Media Statement - 24/1/2019
Repeal Unjust
Legal Presumption Provisions, That Shifts Burden Of Proof From Prosecution To
Accused Persons, Especially For Drug Offences
Commute Death
Sentences And Abolish Death Penalty
MADPET(Malaysians Against Death
Penalty and Torture) supports the call for abolition of the legal presumptions
of possession and/or trafficking in the Dangerous Drugs Act 1952(DDA) that
shifts the burden of proof on the accused to prove his 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 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,”(FMT News , 22/1/2019; Malaysiakini, 22/1/2019).
Section 37 of the Dangerous Drugs
Act 1952 lists down several legal presumptions, which on the proving of some
facts, it 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;…
(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 and/or the capacity,
unlike the State or prosecutors, to disprove such presumptions.
How does one proof that drugs
found in their homes, cars or premises was not theirs, or that they had no idea
that it was 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 this.
It very different in cases of
corruption, where it is proven that a person have received monies, etc, like
maybe having in their accounts large sums of monies like 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 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….’
But, when it comes to drug
offences, some of which carries the death penalty, it may be time to abolish these
legal presumptions, returning the onus of proving all elements of the crime to
the prosecutor.
One of the worse 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;
It is as such certainly more just
to repeal this Legal Presumption. The prosecution should be burdened with the
onus of proving something more than mere possession to find anyone guilty of
drug trafficking, which still is a death penalty offence in Malaysia.
The DDA 1952 have been amended
during the tenure of the previous administration to give rise the possibility
of a sentence other than death penalty, but judge’s hands are still tied as
they are still prevented from considering all possible mitigation and
aggravation factors when it comes to sentencing. Hopefully, this new government
will correct these many flaws, which have been highlighted by many including
the Malaysian Bar.
In any event, MADPET
-
Calls for the immediate repeal of Legal
Presumptions in the Dangerous Drugs Act 1952, which shifts the burden of proof
to accused persons, especially when it comes to death penalty offences;
-
Calls for the commuting of all persons still
facing the death penalty for drug trafficking, being persons who were convicted
before the amendment of the DDA 1952, which opens to the possibility of
sentence other than the death penalty, came into effect;
-
Calls also for the release of all that are
facing detention and/or restrictions allegedly for drug trafficking under the
various Detention Without Trial Laws, including POCA(Prevention of Crimes Act).
They should be charged and accorded a fair trial, or should be immediately and
unconditionally released.
e
-
Reiterates the call for the imposition of a
moratorium on all executions, and the abolition of death penalty.
Charles Hector
For on behalf of MADPET(Malaysians Against Death Penalty and Torture)
See earlier post:-
KOTA
KINABALU: The Sabah Law Society (SLS) has voiced support for the push
by de facto law minister Liew Vui Keong to abolish the death penalty and
impose a moratorium on all executions until then.