I read, with interest, the views of Universiti Malaya Associate Professor Azmi Sharom that the death penalty ought to be abolished, particularly in drug related offences (‘Drug mules are being sent to gallows, not kingpins’, Malaysiakini, 22.1.2019).
Azmi is right in concluding that the vast majority of convicted drug traffickers are mules and not the actual kingpins and that the death penalty has been ineffective in drug cases.
There is, to my mind, a further equally compelling reason to abolish the death sentence in drug cases, namely that of the use of presumptions in such cases.
Under the Dangerous Drugs Act, 1952, various presumptions are prescribed and are to be mandatorily applied upon proof of certain basic facts.
So for instance, if drugs are found in a person’s bag, he is presumed to have knowledge of it even though that bag may have been packed by someone else.
In such a scenario, the burden shifts to the accused who has to rebut such presumption on a higher burden of proof compared to the usual raising of a mere reasonable doubt.
The reality of it is such presumptions are easily triggered, after which, the judge has no alternative but to presume knowledge of the drug on the part of the accused which is a prerequisite of trafficking.
This basically results in a judge being forced to make certain findings which he might not necessarily believe in.
In such a situation, it can no longer be said that a judge alone decides if one is a trafficker or not as he is forced by the State to do so.
That being the case, it is arguable that the State dictates certain instances when an accused person must be presumed to be in possession of drugs, and not the judge himself.
The application of such presumptions, therefore, renders the function of a judge superficial at times as he is forced to decide according to what the State prescribes.
When the life of an accused person is at stake, the judge should be given the freedom to decide if the prosecution has proven its case beyond reasonable doubt.
Imposing such restrictions on judges by the imposition of such presumptions is dangerous as a person may be sent to the gallows for a drug related offence although the judge might not necessarily be convinced of his guilt.
It is hoped that the government considers this factor when considering the abolishment of the death penalty in drug cases.
Dated this 22nd January, 2019.
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CHAIRMAN NATIONAL LEGAL BUREAU
DEMOCRATIC ACTION PARTY