NOVEMBER 24 — The much awaited Dangerous Drugs Act (Amendment) Act, 2017 (“the said Bill”) to amend section 39B of the Dangerous Drugs Act, 1952 (“the said Act”) to what we thought was to remove the mandatory death penalty in cases of drug trafficking is far from what was anticipated.

What was expected was an amendment that returns the discretion of sentencing a convicted drug trafficker to the court which tried him, having regard to the facts and circumstances of the case.

Indeed that was the case before the said Act was amended in 1983 [vide the Dangerous Drugs (Amendment) Act, 1983 (Act 553)] when the Courts were given the discretion to impose the death sentence or life imprisonment on a convicted person.

The said Bill, however, removes that discretion given to the courts and, instead, requires a certificate in writing by the public prosecutor to the court that in his determination, the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.

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Paragraph 3 of the Explanatory Statement of the said Bill states, inter alia:

“With the proposed amendment, without the Public Prosecutor’s certification in writing, the Court cannot exercise its powers to sentence a convicted person to imprisonment for life and whipping of not less than fifteen strokes...”

The obvious question that arises is what powers does the said Bill give the courts?

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Absolutely none.

Instead, the section 2A(d) of the said Bill gives absolute power to the public prosecutor (who is the Attorney-General as defined in the Federal Constitution) to impose a death sentence or life imprisonment on a convicted person as the court would be helpless to do so without the said public prosecutor’s written certificate!

Why is there a need to give such powers to the public prosecutor?

Has confidence in the judiciary dropped to such an extent that the courts today cannot be trusted with the sole discretion of imposing the death penalty or life imprisonment on a convicted person?

The government must explain why it proposes to depart from the position prior to the introduction of the mandatory death penalty in 1983 when the courts, and only the courts, had the absolute discretion to impose either the death penalty or life imprisonment.

Is there any evidence to suggest that the said position prior to the introduction of the mandatory death penalty was a failed one necessitating the removal of such discretion of the courts?

Giving such drastic powers to the public prosecutor is not only unprecedented but also brings with it various practical problems which the government must recognise.

For instance, what is there to stop a rogue police officer from demanding a bribe from a person accused of an offence of drug trafficking on the pretext that he represents the public prosecutor and that only he can ensure that the necessary certificate is issued by the public prosecutor which will guarantee the said accused person escapes the hangman’s noose? Such unscrupulous acts are not unheard of and are certainly not far-fetched.

Also, what if an accused person is not capable of “assisting an enforcement agency in disrupting drug trafficking activities within or outside Malaysia” as required under the said Bill?

Most drug mules would fall under this category as it would be highly unlikely that they would know the identities of the drug lords responsible for the predicament they find themselves in neither would they still be in touch with the people who gave them the drug.

In such cases, obviously such drug mules would be of little, if any assistance, in disrupting drug trafficking activities within or outside Malaysia. Does this mean that these drug mules must be hanged?

The above are just two examples of how absurd it is to require such a certificate from the public prosecutor before the court is able to consider life imprisonment instead of the death penalty.

The position is further compounded by the insertion of section 2(2B) of the said Bill which effectively excludes judicial review of the public prosecutor’s decision not to issue the said certificate unless it can be shown that he acted in bad faith in not doing so which would be practically impossible.

This is certainly most unfair as even the decisions of Courts can be challenged by way of appeal.

Perhaps the most compelling of arguments in favour of excluding the public prosecutor from partaking in the process of sentencing is the fact that traditionally, sentencing and matters incidental thereto have always been the function of the courts.

The public prosecutor has no business in interfering with such a function and ought not be given the power to do so as it is most elementary and in fact, a cornerstone of any adversarial system of jurisprudence (to which Malaysia subscribes) that only the courts have the privilege of deciding on sentence.

The public prosecutor’s role is to prosecute. To allow him to pass sentence as well is certainly going beyond the parameters and limits of the public prosecutor’s role and it is shocking that the Attorney-General (who presumably endorsed the said Bill) saw it fit to allow such usurpation of the powers of the judiciary, particularly when he himself was a former Federal Court judge.

Another disturbing feature of the said Bill is that same, by virtue of section 3(2), does not apply to those who have already been convicted before the coming into force of the amendments in the said Bill.

In other words, the proposed amendments are not retrospective in nature and would not apply to those who have been convicted and are currently on death row.

Again, such a proposal is not only absurd, but downright cruel.

Why is it a person who, for instance, is charged with trafficking 100g of heroin after the said Bill is passed entitled to be exempted from the death penalty and not the person who was convicted of trafficking in 20g of the same drug before the said Bill was passed? Isn’t the latter’s case more deserving of being exempted from the death penalty compared to the former?

There are approximately 400 Malaysians currently on death row for drug trafficking in Malaysia. The proposed amendments in the said Bill will not apply to them but to others who commit similar, if not more serious crimes later. Surely this cannot be right.

The government ought to consider the principle that all persons are equal before the law as guaranteed by our Federal Constitution and allow the amendments proposed in the said Bill to apply to all regardless of when the offence was committed.

With respect, it is inhumane and blatantly discriminatory on the part of the government not to do so.

All that needs to be done is to introduce provision in the said Bill to allow convicted persons to review their cases before the court which passed sentence on them to determine if theirs is a fit and proper case for the death sentence imposed on them to be commuted to life imprisonment.

Since such a review would only concern the issue of sentence, it would not be a cumbersome process and could be easily disposed of expeditiously.

This would, effectively, render the proposed amendments in the said Bill retrospective in nature.

In light of the above, the proposed amendments in the said Bill cannot be supported as they potentially raise more questions than answers.

The involvement of the public prosecutor in the sentencing process must be removed and the courts be given the sole responsibility of passing sentence having regard to the facts and circumstances of a given case.

Such proposed amendments must also be retrospective in nature and the government is urged to do so by amending the said Bill accordingly.

Anything less would certainly not suffice.

* Kasthuriraani Patto and Ramkarpal Singh are DAP Members of Parliament

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.