Thursday, March 15, 2018

MADPET - At Last, Mandatory Death Penalty For Drug Trafficking Abolished With Coming Into Force Amendment Act On 15 March 2018






Media Statement – 15/3/2018

At Last,  Mandatory Death Penalty For Drug Trafficking Abolished With Coming Into Force Amendment Act On 15 March 2018

MADPET(Malaysians Against Death Penalty and Torture) is pleased that the Dangerous Drugs Amendment Act 2017, which received royal assent on 27/12/2017, has finally, after much delay, has come into force as of 15 March 2018.

The gazette notification appointing the date this new law comes into operation, that will abolish the mandatory death penalty for drug trafficking, giving judge’s discretion to be able to sentence those convicted of drug trafficking to an alternate sentence of life imprisonment with not less than 15 strokes of the whip, dated 8/3/2018 was signed by the Minister of Health. It was odd that it was not the Minister in the Prime Minister's Department Datuk Seri Azalina Othman, the facto Law Minister or the Home Minister.

It must be pointed out that this still unexplained delay has resulted in grave injustice to at least 10 persons, who had been sentenced to the mandatory death penalty this year until 15/3/3018, because judges still had no discretion to consider and impose any other sentence other than death penalty until the date the Act comes into operation. It must be noted that not all persons convicted and sentenced to death for drug trafficking would have been reported by the media. This 10 media reported cases included 5 Malaysians and 5 foreign nationals, being:-


-          S. Pragasam(30) – Ipoh High Court(Malay Mail, 9/2/2018)
-          Ong Cheng Yaw(33) and San Kim Huat(38) – Kuala Lumpur High  Court (Malaysian Insight, 8/2/2018)
-          Jonas Chihurumnanya(Nigerian) – Kuching High Court (The Borneo Post, 30/1/2018)
-          S. Gopi Kumar(33) – KL High Court( (The Sun Daily, 24/1/2018)
-          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, 22/1/2018)


This new law, when it comes into force, will only benefit persons who have yet to be convicted by the High Court. If already convicted and sentenced to death before the law came into force, then even the Appellate Courts will not have the power to review the death sentence, and impose an alternative sentence for drug trafficking. The only way, that those already sentenced to death can escape the death penalty is if the Appellate Courts set aside the conviction for drug trafficking.

Even after the amending Act comes into force, there are still serious flaws, including limitation on the factors that Judges could consider when imposing the appropriate just sentence after conviction. The law now states, that judges ‘…may have regard only to the following circumstances…’ being a limited list of  four matters. In criminal trials generally, judge will consider all relevant factors and circumstances of the case and/or the relevant convicted persons, including also age, whether he/she is a first time offender, etc.. before imposing a just and appropriate sentence.

At present, there is also mandatory requirement ‘…that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia…’ before a judge can impose a sentence other than death. This is unjust for it impacts of an individual’s right to a fair trial, for an innocent person, when convicted at the High Court may be forced to incriminate himself truthfully and/or falsely simply to avoid the death penalty. This ‘admission’ will also impact on his right of appeal against conviction and sentence to the Appellate Courts, be it the Court of Appeal and/or the Federal Court.

The new amendments also failed to deal with the 800 plus persons currently on death row for drug trafficking, including also others who have already been convicted before the Amending Act came into force.

MADPET calls for the immediate amendment of the law to ensure full, unfetterered discretion be given to judges  when it comes to sentencing those convicted of drug trafficking.

We also urge that judge’s discretion when it comes to the imposition of imprisonment not be simply limited to life imprisonment, but is extended  possibly by setting a more just and reasonable minimum sentence of not more than 5 -10 years especially for first time offenders;

MADPET also calls for the abolition of the mandatory death penalty for the about 11 remaining offences in Malaysia, and for the total abolition of the death penalty; and

MADPET also reiterates the call for a moratorium on executions pending abolition of the death penalty in Malaysia.

Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)








Tuesday, February 13, 2018

40 Groups - 10 SENTENCED TO DEATH BECAUSE DELAY OF COMING INTO FORCE LAW THAT ABOLISHES MANDATORY DEATH PENALTY FOR DRUG TRAFFICKING



Media Statement-14/2/2018

10 SENTENCED TO DEATH BECAUSE DELAY OF COMING INTO FORCE LAW THAT ABOLISHES MANDATORY DEATH PENALTY FOR DRUG TRAFFICKING

Abolish Death Penalty

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 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.

This Act, which was passed by Parliament and received royal assent on 27/12/2017, 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 Dangerous Drugs Amendment Act 2017(DDAA 2017), or later, are already in force.

Section 3(2) of Dangerous Drugs (Amendment) Act 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.’

