MELBOURNE, April 18 – Impoverished drug mules on death row in Malaysian prisons were among the main reasons for the abolition of the mandatory death penalty for drug trafficking, among 11 serious crimes, said Ramkarpal Singh.
The deputy minister in the Prime Minister’s Department (law and institutional reform) told the 27th Harm Reduction International Conference (HR23) at Melbourne, Australia, that the majority of 1,318 prisoners on death row in Malaysia as at the end of March 2018 had been convicted of drug-related offences, most of whom were drug mules.
“It’s very hard to justify the execution of drug mules, even if the aim of doing so is to combat or eradicate the menace of drug trafficking,” Ramkarpal told a session on the death penalty for drug offences at the HR23 conference here yesterday.
“No one is suggesting that drug trafficking is not a serious offence; it’s a very serious offence, but whether or not executing drug mules is going to overcome the problem is very much in doubt, particularly when drug lords are still very much out there. They’re not going to come to the streets and sell you drugs.
“Just by executing a drug mule – a desperate mother of four who needs cash desperately to feed her children because she’s unable to gain employment for that reason – just by executing her certainly doesn’t mean that another desperate person is going to not take up the job.
“So that was one of the biggest motivations behind our policy to remove the mandatory death penalty, especially in drug trafficking cases. It’s still there in the books, but whether or not it’ll be carried out remains to be seen.”
Ramkarpal – previously a practising criminal lawyer who defended cases involving the death penalty like murder and drug trafficking – told the HR23 conference that Malaysia has imposed a moratorium on executions since 2018.
Besides a bill that abolished that reformed death penalty sentencing, the Dewan Negara also passed another bill to empower the Federal Court to review the death sentences of prisoners on death row.
If the apex court allows these prisoners’ applications, their death sentence can be commuted to a term of imprisonment, as Parliament has also approved the abolition of the sentence of natural life imprisonment, in which prisoners are kept incarcerated till death.
Besides repealing the mandatory death penalty for 11 offences – including murder, drug trafficking, and acts of terrorism resulting in death, among others – Ramkarpal highlighted the abolition of the death penalty entirely for 10 other crimes, including treason, kidnapping, and firearms-related offences.
A jail term of between 30 and 40 years and caning is an alternative sentence for the former category of offences besides a death sentence. For the latter category of crimes, sentencing is commuted to between 30 and 40 years’ imprisonment, and whipping if provided for.
While the Dangerous Drugs Act 1952 was amended in 2017 to provide judges the discretion not to impose the death sentence for drug trafficking if certain conditions are met, the recent abolition of the mandatory death penalty for the offence means that courts now have full discretion on whether or not to sentence someone convicted of drug trafficking to death.
“These are the historical developments that have occurred in Malaysia over the past two or three months,” said Ramkarpal.
He told the HR23 conference that there was overwhelming support on both sides of the divide in both the Lower and Upper Houses of Parliament for the abolition of the mandatory death penalty, which he attributed to growing awareness of the ineffectiveness of capital punishment as a deterrent to crime.
“To take away somebody’s life certainly is a very serious matter,” Ramkarpal said.
“I think the most fundamental of human rights must be the right to life. Once we remove the right to life, it’s an irreversible step. Taking away a person’s life; it’s irreversible.
“I think even in the most heinous of crimes, perhaps in hindsight, if we were to apply discretion with common sense, with rationality, then maybe, we might come to different conclusions.”
Malaysia introduced the death penalty for offences like murder and drug trafficking in 1975 – discretionary at the time – before then-Prime Minister Mahathir Mohamad’s administration made it mandatory in 1983, a time when the country used to take a “very hard” stance on drug trafficking.
“At that time, there was the belief – in fact, there’s still a view that the drug menace in Malaysia, particularly in Southeast Asia, is quite worrying,” said Ramkarpal.
“It’s always been worrying – no doubt about that, especially when you’re so close to the Golden Triangle. Question has never been whether it’s worrying, but whether punishment thought to solve it is the proper punishment.”
Ramkarpal estimated that it would likely take six months to a year for the Federal Court to review applications from the 1,300 over prisoners on death row to review their sentences, after which some might still remain on death row if their applications failed.
“Whether or not the moratorium [on executions] will continue – this is something the government will have to consider in future. Whether we’ll achieve total abolition will very much depend on how the amendments take effect.
“We have to look at how these amendments apply – whether people will see it as effective, whether we see a drop in crime rates, particularly heinous crimes, then people will realise that the death penalty should never have been in the books in the first place.”
Abolishing Mandatory Death Penalty A ‘Milestone’ In Ramkarpal’s Career
In an interview with CodeBlue at the sidelines of the HR23 conference, Ramkarpal, a DAP lawmaker who is in his third term as Bukit Gelugor MP, described the abolition of the mandatory death penalty as “a bit of a milestone” in his career in politics.
The reforms to death penalty sentencing were pushed by Ramkarpal and Minister in the Prime Minister’s Department (law and institutional reform) Azalina Othman Said within the first four months of the unity government.
“This is something which, only about a decade ago, was something which people thought would never happen. It’s certainly an achievement. We hope that it will yield results, in the sense that we’ll really see a drop in crime,” he said.
“When I say a drop in crime, I hope to see other factors contribute towards that end. Enforcement is certainly something which is very important in this regard, awareness, education.
“In the long term, hopefully, if we can achieve that goal of reduction in crime, I don’t think people are going to miss the death penalty.”
When asked if he expected that judges would choose not to impose the death penalty in the majority of drug trafficking cases in future, Ramkarpal said it is in human nature not to take away someone else’s life.
“If you’re talking about drug trafficking cases, I think generally people are reluctant to impose the death sentence because there’s so many reasons — it cannot be compared to a heinous crime, let’s put it that way.
“For a heinous crime, some might argue there’s some justification, especially a seriously gruesome murder. But to compare it to a drug trafficking case, I think a lot would agree that perhaps – I’m not saying they should go unpunished; they certainly should be punished – but perhaps the death penalty is not the answer.”
Ramkarpal also said extensive research and a stakeholder engagement process were undertaken before the historic abolition of the mandatory death penalty, highlighting a special task force set up in 2019 that was chaired by then-Chief Justice Richard Malanjum under the Pakatan Harapan administration.
“They came up with a very comprehensive report on the death penalty. Even before that, in fact, there were various studies being carried out and so on, with the stakeholders. When I came in, we continued with those efforts,” he said.
“We also engaged with the special committee. We engaged with other stakeholders – obviously PDRM (Royal Malaysia Police), KDN (Home Ministry), families of the victims as well, and actual prisoners on death row. We actually visited them to see their side of the story.”
The main opposition to the repeal of the mandatory death penalty, Ramkarpal said, came from families of murder victims, not so much over drug trafficking.
“Some of them were very much opposed to the removal of the mandatory death penalty. And we sympathise with their plight, no doubt, but we’ve also heard their point of view. We hope that they can understand, in the long term, the rationale behind this – why we’re doing it.”