THE Malaysian Bar has urged the government to withhold the passing of a bill to amend the Dangerous Drugs Act 1952, saying the death sentencing process should remain “the sole realm” of the judiciary and not with public prosecutors.

Referring to the bill, which was tabled in Parliament this week, the Malaysian Bar president George Varughese praised the shift from the mandatory death penalty to judicial discretion in drug cases as “a step in the right direction”.

He, however, said sentencing should not be dependent upon the “say-so” of public prosecutors.

“Judicial discretion and independence should not fettered by the requirement of such a certificate. The sentencing process is, and should always remain, within the sole realm of the judiciary,” Varughese said in a statement today.  

The bill, which was tabled in Parliament on Thursday, called for an amendment to Section 39B of the Dangerous Drugs Act 1952, which pertains to the death penalty. 

The new law would allow the judge to exercise discretion in meting out life imprisonment instead of the death penalty, which was previously mandatory for those convicted of drug trafficking. 

“It is troubling that the judge’s discretion to not impose the death penalty is to be limited by and subject to the public prosecutor’s certification of the relevant assistance rendered by the convicted person,” he added.

Varughese said if such certification was not forthcoming, it would mean that the judge would still have no discretion in sentencing. 

“This is regardless of whether the convicted person has in fact assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia, and even if it was already established that the individual was merely a courier or a drug mule.”

Varughese said that term “assisted” is also not defined in the bill, thus is subject to interpretation and could be arbitrary.

He said that while public prosecutors have the power to institute or discontinue criminal proceedings, they have no right to decide on sentencing.

“It is also disconcerting that the determination on whether the death penalty should be imposed rests upon the public prosecutor’s assessment of the convicted person’s ‘usefulness’ or utilitarian value.  

“It suggests that a person’s right to life is not a fundamental right, but a privilege that can be revoked if the public prosecutor doesn’t issue the certificate.”

Varughese called for the government to re-draft and re-table the bill with amendments that will “genuinely” restore judicial discretion in sentencing, paving the way forward to the complete abolishment of the death penalty.

“The Malaysian Bar is steadfast in our view that life is sacred, and every person has an inherent right to life. This is vouchsafed in Article 5(1) of the Federal Constitution of Malaysia, which eschews the arbitrary deprivation of life.

“The right to life is a fundamental right that must be absolute, inalienable and universal, irrespective of the crime committed by the accused person.” – November 25, 2017.