Proposed amendments of the Dangerous Drugs Act 1952 interfere with judicial functions
24 November 2017
Lawyers for Liberty view with grave concern the proposed bill to amend the Dangerous Drugs Act 1952 that was tabled in Parliament yesterday that essentially allows the Public Prosecutor to determine whether or not to impose the death sentence for convicted drug offenders.
Whilst we welcome in principle any reform to laws that impose the death penalty, we are however extremely concerned that such provisions would offend the fundamental foundation of fair trial in the criminal justice system, i.e. it is for the judiciary to determine the sentence, and not the prosecutor.
Under the proposed amendments and as explained in the bill’s explanatory statement, the trial judge can sentence the drug offender to life imprisonment and whipping instead of the death sentence only if the Public Prosecutor certifies in writing that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.
Although the judge pronounces the sentence at the end of the trial, it is the Public Prosecutor who ultimately decides whether or not, the judge can exercise that discretion by his decision on the issuance of the certificate of assistance.
Further, what guarantees can the authorities provide that such unfettered and arbitrary power would not be abused by the law enforcement agencies and the prosecutors?
It is basic that the act of prosecution is an executive function of the state and the office of the Public Prosecutor shall be strictly separated from judicial functions. Therefore it would be a serious miscarriage of justice if the prosecutor could also decide the mode of punishment, and all the so, the punishment of death.
Judicial discretion in sentencing is an essential aspect of judicial power under our legal system. Judges must be allowed to decide on the appropriate sentence for each individual case, depending on the peculiar facts and circumstances.
By compelling judges to impose a life or death sentence based on the Public Prosecutor’s certification is an unnecessary fetter on their discretion and interferes with judicial independence and justice.
We therefore call for the Bill to be amended so that sentencing remains the prerogative of the presiding judge, and the issuance of the certificate or otherwise by the prosecutor should not be made binding on the judges.
Lawyers for Liberty