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

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Source: The Malaysian Insight

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.