MADPET (Malaysians Against Death Penalty and Torture) welcomes the Malaysian government move to abolish the mandatory death penalty for drug trafficking, and hope that this is but a start that will end with a total abolition of the death penalty in Malaysia. We also call for an immediate moratorium on all executions pending abolition especially the lives of about 640 people on death row in Malaysia currently for drug offences.
Minister in the Prime Minister's Department Datuk Seri Nazri Aziz stated that Malaysia is considering withdrawing the mandatory death sentence for drug offences and replacing it with jail terms.(Star,21/10/2012, Death penalty may be scrapped for drug offences). It is hoped that this indication becomes reality soonest, and that Malaysia would also renew its efforts to save the lives of about “… 250 Malaysians arrested as drug mules and sentenced to death abroad, including in China, Venezuela and Peru..”
The Malaysian government also did acknowledge in the past(Star, 1/11/2009, Malaysian girls easily duped), that many of those who ended up being sentenced to death for drug trafficking were generally ‘drug mules’, and not the real drug traffickers.
Malaysia’s past efforts to save lives of Malaysians sentenced to death, including that of young Sabahan, Yong Vui Kong, who was convicted by the Singaporean courts for drug trafficking and sentenced to death, is most appreciated. The removal of the mandatory death penalty for drug trafficking from the Malaysian law, would certainly add greater credibility and strength to Malaysia’s plea for clemency for its citizens on death row for drug offences in other jurisdictions.
The Malaysian Dangerous Drugs Act 1952, in particular section 39B provides that any person involved in trafficking of drugs shall be guilty of an offence against this Act and shall be punished on conviction with death. The judges and courts, by reason of the mandatory sentence, are deprived of the option of imposing a lesser sentence, and MADPET believes that this is very wrong. We agree with what the Human Rights Commission of Malaysia (SUHAKAM) stated, amongst others, that the abolition of the mandatory death sentence will also restore to the judiciary the liberty and discretion to determine punishment based on the gravity of the offence as it should always be.
There are presumptions in the Malaysian Dangerous Drugs Act 1952 Act, amongst others, that one ‘…shall be presumed, until the contrary is proved, to be trafficking in the said drug...’ if one is found in the possession of certain amounts of certain drugs. By reason of this legal presumption, the onus of proving one’s innocence then shifts to the accused, and this not only onerous but also unjust. This is also contrary to the normal rules of criminal justice whereby the onus of proving one’s guilt beyond reasonable doubt is always be with the prosecution. We urge the Malaysian government remove these unjust legal presumptions, and return the burden of proving the elements that constitute the offence to the prosecution especially for the offence of drug trafficking.
MADPET reiterates its call for the abolition of the death penalty, and for an immediate moratorium on all executions pending abolition.