Minister’s Delay Resulted in Judge Having No Choice but to Sentence A. Sargunan and 4 others to Death — Charles Hector

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https://hakam.org.my/wp/2018/01/22/ministers-delay-resulted-in-judge-having-no-choice-but-to-sentence-a-sargunan-and-4-others-to-death-charles-hector/
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BY CHARLES HECTOR, for and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

All 39B(Drug Trafficking) Trials Should Be Suspended until New Law Comes into Force

MADPET(Malaysians Against Death Penalty and Torture) is appalled by the delay of  the Dangerous Drugs (Amendment) Act 2017 coming into force which will mean that persons now being convicted by Courts for drug trafficking  will still be subjected to the mandatory death penalty and not enjoy the possibility of  avoiding the death penalty. The proposed amendment to the law, when it comes into force, will only apply to cases where persons facing trial is yet to be convicted. Therefore, justly all drug trafficking case trials must not continue until the new law is in force. The Minister’s delay has already cost at least 5 persons to be convicted to death.

On 17/1/2018, it was reported that Malaysian A. Sargunan, 42, and four Indian nationals(Sumesh Sudhakaran, Alex Aby Jacob Alexander, Renjith Raveendran and Sajith Sadanandan )  were convicted and sentenced to death by the Shah Alam High Court on Wednesday (Jan 17) for drug trafficking under Section 39B (1)(a) Dangerous Drugs Act 1952.(Star, 17/1/2018).

The Dangerous Drugs (Amendment) Bill 2017 was passed by the Dewan Rakyat(House of Representatives)  on 30/11/2017, and by the Senate(Dewan Negara) on 14/12/2017. Royal assent was received on 27/12/2017, making this now an Act of Parliament, but sadly, it only will come into operation on a date to be appointed by the Minister by notification in  the  Gazette.

A perusal of the official e-Federal Gazette website on 19/1/2018, revealed that some other laws that obtained royal assent on the same day as Dangerous Drugs (Amendment) Act 2017, or subsequently have already come into force but not this Act which will have the effect of restoring judicial  discretion to impose a sentence for drug trafficking other than the death penalty, being life imprisonment with whipping of not less than 15 strokes, for the offence of drug trafficking.

By reason of the Minister’s delay, now A. Sargunan and the 4 Indian nationals  have been convicted and sentenced to the death, as  Section 39B (1)(a) Dangerous Drugs Act 1952  still provides for the mandatory death penalty.

Section 3(2) of Dangerous Drugs (Amendment) Act 2017 states, ‘ (2) Any proceedings against any person who has been charged, whether  or  not trial  has  commenced  or  has  been  completed,  and has  not  been  convicted  under  section  39b  of  the  principal  Act  by  a  competent  Court  before  the  appointed  date,  shall  on  the  appointed  date  be  dealt  with  by  the  competent  Court  and  be  continued  under  the  provisions  of  the  principal  Act  as  amended  by this Act.’

This means that any person even already on trial for drug trafficking(section 39B), so long as they have yet to be convicted, can still enjoy the benefits of Dangerous Drugs (Amendment) Act 2017. But, until the Minister do the needful, to ensure this law comes into force, judges will continue to have no discretion but to impose the mandatory death penalty.

The new law, sadly, do not provide any remedy to those already convicted and/or for the 800 or more currently on death row by reason of having been convicted for drug trafficking. As such, justly all their death sentences should be commuted to imprisonment, or alternatively a new law is needed that allows for a review of their current sentence. Reasonably, given the large numbers involved and other reasons, it would be best that all their death sentences be commuted.

Malaysia must be complemented for this major long overdue step to abolish the mandatory death penalty for the offence of drug trafficking, and return discretion to judges when it comes to sentencing.

Noted that there are still flaws in this  new law which have been raised by the Malaysian Bar, amongst others, including the fact that the judges in exercising their discretion is currently limited to just certain limited considerations. There is also now an unjust mandatory requirement before  the exercise of the Judge’s discretion –  the Judge’s assessment of the convicted person’s ability or willingness to assist in disrupting drug trafficking activities.  There are many reasons why a convicted person may not be able to provide this assistance including possible retaliation by kingpins and others on the convicted and/or their families.

The Malaysian Bar in their statement dated 5/12/2017, amongst others, stated, “ We are concerned that Judges are being limited in their consideration of the mitigating factors and circumstances that surround each case, before sentencing.  Such mitigating factors can include, and are not limited to, the offender’s age, rehabilitation goals, past criminal record, role played in the offence, mental capacity, reparations made, fear of another person, use of violence, harm done to property or persons, and degree of cooperation with the authorities.  The sentencing process is, and should always remain, within the unfettered domain of the Judiciary.’

MADPET calls for all trials of persons charged under section 39B(drug trafficking) be stayed, or where trial is over, that courts do not proceed to convict until after Dangerous Drugs (Amendment) Act 2017 comes into force.

MADPET also calls on the Minister to do the needful to ensure that Dangerous Drugs (Amendment) Act 2017 comes into force immediately without any further delay;

MADPET reiterates the call for Malaysia to speedily abolish all other

mandatory death penalty offences, other than drug trafficking, and returning sentencing discretion to judges; and

MADPET also reiterated the call for a moratorium on all executions, pending the abolition of the death penalty in Malaysia.