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Judge's discretion in death penalty

  • The judge should be given a true discretion, taking into account a variety of factors before deciding what punishment should be imposed.

By Azmi Sharom

For many years now Malaysia has had the mandatory death penalty for drug trafficking. This means that if a person is found guilty of trafficking then the judge has no choice but to impose the death penalty.

Now the government is making efforts to amend the Dangerous Drugs Act so that the death penalty for this offence is no longer mandatory.

In other words, the judge has a discretion and could, for example, imprison the offender instead.

This is in my opinion a good development. According to international laws and standards, the death penalty can be imposed. However, it is limited only to the most serious offences, and if we look at the decisions of international law bodies, this means crimes that actually cause death.

For example, armed robbery and kidnapping by itself does not warrant the death penalty if a human life is not lost in the process.

Furthermore, a mandatory death penalty is definitely against international standards as it means that the court has no choice in the matter and the accused has limited or no recourse to appeal the sentence.

However, we do not yet know what these amendments look like, so we can't judge just how far the changes in the law will be.

What I am hoping is that the judge will be given a true discretion. This means that he or she can take into account a variety of factors before deciding what punishment should be imposed.

Singapore has removed the mandatory death penalty from their drug offences too. But according to an Amnesty International report, this actually means very little. Before a lesser sentence can be imposed, the judge must be convinced that the accused is merely a "courier". Furthermore, the prosecutor must be satisfied that the accused has helped substantively affect drug trafficking. This means that the judge really has a very limited scope of discretion.

If Malaysia takes this same approach, then I would argue that we will not be following international human rights standards at all and the change in the law will be merely cosmetic.

(Azmi Sharom is a law lecturer at Universiti Malaya.)



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