We, the 44 undersigned organisations, groups and trade unions are most disturbed and saddened that at least 10 individuals, as reported in the media, have been been victims of the mandatory death penalty for drug trafficking despite Parliament already having passed a law abolishing the mandatory death penalty and returning sentencing discretion to judges through the Dangerous Drugs Amendment Act 2017.
This Act, which was passed by Parliament and received royal assent on 27 February 2017, cannot now be used by judges to consider alternatives to the death penalty sentence until the minister what is necessary to enable this life-saving law to come into force.
A perusal of Malaysia’s Federal Gazette website will disclose that many other laws that have obtained royal assent at the same time as the Dangerous Drugs Amendment Act 2017 or later are already in force.
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.
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This act, when it comes to force, will only be applicable for cases where the accused person is not yet convicted. As such, if the court convicts before the new law comes into force, then the judge is left with no choice but to impose the mandatory death penalty.
To date, based on media reports only, there are at least 10 individuals – five Malaysians and fiveforeign nationals, who have suffered grave injustice by being convicted and sentenced to death simply because of the minister’s delay in doing what is necessary:
– S Pragasam, 30 – Ipoh High Court (Malay Mail, 9 February 2018)
– Ong Cheng Yaw, 33 and San Kim Huat, 38 – Kuala Lumpur High Court (Malaysian Insight, 8 February 2018)
– Jonas Chihurumnanya (Nigerian) – Kuching High Court (The Borneo Post, 30 January 2018)
– S Gopi Kumar, 33 – KL High Court (theSun Daily, 24 January 2018)
– A Sargunan, 42, and four Indian nationals, namely Sumesh Sudhakaran, 30, Alex Aby Jacob Alexander, 37, Renjith Raveendran, 28, and Sajith Sadanandan, 29 – Shah Alam High Court (theSun Daily, 22 January 2018)
A perusal of the website of the Malaysian e-Federal Gazette, discloses that several other acts that also received royal assent on 27 December 2017, came into force on 30 December 2017. Some Acts that received royal assent on 29 December 2018 also came into force on 11 January 2018. Now, if the Dangerous Drugs Amendment Act 2017, had come into force fast, then these 10 persons, now on death row, may not even have been sentenced to death.
The new law, when it finally comes into force, does not provide the courts, including the appellate courts, the power to vary the death sentence of those already convicted by the High Court to imprisonment, unless the conviction itself is set aside on appeal.
In an ordinary criminal appeal, the convicted has the right to appeal against the conviction and also appeal against the sentence. However, when the law provides for a mandatory sentence, in this case the death penalty, when the accused person fails in his/her appeal against conviction, then the courts cannot even review the appropriateness of the sentence as the existing law only provides for only one sentence – the death penalty for drug trafficking.
The dilemma facing judges, who are still denied discretion when it comes to sentencing until the new law is in force, is reflected by the words of the judge that sentenced five individuals to death: “Since there is only one sentence provided for under Section 39B of the Act, the court hereby sentences all the accused to death,” he [Judge Datuk Ghazali Cha] said (theSun Daily, 22 January 2018).
When the new law finally does come into force, the judge will have an option other than the death sentence: life imprisonment with whipping of not fewer than 15 strokes.
Existing inadequacies no reason for delay
There are still many flaws in the new Dangerous Drugs Amendment Act 2017, including the limitations imposed as to the matters that the judge can or should consider when deciding on an appropriate sentence, which goes against normal practice in other criminal trials where there are almost no restrictions as to the matters that can be considered by the judge in the exercise of his sentencing discretion.
There has also been criticism about the limited options that will be available, as it would certainly be more just for judges to be able to sentence persons to a lower prison sentence in appropriate cases and not just to life imprisonment only.
The new law, sadly, does not provide any remedy to those already convicted or for the 800 or more currently on death row following conviction for drug trafficking.
