort of the Ismail Sabri government.
Madpet reiterates [the call] for the abolition of the death penalty and the continuation of the moratorium on executions pending abolition.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture