Malaysia-Press Release | Let Judges, Not Public Prosecutors, Decide on the Death Penalty

Press Release | Let Judges, Not Public Prosecutors, Decide on the Death Penalty






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Press Release
Let Judges, Not Public Prosecutors, Decide on the Death Penalty
The Malaysian Bar has consistently advocated for the abolition of the death penalty and views the tabling of the bill to amend the Dangerous Drugs Act 1952 ("the Bill") that moves Malaysia away from the mandatory death sentence as a step in the right direction.  As such, the provision in the Bill that allows an alternative sentence to the death penalty is something that we view positively.  However, we are concerned that the Bill does not go far enough in restoring judicial discretion.  The shift from the mandatory death penalty to judicial discretion in sentencing should not be dependent upon the say-so of the Public Prosecutor.
For a Judge to be able to not impose the death penalty, but the alternative of life imprisonment and whipping of not less than fifteen strokes, section (2A) of the Bill requires that:
(a) there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested;
(b) there was no involvement of agent provocateur; or
(c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and
(d) 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.  [emphasis added]
It is troubling that the Judge's discretion to not impose the death penalty is to be limited by and subject to the Public Prosecutor's certification of the relevant assistance rendered by the convicted person.  If such certification is not forthcoming, it would mean that the Judge would still have no discretion in sentencing.  This is regardless of whether the convicted person has in fact assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia, and even if it was already established that the individual was merely a courier or a drug mule.  The term "assisted" is also not defined in the Bill, thus is subject to interpretation and could be arbitrary.

It is also disconcerting that the determination on whether the death penalty should be imposed rests upon the Public Prosecutor's assessment of the convicted person's "usefulness" or utilitarian value.  It suggests that a person's right to life is not a fundamental right, but a privilege that can be revoked if the Public Prosecutor does not issue the certificate.  The Public Prosecutor has the power to institute or discontinue criminal proceedings, but has no right to decide on sentencing.  Judicial discretion and independence should not be fettered by the requirement of such a certificate.  The sentencing process is, and should always remain, within the sole realm of the Judiciary.

Further, section (2B) of the Bill states that determination by the Public Prosecutor shall be "at the sole discretion of the Public Prosecutor".  It is troubling that the decision-making process is not described or defined in the Bill, lending to concern that the process could be opaque, not subject to review, and may be open to abuse.

The Malaysian Bar is steadfast in our view that life is sacred, and every person has an inherent right to life.  This is vouchsafed in Article 5(1) of the Federal Constitution of Malaysia, which eschews the arbitrary deprivation of life.  The right to life is a fundamental right that must be absolute, inalienable and universal, irrespective of the crime committed by the accused person.

The Malaysian Bar thus calls upon the Government to withhold passing the Bill in its current form, to redraft it and re-table it with amendments that will genuinely restore judicial discretion in sentencing, paving the way forward to the complete abolition of the death penalty. 
George Varughese
President
Malaysian Bar
25 November 2017


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