This DDAA 2017, when it comes to 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 on media reports only, there are at least 10 persons, 5 Malaysians and 5 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, 9/2/2018)
-        Ong Cheng Yaw(33) and San Kim Huat(38) – Kuala Lumpur High Court (Malaysian Insight, 8/2/2018)
-        Jonas Chihurumnanya(Nigerian) – Kuching High Court (The Borneo Post, 30/1/2018)
-        S. Gopi Kumar(33) – KL High Court( (The Sun Daily, 24/1/2018)
-        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, 22/1/2018)

A perusal of the website of the Malaysian e-Federal Gazette, discloses that several other Acts that also received royal assent on 27/12/2017, came into force on 30/12/2017. Some Acts that received royal assent on 29/12/2018 also came into force on 11/1/2018. Now, if the Dangerous Drugs Amendment Act 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, when 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 is available – 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 5 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 Datuk Ghazali Cha] said.’. (The Sun Daily, 22/1/2018)

When the new law finally do come into force, the judge will have an option other than the death sentence, 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 Dangerous Drugs Amendment Act 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 only.

The new law, sadly, do not provide any remedy to those already convicted and/or for the 800 or more currently on death row by reason of 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 the 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 the 10, who now are facing the hangman’s noose.

Many of the persons convicted for this offence may even be first time offenders, young people, and /or persons forced into crime by reasons of poverty. As such, government may also bear some responsibility in 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 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), has an obligation to  ensure also 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 Datuk Seri Azalina Othman, the new de facto Law Minister, during the Parliamentary session on 2/11/2016 clarified that Malaysia was not just looking at the mandatory death penalty, but all death penalty.( "(The Sun Daily, 3/11/2016)

Currently in Malaysia, even after the mandatory death penalty is abolished for drug trafficking, there still remains about 11 other offences that provide for the mandatory death penalty, while about 20 other offences are punishable by a discretionary death penalty. Some of these mandatory death penalty offences are offences that do not even cause the loss of life or grievous bodily harm.

Malaysia must expedite the abolition of the death penalty, especially the mandatory death penalty.

THEREFORE, we

a) Call on Malaysia to immediately put into force the Dangerous Drugs Amendment Act 2017, which to date the delay has already caused at least 10 persons to be sentenced to death because drug trafficking is still a mandatory death penalty offence until the new law is in force;

b) Call on Malaysia to immediately cause to stay criminal trials of alleged drug traffickers until the new law is in force, which would give judges discretion to impose a sentence other than the death penalty;

c) Call on Malaysia to expedite the abolition of death penalty, especially the mandatory for all remaining death penalty offences;

d) Call on Malaysia to impose a moratorium on executions, pending abolition of the death penalty.

Charles Hector
Ngeow Chow Ying

For and on behalf of the 40 groups and organisations listed below

ALIRAN (Persatuan Aliran Kesedaran Negara)
ADPAN (Anti Death Penalty Asia Network)
Australians Against Capital Punishment (AACP)
ECPM (Together against the Death Penalty [Ensemble contre la peine de mort])
Center for Prisoners' Rights Japan
Center for Alliance of Labor and Human Rights (CENTRAL) Cambodia
Democratic Commission for Human Development, Pakistan
FIDH - International Federation for Human Rights
Hands off Cain
Japan Innocence and Death Penalty Information Center
KLSCAH-Civil Rights Committee
Global Women's Strike, UK
Legal Action for Women, UK
Liberia Coalition of Human Rights Defenders (LICHRD)
MADPET (Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
MARUAH, Singapore
Migrant Care
Odhikar, Bangladesh
Parliamentarians For Global Action
Paris Bar (Barreau de Paris)
Parti Sosialis Malaysia (PSM)
Payday Men’s Network, UK
Payday Men’s Network – US
Persatuan Komuniti Prihatin Selangor & KL
PROHAM(Society for the Promotion of Human Rights, Malaysia)
Refusing to Kill, UK
Rescue Alternatives Liberia (RAL)
SMU Human Rights Program, Dallas, Texas, USA
Suara Rakyat Malaysia (SUARAM)
Teoh Beng Hock Trust for Democracy
Terai Human Rights Defenders Alliance (THRD Alliance), Nepal
The Julian Wagner Memorial Fund (JWMF)
The Rights Practice
Think Centre, Singapore
We Believe in Second Chances, Singapore
WH4C (Workers Hub For Change)
Women of Colour in the Global Women's Strike, UK
Women's Rights and Democracy Centre (WORD Centre), Liberia
World Coalition Against the Death Penalty


Note: - A check of the website of Malaysian e-Federal Gazette confirms that the Dangerous Drugs Amendment Act 2017 is still not in force






