By Gwen Lee, Acting Executive Director, Amnesty International Malaysia.
Last year, Malaysia was one of only seven countries on the planet known to have carried out the death penalty for drug-related offences.
Two weeks ago, the Malaysian Parliament had the opportunity to end the practice but fell well short of bringing Malaysia in line with the rest of the world.
In the words of Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said, the changes end the mandatory death penalty for drug trafficking by giving judges an alternative to hanging.
While this might seem like a positive move, it is unclear what impact, these changes will have on reducing the number of people executed, as the alternative punishment still amounts to torture.
It creates an impossible choice for people who have been wrongly accused of crimes – admit to a crime they did not commit or maintain their innocence at the risk of death.
Furthermore, the amendments to the Bill only applies for offences sentenced after it comes into force, This means that death row inmates who were sentenced prior to the amendments will not have their cases reviewed or have the possibility of having their death sentence commuted with the proposed alternatives.
Amnesty International Malaysia believes the death penalty for drug crimes is a fundamental breach of human rights. The responsible thing to do would be to end the death penalty for all drug offences.
This view is in line with the Federal Constitution of Malaysia, which states that “no person shall be deprived of his life or personal liberty save in accordance with law”.
President of the Malaysia Bar, George Varughese said last week, “The right to life is a fundamental right that must be absolute, inalienable and universal, irrespective of the crime committed by the accused person.”
The death penalty for drug crimes is also illegal under international law, and in countries where the death penalty has not yet been abolished, its imposition must be restricted to the most serious crimes.
The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has stated that the term “most serious crimes” is restricted to cases of intentional killing, specifically underlining that “the death penalty may not be imposed for drug-related offences unless they meet this requirement.”
Even the conservative International Narcotics Control Board (INCB), has spoken out against capital drug laws, encouraging member states ‘to consider abolishing the death penalty for drug-related offences.’There is also a major question around the wisdom of imposing the death penalty to reduce the availability of drugs.
Since the death penalty was first introduced for drug crimes in Malaysia in 1975, hundreds have been executed. Despite this, a 2004 report by the INCB showed that the availability of heroin had actually increased in Malaysia since the punishment was introduced.
Why the lack of impact?
Through our work against the death penalty globally, Amnesty International has observed that it is often people from less advantaged backgrounds and with low-level involvement in the drug trafficking chain that end up paying the price with the death penalty.
They have less money for proper legal representation, lower literacy rates to assist in understanding the legal system and less knowledge of how to engage with the state institutions set up to assist them in achieving a just outcome. Importantly, they do not control the market for illegal drugs that would see any meaningful improvement in disrupting a drug ring or syndicate.
What the death penalty does accomplish is to encourage high-risk drug use and contribute to the marginalisation of people who use drugs.
Despite this, some will argue that we should implement the views of the majority of Malaysians who support the death penalty. But when you drill down into the assertion that most Malaysians support the death penalty in any situation, it is simply false.
In 2013, a report from the Death Penalty Project and the Malaysian Bar Council showed that a large majority of the Malaysian citizens polled had changed their support for the mandatory death penalty when they knew the full circumstances. While 74-80% of respondents agreed with the death penalty for drug trafficking crimes at the start, only 25-44% supported the mandatory death penalty for drug trafficking when mitigating circumstances were introduced. So when you put all the facts on the table, you get a better reflection on what Malaysians think about drug offences and the death penalty.
For these reasons and more, Amnesty International opposes the death penalty unconditionally, in any case and under any circumstances. So you might ask why is we are so reluctant to celebrate last week’s changes?
Firstly, people facing the death penalty for drug trafficking will be made to cooperate with the authorities to be spared the noose, while at the same time defending themselves against a possible conviction.
While last minute amendments to the Bill removed a troubling proposition that would have allowed the Public Prosecutor to determine whether a person cooperated, the current changes passed in parliament does little to provide a fair opportunity for those convicted of drug offences. This is particularly the case because Malaysian judges are able to rely on presumptions of drug possession and trafficking which, when invoked, shift the burden of proof from the prosecution to the defendant.
Secondly, the law is poorly drafted, open to wide interpretation and stifles judicial independence.
Contrary to what we have hoped for, the Bill does not give the judiciary full discretion to impose sentences and requires judges to make life or death decisions based on limited sets of circumstances but, if similar changes to Singaporean law in 2013 are anything to go by, the executions are likely to continue.
Thirdly, drug offenders who have been sentenced before the implementation of the bill, and are still in death row, will not be considered or reviewed under the new Bill. These individuals can only rely on the Pardons Board as their last hope to commute their sentences even though, they could provide corroborative evidence that could disrupt a drug activity and spare their lives.
This is of particular interest to Amnesty International especially after the movement adopted the case of Hoo Yew Wah – a death row inmate who was arrested at the age of 20 in 2005 and sentenced to death in 2011 for drug offences. Hoo Yew Wah got involved in drug offences due to his poor social-economic status and has since repented for his wrong doings while in prison. He lost his appeal in the Court of Appeal and the Federal Court in 2012 and 2013 respectively. He has applied for clemency in hopes to have his sentence commuted but he will not have the opportunity to have his case reviewed in court with the new amendments.
Finally, the alternative punishment is still illegal. When discretion is available, the only alternative is life imprisonment and not less than 15 strokes of the whip – a cruel punishment prohibited under international law.
We have waited for years for the end of the mandatory death penalty for drug crimes, only to see little change to laws and more uncertainty for people facing the death penalty. However, Amnesty International looks forward in working with various stake holders, including the government of Malaysia, in paving the way for total abolition of the death penalty.
Malaysia is among a minority of countries that still executes people and a smaller minority still where executions are carried out for drug-related offences. As of today, 142 countries have abolished the death penalty in law or practice. Malaysia must stop tinkering with the ultimate cruel, inhumane and degrading punishment and join the global trend towards its abolition.