Be that as it may, the new law does abolish the mandatory death penalty, and many who will be convicted after the law is in force, may end up not being sentenced to death.
There is always the option to amend laws later to correct any existing defects, and that certainly is no excuse for delaying the coming into force of the Dangerous Drugs Amendment 2017.
It is most disturbing that no reasons seem to have been given by the government or the minister for this delay, which adversely affects those like the 10, who now are facing the hangman’s noose.
Many of those convicted for this offence may even be first-time offenders, young people or those forced into crime due to poverty. As such, the government may also bear some responsibility in allowing a situation where the poor are left with no option but crime just for the wellbeing of themselves and their family.
Some of those convicted and sentenced to death may also be parent or siblings of children, and most certainly, the death sentence can never be said to be in the best interests of the child. Malaysia, being a signatory of the Child Rights Convention (CRC), has an obligation to ensure also that no parents, siblings or relatives of children are sentenced to death.
Abolition of death penalty and mandatory death penalty
Minister in the Prime Minister’s Department Azalina Othman, the new de facto law Minister, during the parliamentary session on 2 November 2016, clarified that Malaysia was not just looking at the mandatory death penalty, but all death penalty (theSun Daily, 3 November 2016).
Currently in Malaysia, even after the mandatory death penalty is abolished for drug trafficking, there still remains about 11 other offences that provide for the mandatory death penalty, while about 20 other offences are punishable by a discretionary death penalty.
Some of these mandatory death penalty offences are offences that do not even cause loss of life or grievous bodily harm. Malaysia must expedite the abolition of the death penalty, especially the mandatory death penalty.
Therefore we call on Malaysia to:
- immediately put into force the Dangerous Drugs Amendment Act 2017, a delay that has already caused at least 10 individuals to be sentenced to death because drug trafficking is still a mandatory death penalty offence until the new law is in force;
- immediately stay the criminal trials of alleged drug traffickers until the new law is in force, which would give judges discretion to impose a sentence other than the death penalty;
- expedite the abolition of the death penalty, especially the mandatory penalty for all remaining death penalty offences;
- impose a moratorium on executions, pending abolition of the death penalty.
Ngeow Chow Ying
For and on behalf of the 44 groups and organisations listed below
Aliran (Persatuan Aliran Kesedaran Negara)
Adpan (Anti Death Penalty Asia Network)
Australians Against Capital Punishment (AACP)
CPM (Together against the Death Penalty [Ensemble contre la peine de mort])
Centre for Prisoners’ Rights Japan
Centre for Alliance of Labor and Human Rights (Central) Cambodia
Democratic Commission for Human Development, Pakistan
FIDH – International Federation for Human Rights
Hands off Cain
Japan Innocence and Death Penalty Information Centre
KLSCAH-Civil Rights Committee
Global Women’s Strike, UK
Legal Action for Women, UK
Liberia Coalition of Human Rights Defenders (LICHRD)
Madpet (Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
Parliamentarians For Global Action
Paris Bar (Barreau de Paris)
Parti Sosialis Malaysia (PSM)
Payday Men’s Network, UK
Payday Men’s Network – US
Persatuan Komuniti Prihatin Selangor dan KL
Proham (Society for the Promotion of Human Rights, Malaysia)
Refusing to Kill, UK
Rescue Alternatives Liberia (RAL)
SMU Human Rights Program, Dallas, Texas, USA
Suara Rakyat Malaysia (Suaram)
Teoh Beng Hock Trust for Democracy
Terai Human Rights Defenders Alliance (THRD Alliance), Nepal
The Julian Wagner Memorial Fund (JWMF)
The Rights Practice
Think Centre, Singapore
We Believe in Second Chances, Singapore
WH4C (Workers Hub For Change)
Women of Colour in the Global Women’s Strike, UK
Women’s Rights and Democracy Centre (Word Centre), Liberia
World Coalition Against the Death Penalty
German Coalition to Abolish the Death Penalty
North South Initiative