THE Dangerous Drug Act 1952 has been amended twice. In 1975, Section 39B was inserted, introducing the death penalty, life imprisonment and flogging as punishments. A further amendment in 1983 made death penalty mandatory for drug trafficking.
There is, however, an ongoing global debate on whether drug-related offences should carry capital punishment. To date, the worldwide trend is towards abolishing the death penalty for such offences. The international drug control and enforcement treaties, as well as international drug control agencies have not supported capital punishment to deter drug trafficking, even in countries where drug-related crimes are rampant. It is argued that the death penalty is disproportionate to the gravity of the offences.
Malaysia has followed the global trend in doing away with the death penalty for drug-related crimes. At the end of 2015, the government announced that the mandatory death penalty for drug trafficking would be abolished by March 2016. However, this only materialised in November last year with the passing of the Dangerous Drugs (Amendment) Bill 2017 in Parliament.
It is proposed here that the principle of ta’zir (unprescribed punishment in Islamic law) may help guide judges in exercising their discretionary powers in drug-related cases, and thereby fulfil the higher objectives of the syariah in the practice of the Malaysian judiciary.
A brief account of the relevant guidelines is as follows:
FIRST, to consider the legal status of drug-related offences via the lens of ta’zir. Since the punishment for drug-related offences is not prescribed in the syariah textual sources, it is subject to the procedures of ta’zir. A number of jurists suggest that drug-related offences are analogous to intoxication. But, since drug addiction is more serious than alcohol addiction, the jurists maintain that harsher punishment is required, i.e., more than 80 lashes. Furthermore, prohibiting illicit drugs needs to be in tandem with restricting its production, trading, and trafficking. Since all these inflict damage on the nation, the death penalty may be acceptable in principle.
Drawing this analogy is, however, not without problems. This is because one of the principles of analogy is that the ta’zir ruling should be of similar or to a lesser extent than the original ruling. Hence, the punishment for drug offences should be similar or lesser than that of intoxication. To sentence drug offenders to death, is, therefore, at variance with the syariah, since the right to life can only be taken by an explicit ruling of the text;
SECOND, the need to maintain balance in punishment. The move by the government to abolish this punishment is commendable. Nonetheless, it means a new punishment is needed. The new sentence, however, should be neither too lenient that it may compromise societal well-being, nor too harsh, that it may be unjust. The need for such a balanced solution is underlined by the sharp increase in drug-trafficking offences reported under Section 39B of the Dangerous Drugs Act (DDA 1952) between 2005 and 2011;
THIRD, the decreed punishment should not inflict physical harm on the offender. By referring to the third guideline of ta’zir, it is proposed that judges circumvent any form of punishment that could result in bodily injury. Arguably, imprisonment and measures to reform the convicted offender may be the best option for judges when sentencing drug traffickers;
FOURTH, the need for proportionity in punishment. Mandatory death sentences for drug trafficking compel the courts to treat all such cases equally, even though there might be substantial variations between them. The ta’zir guidelines recommend that judges tailor punishments to suit each and every case, so as to temper justice with mercy and fairness to all sides. As such, the punishments for drug-related offences should not be automatically determined based on the quantity of illicit drug found in the possession of the offenders, but through careful observation of the case-specific circumstances;
FIFTH, the incremental approach in punishment. This should guide judges when exercising their discretionary power in sentencing. Different levels of punishment should be made available to them, from the most lenient to the most severe, in proportion to the gravity of the offence and the circumstances surrounding the crime. Lenient sentences should be given priority by the judges, before moving on to the more severe punishments;
SIXTH, to consider the future consequences of punishment. This should not be taken for granted by judges. Judges need to establish a mechanism by which the future socio-economic effects of a punishment can be effectively gauged. Moreover, judges need to be aware that any punishment meted out for drug-trafficking offences may affect both the local and global perceptions of the country’s judicial institutions. Sentences need to be seen as capable of delivering equal justice for all levels of society; and,
SEVENTH, Parliament may provide guidelines to judges on the application of ta’zir. To progress, Malaysia needs to constantly weigh the effectiveness of its legal system in curbing criminal offences. The death penalty, for instance, has failed as a deterrent to drug trafficking. Parliament’s decision to do away with this implies that the judiciary is ready to move forward.
Dr Mohamed Azam Mohamed Adil is deputy chief executive officer and principal fellow of the International Institute of Advanced Islamic Studies (IAIS) Malaysia; Dr Ahmad Badri Abdullah is IAIS Malaysia research fellow.