Malaysia’s Drug Law Condemns Vulnerable Women to Death

A wall of Pudu Prison in Kuala Lumpur, before the prison complex was demolished beginning in 2009. Kojach/Flickr

Joey* wakes up at 6 every morning. She has one hour to wash up and meditate before the guards conduct their routine count. Then breakfast is served. On a good day, she gets eggs and toast. But usually, it’s just a slice of bread and a cup of tea. 

Her identification number starts with “BA”, which stands for “bilik akhir”, or “last room”. Joey is a death row prisoner in Malaysia’s Tapah Prison. 

On a mid-July morning, she has a meeting with me, her clemency lawyer, via Zoom. Joey says she looks forward to it. She hasn’t had any visitors for the last two years. The Buddhist counselling groups stopped their weekly visits to the prison after the COVID-19 pandemic hit in early 2020. She has been in prison for more than a decade.

In March 2010, Joey, now 56, was at the Penang International Airport, on her way home to Hong Kong. She was stopped by police at the immigration checkpoint for suspicious behaviour. Officers brought her to a room in the airport and conducted a body search, finding less than a kilogram of illegal drugs, mostly heroin, wrapped to her body with plastic and masking tape, under a bodysuit and clothing, according to court documents. 

In August 2011, she was convicted of drug trafficking under Section 39B of Malaysia’s Dangerous Drugs Act and sentenced to death.

Joey’s clemency application explains how she ended up in a “last room” in Perak State’s Tapah Prison. Joey’s husband was unfaithful, often absent, and he left her in debt and with sole care of their son. Desperate to alleviate her family’s financial hardships, she was lured into a job transporting drugs and even held against her will by her handlers.

Like Joey, the majority of women on death row in Malaysia, especially foreign women, have been sentenced under strict drug trafficking laws that fail to take their socioeconomic vulnerabilities into account. For justice to be possible, these laws need to change.

The Dangerous Drugs Act

Malaysia’s Dangerous Drugs Act was enacted during the British colonial period in 1952. It was intended to control the use and supply of drugs that were considered dangerous, such as opium, which was widely used during the 1950s, and reduce the prevalence of abuse and addiction. Since then, the law has undergone several significant amendments.

In 1977, the law was amended to establish that if a person was found in possession of illegal drugs exceeding a certain quantity, then the person would automatically be considered a drug trafficker. Thus, the law allows for the presumption of guilt based solely on the quantity of drugs found, which fundamentally violates the principle of being innocent until proven guilty.

Next, in 1983, the Malaysian government toughened the Dangerous Drugs Act further to establish a mandatory death penalty for drug trafficking. Proponents of the amendment argued that a punishment as harsh and irreversible as the death penalty would deter drug trafficking. However, there is no evidence to support that argument, according to Harm Reduction International, which says “drug markets continue to thrive around the world, despite drug laws in almost every country being grounded in a punitive approach”. 

Nearly half of all known executions in Malaysia since 1957—or 229 of 469 people put to death by the state—were sentenced for drug trafficking.

Even with the death penalty in place, the total number of drug and substance abusers and addicts in Malaysia has remained at or above 128,000 people since 2018, or approximately 400 drug abusers per 100,000 people. 

These two amendments became the basis of hundreds of convictions and death sentences. Nearly half of all known executions in Malaysia since 1957—or 229 of 469 people put to death by the state—were sentenced for drug trafficking, according to a 2019 report from Amnesty International. Details of the cases and figure breakdowns by year have not been released.

As of early 2019, there were 1,281 people on death row in Malaysia, including 141 women, according to the Amnesty report. The majority of the country’s death row population—some 73%—were convicted for drug trafficking under the Dangerous Drugs Act.

For women on death row, the numbers are even starker: 95% of women sentenced to death were convicted of drug trafficking. Of those 134 women, 90% are foreign nationals. By comparison, the population of men on death row for drug offences in Malaysia is roughly half Malaysian and half foreign.

Amnesty found that lack of access to legal counsel before charges are brought remains a critical issue, especially in capital punishment cases. Those who are not able to hire a lawyer of their choice have to depend on lawyers assigned by the court or a legal aid centre, who are often pro bono attorneys lacking resources to prepare a strong defence. Some families complain of assigned trial lawyers’ inexperience. In July, the Federal Court quashed a death penalty conviction for an alleged drug trafficker, citing the defence lawyer’s incompetenace.

141 women are on death row in Malaysia infographic, 95% are for drug-related convictions, 90% of those women are foreign nationals
Ellena Ekarahendy

Women, Crime and Precarious Work

Before they are arrested, women sentenced for drug trafficking are often involved in precarious work that is short-term, low-paid, low-skilled and often without legal protections and job security. Many are bartenders, cashiers, masseuses and domestic workers.

While some are unemployed, many are underemployed or among the working poor, according to a 2021 paper by researcher Lucy Harry, who asked why and how women become involved in drug trafficking in Southeast Asia. She found that being a drug courier offers another means to earn a living, albeit another precarious one. 

