Section 39(B) of the Dangerous Drugs Act 1952 will be amended to provide discretionary powers to the courts

PUTRAJAYA: Lawyer and Bukit Gelugor MP Ramkarpal Singh today filed an application to the Federal Court seeking a stay against the execution of the mandatory death penalty imposed on his client.

The client, Iranian national Hamidreza Farahmand Hassan, was convicted under Section 39B of the Dangerous Drugs Act, 1952, which provides for the mandatory death sentence.

“My client Hamidreza was convicted on May 15, 2014 at the high court. The Court of Appeal dismissed the case on Feb 25, 2015 and the Federal Court dismissed his appeal on Aug 8, 2016,” said Ramkarpal after filing the application at the Palace of Justice.

“He has exhausted his judicial avenues and appealed to Prison Appeals Board on Oct 10 this year but that is an administrative matter. This is a test case,” he added.

The application is meant to obtain a stay or a suspension of the death penalty until Section 39B of the Dangerous Drugs Act is amended to include additional provisions that would give discretionary powers to the judges to impose penalty aside from the death penalty.

Four reasons were stated in the application, which included the government’s intention to amend the Act. Second, there is ambiguity on whether the amendment would be effective retrospectively.

The third is that Hamidreza would be seriously prejudiced if he is executed before the amendment is passed because death penalty is an irreversible sentence.

Fourth, Hamidreza would lose a vital opportunity to relook his sentence if he is penalised prior to the amendment being passed.

Two months ago Minister in the Prime Minister’s Department Azalina Othman Said said judges would be allowed to use their discretionary powers instead of meting out the mandatory death sentence once an amendment is done to section 39B of the Dangerous Drugs Act 1952.

The cabinet came to that conclusion based on a study conducted by the International Centre for Law and Legal Studies (I-CeLLS) after it was presented to the cabinet on March 1.

“The cabinet unanimously decided that the amendment to Section 39B of the Dangerous Drugs Act was necessary,” Azalina said in response to a parliamentary question from Ramkarpal on Aug 7.

Ramkarpal is hopeful that the prosecution would not object to this application since the death penalty is not reversible.

He also told the press that if the application for Hamidreza is successful, he would be making similar applications for five to six death row clients of his.

Impose moratorium

Fellow lawyer Sangeer Kaur Deo, who was also present, meanwhile urged the government to consider implementing a moratorium against the death penalty.

“There were executions this year. We don’t know the numbers. There should be a moratorium,” said Sangeet, who is also Ramkarpal’s sister.

“The government must display its good faith to the society if it is serious about doing away with the mandatory death penalty.”

In welcoming Azalina’s commitment on the amendment, Ramkarpal urged the government to take a step further by removing the mandatory death penalty across the board.

“The government should go further across the board for all death penalty cases. The mandatory death penalty only came into practice in 1983.”

He also confirmed that he would be raising questions regarding this issue during parliament session that begins on Oct 23 until 30 Nov.

Of the 10 questions he submitted to parliament, two questions were regarding the proposed amendment to the Dangerous Drugs Act.

The first question is when would the amendments be tabled and the second is whether the amendment would be effective retrospectively.