By Shaila Koshy and Nurbaiti Hamdan | The Star

The Dangerous Drugs (Amendment) Bill 2017, which purports to return the discretion to impose the death penalty to judges, actually gives the power to the public prosecutor, say retired judges, anti-death penalty advocates and the Malaysian Bar.

The Bill, which was tabled for its first reading in Parliament on Thursday, seeks to empower the judge with the discretion to impose the death penalty or life imprisonment, and whipping of not less than 15 strokes in drug trafficking cases.

Currently, a trafficking conviction draws a mandatory death penalty.

According to the Explanatory Statement to the Bill, the “discretion” only kicks in under the following circumstances:

  • NO involvement of agent provocateur; or
  • INVOLVEMENT is restricted to being a drug mule; and
  • PUBLIC Prosecutor certifies that the convicted person has assisted in disrupting drug trafficking activities within or outside Malaysia.

Retired Federal Court judge Datuk Seri Gopal Sri Ram said the proposed amendments breached the doctrine of separation of powers.

“A law that removes or interferes with judicial discretion in the matter of sentencing violates the doctrine of separation of powers, which is part of the basic structure of the Federal Constitution by virtue of Article 4(1).

“There are many decisions of the courts of Commonwealth that support this view,” he said.

Former Court of Appeal judge Datuk Seri Shaik Daud Ismail said judges should have the sole discretion in sentencing.

“It cannot be at the whims and fancies of the public prosecutor (PP),” he said.

Shaik Daud, who was head of prosecution in the Attorney-General’s Chambers before he was appointed a High Court judge, said: “If there are extenuating circumstances, it should be adduced in court and the judge will decide.”

Malaysia Bar president George Varughese said the Bill fell short in restoring judicial discretion.

“The shift from the mandatory death penalty to judicial discretion in sentencing should not be dependent upon the say-so of the PP.

“It is troubling that the PP’s decision-­making process is not described or defined in the Bill, lending to concern that the process could be opaque, not subject to review, and may be open to abuse,” he said.

Lawyer N. Surendran and Lawyers for Liberty executive director Eric Paulsen said the Bill was a “cause for grave concern”.

“The A-G and his prosecutors effectively hold the power to decide whether an accused person faces the hangman’s noose or not,” said Surendran, who is also the Padang Serai MP.

Allowing the prosecutor to decide on the punishment, especially the death penalty, would be a serious miscarriage of justice, said Paulsen.

Criminal lawyer Amer Hamzah Arshad suggested that a better amendment would be to make the requirement for a certificate a separate scenario for the court to consider whether to impose life imprisonment or not.

“It is trite that parties to criminal proceedings may propose the appropriate sentence to be imposed based on the factual matrix of a case. But the final say always lies with the judiciary,” he added.

As for those already on death row but not mentioned in the Bill, Varughese said: “In the light of the amendments, the Malaysian Bar renews our call to the Government to officially declare and implement a moratorium on all pending executions.”