Repeal unjust legal presumption provisions, especially for drug offences

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Graphic: amnestyusa.org

Malaysians Against Death Penalty and Torture (Madpet) supports the call for the abolition of the legal presumptions in the case of possession or trafficking under the Dangerous Drugs Act 1952 that shifts the burden of proof on the accused to prove their innocence, especially for a crime that carries the death penalty.

Member of Parliament Ramkarpal Singh called for “the abolishment of the death sentence in drug cases, particularly those which rely on presumptions to establish the crime….

“Imposing such restrictions on judges through 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” (Free Malaysia Today, Malaysiakini, 22 January 2019).

Section 37 of the Dangerous Drugs Act 1952 lists down several legal presumptions, which on the proving of some facts, will apply, thereby shifting the burden of proof to the accused to disprove the presumption.

Some examples of such presumptions are as follows:-

(b) a person, until the contrary is proved, shall be deemed to be the occupier of any premises, if he has, or appears to have, the care or management of such premises;…

(d) any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug;…

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(g) if any dangerous drug is found to be concealed in any premises, it shall be presumed, until the contrary is proved, that the said drug is so concealed with the knowledge of the occupier of the premises;…”

In criminal trials generally, the burden of proof rests with the prosecution, who is bound to prove each and every element of the crime beyond reasonable doubt.

The accused really do not have the resources or the capacity, unlike the state or prosecutors, to disprove such presumptions.

How do the accused prove that drugs found in their homes, cars or premises are not theirs or that they had no idea that these drugs were there? Anyone could have planted these drugs without the knowledge of the accused, and it is near impossible for the accused to be able to prove that it is not theirs.

It is different in cases of corruption, where it can be proven that individuals have received money, etc – eg maybe their accounts show large sums of money, perhaps thousands or billions of ringgit, far more than what they could have legally earned. In such cases, applying legal presumptions may be fair.

An example of such a legal presumption, is found in the Malaysian Anti-Corruption Commission Act 2009:

Section 50(1) of the Malaysian Anti-Corruption Commission Act 2009, for example for offences of corruption and bribery, provides that, if “it is proved that any gratification has been received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered, by or to the accused, the gratification shall be presumed to have been corruptly received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered as an inducement or a reward for or on account of the matters set out in the particulars of the offence, unless the contrary is proved….”

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But when it comes to drug offences, some of which carry the death penalty, it may be time to abolish these legal presumptions and to return the onus of proving all elements of the crime to the prosecutor.

One of the worst of these legal presumptions is the presumption of trafficking, which really only depends on the amount of the drugs found.

Section 37(da) of the Dangerous Drugs Act 1952 states that:

(da) any person who is found in possession of:

(i) 15 grammes or more in weight of heroin;

(ii) 15 grammes or more in weight of morphine;…

(vi) 200 grammes or more in weight of cannabis,…

(ix) 40 grammes or more in weight of cocaine;…

otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug;

As such, it is certainly more just to repeal this legal presumption. The prosecution should be burdened with the onus of proving something more than mere possession in its quest to find someone guilty of drug trafficking, which still carries the death penalty offence in Malaysia.

The Dangerous Drugs Act was amended during the tenure of the previous administration to allow for the possibility of a sentence other than the death penalty. But judges hands are still tied as they are still prevented from considering all possible mitigating or aggravating factors in sentencing.

Hopefully, this new government will correct the many flaws, which have been highlighted by many including the Malaysian Bar.

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In any event, Madept:

  • calls for the immediate repeal of legal presumptions in the Dangerous Drugs Act 1952, which shifts the burden of proof to those accused, especially in offence punishable by the death penalty
  • calls for the commuting of the death sentence for all those still facing the death penalty for drug trafficking, ie those who were convicted before the amendment to the Act that opened the possibility of a sentence other than the death penalty came into effect
  • calls also for the release of all those facing detention and/or restrictions allegedly for drug trafficking under the various laws that allow for detention with trial, including the Prevention of Crimes Act. They should be either charged and accorded a fair trial or immediately and unconditionally released.
  • reiterates the call for the imposition of a moratorium on all executions and the abolition of the death penalty.

Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).

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