THE Malaysians Against Death Penalty and Torture (Madpet) appreciates the action of the Malaysian government under the leadership of Prime Minister Datuk Seri Ismail Sabri Yaakob, who took the long-awaited action of tabling bills that will amend relevant laws resulting in the abolition of the mandatory death penalty.
While the death penalty remains, judges will have the option to sentence a convicted person to death or impose natural life imprisonment with whipping.
It must be noted that the intention of doing away with the death penalty in Malaysia had been previously expressed by the Barisan Nasional (BN) government under the premiership of Datuk Seri Najib Razak, the Pakatan Harapan government under Tun Dr Mahathir Mohamad, the Perikatan Nasional-BN Plus government under Tan Sri Muhyiddin Yassin – yet they all failed or had procrastinated to do the needful action of enacting of laws.
Ismail Sabri’s administration did table the needed bills. Bills tabled, however, still need to be passed by Parliament and enforced before it becomes effective law.
Noting that there are rumours of the dissolution of Parliament and the calling of the next general election soon, Madpet hopes that the said bills will be passed by Parliament and become law before Parliament is dissolved.
If not, the tabling of bills to abolish the mandatory death penalty may simply be perceived as yet another “lie”, “false promise” or publicity stunt by the Ismail Sabri-led government.
GE15 only needs to be held in the middle of 2023, which is more than enough time for Parliament to pass these new laws and for the government to put them in force.
What to do when death penalty still on the cards?
The abolition of the mandatory death penalty does not abolish the death penalty itself. Death penalty still remains a possible sentence – only now, judges have the discretion to hand down such a sentence, depending on the facts of the case, or to mete out the alternative sentence of imprisonment for natural life plus whipping instead.
Madpet reiterates its call for the total abolition of the death penalty and also the corporal punishment of whipping.
Malaysia voted in favour of abolition in 2018, and did the same in 2020 at the United Nations General Assembly Resolution, where it also advocated the imposition of a moratorium on executions pending abolition in the latter.
Almost four years have passed since Malaysia had publicly taken this position at the UN.
On October 6, these bills to abolish the mandatory death penalty were tabled in Parliament.
Bill will restore sentencing discretion to judges
The proposed amendment to Section 39B of the Dangerous Drugs Act 1952, vide Dangerous Drugs (Amendment) Bill 2022, will rightly delete Sections 39B(2A) and 39B(2B) and will restore full discretion to judges when it comes to sentencing.
The limited matters that the judge could consider will be removed, including the mandatory requirement “…that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia…”.
What this means is that judges thereafter will be able to consider all mitigating and aggravating factors, just like in every other criminal trial, before deciding to sentence the convict to death or to imprisonment for life with whipping.
This amendment, if and when it becomes law, would also remove some existing flaws, which would be an affront to one’s right to a fair trial under the Dangerous Drugs Act.
While the proposed bills that will abolish the mandatory death penalty, it gives judges the option to just impose only one other sentence being “…imprisonment for natural life, and if he is not sentenced to death, shall also be punished with whipping of not less than 12 strokes…” – and this remains as an injustice.
Madpet takes the position that alternative prison sentences should be flexible, and not just limited to imprisonment until death.
As an example, the fact that a young person deceived into keeping or transporting a package, which they may not even know contained drugs, will still be convicted for drug trafficking and will end up in prison till death seems to be rather unjust.
For them, maybe a five to 10-year prison sentence would be just.
On the other hand, for the “kingpin” or bosses of drug trafficking, the sentence of natural life imprisonment may be acceptable.
Prosecution must bear burden of proof in court for drug trafficking cases
Section 37(da) of the Dangerous Drugs Act now states that “…any person who is found in possession of …” a certain amount of drugs “…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…”.
Section 37(d) states that “…any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug...”.
One must appreciate that it is almost impossible for any accused to prove that they did not know the bag or package contained drugs, or even to prove that they are not a drug trafficker.
Such legal presumptions need to be abolished, and the burden of proving all elements of the crime in court must always rest with the prosecution.
Politics should not hinder abolition of mandatory death penalty
Madpet calls on all MPs and senators to support the current bills, which will humanely see an end to the mandatory death penalty, taking note also that those convicted of the said offences can still be sentenced by the court to death or the alternative sentence of imprisonment for natural life. Let’s trust the wisdom of our judges when it comes to sentencing.
It is hoped that politicians and parties do not use this long-awaited move to abolish just the mandatory death penalty – not the death penalty as a whole – for political motives, simply to oppose Ismail Sabri and the BN-PN Plus government, and to prevent the passing of these needed amendments to laws.
There are about 1,337 death row inmates, most of whom have exhausted all rights of appeal.
As the bills did not deal with them, or those who may have committed the offence before the said bills are passed and come into force, there is no provision for re-sentencing procedures, or even commutation of sentence in the bills tabled.
How do we resolve this matter? This is something the government needs to look into, for it is unjust for persons to still languish on death row.
Madpet reiterates that Parliament should not be dissolved until all the bills tabled to abolish the mandatory death penalty become law and come into force.
If not, a new government after the general election may simply undermine this positive effort of Ismail Sabri’s government.
Madpet reiterates the need to abolish the death penalty and to continue the moratorium on executions pending abolition. – The Vibes, October 8, 2022
This statement is issued by Charles Hector on behalf of Madpet (Malaysians Against Death Penalty and Torture)
