Malaysia – No Public Prosecutor’s OK – no judges discretion to impose sentence other than death

Malaysia have been talking for some time about the abolition of the death penalty, especially the mandatory death penalty. Now, a Bill has been tabled with regard to drug trafficking which now carries the mandatory death penalty. The Bill, which was supposed to return discretion in sentencing yo judges – now gives the judges a choice between the death penalty and life imprisonment(with at least 15 strokes of the whip). However, judges will not get this discretion unless the Public Prosecutor gives a written certification of assistance…

Public prosecutor granted ‘too much power’ over life and death, says human rights group

Bede Hong
A HUMAN rights group is critical of an amendment to the law governing the death penalty, saying it gives too much power to the public prosecutor over the judge in determining who deserved to be sentenced to death.

Yesterday, the bill for the Dangerous Drugs (Amendment) Act 2017 was passed in Parliament, amending Section 39B of the Dangerous Drugs Act 1952, which pertains to the death penalty. The new law allows the judge to exercise discretion in meting out life imprisonment instead of the death penalty, which was previously mandatory for those convicted of drug trafficking. 

However, a clause states that the judge may 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 within or outside Malaysia.”

“It is wrong to give the public prosecutor the power to decide who dies and who may live,” Malaysians Against Death Penalty and Torture (Madpet) coordinator Charles Hector said in a statement today. 

“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. It may also undermine the right to a fair trial.”

According to the proposed amending act, if the public prosecutor does not provide the certification, judges will have no choice but to impose the death penalty.  

Hector said the power of sentencing should rest with the judge alone. 

“The existence of appeals to higher courts helps ensure that there be no errors.”

Before sentencing, the judge usually hears and considers the submissions of the prosecution and the convicted person to impose an appropriate sentence. 

“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 pronounces sentence.” 

“Some may have no information or very little information, or maybe that information and/or assistance will not help disrupt drug trafficking activities. As, such this really should be for the judge to decide and maybe should be a point to be considered before sentencing.”

In a statement today also condemning the law amendment,  Lawyers for Liberty executive director Eric Paulsen said there was little guarantee that the law enforcement agencies and public prosecutor would not abuse such “unfettered and arbitrary power”.
“It is basic that the act of prosecution is an executive function of the state and the office of the public prosecutor shall be strictly separated from judicial functions. Therefore it would be a serious miscarriage of justice if the prosecutor could also decide the mode of punishment, and all the so, the punishment of death,” he said.
By compelling judges to impose a life or death sentence based on the public prosecutor’s certification is an “unnecessary fetter” on their discretion and interferes with judicial independence and justice, Paulsen said.
As of March, there are almost 800 prisoners on death row for drug trafficking offences under Section 39(B), according to Prison Department statistics.

Madpet has called for all death sentences to be commuted to imprisonment. It further calls on the government to impose a moratorium on pending executions and speed up efforts towards the abolition of the death penalty. – November 24, 2017.- Malaysian Insight, 24/11/2017

Media Statement – 24/11/2017

JUDGE’S DISCRETION TO NOT IMPOSE DEATH PENALTY ONLY IF PUBLIC PROSECUTOR GIVES CERTIFICATION IS WRONG

Dangerous Drugs (Amendment) Act 2017 Meant To Abolish Mandatory Death Penalty And Return Sentencing Discretion To Judges Has Too Many Flaws

MADPET(Malaysians Against Death Penalty and Torture) welcomes the fact that the Bill to amend Section 39B of the Dangerous Drugs Act 1952, which has the mandatory death penalty, to now give judges discretion in sentencing, that will allow the imposition of life imprisonment instead of the death penalty has finally been tabled in Dewan Rakyat(House of Representatives). The said Bill, the Dangerous Drugs (Amendment) Act 2017, which has taken a long time, was finally tabled in Parliament on 23/11/2017 for the first reading.

SENTENCING DISCRETION TO JUDGES ONLY WHEN THE PUBLIC PROSECUTOR ALLOWS IT

MADPET is disappointed that discretion when it comes to sentencing those convicted for the offence drug trafficking (Section 39B) is not going to be given to judges in all cases. 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 within or outside Malaysia.’(Section 2(b) of the Amending Act)

 

Rightly, it must be Judges and the courts that consider and decide whether one has ‘assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia’.

Before sentencing, judges will usually hear and consider submissions of both the prosecution and the convicted person, and then impose an appropriate sentence. 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. Some may have no information or very little information, or maybe that information and/or assistance will not help disrupt drug trafficking activities. As, such this really should be for the judge to decide, and maybe should be a point to be considered before sentencing. There may be also other relevant considerations of safety of oneself and/or family as many of these drug kingpins may threaten to cause harm, and Malaysia may not yet be ready to provide the requisite protection to the accused family and loved ones.

