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Drug trafficking: Unjust conditions for alternative to death penalty violate right to fair trial

Graphic: amnestyusa.org

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Malaysians Against Death Penalty and Torture (Madpet) is appalled that yet another person has been sentenced to death for drug trafficking despite the perception that Malaysia has amended the law on drug trafficking, abolishing death penalty especially for minor offenders or drug mules other than the kingpins of drug trafficking.

In April 2021, Shahfary Sabri, a widower, was sentenced to death by the High Court after he was found guilty of trafficking 149.5g of methamphetamine three years ago (Malay Mail, 22 April, also Utusan Malaysia).

Does mere possession of more than 50g of methamphetamine justify death?

In Malaysia, if one is found in possession of 50g or more of methamphetamine, he or she will be presumed under Section 37 of the Dangerous Drugs Act to be a drug trafficker, until the contrary is proved. If less, he would not be presumed to be a drug trafficker.

The Dangerous Drugs (Amendment) Act 2017, which provided the new possibility of a sentence other than death for drug trafficking, was gazetted in December 2017 and came into force on 15 March 2018. There is no justification for the three months delay in coming into force, as all those who committed the offence before that date would still be subject to the mandatory death penalty.

In this case, Shafary was charged with trafficking the drugs in a hotel room on 19 October 2018, which means that now, there was the possibility of him not being sentenced to death. Sadly, media reports did not mention whether the alternative sentence to death was even considered by the courts.

To satisfy conditions for alternative sentence means abandonment of right to fair trial

Section 39B(2A) of the amended Dangerous Drugs Act, now states that “the Court in imposing the sentence of imprisonment for life and whipping of not less than fifteen strokes, may have regard only to the following circumstances:

(a) there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested;

(b) there was no involvement of agent provocateur; or

(c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and

(d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.

The amended law is unjust as it undermines the right to a fair trial, as one of the rights of any accused person is the right to remain silent – the right not to take the stand and deliver evidence themselves, which, if he or she does so, that accused shall be subject to cross-examination by the prosecution.

In most criminal trials, the best advice is for the accused not to personally take the stand as a witness and to call other defence witnesses. Remember that even in the infamous Anwar Ibrahim trial, he elected not to take the stand as a witness but elected to just make a statement, whereby in such a situation, there would be no cross-examination by the prosecution. However, in this case, Shahfary Sabri took the stand as the only defence witness.

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It also undermines the right to a fair trial, because after conviction and sentencing at the court of first instance, one has the right to appeal – two rights of appeal. If the court of first instance is the High Court, which is the case when one is charged with a capital offence (death penalty), the right to appeal lies at the Court of Appeal, and thereafter to the Federal Court. It would be unjust for the convicted to prejudice these rights of appeal by admitting and assisting enforcement agencies simply to save himself or herself from the death penalty and hope that he or she will be sentenced to imprisonment.

At the end of the day, the amendments may have brought about the possibility of an alternative to death sentence, being imprisonment for life with whipping of not less than 15 strokes. Madpet advocates different sentences depending on the amount of drugs involved, or even what exactly was done. Possession only may attract a lighter sentence, compared to selling or distributing or smuggling into Malaysia the drugs.

Given the conditions imposed, the mandatory death sentence may be abolished, but practically it can be said that we still have the mandatory death penalty for drug trafficking.

Judges sentencing powers must not be inhibited by Parliament

Section 39B(2A) is also wrong because it prevents judges from considering any or all mitigation and aggravation factors before deciding on a just sentence for each case.

Worse is the apparently mandatory requirement that “the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia”. Note, an actually innocent person certainly cannot satisfy this condition.

Abolish presumptions, restore onus on prosecution to prove all elements of crime

The Section 37 presumptions remain an affront to justice and a fair trial, especially for death penalty offences.

In normal criminal cases, it is the duty of the prosecution to prove every element of the crime.

With the Dangerous Drugs Act, if an accused is found to have drugs in his or her possession, he or she is presumed to be a drug trafficker or offender. The accused person then has the duty to prove that the drugs were not his or hers, and he or she did not commit the offence. This is a very onerous duty, for which the layperson, especially the poor, does not have the needed skills, capacity or resources.

