Mandatory death penalty provisions in law should be repealed

MADPET (Malaysians Against Death Penalty and Torture) is pleased that there is some realization from the government, in particular the Deputy Foreign Minister A. Kohilan Pillay, about the fact that ‘…young Malaysian girls, some fresh graduates, were easily conned by men from the syndicates to travel abroad with a package…’ The report also stated that ‘…Malaysian lasses are an easy lot to charm. They are easily smitten by sweet words and gifts, making them an easy target for drug-trafficking syndicates looking for mules…’ (Star, 1/11/2009, Malaysian girls easily duped)

The report also stated that ‘there were currently 1,565 Malaysians jailed abroad and 60% of the cases were drug mules… “Six in China have been sentenced to death. Since 2007, about 30 Malaysians are in death row,”…’

Similarly, in Malaysia too, many in death row have been similarly conned to be drug mules, whereby many were not even aware that they were in possession drugs.

The Malaysian Dangerous Drugs Act 1952, in particular section 39B provides that any person involved in trafficking of drugs shall be guilty of an offence against this Act and shall be punished on conviction with death. The judges and courts, by reason of the mandatory sentence, are deprived of the option of imposing a lesser sentence, and MADPET believes that this is very wrong.

What makes it worse, is that there are presumptions in the Act, amongst others, that one ‘…shall be presumed, until the contrary is proved, to be trafficking in the said drug...’ if one is found in the possession of certain amounts of certain drugs. The onus of proving one’s innocence then shifts to the accused. This is contrary to the normal rule where the onus of proving one guilty beyond reasonable doubt is with the prosecution.

The reality is that those really involved in business of trafficking of drugs are seldom caught and prosecuted, and it is usually the mules, who many a time are not even aware that they are transporting or keeping drugs, who end up being arrested, charged, tried, convicted and sentenced to death. This is very wrong and unjust.

The official report to the United Nations on the death penalty states also states as follows, “…the low rates of effectiveness of law enforcement, the relative immunity from the law of those who profit most from the trade in drugs and the higher risk of violence and death they most probably run from others engaged in the drug racket, all make it seem implausible that the death penalty in itself will have a marginally stronger deterrent effect than long terms of imprisonment...”

The imposition of mandatory sentences also is wrong as by doing so, the legislative branch of government oust powers of the Judiciary that is the power of courts and judges to impose fair and just sentences depending on the circumstances and the facts of the case. A person who has been conned into keeping and/or carrying drugs, especially those who were unaware of the fact, should never be sentenced to death. A prison term would suffice.

One of the reasons used often by governments, including the Malaysian government, to justify the mandatory death penalty is that deters serious crimes. This was what Datuk M. Kayveas, a Deputy Minister in the Prime Minister's Department told Parliament. (Bernama, 28/6/2006)  This is baseless and cannot be justified by any facts or statistical proof. 

On the other hand, there are studies conducted throughout the world over the past seventy years using various different methodological approaches that have failed to find convincing evidence that capital punishment is a more effective deterrent of crime than long-term imprisonment. 

Studies conducted in Australia show that abolition of the death penalty had no effect on the homicide rate and in Canada there in fact was a sharp decline in the homicide rate after abolition;

In the United States over the past twenty years, states with the death penalty in general have had a higher homicide rate than states without the death penalty;

The United Nations itself noted in 1988, 1996, and 2002, "research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole gives no positive support to the deterrent hypothesis."

Noting also that on 18 December 2007, the UN General Assembly endorsed a resolution calling for a moratorium on executions with a view to abolishing the death penalty" by an overwhelming majority (Resolution 62/149), and on 18 December 2008, the United Nations General Assembly adopted with a bigger majority a second similar resolution calling for a moratorium on the use of the death penalty.

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