ADPAN executive coordinator Dobby Chew told FMT the discretionary powers granted to judges had been largely ineffective because of the manner in which the law was framed and interpreted.
Previously, death was mandatory for such offences.
He said the amendments were supposed to be game changers, but according to a written reply in Parliament in December 2021, only two out of 71 individuals sentenced to death since the amendments had had their sentences commuted to life imprisonment.
He called for changes in procedures and for the death penalty to be applied only in the most serious cases.
Under the Act, the courts can only exercise their discretionary powers if at least two conditions are met.
The first condition is that the convicted person must have provided assistance to the authorities.
The second condition can either be a lack of evidence of drug dealing at the time of arrest, the involvement of an agent provocateur, or if the person convicted was only involved in transporting the drugs.
“In some cases, it (the first condition) has been interpreted to require a certificate or letter recognising assistance by the court, a condition that was explicitly removed from the draft amendments by Parliament,” Chew said.
“There are cases where the accused gave information which led to the arrest of drug traffickers abroad and scenarios where the accused provided information on where drugs were stored after their arrest but these did not amount to assistance.”
He said what amounted to assistance had not been properly defined and was still being dealt with by the courts on a case-by-case basis.
Chew said mitigating factors should be taken into account when sentencing drug traffickers as each case had its own set of complex dynamics.
He said if Putrajaya was against abolishing capital punishment, then it should at least reform the laws to be in line with international norms where the death penalty was only applicable for the most serious crimes.
“Beyond law reform, the government needs to look at revamping and reorienting Malaysia’s strategy in combating trafficking and drug use,” he said.