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For death penalty cases especially, the burden of proof of all elements of the crime must always rest with the prosecution.

Note that besides the presumptions regarding weight, there are many other presumptions like “if any dangerous drug is found to be concealed in any premises, it shall be presumed, until the contrary is proved, that the said drug is so concealed with the knowledge of the occupier of the premises” [Section 37(g)]. How exactly can you prove that someone else may have hidden the drugs, possibly without your knowledge, in your room, house or car?

Lawyers generally may also lack the skills and capacity of conducting investigations needed to secure needed evidence and additional witnesses to rebut presumptions. Many criminal practitioners also do not even visit the site where the alleged offence is said to have been committed. The requirement for pre-trial disclosure by the prosecution is also much lacking, in terms of the needed material that needs to be provided to the accused, and the time that it has to be provided.

Hundreds in death row despite changed position for minor drug traffickers

Sadly, the Dangerous Drugs Act 1952, as amended today, still does not deal with the hundreds still languishing on death row. There must be an act of Parliament that will commute the death sentences to imprisonment or even provide for a re-sentencing of those on death row.

The amended law will also not apply to those who allegedly committed the offence before 15 March 2018, as all of them will still be subject to the mandatory death penalty.

In August 2020, the de facto law minister, Takiyuddin Hassan, said that, as of 11 August, 918 prisoners had been sentenced to death under Section 39B. of which 472 were Malaysians and 446 were non-citizens (Malaysian Reserve, 14 August 2020).

Report of the special committee to review alternative sentences to the mandatory death penalty

The special committee to review alternative sentences to the mandatory death penalty, made up of former Federal Court judges, former Attorney General’s Chambers officers, former Prisons Department senior officers, the Bar Council, Human Rights Commission of Malaysia, academics, criminologists and civil society organisations submitted their report to the government on 17 July 2020, but sadly to date the report has not yet been made available to the public.

Failure in amending law to abolish death penalty

The previous Barisan Nasional government and the Pakatan Harapan-plus government were already on the way towards the abolition of the death penalty, starting with the mandatory death penalty. The Perikatan Nasional-BN-plus government is also of like mind.

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With reference to the report of the special committee on alternative sentences, the de facto law minister also said, “The findings are expected to answer the debate on whether the government will propose amending the punishment for drug trafficking to a minimum jail sentence so that punishments will be given based on the facts of each case.”

Madpet hopes that the government will not confine itself to drug trafficking, but will do what is needed for all death penalty offences.

Despite Malaysia’s representation for the abolition of the death penalty, especially the mandatory death penalty, little has been done to amend necessary laws. The death penalty still even exists for offences where there are no victims who suffered bodily harm or death during the commission of the offence.

The possibility of a miscarriage of justice, where an innocent person may be wrongly sentenced to death or even hanged is very real – noting that human beings are not infallible. Mistakes can happen on the part of the police, enforcement officers, prosecutors, lawyers and even judges. Once dead, nothing can be done to correct such mistakes.

Madpet calls:

  • for the removal of the current restriction in the Dangerous Drugs Act 1952 of the factors that can be considered by judges before the imposition of a just sentence
  • for the abolition of legal presumption in the Dangerous Drugs Act 1952
  • for the placing of the burden of proving all elements of the crime on prosecutors, as is the norm in most criminal cases
  • for the enactment of a law that will enable the commutation of the death sentence or the provision of the ability for courts to review the death sentences of drug traffickers – as even the amended law, does not address offences committed before 15 March 2018 – or the many hundreds who are still languishing on death row
  • on the government to immediately disclose the findings and report of the special committee to review alternative sentences to the mandatory death penalty for we also ought to be given the right to know or even make further input
  • for a review of the offence of drug trafficking and the introduction of different alternative, more just sentences depending on the facts of each case, emphasising also the principle of rehabilitation and a second chance
  • for the abolition of the death penalty and the imposition of a moratorium on executions pending abolitions
  • on Malaysia to respect the right to a fair trial and to remove provisions in law that unjustly compel one to abandon one’s right to fair trial simply to avoid the death penalty

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