Judicial discretion will not be fully restored in the proposed amendment to Section 39B(2) of the Dangerous Drugs Act 1952 (DDA), as it subjects judges’ decisions to input from the public prosecutor, said the Bar Council today.

Thus, the council called upon the government to withhold passing the amendment, which was tabled for first reading in the Dewan Rakyat on Thursday, until it is re-amended to “genuinely” restore judicial discretion in sentencing.

The amendment seeks to give courts the power to sentence drug traffickers to life in prison, instead of the mandatory death penalty, but with caveats.

The Bar expressed concern over the proposed role of the public prosecutor in providing written certification that a convicted person had assisted an enforcement agency in disrupting drug trafficking activities.

“If such certification is not forthcoming, it would mean that the judge would still have no discretion in 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,” said its president George Varughese in a statement.

He also highlighted how section (2B) of the bill to amend the DDA could render the decision-making process open to abuse, due to a lack of scrutiny.  

Section (2B) of the bill states that the public prosecutor can determine whether a convicted person has assisted enforcement agencies based on his or her “sole discretion”.

A public prosecutor had no power to decide on sentencing, only the power to institute or discontinue criminal proceedings, explained Varughese.

“The sentencing process is, and should always remain, within the sole realm of the judiciary,” he said.

Therefore, the council urged that the bill be re-drafted and re-tabled with amendments that “genuinely” restored judicial discretion in sentencing.

This is in order to pave the way for the “complete abolishment of the death penalty”, which the Bar advocates.