Judiciary should determine sentence, not prosecutor

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https://hakam.org.my/wp/2017/11/24/judiciary-should-determine-sentence-not-prosecutor/
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Source: FMT News

PETALING JAYA: Lawyers for Liberty (LFL) today hit out at the proposed bill to amend the Dangerous Drugs Act 1952, saying it is for the judiciary to determine the sentence, not the prosecutor.

LFL executive director Eric Paulsen acknowledged that the bill allowed for the trial judge to sentence a drug offender to life imprisonment and whipping instead of handing out the death sentence.

However, he pointed out that this was only possible if the public prosecutor issued a certificate verifying that the convict had assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.“Although the judge pronounces the sentence at the end of the trial, it is the public prosecutor who ultimately decides whether or not the judge can exercise that discretion by his decision on the issuance of the certificate of assistance,” he said in a statement.

Such provisions would offend the fundamental foundation of fair trial in the criminal justice system, he added.

Paulsen also asked what guarantees the authorities could provide that such power would not be abused by law enforcement agencies and the prosecutors.

“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 also the punishment of death,” he said.

On Aug 7, the cabinet unanimously agreed to allow judges to impose an appropriate penalty on drug traffickers instead of the mandatory death sentence under an amendment to Section 39B of the Dangerous Drugs Act 1952.

Minister in the Prime Minister’s Department Azalina Othman Said said the cabinet had decided that the act should allow judges the right to decide on more appropriate sentences such as jail terms.

Paulsen said judges must be allowed to decide on the appropriate sentence for each individual case, depending on the facts and circumstances.

“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,” he said.

“We therefore call for the bill to be amended so that sentencing remains the prerogative of the presiding judge, and the issuance of the certificate or otherwise by the prosecutor should not be made binding on the judges.”