Malaysia moves closer to scrapping mandatory death penalty for drug traffickers

"The cabinet agreed to amend the colonial-era Dangerous Drugs Act
of 1952 to give courts a choice in sentencing."

KUALA LUMPUR (Reuters) - Malaysia's cabinet has agreed unanimously to do away with the mandatory death penalty for drug traffickers, a minister said on Monday, but the decision still has to be approved by parliament.

The cabinet agreed to amend the colonial-era Dangerous Drugs Act of 1952 to give courts a choice in sentencing, Azalina Othman Said, a minister in the prime minister's department, said in a written parliamentary response.

Capital punishment is mandatory in Malaysia for murder and drug trafficking, among other crimes.

A total of 651 Malaysians have been sentenced to death since 1992 - most of them for drug offences, Azalina said.

In March, human rights group Amnesty International ranked Malaysia tenth in the use of death penalty among the 23 countries that carried out capital punishment last year.

"While the announcement for changes to the mandatory death penalty in its limited form to drug trafficking is a welcome move, it must only be considered a first step towards total abolition," Shamini Darshni Kaliemuthu, executive director of Amnesty International Malaysia, said in a statement.

It was not immediately clear when the amended law would be put before parliament, but it is expected to be approved.

Source: Reuters, August 7, 2017

Cabinet agreement on death penalty reforms welcomed — Amnesty International Malaysia

AUGUST 7 — Amnesty International Malaysia welcomes the Cabinet’s decision to allow judges to impose other forms of punishment in place of the mandatory death penalty against those convicted of drug trafficking.

"We welcome the move as a recognition that the mandatory death penalty is egregious form of punishment. However, we remain concerned that the legislative changes are limited to the Dangerous Drugs Act 1952 and that executions continue to be carried out against others who have also been mandatorily sentenced to death,” Amnesty International Malaysia Executive Director Shamini Darshni Kaliemuthu said.

Malaysia imposes the mandatory death penalty for 12 offences, including murder, drug trafficking, terrorism-related offences when these result in death, and some firearms offences. The imposition of the mandatory death penalty is prohibited under international law.

The UN Human Rights Committee has stated that ‘the automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of life […] in circumstances where the death penalty is imposed without any possibility of taking into account the defendant’s personal circumstances or the circumstances of the particular offence’.

In addition, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions has stated that ‘the death penalty should under no circumstances be mandatory by law’ and that ‘[the] mandatory death penalty which precludes the possibility of a lesser sentence being imposed regardless of the circumstances, is inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment’.

“While Malaysia is studying death penalty reforms, all executions must be halted. Malaysia must impose a moratorium on executions immediately, and we urge the government to broaden the scope of the proposed reforms to encompass all capital offences,” Shamini said.

Amnesty International opposes the death penalty unconditionally as a violation of the right to life as proclaimed in the Universal Declaration of Human Rights.

To date, 141 countries have abolished the death penalty in law or practice. In the Asia Pacific region, 19 countries have abolished the death penalty for all crimes and a further eight are abolitionist in practice. Malaysia remains among the minority of countries (23 in 2016) which retains the death penalty, alongside China, Iran, Saudi Arabia and Singapore – countries with deplorable human rights records.

There are currently 1,122 prisoners on death row, with some 60% incarcerated for drug-related offences.

“Most people on death row for drug-related offences are people who have been tricked into smuggling drugs into the country, some, even without their knowledge. As surprising as this may seem, it does happen, and due to Malaysia’s mandatory death sentencing, mitigation factors are not considered by the courts. This is why the mandatory death sentence must be scrapped in totality, for drugs and other offences,” Shamini said.

Alongside amendments to Section 39B of the Dangerous Drugs Act, the government must also consider revisions to Sections 36 and 37.

“Under Section 37, Amnesty International Malaysia is concerned with the retention of ‘presumptions’, where defendants found with specified amounts of certain drugs, or even simply in possession or in control of objects or premises in which prohibited substances are found, are guilty of drug trafficking. In those circumstances, the burden of proof is shifted onto the defendant (Section 36), in violation of the presumption of innocence and fair trial rights,” Shamini said.

UN Safeguards guaranteeing protection of the rights of those facing the death penalty state that: ‘Capital punishment may only be carried out pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights.’

“While the announcement for changes to the mandatory death penalty in its limited form to drug trafficking is a welcome move, it must only be considered a first step towards total abolition. The imposition of the death penalty, including the mandatory death penalty, is a violation of the right to life,” Shamini said.

Source: The Malay Mail Online, August 7, 2017

Reviewing the relevance of mandatory death penalty

Progressively withdrawing death penalty is a global trend we must come to terms with.

The cabinet has unanimously agreed to review Section 39B of the Dangerous Drugs Act 1952, allowing for judges' discretion on cases involving mandatory death penalty.

As a matter of fact, mandatory death penalty has been in place in this country for over 50 years. Besides drug trafficking, possession of firearms, kidnapping and murder are among twelve capital crimes punishable by death.

More and more countries in this world have moved to abolish death penalty on humanitarian grounds, while Malaysia is one of few countries still enforcing death penalty.

The amendment to the Dangerous Drugs Act marks a first step towards the eventual abolition of death penalty in this country.

Malaysia has been waging an uncompromising war on dangerous drugs for years, while mandatory death penalty has been in place since decades ago. Nevertheless, these efforts have failed to effectively curtail the problem of drug trafficking.

Those supporting the abolition of death penalty for drug traffickers believe that death penalty is not the most effective approach.

The government had the intention of reviewing the Dangerous Drugs Act several years ago, replacing death penalty with term imprisonment. The proposal drew polarized views from the public then.

Mandatory death penalty is generally perceived as inhuman and extraordinary, and does not conform to the universal values of human rights, justice and compassion.

When a person is sentenced to death, he or she is denied of the opportunity to rectify the mistake. Amnesty International has pointed out that an overwhelming majority of condemned convicts have been drug traffickers, including many doing so outside of their own knowledge.

In addition, Section 37 of the Dangerous Drugs Act deals with "presumptions". For instance, if any syringe or dangerous drug suitable for hypodermic injection is found in any premises, it is presumed that the premises are being used for the purpose of the administration of the dangerous drug, until the contrary is proved. Under such circumstances, the burden of proof is on the accused, and this contravenes the presumption of innocence and right to fair judgment.

Among those sentenced to death for drug trafficking are foreigners, and the mandatory death penalty involving foreigners here would invariably develop into major international issues. And when Malaysians are sentenced to death for drug trafficking abroad, pleas by families to save the convicts often go in vain as it is hard for the government to help given the fact death penalty is very much in force back in Malaysia.

Many people are against the abolition of death penalty for the simple reason drugs have done irreparable damages to individuals, their families and the nation. Our enforcement units have come up with strategies to tackle challenges posed by international drug syndicates, but often such measures do not fundamentally solve the problem.

From the humanitarian point of view, progressively withdrawing death penalty is a trend we must come to terms with. Meanwhile, we must not let up in our effort to battle drug addiction and trafficking, and these two can actually be carried out side by side.

Source: mysinchew.com, Opinion, August 0, 2017

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