No.        Publication Date               Act No.                Title       Date of Royal Assent       Date of Commencement               Download
1             10-01-2018         A1563    ARBITRATION (AMENDMENT) ACT 2018 29-12-2017         NOT YET IN FORCE   [National Language]    [English]
2             10-01-2018         A1562    TOURISM INDUSTRY (AMENDMENT) ACT 2018     29-12-2017                NOT YET IN FORCE           [National Language]    [English]
3             10-01-2018         A1561    MALAYSIAN MARITIME ENFORCEMENT AGENCY (AMENDMENT) ACT 2018      29-12-2017         11-1-2018           [National Language]    [English]
4             10-01-2018         A1560    INTELLECTUAL PROPERTY CORPORATION OF MALAYSIA (AMENDMENT) ACT 2018              29-12-2017         11-1-2018           [National Language]    [English]
5             10-01-2018         A1559    MALAYSIAN AVIATION COMMISSION (AMENDMENT) ACT 2018     29-12-2017               9-2-2018 [P.U. (B) 66/2018]          [National Language]    [English]
6             29-12-2017         A1558    DANGEROUS DRUG (AMENDMENT) ACT 2017       27-12-2017                NOT YET IN FORCE           [National Language]    [English]
7             29-12-2017         A1557    SUPPLY ACT 2018             27-12-2017         30-12-2017         [National Language]    [English]
8             29-12-2017         A1556    INCOME TAX (AMENDMENT) ACT 2017    27-12-2017         30-12-2017                [National Language]    [English]
9             29-12-2017         A1555    LABUAN BUSINESS ACTIVITY TAX (AMENDMENT) (NO. 2) ACT 2017                27-12-2017         30-12-2017         [National Language]    [English]

10 persons sentenced to death because Mandatory Death Penalty for Drug Trafficking until new law is in force?

See earlier related post including media statements


Minister’s Delay Resulted in Judge Having No Choice but to Sentence A. Sargunan and 4 others to Death

Don’t let delay in applying new dangerous drugs law take more lives(FMT)

Malaysian is 6th victim because Minister's delay bringing into force law that abolishes mandatory death penalty for drug trafficking?

Judges forced to sentence at least 7 to death because Dangerous Drugs Amendment Act 2017 not in force yet?

 

 

Lorry attendant to hang for drug trafficking two years ago

IPOH, Feb 9 — A 30-year-old lorry attendant has been sentenced to death after the High Court here found him guilty of drug trafficking two years ago.
S. Pragasam, who was charged under Section 39B (1)(a) of the Dangerous Drug Act 1952, was found guilty of trafficking 101.2g of heroin and 8.9g of monoacetylmorphine at house number 127, Jalan Pengkalan Barat 32, Taman Puteri Lindungan Bulan in Pasir Puteh on May 11 2016 at about 7.30pm.
Judicial Commissioner Anselm Charles Fernandis also found Pragasam guilty of possessing 36.6g of methamphetamine at the same time and place.
For the second charge, framed under Section 12 (2) of the Dangerous Drug Act 1952, Pragasam was sentenced to eight years jail.
In his oral judgement, Fernandis said the defence had failed to raise doubts over the prosecution case.
“In his defence, the accused said he was at the house to collect a RM2,000 loan from a Thanasilan who had left the house earlier. These are mere denial by the accused,” he said.
“I hereby convict you on both charges,” he added.
Upon hearing this, Pragasam, who was clad in white t-shirt and blue jeans, looked crestfallen.
Defence counsel Rajit Gill immediately applied for stay of execution pending appeal.
Pragasam, who was later sent to Tapah Prison, was charged at the Ipoh magistrate court on May 23 2016 before the case was transferred to High Court in Feb 14 last year.
Deputy Public Prosecutor Kenneth Oon prosecuted.
Prosecution called a total of six witnesses while the defence called three witnesses including the accused.- Malay Mail Online, 9/2/2018

2 friends to hang for trafficking drugs

2 friends to hang for trafficking drugs
THE Kuala Lumpur High Court here sentenced two friends to death by hanging after finding them guilty of trafficking 123.052kg of drugs three years ago.
Judge Azman Abdullah handed down the sentence on Ong Cheng Yaw, 33, and San Kim Huat, 38, after finding that they had failed to raise reasonable doubts against the prosecution’s case.
The prosecution succeeded in establishing its case beyond reasonable doubts on the four charges made against the two men, he said.
Ong, a sales promoter, and San, a nightclub DJ, were jointly charged with trafficking various types of drugs, comprising 95.016kg of methamphetamine, 26.791kg of methylenedioxymethamphetamine (MDMA-ecstasy) and ketamine in 1.245kg.
The offence was committed at a house in Jalan Denai Selatan, Desa Park City, Kepong, at  6.25pm on May 12, 2015.
Ong and San, represented by lawyer Hariharan Tara Singh, were charged under Section 39B(1) of the Dangerous Drugs Act 1952, which provides the mandatory death sentence upon conviction.
Deputy public prosecutor Zalina Awang@Mamat prosecuted in the case. – Bernama, February 8, 2018. - The Malaysian Insight, 8/2/2018