BY SHAD SALEEM FARUQI
DEATH penalty for the illegal import, export, sale or possession of narcotic drugs and psychotropic substances is known to the legal systems of 33 countries. Among them are China, Iran, Saudi Arabia, Iraq, Malaysia, Singapore, Indonesia, the United States, Yemen, Pakistan, North Korea and Japan. In 13 of these countries, the death sentence is mandatory.
Since 1983, Malaysia has been within the group of 13. However, Nancy Shukri, Minister in the Prime Minister’s Department, recently announced that the Government intends to repeal the provision for mandatory death for drug offenders and give the judiciary discretion to impose imprisonment or the gallows.
This heartening proposal will neutralise many criticisms of the current Malaysian legal position.
Separation of powers: Mandatory sentences are an affront to judicial independence. A judge must have the right to tailor the penalty to suit the crime and to temper justice with mercy in extenuating circumstances.
Presumptions: Under the Dangerous Drugs Act, a number of crushing presumptions apply. A person concerned in the care or management of a premises is deemed to be the occupier of the premises. A person in possession of 15g of heroin or morphine, 200g of cannabis, 1000g of opium and specified amounts of other dangerous drugs is presumed to be a drug trafficker. The core principle of criminal justice that an accused is innocent till proven guilty is dishonoured.
Equality doctrine: Like should be treated alike. Mandatory punishments compel courts to treat all convicts as similarly situated even though there may be substantial differences in the facts of the case.
Flies and hornets: People who get caught are usually mere mules or runners and not those in the high ranks of the supply chain. The law on drug trafficking catches flies but the hornets remain free.
Diplomatic tiffs: The frequent conviction of foreigners to death for this nefarious trade often leads to diplomatic standoffs with nations where drug trafficking is dealt with differently.
New approaches: There is a drug epidemic in the world. The United Nations Office on Drugs and Crime estimates that 250 million people used illegal drugs in 2014. Some US$100mil was spent on fighting the drug war and yet we have seen no appreciable change. New thinking is, therefore, needed.
In most countries, drug offences are not regarded as sufficiently serious to warrant a death penalty. Trading in cannabis, which earns a beheading in Saudi Arabia, has been decriminalised in much of Europe and Latin America and in four states of the US. Heroin addiction is increasingly seen as an illness rather than a crime. Marijuana has been legalised in many nations. Harm-reduction measures like availability of clean needles have been adopted in some nations.
These new approaches are often condemned as pandering to evil. The sociological dilemma is: should we accept existentialist realities or try to engineer them through tough laws?
One must remember that drug usage has been known to civilisations since time immemorial. What is new is the legal prohibition, which has driven use and trade underground and generated untold profits for drug barons and terrible harm for others.
Death penalty: The removal of mandatory death for drugs is bound to turn attention towards other mandatory death sentences in our law.
Today the penalty can be imposed for waging war against the Yang di-Pertuan Agong, offences against a Ruler or Governor, abetting mutiny in the armed forces, murder, abetment of suicide, attempt by a life convict to murder if hurt is caused, kidnapping or abduction in order to murder, hostage-taking, gang robbery with murder, drug trafficking and unlawful possession of firearms.
In some respects, Malaysian law is out of sync with a growing body of international law on capital punishment. The Second Optional Protocol to the International Covenant on Civil and Political Rights, which has been ratified by 57 states, commits itself to total abolition. The UN Commission on Human Rights, by Resolution 2004/67, has called for a moratorium on executions.
According to Amnesty International, 100 countries have abolished the death penalty for all crimes. Six countries have abolished it for all but exceptional crimes such as war-time betrayals. Thirty-four retain the death penalty but have not carried out any execution for the past 10 years.
This makes a total of 140 countries out of 193 that have moved away from the death penalty in law or practice.
It is also notable that even for war crimes, crimes against humanity or genocide which are triable by the International Criminal Tribunals created by the United Nations Security Council for former Yugoslavia and Rwanda, the maximum penalty is life imprisonment.
Fallibility and finality: In the US since 1973, 123 prisoners have been released after evidence emerged of their innocence of crimes for which they were sentenced to death. Their sentences were based on prosecutorial or police misconduct, forced confessions, unreliable witnesses and inadequate defence representation.
Deterrence: The argument that the death penalty deters is not supported by sufficient scientific studies. This is specially so in relation to murder, which is often a crime in the heat of the moment. Further, UN studies indicate that abolitionist countries do not show any upsurge in crime.
Unequal administration: There is a fair amount of social data that, around the world, the death penalty tends to apply disproportionately to the poor, marginalised and the minorities. As the saying goes: “Capital punishment means those without capital get the punishment.” In the US, African Americans constitute 13% of the population but 50% of those on death row!
Sanctity of life: The death penalty is a form of legalised murder. It reflects primordial instincts of violence. It perpetuates a vicious cycle of brutality.
Conclusion: I think Malaysia should rethink its extensive provisions for death penalty. Even if total abolition is not seen as desirable because of the age of terrorism we are living in, a narrowing down of the offences for which the death penalty is imposed should be considered. The mandatory nature of the penalty should be lifted and judicial discretion restored.
Shad Faruqi is Emeritus Professor of Law at UiTM.