We, the 40 undersigned organisations, groups and trade unions are most disturbed and saddened that at least 10 persons, as reported in the media, have been victims of the mandatory death penalty for drug trafficking despite the fact that Parliament had already passed the law abolishing mandatory death penalty and returning sentencing discretion to judges vide the Dangerous Drugs Amendment Act 2017 (DDAA 2017).

This Act, which was passed by Parliament and received royal assent on Dec 27, 2017, cannot now be used by judges to consider alternatives to the death penalty sentence until the Minister do the needful that will enable this life-saving law to come into force. A perusal of the Malaysia’s Federal Gazatte website will disclose that many other laws that have obtained royal assent at the same time as the DDAA 2017, or later, are already in force.

Section 3(2) of DDAA 2017 states, ‘(2) Any proceedings against any person who has been charged, whether or not trial has commenced or has been completed, and has not been convicted under section 39b of the principal Act by a competent Court before the appointed date, shall on the appointed date be dealt with by the competent Court and be continued under the provisions of the principal Act as amended by this Act.’

DDAA 2017, when it comes into force, will only be applicable for cases where the accused person is not yet convicted. As such, if the court convicts before the new law comes into force, then the Judge is left with no choice but to impose the mandatory death penalty.

To date, based only on media reports, there are at least 10 persons- five  Malaysians and five foreign nationals - who have suffered grave injustice by being convicted and sentenced to death simply because of the Minister’s delay in doing the needful:-

- S Pragasam (30) – Ipoh High Court (Malay Mail, Feb 9, 2018)

- Ong Cheng Yaw (33) and San Kim Huat (38) – Kuala Lumpur High Court (The Malaysian Insight, Feb 8, 2018)

- Jonas Chihurumnanya (Nigerian) – Kuching High Court (The Borneo Post, Jan 30, 2018)

- S Gopi Kumar (33) – KL High Court (The Sun Daily, Jan 24, 2018)

- A Sargunan(42), and four Indian nationals, namely Sumesh Sudhakaran (30), Alex Aby Jacob Alexander (37), Renjith Raveendran (28), and Sajith Sadanandan (29) – Shah Alam High Court (The Sun Daily, Jan 22, 2018)

10 lives could be spared

A perusal of the website of the Malaysian e-Federal Gazette discloses that several other Acts that also received royal assent on Dec 27, 2017, came into force on Dec 30, 2017. Some Acts that received royal assent on Dec 29, 2017. also came into force on Jan 11, 2018.

Now, if the DDAA 2017 had come into force fast, then these 10 persons, now on death row, may not even have been sentenced to death. The new law, when it finally comes into force, does not provide the courts, including the appellate courts, the power to vary the death sentence of those already convicted by the High Court to imprisonment, unless the conviction itself is set aside on appeal.

In an ordinary criminal appeal, the convicted has the right to appeal against the conviction, and also appeal against the sentence. However, when the law provides for a mandatory sentence, in this case, the death penalty, if the accused person fails in his/her appeal against conviction, then the courts cannot even review the appropriateness of the sentence as the law only provides for only one sentence – the death penalty for drug trafficking.

The dilemma facing judges, who are still denied discretion when it comes to sentencing until the new law is in force, is reflected by words of the judge that sentenced five persons to death: "Since there is only one sentence provided for under Section 39B of the Act, the court hereby sentences all the accused to death," he [Judge Ghazali Cha] said.’ (The Sun Daily, Jan 22, 2018)

When the new law finally does come into force, the judge will have an option other than the death sentence, that being life imprisonment with whipping of not less than 15 strokes.

Existing inadequacies no reason for delay
There are still many flaws in the new DDAA 2017, including the limitations imposed as to the matters that the judge can or should consider when deciding on an appropriate sentence, which goes against normal practice in other criminal trials where there are almost no restrictions as to the matters that can be considered by the judge in the exercise of his sentencing discretion.

There have also been criticisms about the limited options that will be available, as it would certainly be more just for judges to be able to sentence persons to a lower prison sentence in appropriate cases and not just to life imprisonment. The new law, sadly, does not provide any remedy to those already convicted and/or for the 800 or more currently on death row after having been convicted for drug trafficking.

Be that as it may, the new law does abolish the mandatory death penalty, and many who will be convicted after the law is in force may end up not being sentenced to death.There is always the option to amend laws later to correct any existing defects, and that certainly is no excuse for delaying the coming into force of DDAA 2017.

It is most disturbing that no reasons seem to have been given by the government and/or the minister for this delay, which adversely affects persons like those ten, who now are facing the hangman’s noose. Many of the persons convicted of this offence may even be first time offenders, young people, and/or persons forced into crime by reasons of poverty. As such, the government may also bear some responsibility for allowing a situation where the poor are left with no option but crime just for the wellbeing of themselves and their family.

Some of those convicted and sentenced to death may also be parents and/or siblings of children, and most certainly, the death sentence can never be said to be in the best interest of the child. Malaysia, being a signatory of the Child Rights Convention (CRC), also has an obligation to ensure that no parent, sibling or relatives of children are sentenced to death.

Abolition of death penalty and mandatory death penalty
Minister in the Prime Minister's Department Azalina Othman, the de facto law minister, during the Parliamentary session on Nov 2, 2016 clarified that Malaysia was not just looking at the mandatory death penalty, but all death penalty.