THE abolition of the mandatory death penalty will benefit Malaysia as it is hoped to prompt the first move towards the abolition of the death penalty, according to Malaysians Against Death Penalty and Torture (MADPET).
In Malaysia, the mandatory death penalty is imposed on serious crimes like murder, treason, certain firearm offences and drug- trafficking.
Its use in drug-related offences, particularly, has received much censure from human rights groups and lawyers.
Minister in the Prime Minister’s Department and de facto Law Minister Nancy Shukri had announced that the government planned to abolish the mandatory death penalty for drug-related offences.
“Malaysia’s image will improve with regard to the European Union, which has abolished the death penalty,” says MADPET coordinator Charles Hector.
“The convicted person will benefit from this. So, now, when evidence emerges in the future showing that the convict is innocent, he will still be alive.”
Hector says the only thing that a mandatory sentence does is remove the discretion from the courts when it comes to sentencing.
“What is preferable is that Parliament only sets the minimum and maximum sentences, and the judge decides on the appropriate sentence based on the circumstances of the case.”
He believes that only the maximum limit should be set by law, with the discretion in sentences to be decided by the courts.
“Sentencing guidelines already exist, but should new guidelines be introduced, these should be left to the judiciary — maybe with the involvement possibly of the Malaysian Bar and the public prosecutor.”
Brickfields Asia College general manager and senior lecturer Daniel Abishegam says the proposed abolition tempers the harshness of the current law and shouldn’t impact the successful prosecution of drug-trafficking offences.
“As I understand it, the proposal does not intend to interfere with the evidentiary rules and standard of proof required for a prosecution of a drug- related offence.
“The proposal only seeks to add an element of mercy in certain situation where the judge sees fit. So, the person will still be convicted of the offence. However, if the judge is convinced that the convict was merely a low-level functionary and not a dealer, he may exercise his discretion and sentence him to a jail term.”
Abishegam says the category of people who will benefit from this would be those convicted under the presumption of trafficking under the Dangerous Drugs Act 1952, but who were in fact not trafficking.
“They were merely in possession of drugs beyond the permitted amounts. If a judge is convinced of this based on the evidence presented before the court, the judge would then sentence the person to a long jail-term instead of death.
“The judicial discretion involved will be guided by the statute itself or the body of case law that will develop over the years.
“If Parliament feels that the judicial discretion is being exercised in a way that is too arbitrary, amendments can be made to the act to reduce discretion.
“However, it is my opinion that judges will be the best persons to decide based on the evidence presented before them and giving them some leeway to exercise mercy is not a bad thing.”
Taylor’s Law School associate dean (learning and quality) Lai Mun Onn agrees that the proposed amendment, which will increase judicial discretion in sentencing, is a positive move.
“Sentencing should be left to the judges. Guidelines can be helpful but, at the end of the day, it must not interfere with the judge’s discretion.
“The sentence should correspond with the offence, that is, minor sentences for minor offences. If the offence is ‘minor’, the possible harm that could have resulted should be small.
“The sentence should, however, be sufficient to deter the individual from committing that offence again, as well as send a clear message out that what was done was wrong in the eyes of the law and should not be tolerated. The sentence should also help rehabilitate the offender and give him/her a chance to turn from his/her wrong ways.”
Malaysian Bar Council president Steven Thiru says the restoring of judicial discretion in drug-related offences that presently carry the mandatory death penalty should not adversely impact the prosecution of these offences.
“The prosecution will still have the burden of proving the elements of the offence to the requisite standard of proof (beyond reasonable doubt).
“It may well be the case that judges would be more prepared to convict when they have the discretion to impose the appropriate and proportionate punishment for the offence, as opposed to having their hands tied to impose the mandatory death sentence.
“Increased judicial discretion is a good development and it provides guidelines to help judges with sentencing. The establishment of a Sentencing Council to initially study and collate sentences that have been imposed, and then to standardise sentences would help ensure a uniformed, consistent and fair sentencing regime.”