It is wrong to give the Public Prosecutor the power to decide who dies and who may live. 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. It may also undermine the right to a fair trial.

Now, according to the proposed amending Act, if the Public Prosecutor does not provide this ‘certification’, judges would have no choice but to impose the death penalty. This mandatory requirement for such a ‘certification’ by the Public Prosecutor must be deleted.

NO REVIEW OF DISCRETION OF PUBLIC PROSECUTOR TO PROVIDE CERTIFICATION

Further, it is stated in the proposed amendments that, ‘The determination of whether or not any person has assisted an enforcement agency in disrupting drug trafficking activities shall be at the sole discretion of the Public Prosecutor and no action or proceeding shall lie against the Public Prosecutor in relation to any such determination done by him in good faith, in such capacity’.

Well, that suggests that no one may be able to question or challenge the correctness of the Public Prosecutor’s decision – not even the courts by way of Judicial Review. This invites the possibility of miscarriage of justice, because if there is no required ‘certification’ by the Public Prosecutor, then the said convict will be sentenced to death.

Judicial Review is an essential ‘check and balance’ especially in a Democracy. One should be able to move the court to review even the decisions of the Public Prosecutor. Further, as it is Public Prosecutor, who decides whether to prosecute or not, this issuance or issuance of this ‘certification’ maybe for the wrong reasons, possibly even to ensure that the prosecution wins the case.

The power and discretion when it comes to sentencing must always rest with Judges alone. The existence of appeals to higher courts, helps ensure that there be no errors.

800 OR MORE ALREADY CONVICTED ON DEATH ROW WILL STILL BE EXECUTED?

In March, Minister Azalina said that according to Prison Department statistics, there are almost 800 prisoners on death row for drug trafficking offences under Section 39(B) (Star, 24/3/2017). These would all be persons already convicted.

The new proposed amendments, however, will not help any of these persons, whose trial is over and they have been convicted and sentenced.

The proposed amendment, in Section 3(2) of the proposed Amending Act, states very clearly that new amendments, when it comes into force, will only be used for persons who ‘…has not been convicted under section 39B…’. This means that all 800 or more on death row for drug trafficking will still be executed, unless they are pardoned by the King and/or rulers.

As such, MADPET urges that the sentence of all 800 or more persons currently convicted and on death row be immediately commuted to imprisonment.

MANDATORY SENTENCES CONTINUE TO EXIST

Even with the amendment, there still will be mandatory sentences – Death(if the Public Prosecutor Does Not Certify), and when there is certification, then judges can impose either Death or Imprisonment for Life(plus whipping of not less than 15 strokes). There is no discretion given to judges to impose a lower prison term, but judges seem to have the discretion to order whipping of more than 15 strokes.

With regard persons being tried under Section 39B Drug Trafficking, we know that many of them may have had the drugs for various different reason, knowingly or unknowingly, and some maybe out of desperation because of poverty.

We know that section 37(da) Dangerous Drugs Act states that “…any person who is found in possession of-(i) 15 grammes or more in weight of heroin;(ii)… 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.” This and other similar legal presumptions shift the burden of proof to the accused person, and it is most difficult for an accused person, more so if he/she is poor, to prove that the drugs found did not belong to him/her.

Should a ‘fool’ who made one mistake be sentenced to death or life in prison. A mandatory life sentence is also grossly unjust. Judges should be given real discretion even with regard to the length of imprisonment, and as such a mandatory life sentence also needs to be reviewed, and judges should have the discretion to impose lower sentence. There should be lower prison sentences for first time offenders, and higher for repeat offenders. We should be emphasizing rehabilitation rather than a ‘lock them up and throw away the key’ policy.

WHAT ABOUT OTHER MANDATORY DEATH PENALTY OFFENCES?

Malaysia have been studying the abolition of the death penalty, and to date we are only seeing action with regard the drug trafficking. There are so many other offences that provide for mandatory death penalty including crimes that do not result death and/or grievous hurt to victims.

Malaysia needs to speed up at least the abolition of the mandatory death penalty for all offences, and returning sentencing discretion to judges.

MADPET calls

  1. That discretion when it comes to sentencing should be with judges. The proposed pre-condition before a judge can exercise judicial discretion in sentencing, being the written certification by the Public Prosecutor that the convicted has ‘assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia’ should be deleted. Such conditions are unacceptable;
  1. That the death sentence of the 800 or over persons on death row for drug trafficking(section 39B) be forthwith commuted to imprisonment;
  1. That Malaysia speed up its efforts towards the abolition of the death penalty, especially the mandatory death penalty for all offences;
  1. That Malaysia impose a moratorium on executions pending abolition of the death penalty.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

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