Malaysia is known for having one of the harshest drug laws in the world, with a mandatory death penalty for drug trafficking.
Human right advocates had long advocated to replace the death sentence with a more human approach to sentencing.
Today, the Dangerous Drugs (Amendment) Bill 2017 to amend Section 39B of the Dangerous Drugs Act 1952 was passed in Dewan Rakyat, giving judges the discretion not to impose a death sentence for drug traffickers. However, the judge’s discretion to not impose the death penalty is subject to the public prosecutor’s certification.
The Bill 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.”
This would mean: If such certification from the public prosecutor is not forthcoming, the judge will still have no choice but to impose death penalty.
The Bill has invoked criticism from human rights lawyers and the Malaysian Bar that the new amendments are a serious trespass upon judicial authority and infringe the constitutional doctrine of the separation of powers, let alone it is susceptible to abuse.
MP Ramkarpal Singh gives an example where a rogue police officer demands a bribe from a person accused of drug trafficking, claiming that he represents the public prosecutor and that only he can ensure that the necessary certificate is issued to help the said accused escapes death penalty. Such unscrupulous acts are certainly not far-fetched.
Here’s another example: many drug mules do not know the real identities of the drug lords, as such, those drug mules would be of little assistance in disrupting drug trafficking activities within or outside Malaysia. In such cases, does this mean that certificate will not be issued and those drug mules deserved be hanged to death? The above examples illustrate the unreasonableness to require a certificate from the public prosecutor before the court can consider other penalties instead of the death penalty.
Also, the amendments are not retrospective in nature, hence do not apply to those who have been convicted.
This would mean the Bill will not apply to approximately 400 Malaysians who are currently on death row for drug trafficking, but will apply to others who commit similar, if not more serious crimes in the future. Consider this scenario: A person charged with trafficking 100g of heroin from today onwards may be exempted from the death penalty, but another person who was convicted of trafficking in 20g of the same drug before today must die.
So, is the new law fair, good and reasonable? Perhaps I will leave this question for you to ponder and answer.