All section 39B (drug trafficking) trials should be suspended until the amended drugs law comes into force, says Charles Hector.
The Malaysians Against Death Penalty and Torture (Madpet) is appalled by the delay in the Dangerous Drugs (Amendment) Act 2017 coming into force.
This will mean that those now being convicted by the 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 those facing trial have not yet been convicted. Therefore, it is only just that all drug trafficking case trials must not continue until the new law comes into force. The minister’s delay has already cost at least five individuals to be convicted to death.
On 17 January 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 that day for drug trafficking under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (The Star, 17 January 2018).
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The Dangerous Drugs (Amendment) Bill 2017 was passed by Parliament on 30 November 2017, and by the Senate on 14 December 2017. Royal assent was received on 27 December 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 January 2018, revealed that some other laws that obtained royal assent on the same day as the 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, ie life imprisonment with whipping of not less than 15 strokes for the offence of drug trafficking.
Because of the minister’s delay, A Sargunan and the four Indian nationals have now been convicted and sentenced to death, as section 39B (1)(a) of the Dangerous Drugs Act 1952 still provides for the mandatory death penalty.
Section 3(2) of the 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 not yet been convicted, can still enjoy the benefits of the Dangerous Drugs (Amendment) Act 2017. But until the minister does what is required 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, does not provide any remedy to those already convicted or for the 800 or more currently on death row after having been convicted for drug trafficking. As such, in fairness, all their death sentences should be commuted to imprisonment.
Alternatively, a new law is needed that allows for a review of their current sentences. 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.
It is noted that there are still flaws in this new law which have been raised by the Malaysian Bar, among others, including the fact that the judges, in exercising their discretion, are 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 those convicted person may not be able to provide this assistance including possible retaliation by kingpins and others on them or their families.
The Malaysian Bar in their statement on 5 December 2017 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 those charged under section 39B (drug trafficking) to be stayed, or where the trial is over, that courts do not proceed to convict them until after the Dangerous Drugs (Amendment) Act 2017 comes into force.
Madpet also calls on the minister to do what is required to ensure that the 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 return sentencing discretion to judges.
Madpet reiterates the call for a moratorium on all executions, pending the abolition of the death penalty in Malaysia.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)
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