Hairun Jalmani, 55, a single mother of nine was sentenced to death at the Tawau High Court Sabah last Friday after being found guilty of drug trafficking three years ago.
The accused, a fish seller, was charged with possessing syabu weighing 113.9g in an unnumbered house in Kampung Pangkalan Wakuba, 15th mile, Jalan Apas, Tawau, Sabah at 5.30pm, on 10 January 2018.
In Malaysia, anyone in possession of 50g or more of methamphetamine (or syabu) shall be legally presumed, until the contrary is proved, to be a drug trafficker (Section 37, Dangerous Drugs Act). This means the accused is then left with the onerous burden of proving that she was not involved in drug trafficking or even that the drugs were not hers.
Generally, in criminal cases, it is the prosecution that has to prove in court that the person is guilty, but here it is the accused that must prove that she is not a drug trafficker and even that the drugs found in her possession did not belong to her or that they were in her possession without her knowledge or consent.
Unlike murder, where someone is killed, a drug trafficking offence does not directly deprive the life of any particular person. This makes one wonder about the current sentences for these offences. Surely, offences like kleptocracy and corruption – where perpetrators inadvertently steal from the Malaysian people – ought to be more serious offences.
In this case, one wonders whether poverty and other factors may have played a part in ‘forcing’ a single mother to resort to crime, in which case the blame also falls on the government for failing to look after the welfare of its people.
Another issue that is raised is the question of the best interests of a child, when a parent, in this case the mother, is sent to death row.
Drug possession and drug trafficking are undoubtedly offences that need to be punished – but reasonably, should not Malaysia’s sentencing policy place more emphasis on rehabilitation with a view to later reintegration into society and second chances? The practice of a lighter sentence for first-time offenders and higher sentences for repeat offenders really needs to be considered.
Sadly, Hairun Jalmani case happened just days after we celebrated the World Day against the Death Penalty (10 October), whose theme this year is “Women sentenced to death: An invisible reality”.
Death penalty again proven not to be a deterrent against drug offences
On 2 October 2021, Bukit Aman Narcotics Criminal Investigation Department director Razarudin Husain said that “during the first eight months of this year, the police had seized 18 tonnes of drugs, an increase of 80 per cent compared with the corresponding period last year, which was 10.5 tonnes” (The Star, 2 October 2021). This is clear evidence that the death penalty is certainly not a deterrent against drug trafficking.
In March 2012, it was also revealed in Parliament by the then Home Minister Hishammuddin Hussein that the mandatory death penalty had been shown to have failed to act as a deterrent. Police statistics for the arrests of drug dealers under Section 39B of the Dangerous Drugs Act 1952, which carries the mandatory death penalty, for the previous three years (2009 to 2011) showed an increase. In 2009, there were 2,955 arrested under this section. In 2010, 3,700 people were arrested, while in 2011, 3,845 were arrested (Free Malaysia Today, 19 March 2012, “Death penalty not deterring drug trade”).
Drug trafficking – Post-Umi Azlim reflections demand abolition of death penalty
In 2017, Umi Azlim Mohamad Lazim, 24, a university science graduate from a poor Malay family of rice farmers, was sentenced to death for drug trafficking, for having 2.9kg of heroin in her luggage when she was arrested at Shantou airport. She was allegedly carrying the luggage for an acquaintance, not aware of the contents.
Her death sentence was later commuted to life imprisonment, which often happens in China upon review. In 2019, Umi reportedly said she may be released by 2025 for good behaviour (New Straits Times, 6 October 2019).
Umi Azlim’s case and others did cause a change of position by the Malaysian government and even political parties like Pas and Umno about the injustices of the death penalty for drug offences. Cabinet members then reportedly said that “young Malaysian girls, some fresh graduates, were easily conned by men from the syndicates to travel abroad with a package”. The report added that “Malaysian lasses are an easy lot to charm. They are easily smitten by sweet words and gifts, making them an easy target for drug-trafficking syndicates looking for mules” (The Star, 1 November 2009, “Malaysian girls easily duped”).
It not just young women, but men and women of all ages who can easily be duped or maybe even make the wrong choices due to poverty and desperation.
It is also an acknowledged fact that most arrested, convicted and on death row for drug trafficking are really ‘mules’ and small players, and not the kingpins and masterminds involved in drug trafficking. These ‘big bosses’ may then simply find drug mules from the those who are not well educated or are ignorant or those who are desperate for quick money.
Malaysia took the first step by amending the Dangerous Drugs Act, which provides a mandatory death penalty for drug trafficking, to provide an alternate sentence of life imprisonment plus at least 15 strokes of the whip. There is however much lacking in the amendment, as we still see the death sentence.
Drug trafficking offence was influenced by US’ ‘war on drugs’
In 1971, the US started its “war on drugs” and on 30 April 1975, the offence of drug trafficking came into being in Malaysia, with a death sentence or life imprisonment plus whipping.
In April 1983, the sentence was amended to a mandatory death penalty. That could be because they wanted to deter the crime, but clearly the death penalty has failed to be a deterrent, and Malaysian prisons are filling up with drug trafficking death row prisoners
On 15 March 2018, the Dangerous Drugs Act 1952 for drug trafficking now has an alternative sentence to the death sentence, ie life imprisonment (plus whipping of not less than 15 strokes).
However, to be sentenced to the alternate sentence of life imprisonment, certain conditions had to be satisfied. Among these is the unjust mandatory condition that “the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia”.
Not only is this condition most unreasonable, but it also violates the right to a fair trial. It has the tendency of forcing an innocent person to undermine his or her appeal to avoid the death sentence.
Hairun Jalmani, the single mother, who may not be really guilty of drug trafficking, certainly would not have the capacity of helping anyone disrupt drug trafficking activities. So, she will be sentenced to death.
Malaysians Against Death Penalty and Torture (Madpet) calls for the abolition of the death penalty and even life imprisonment for drug offences, including drug trafficking. Parliament should maybe provide maximum sentences and leave it to judges to determine appropriate just sentences depending on the facts and circumstances of each case.
Madpet calls for the repeal of the legal presumption of (the offence of) drug trafficking simply on the basis of what the police found in the possession of an accused. The prosecution must prove drug trafficking.
Madpet reiterates the call for a moratorium on executions pending the abolition of the death penalty in Malaysia.
Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)