Taking Malaysia as a case study, Harry examined 127 judgements involving women sentenced to death for drug trafficking. One study participant told her that in many cases, these women are just “everyday people in the gig economy”. 

95% of women sentenced to death in Malaysia were convicted of drug trafficking. Of those 134 women, 90% are foreign nationals.

While men also transport drugs for financial reasons, Harry explains that women, especially in the global south, are more likely than men not to be employed or in school, leaving them more exposed to the reach of illicit drug syndicates. This is particularly apparent among the large number of foreign-born domestic workers flowing into the country, whom drug syndicates may view as easy targets. 

“[The] highest frequencies of nationalities of women sentenced to death for drug trafficking in Malaysia are: Thailand, China, Indonesia, Iran and the Philippines,” Harry writes, highlighting countries where many of Malaysia’s migrant domestic workers hail from.

One of Harry’s interviewees recounts that the manner in which drug syndicates recruit couriers was similar to that of contract workers. They advertise the job on social media as “some form of dispatch work” and include the payment amount in the listing. Some interviewees cited cases involving single mothers, divorcees or pregnant women in need of money to take care of “family problems”. 

Another respondent, a lawyer, relates a case of a woman who was in business with her husband. When they went into debt, their creditors threatened the couple, and the woman was told to smuggle drugs in order to pay off the debts. 

Something similar happened to Joey. 

Doing the Job

Joey grew up in a cramped apartment in Hong Kong with her Malaysian mother and Hongkonger father. Memories of her childhood are not rosy; she recalls constant quarrels between her parents, shouting and her mother weeping. 

“My father has never played any role in my upbringing. I don’t talk to him much. I don’t see him much. He was always absent, and when he was back, he did horrible things to my mom,” Joey says. 

She got married when she was in her late 20s and had a son a few years later. Like her father, Joey’s husband was rarely at home, and their relationship grew strained. He ran a business in mainland China with a local partner, and Joey helped out. They drew paychecks from the business, which sustained the family. Eventually, fraudulent activities by her husband’s business partner caught up with them, and they owed a huge amount of tax and other liabilities to the Chinese tax authority. They were on the brink of financial collapse and facing legal charges. 

While the death penalty is no longer absolutely mandatory in drug trafficking cases, it remains nearly mandatory in practice.

To evade personal responsibility, Joey’s husband and his partner transferred ownership of the business to her alone, despite the fact that their marriage had already fallen apart. Overnight, Joey shouldered all the legal liabilities. She was in a dire financial situation, and she felt desperate. In her darkest hour, she met an old friend from Hong Kong who convinced her that she could get out of the mess quickly if she would “do the job”.

Joey immediately regretted her decision when she was held captive in a hotel room by a few men, her handlers. She could not escape or challenge them. They dictated all of the logistics involved in the smuggling scheme she would be forced to carry out.

Unfortunately, because of the drug law’s mandatory death penalty, none of these circumstances—not even the coercion—were considered during Joey’s sentencing.

Upon her arrest, Joey, who only speaks Cantonese, says she was not provided with a lawyer or translator. She did not understand the police’s questions or the statement she signed, which were all in Bahasa Malaysia. She could not understand the subsequent legal procedures or meaningfully take part in her trial or appeal; there was no proper translation of the proceedings. She did not receive any consular services from Hong Kong. 

Unclear Criteria

In prison, Joey often hears snippets of news about how Malaysia might be abolishing the death penalty for drug trafficking, which gives her hope. 

In 2017, the country’s parliament passed an amendment to the Dangerous Drugs Act that technically abolishes the mandatory death penalty for drug trafficking. But anti-death penalty advocates view it as a baby step toward abolition.

The amendment gives judges four circumstances to consider in order to reduce a drug trafficking sentence to life imprisonment and 15 lashes instead of death:

  • (a) there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested;
  • (b) there was no involvement of agent provocateur [a law enforcement agent or informant who encourages someone to commit a crime]; or
  • (c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and
  • (d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.

While the death penalty is no longer absolutely mandatory in drug trafficking cases, it remains nearly mandatory in practice, especially since there is little legal consensus on whether defendants must meet all four criteria or just some of them. Moreover, judges cannot consider other mitigating and extenuating factors, such as the defendant’s background or socioeconomic circumstances. 

The Anti-Death Penalty Asia Network conducted a study this year on how the 2017 amendment is applied. The study found that among 38 people convicted of drug trafficking in Malaysia from March 2018 to October 2020, only in four cases did judges apply the 2017 amendment and sentence the defendants to life imprisonment instead of death. In seven cases, the amendment was considered but not applied. In the remaining 27 cases, the amendment was not considered at all, and the defendants were given the death sentence. 

