PETALING JAYA: The proposed amendments to review the mandatory death sentence for drug trafficking will give judges wider discretion when deciding if a person is to hang, says former chief justice Tun Ahmad Fairuz Sheikh Abdul Halim.
He said giving judges leeway for discretion would be a positive move in some circumstances.
“There are some situations where a crime might not warrant the death penalty. If this amendment is allowed, judges would be able to use their own discretion,” he said when met after a legal lecture he delivered yesterday.
He was responding to the Cabinet’s agreement to review the Dangerous Drugs Act 1952 to allow judges to use their discretion in sentencing offenders instead of imposing the mandatory death sentence.
Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said, who made the announcement last week, said the review would enable judges to mete out suitable sentences in marginal cases where offenders could be jailed instead.
She said the review was presented to the Cabinet on March 1 by Attorney-General Tan Sri Mohamed Apandi Ali.
Ahmad Fairuz said during his time on the Federal Court bench, the duty of having to sentence a man to death weighed on the conscience.
Datuk Seri Nazri Aziz, who was a former minister in charge of law, said judges would have the option to mete out suitable sentences on a case-by-case basis.
“We always worry that judges do not have other options than the mandatory death sentence. In some cases, there is not much evidence, but the judges have no other options but to give the death penalty,” he said.
Nazri said the move to give judges more discretion over the death penalty in drug trafficking cases was long overdue.
He said the proposed amendments to provide such discretionary powers to judges had come during his tenure when he was in charge of the law portfolio.
“When I was the minister, there were about 240 Malaysians who are suspected to be drug mules all over the world. Some of their family members came to see me personally and pleaded for leniency.
“We also can use this to negotiate with other governments who have arrested Malaysians suspected to be drug mules,” he added.
Nazri said another factor that was considered was that there were cases that judges who do not wish to mete out death sentences in drug trafficking cases.
“Some judges do not believe in the death penalty. So when the case comes before them, although there was enough evidence to impose a conviction, they will find some technicality to acquit the person,” he said.
Former court of appeal judge Datuk Mah Weng Kwai, who is also Suhakam commissioner, is in favour of abolishing the death penalty.
“As for sentencing in cases of Section 39(B) of the Dangerous Drugs Act 1952, I believe that the grant of judicial discretion to judges is a step forward,” he said.
Senior criminal law practitioner Kitson Foong said the move would address cases of drug mules where the offender might be an innocent carrier.
“This will be a good opportunity for the court to spare the life of an individual who has been used by drug cartels,” he said.