THOSE on death row for various drug offences may escape the noose if the government abolishes the mandatory death penalty.
There are 1,022 convicts on death row for drug trafficking, treason, murder, kidnapping and certain firearms offences.
For some, the only way out is to wait for the outcome of their appeal to the Federal Court or Pardons Board.
Law expert Professor Salleh Buang says those sentenced to capital punishment could see their sentence commuted to life imprisonment or caning, provided if the new amendment includes backdating the law.
However, Salleh says, commonly, any law will only take effect on the date that the amendment is gazetted unless the law specifically states otherwise.
“This means that convicts who have been convicted prior to the un-amended laws would still be sentenced according to law (Dangerous Drugs Act 1952) at the time of their sentencing.”
Salleh says it is a good move to abolish the mandatory death penalty for drug trafficking as every case depends on the amount of drugs possessed and degree of offence.
“By abolishing the mandatory death penalty, judges would be able to decide between sentencing a person to jail or the gallows.”
Salleh says it may be difficult to deter executions for those on death row until after the mandatory death sentence has been abolished as the date of execution has already been fixed by the court.
“If the date has not been fixed, perhaps the prison authorities may seek the execution to be deferred until the details of the new law are known and gazetted.”
Lawyer Fredric Kong Yat Sen says the death penalty should be reserved for hardcore cases, where the drugs in question are in large quantities or where the accused is a mastermind or a dealer.
“At present, convicted drug mules are subject to the mandatory death penalty upon conviction. The amendment would allow these drug mules to receive a sentence other than death at the discretion of the courts.”
Kong says the move to remove the word “mandatory” will be in line with international norms, while still preserving it as an option.
“The trend internationally is to remove mandatory death penalties or to abolish them in total from the statute books.
“It seems that the government is taking the middle line in the argument between those who wish to see the death penalty remain as ‘hard’ deterrence and those who wish to abolish it totally.”
Lawyer Nizam Bashir Abdul Kariem Bashir, meanwhile, says if the amendment to the Dangerous Drugs Act takes place, the death sentence of the convicts will most likely be commuted to a life sentence.
He describes it as a positive move since pro-human rights advocates have been pushing for an abolishment of the death penalty for a long time for a number of reasons.
“The reasons include the notion that we are all human and are consequently subject to the frailties and fallibility of every human being, and, by extension, we may be wrongfully executing an innocent person.
“No doubt, for the moment, the amendments are confined to drug penalty offences but it is a start.
“That aside, we would be acting in conformity with prevailing international mores on the matter as only 31 or 32 countries still statutorily provide the death penalty for drug offences.”
The possession of drugs is seen as a serious offence in Malaysia. It is governed by the Dangerous Drugs Act 1952, which regulates the import, export, manufacture, sale and use of opium, dangerous drugs and related materials.
Under Section 39B of the act, those (regardless of his or her nationality) in possession of 15g or more of heroin and morphine; 1,000g or more of opium (raw or prepared); 200g or more of cannabis; and 40g or more of cocaine will receive the mandatory sentence of death by hanging.
Punishment for lighter offences (those that are not considered drug trafficking) can range from imprisonment, rehabilitation to fines depending on the amount of drugs possessed and degree of offence.
On Nov 17, Minister in the Prime Minister’s Department Nancy Shukri had said the government plans to introduce a bill to abolish the mandatory death sentence for several heavy crimes, especially related to drug trafficking.
Nancy says the bill, which is expected to be tabled in Dewan Rakyat in March next year, will return the punishments of offenders to the discretion of the judge.
“What we are looking at is abolishing the mandatory death sentence. It is not easy to amend. We are working on it,” she says, adding that Malaysia could get rid of the word “mandatory” to allow judges to use their discretion in drug-related offences.
She says Attorney-General Tan Sri Mohamed Apandi Ali has supported the abolishment of the death penalty and will propose to the cabinet that the mandatory death penalty be scrapped.
Apandi says mandatory death sentences are a “paradox” as they rob judges of their discretion to impose sentences on criminals.
A mandatory death sentence is imposed in Malaysia in cases involving murder, certain firearm offences, drug trafficking and treason.
Nancy says at present, there are a total of 1,022 convicts on death row.
On whether she finds death sentences effective to curb crime, Nancy says: “It doesn’t help. We need to find other ways like education or motivation.”
She adds that the removal of the mandatory death sentence does not mean that drug offenders will be free.
“They will face other sentences such as life imprisonment.”
She says from 1998 to Oct 6 this year, 33 prisoners have been executed for their involvement in crimes.
During the same period, 127 inmates on death row received lighter sentences or clemency after the Pardons Board considered their pleas and petitions under Order 114 of the Prison Regulations 2000.