In one of the four cases where the defendant’s sentence was reduced to life imprisonment, the judge considered the conditions disjunctively, meaning not all four needed to be met. However, in the three other cases, the court interpreted the word “and” between subsections (c) and (d) as an indication that subsection (d)—providing assistance in the disruption of the drug trade—must be satisfied in order for the sentence to be reduced.

The Anti-Death Penalty Asia Network also noted concerns about the evidence required to show the defendant assisted a law enforcement agency to a satisfactory degree. 

Unlike Singapore, where the public prosecutor must be satisfied and issue a certificate of cooperation for the judge’s consideration, in Malaysia, it is the judge who must be satisfied that assistance and cooperation was given.

The court generally has applied a strict interpretation of “assistance”. It is not enough that the defendant cooperates by answering questions during arrest or leads an enforcement agency to the discovery of drugs. The assistance must disclose information that helps law enforcement investigators identify drug trafficking, distribution or production networks or “masterminds”, which will “disrupt or cripple their criminal activities”, the court decided in the 2019 case PP v Brits Shaun.

In that case, the defendant provided law enforcement with the identities and locations of other alleged international drug traffickers and their locations, and the judge considered subsection (d) satisfied after the Royal Malaysia Police testified that the information given by the defendant was “very” helpful. This reliance on police testimony essentially gives police the authority to determine if the defendant should be put to death or receive life imprisonment.

Another issue with the amendment is that in order to qualify for life imprisonment, the defendant must prove assistance to law enforcement at the time of their arrest, which amounts to an admission of guilt at the outset and violates the principle of being innocent until proven guilty.

Finally, many of the drug couriers who are at the bottom rung of international illicit drug networks may not be able to offer useful information at all, especially if they are in fact innocent of the crime they are accused of. Thus, there is little evidence that the 2017 amendment to Malaysia’s drug law protects vulnerable people who face the ultimate punishment for drug crimes in which they had few options to say no. 

Kajang Prison, one of Malaysia’s largest prisons, held nearly 20% of the nation’s death row population as of 2019, according to Amnesty International. Muhamad Syarafi/Shutterstock
Kajang Prison, one of Malaysia’s largest prisons, held nearly 20% of the nation’s death row population as of 2019, according to Amnesty International. Muhamad Syarafi/Shutterstock

For Joey, because the 2017 amendment cannot be applied retroactively, she will not be offered an alternative to the death penalty. Since she has exhausted her judicial appeals, her only hope is receiving clemency from Malaysia’s king.

Harry, the researcher, found that judges often have a stereotypical misconception of women sentenced for drug trafficking as being “impoverished” and “uneducated” people who are tricked into transporting drugs. If they are found to differ from these stereotypes—such as those, like Joey, who face economic insecurity more so than abject poverty—judges may dismiss their defence.

Judges and courts need to dispense with these stereotypes and recognise the material conditions faced by women convicted of drug trafficking for what they are: the result of precarious labour markets that leave vulnerable women with little choice but to engage in more precarious activities to make ends meet.

Despite the government’s intention to grant discretion to judges, the 2017 amendment has only added another layer of complications for drug trafficking defendants. It is time the government reexamine its drug policies and abolish the death penalty for drug offences, if not altogether. 

The United Nations Office on Drugs and Crime has condemned the use of the death penalty for drug crimes, saying it “cannot provide durable solutions or protect people”.

Over a Decade in Solitary Confinement

Joey has been behind bars for more than 11 years. She is in solitary confinement 23 hours a day. She struggles to form relationships and has been living without human contact, which is essential to her mental health.

“I just want to keep away from any trouble with the others. Plus, I can’t speak their languages,” Joey says. 

She passes the time reading old magazines her family brought her about 10 years ago, rewriting Buddhist texts and meditating. But most often, Joey is deep in thought, daydreaming and reflecting on her life, imagining the world outside and remembering her family. She has not been to Hong Kong since before her arrest. Because she is in the “last room”, waiting to be executed, she is not eligible for any of the rehabilitation programmes available to other prisoners, like cooking and sewing classes or job training. 

Joey is deeply remorseful. She regrets that she was not present during her son’s formative years. She regrets that she is not able to take care of her elderly mother and ailing brother. She has become a devout Buddhist in prison and prays every day for their safety and health. 

She suffers from the anxiety of the indefinite wait for execution by hanging. She clings to the hope of royal clemency. 

The last known execution in Malaysia was in 2017, according to the Cornell Center on the Death Penalty Worldwide. The following year, the government declared a moratorium on executions while death penalty laws were reviewed. Then-minister of law, the late Liew Vui Keong, said the death penalty would be abolished and “all executions should not be carried out”. The only question left, he said at the time, was what to do with the prisoners already on death row.

While Malaysia’s government has changed multiple times since then, more than 1,200 people remain on death row, including Joey.

“I have done wrong,” she says from prison. “But 11 years in a condition like this—isn’t that enough of a punishment?”

*The subject of this article requested her nickname be used to protect her family’s privacy.

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