Drug Act: Judiciary still limited, says Malaysian Bar

PETALING JAYA: The Malaysian Bar today hailed the removal of the mandatory death sentence for drug offences but warned that the judiciary remained limited in exercising its discretion in sentencing.

Although the government had amended the Dangerous Drugs (Amendment) Bill 2017 to remove dependence on the public prosecutor, it said, Section 39B(2A) states that the court may have regard only in certain circumstances.

This includes that there be no evidence of buying and selling of a dangerous drug at the time when the convicted person was arrested, and that there be no involvement of agent provocateur.

Section 39B(2A) also requires that the involvement of the convicted person be restricted to transporting, carrying, sending or delivering a dangerous drug, and that the person has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.

Bar president George Varughese said this limited judges in their consideration of mitigating factors and circumstances in 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,” he said in a statement.

He said it was also troubling that whether the death penalty was imposed rested on whether the convicted person was able or willing to assist in disrupting drug trafficking activities.

“A person’s right to life is a fundamental right, not a privilege that can be revoked if that person is deemed not sufficiently ‘useful’ to an enforcement agency,” he added.

Reiterating the Bar’s stand that the death penalty was an extreme, abhorrent and inhumane punishment, Varughese said the government should further amend the bill to allow those already convicted and sentenced to death to appeal for a review.

He also called on the government to implement a moratorium on all pending executions.

“The Malaysian Bar calls upon the government to act without delay to abolish the death penalty for all crimes, and to uphold the right to life, which is absolute, universal and inalienable,” he said.

The first amendments to the Dangerous Drugs Act 1952 were tabled on Nov 23.

The bill was criticised by some for requiring certification by the public prosecutor that convicted individuals were only couriers and had assisted in disrupting drug trafficking activities.

Further amendments were subsequently made to give full discretion to judges to decide on cases involving drug pushers within and outside of the country.

Minister in the Prime Minister’s Department Azalina Othman Said said the amendment to Section 39B was made after taking into consideration the thoughts of relevant stakeholders. -FMT