Bar: Withhold amendment bill until judicial discretion restored

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https://hakam.org.my/wp/2017/11/25/bar-withhold-amendment-bill-until-judicial-discretion-restored/
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Source: FMT News

Malaysian Bar vice president George Varughese. ― Picture by Choo Choy May

Malaysian Bar president George Varughese. ― Picture by Choo Choy May

PETALING JAYA: The Malaysian Bar has called on the government to withhold the passing of a bill to amend the Dangerous Drugs Act 1952 in its current form, following concerns that it will allow sentencing to be dependent on the public prosecutor.

Its president George Varughese said the bill, tabled for first reading in Parliament on Nov 23, needed to redrafted and retabled with amendments that would genuinely restore judicial discretion in sentencing.

He said the Bar viewed the tabling of the bill to move Malaysia away from the mandatory death sentence as a step in the right direction, with the provision that allowed an alternative sentence to the death penalty.

“The Malaysian Bar is steadfast in our view that life is sacred, and every person has an inherent right to life,” he said.

“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,” he said in a statement today.

Varughese pointed to a number of requirements under Section 2A of the bill for a judge to be able to not impose the death penalty, and instead hand an alternative life imprisonment with whipping of not less than fifteen strokes.

One of them is that “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.”

Varughese said it was “troubling” that the judge’s discretion to not impose the death penalty was to be limited by and subject to the public prosecutor’s certification.

“If such certification is not forthcoming, it would mean that the judge would still have no discretion in sentencing,” he said.

“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.”

He added that the term “assisted” was also not defined and was thus subject to interpretation and could be arbitrary.

Varughese said the public prosecutor has the power to institute or discontinue criminal proceedings, but not the right to decide on sentencing.

“Judicial discretion and independence should not be fettered by the requirement of such a certificate,” he said.

“The sentencing process is, and should always remain, within the sole realm of the judiciary.”