KUALA LUMPUR Nov 24 — An anti-death penalty group is protesting against an amendment to the Dangerous Drugs Act 1952 that would give prosecutors power to determine when judges can use their discretionary power not to impose the death sentence.
Malaysians Against Death Penalty and Torture (Madpet) said under the amendment, discretion to sentence those convicted for drug trafficking offences under Section 39B will not be given to judges in all cases.
Instead judges will only get the discretion to impose a sentence other than the death penalty, only if and 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”.
“Madpet is disappointed...rightly, it must be judges and the courts that consider and decide whether one has ‘assisted an enforcement agency in disrupting drug trafficking activities’,” the group said in a statement.
Putrajaya tabled the Bill to amend Section 39B of the Dangerous Drugs Act 1952 in for first reading in Parliament’s House of Representatives yesterday.
The amendment is to abolish the mandatory death penalty under Section 39B and replace it with life imprisonment giving discretionary powers to judges in sentencing.
Madpet said any decision on whether or not the offender has provided assistance must be given to the judge, not prosecutors.
It argued judges can decide based on the submissions of both the prosecution and the deffence.
“Thus, the question, of whether there was assistance or not could be included as one of the listed matters that should be considered by the judge before he decides and pronounce the sentence,” the group said.
It also argued that it would be unjust to let the prosecution decide if the offender had or had not provided assistance since the definition was too vague.
There will be instances where offender may have no or little information, or his assistance will not necessarily help disrupt drug trafficking activities, the group added.
There may be also be security considerations. Offenders who wish to assist may be discouraged to do so for fear of harm against their family, Madpet said, noting that Malaysia may not yet be ready to provide the requisite protection to the accused family and loved ones.
“As, such this really should be for the judge to decide, and maybe should be a point to be considered before sentencing…it is wrong to give the public prosecutor the power to decide who dies and who may live,” it said.
“Remember, that he is also responsible for prosecution in a criminal trial, and the power to the public prosecutor to give or not give the written certification is most dangerous.”
Putrajaya said it agreed to abolish the mandatory death sentence to improve the criminal justice system after much protest from human rights group.
There are almost 800 prisoners on death row for drug trafficking offences under Section 39(B), according to a statement made by Minister in the Prime Minister Department Datuk Seri Azalina Othman earlier this year.
The new proposed amendments, however, will not help any of these persons, whose trial is over and they have been convicted and sentenced, Madpet noted.
The group is calling on the government to commute the death sentence of the 800 or over persons on death row for drug trafficking.
It also wants Putrajaya to impose a moratorium on executions pending abolition of the death penalty.
