Let judge decide how many lashes a drug convict gets, says ex-Bar president

Salim Bashir says the severity of the punishment should be based on the circumstances that led a person to commit the offence.

Salim Bashir says the severity of the punishment should be determined based on “aggravating and mitigating factors”.

PETALING JAYA:

 Judges should be given absolute discretion to determine the number of lashes of the rotan a drug convict receives, a former Bar Council president said in raising concerns over the mandatory minimum now stipulated under the law.

Salim Bashir said the severity of the punishment should be determined based on “aggravating and mitigating factors”.

“The circumstances of an offence for drug trafficking may vary greatly, ranging from roles as mere drug mules to drug lords,” he told FMT.

Equally important, he said, is the quantity and types of drugs as identified in the Dangerous Drugs Act.

“The minimum (number of) strokes imposed by law invites concern as whipping is always viewed as cruel and inhumane,” he said, adding that existing drug laws do not give the courts discretion to impose anything below the prescribed range.

Salim was commenting on a report last week of the reduction in the number of lashes for a convicted drug trafficker from 15 to 12.

Currently, those found or who have pleaded guilty to drug possession under Section 39A of the Dangerous Drugs Act can be jailed between five years and 30 years and be given a minimum of 10 strokes of the rotan.

Under Section 288 of the Criminal Procedure Code, a convicted person must not be given more than 24 strokes of the rotan.

Lawyer Shaharuddin Mohamed suggested that judges be given the discretion to impose a minimum of one stroke up to a maximum 24 strokes after taking into consideration the quantity of drugs that had been in the convicted person’s possession.

For instance, he said, it can be limited to the single digits for those guilty of trafficking in cannabis that weigh only a few grammes, while harsher penalties can be meted out if the quantity amounts to several kilogrammes.

Under the law, a person is presumed to be a trafficker if found in possession of 200g or more of cannabis.

Shaharuddin said there is a likelihood that those charged with trafficking would plead guilty if the punishment is a fixed 30-year jail term but fewer strokes of the rotan.

“The court can then dispose of cases faster instead of having the accused person claim trial in the hope of getting an acquittal and escaping punishment,” he added.

However, former deputy public prosecutor Awang Armadajaya Awang Mahmud insists that the current minimum should be maintained given the severity of the drug menace.

He pointed out that the laws had been debated and passed by MPs and senators who were “in touch with what was happening on the ground”.

Awang Armadajaya, who is now a lawyer, said the drafters would have also obtained feedback from the police and civil society before it was tabled in the legislature.

He said giving absolute discretion to judges could be considered only after the incidence of drug trafficking and possession showed a decline. - FMT