Analysis: Abolishment of mandatory death penalty signals nuanced take on drug problems

Malaysia announced on June 10 that it will abolish the mandatory death sentence for drug offences and murder among others, and leave the sentencing to the judge.

The response has been immediate. Although a moratorium has been in place for executions since 2018, for the most part, the news has been hailed locally and internationally as a much-needed progressive move to address the disparity in sentencing, especially for drug offences.

It also signifies a major step back from the policies brought about by the United States-inspired War on Drugs. This comes on top of months of chatter on legalising marijuana for medical purposes, another move that shows Malaysia is adopting a more nuanced take on drugs. More importantly, human rights activists hope that the abolishment of the mandatory death sentence will address some of the damage ensuing from the country's harsh zero-tolerance drug trafficking policies from the 1980s.

Samantha Chong, a lawyer who deals with drug cases, told Bernama via Zoom that the death penalty was a "band-aid" in dealing with the drug problem in the country.

"If you just have the death penalty - the punish, punish, punish (mentality) for people who use drugs - it actually doesn't solve the problem. It might look like the government has done something, but that is not (true)," she said.

Malaysia and other countries had taken up the US' clarion call to "Just Say No To Drugs", popularised during the 80s under the Reagan administration.

In 1983, Malaysia made the death sentence for drug trafficking offences mandatory, even though the crimes committed were mostly non-violent in nature. The reasoning was that drugs can cause death by overdose or other means.

The harshness of the drug laws, mandating death for anyone caught even with a minuscule amount of drugs listed under the 1957 Dangerous Drugs Act - for instance, 15 grammes in the case of heroin - have made drugs difficult to acquire. Perversely, it also made the drugs more valuable, thus tempting those desperate enough to try their luck in trafficking and selling them.

DAMAGING

Located south of the Golden Triangle, Malaysia has the dubious honour of being the ideal transit country for drugs, where heroin as well as synthetic drugs regularly flow to domestic and international markets. For example, from January to November 30 last year, police seized 27 metric tonnes of drugs worth almost RM1 billion.

Apparently, the drug trafficking business in Malaysia is going strong, despite the mandatory death penalty that was in place for drug offences for almost four decades.

"The death penalty has proven not to be an effective deterrent, not only in Malaysia but worldwide. And in so far as drug trafficking is concerned, only the poor, the vulnerable and the marginalised are being disproportionately affected by the use of the death penalty," said Abdul Rashid Ismail, a human rights lawyer.

Instead, the damage has been on poor and marginalised communities, many of whom are too poor to gain immediate access to legal assistance or gain adequate representation.

Lawyers and human rights organisations said some families go into debt and sell what little they have to gain legal assistance for their defence with little chance of success, putting them in worse straits.

Drug offences in Malaysia have a high bar for the accused to clear given that the burden of proof may shift onto the accused once certain legal requirements are fulfilled. The accused will then have to prove they had no knowledge of the drugs they had in their possession or that the drugs had been planted, for example.

"The difficulty is how do you prove the negative," said Abdul Rashid.

And if the one standing trial is the breadwinner, the damage is compounded, such as in the case of Hairun Jalmani, a fishmonger.

The 55-year-old single mother was convicted for possessing and trafficking 113.9 grammes of methamphetamine and sentenced to death last year in Tawau. She leaves behind nine children, who may now have to fend for themselves.

The government announced the planned abolishment of the mandatory death penalty following a report by the special committee headed by former Chief Justice Tun Richard Malanjum.

A member of the committee Edmund Bon told Bernama a special panel of Federal Court judges should be set up to review death penalty cases.

"There should be a special panel of judges pursuant to a new law just to review their cases. Whether the death penalty should be maintained or reduced to life imprisonment or to some other sentence," he said.

As of Oct 19, 2021, 1,366 people were on death row, with over two-thirds convicted under the Dangerous Drugs Act 1952, according to reports.

To date, Malaysia has executed 469 people since gaining independence in 1957, according to Amnesty International.

DETERRENT

The oft-quoted reason for having the death penalty, mandatory or otherwise, is that it serves as a deterrent, meaning the harsh punishment will make people think twice before committing such crimes.

When the Malaysian government and the international community appealed to Singapore to grant clemency to 44-year-old mentally disabled Malaysian Nagaenthran Dharmalingam, who was convicted of trafficking 44 grammes of heroin into Singapore, the Singaporean government responded that the death penalty was necessary to prevent others from trafficking drugs. It also said most of its people supported the death penalty.

Nagaenthran was executed on April 27.

While the abolishment of Malaysia's mandatory death penalty may be codified into law once Parliament reconvenes next month, the death penalty itself is still intact. The reason is that a majority of Malaysians support the death penalty, although more see it as a justified act of retribution rather than a deterrent.

Bon, who is also a human rights lawyer, told Bernama Malaysia may decide to abolish the death penalty in the future.

"So the mandatory death penalty is the first step. If we see there is no impact as to the crime rate, which I suppose we will see, then it justifies the argument of the abolitionists that the mandatory death penalty has not deterred crime," he said.

Human rights activists and organisations have long said that capital punishment did not work well as a deterrent. Studies of countries that have abolished or partly abolished the death penalty seem to support the claim.

For example, an analysis of the US Federal Bureau of Investigations data on murder rates in death penalty states versus non-death penalty states found that murder rates were lower in non-death penalty states from 1990 to 2019.

Abdul Rashid, who is also the former president of the National Human Rights Society of Malaysia (HAKAM) pointed to the rising number of drug offences committed while the mandatory death penalty was in effect in Malaysia as proof that capital punishment did not work to deter crimes.

"Quite frankly, when those who assert that the death sentence works, they are doing so without any empirical support ... If (the death penalty) really works (as a deterrent), shouldn't the number of traffickers be going down?" he said.

"So what is needed in our country is a different approach in terms of dealing with trafficking."

FIXING THE DAMAGE

One of the ways is decriminalising addiction and understanding the amount of drugs needed for personal use versus trafficking.

Addiction specialist Dr Mohammed Khafidz Mohd Ishak said he hoped the move meant Malaysia was adopting a more treatment-based approach towards drug use and abusers.

"We have to understand that drug addiction is a disease. It's not a criminal act. As we know (it is a) relapsing brain disease, which can be treated by doctors. So we have to give them a chance for treatment besides putting them in jail or (executing them)," he said.

He said the government should look into increasing the legal minimum quantity for drug possession and trafficking as current amounts were usually only for personal use.

Khafidz, who is the chief executive officer of Poliklinik Khafidz methadone clinic, added that almost all of his patients started abusing drugs because of friends' influence, on top of other factors such as stress and depression.

Another way is to find out the root causes of crimes and improve social welfare support and educational access for communities and people. This will in turn cut down on the likelihood of people turning to worse crimes like murder and drug trafficking.

Chong said the abolishment of the mandatory death penalty did not mean the government was becoming soft on crime. Rather, the approach should be different.

"The death penalty comes in the frame as if something has been done, but we do not go further and ask what happened to this person? Why did he commit the murder? Why did he become a drug trafficker? Nobody asks this," she said.

-- BERNAMA