From the archive: On death row

29 January 2015

Despite vehement demands by civil society organisations to abolish the death penalty and earlier announcements indicating it may do so, the Malaysian government has retained the law. It argues for capital punishment on the grounds that it is necessary to deal with serious offenses. Since 2008 the courts have handed down death sentences every year and since I wrote this article in 2010, these numbers have jumped: 22 in 2008, 68 in 2009, 114 in 2010 and at least 108 in 2011. There were no executions in 2014, but 2 in 2013, none in 2012 and in the 2011, 2010 and 2009 at least one per year.

Currently there are about 900 people on death row in Malaysia, including a large number for drug trafficking, which is punishable with mandatory death sentence under paragraph S39B of the 1952 Dangerous Drugs Act. In October 2012, Nazri Aziz, Minister in the Prime Minister Department Law & Parliamentary Affairs, announced that the government may replace the death penalty for courier-level drug offenses, with a prison term. These considerations were driven by the fact that the laws usually punish only the drug mules and not the ring-leaders.

According to Malaysia'a Home Minister Hishammuddin Hussein, there is little evidence that the death penalty has had the desired deterrent effect, with the numbers of narcotics cases rising steadily in recent years. In 2012, it was reported that there were at least 75 Indonesians on death row in Malaysia, most of them because of murder and drug-related offences. In December 2014, it was reported that 175 Indonesians were facing the death penalty in Malaysia for drug trafficking.

When Joko Widodo became president, protecting Indonesian citizens overseas was made one of the top priorities of his government. This involves provision of legal aid for Indonesians facing the death sentence or execution. Since 2014, the Indonesian embassy in Kuala Lumpur has assisted 37 Indonesian to successfully appeal their death sentences in court.

Antje Missbach (antjemissbach@gmail.com) is a Postdoctoral Research Fellow in the Anthropology Department at Monash University.

Dozens of Acehnese drug offenders face the death penalty in Malaysia

Antje Missbach

Six years ago Mahmud (not his real name), an Acehnese man in his early thirties, was caught peddling about two kilograms of marijuana on the streets of Shah Alam, the state capital of Selangor, near Kuala Lumpur. He was arrested and jailed. After six eyewitnesses testified against him, the court sentenced himto death under the Dangerous Drugs Act. For more than five years he has been in Sungai Buloh prison in Selangor, awaiting execution. He says he still finds it hard to come to terms with how he became involved in drug trading, something he had never imagined when he first came to work in Malaysia.

Malaysia’s strict anti-drug stance is widely known, and there are also no exemptions for foreigners involved in drug-related crimes. Every travel guide sternly warns visitors about the severe penalties. Possessing more than two hundred grams of marijuana can land offenders in jail for up to twenty years, while trafficking more than that can be enough to incur the death penalty.

Almost all Indonesians charged or convicted for drug-related crimes in Malaysia are Acehnese. According to Khairudin Harahap from the Indonesian Sociology Research Institute, an NGO that provides legal aid to Indonesian migrant workers in Malaysia, about four hundred Acehnese are in prison for possession and trading of illegal drugs in Malaysia. Of these, 43 have been sentenced to death.

Entering the drug trade

Why are so many Acehnese involved in drug trafficking? Blessed with a favourable climate and topography, Aceh produces a huge amount of high-quality marijuana. Despite regular police raids, production is flourishing, especially in the mountain areas of North and Central Aceh where access is difficult. Many suspect that, far from restricting the trade, it is the substantial involvement of the police and the military that underpins the ongoing trafficking of the drug.

A kilogram of dried marijuana costs between one and two million rupiah (A$120-240) in Aceh, while in Malaysia it sells for at least MYR2000. Such profit margins are attractive especially to the rural poor, who dream of earning enough money to open a small shop or start some other small business. However, most of Aceh’s marijuana crop is sold in Bali and Java rather than overseas. In fact, many Acehnese drug dealers in Malaysia sell low-quality Thai marijuana which costs about MYR800 per kilo. Most of the synthetic drugs sold in Malaysia, including in the renowned drug market in the Chow Kit district of Kuala Lumpur, also originate from Thailand.

If Acehnese involvement is not just due to Acehnese-produced marijuana, why might Acehnese be more open to take on such high risk jobs compared to other Indonesian ethnic groups? When asked this question, Indonesians and Acehnese themselves tend to describe Acehnese people as more courageous and less compromising. For them, it is all or nothing. In the words of an Acehnese fruit seller in Chow Kit, ‘it is about being a king or becoming a devil’.

However, some Acehnese detained for drug smuggling claimed that they did not take on these high risks voluntarily but that fellow countrymen tricked them by asking them to deliver ‘gifts’ from Aceh to relatives in Malaysia. Others knew what they were doing, but felt they had few other choices. During the last phase of the separatist conflict in their homeland, many Acehnese fled the increasing violence and sought refuge in neighbouring Malaysia, where they found themselves in a vulnerable situation. Having entered the country illegally without work permits or cash, and being unfamiliar with the local environment, some fell prey to drug dealers who offered them the opportunity to make a fast buck.

Others still say they chose to sell drugs to support Aceh’s struggle for independence. Some leaders of the Free Aceh Movement (GAM) based in Kuala Lumpur acknowledge that among the current detainees are sympathisers who were smuggling drugs in order to buy arms and ammunition.

Running out of hope

Little is being done about the problem of Acehnese in Malaysian prisons, even though some former GAM leaders now hold positions in the Acehnese local government. Neither fellow countrymen nor Malaysian human rights groups offer much sympathy to those imprisoned, as they are deemed responsible for their own destinies. The Acehnese prisoners receive few visitors other than family members who manage the trip from Aceh.

However, for a short time in early 2007, the topic of Acehnese detainees on death row in Malaysia appeared in Acehnese newspapers and caused a slight stir, prompted by a letter lobbying for financial support to help those facing execution launch appeals for clemency. At the same time, the interpreter informed the Acehnese press about the urgent need for action on behalf of these Acehnese detainees. Shortly afterwards, a number of Acehnese journalists went to Malaysia to investigate the conditions faced by the prisoners. Acehnese activists also took up the cause. In one instance the Aceh People’s Party issued a press statement condemning the Malaysian judicial system and urging the Acehnese government to take action on behalf of those detained and convicted.

Then in May 2007, Acehnese Governor Irwandi Yusuf commissioned a fact-finding team consisting of legal aid experts, local parliamentarians and journalists to investigate the number of Acehnese detainees in Malaysian prisons and also to provide them with advocacy and legal aid. The delegation visited the prisons in Kajang and Sungai Buloh and collected general information about the whereabouts of the Acehnese detainees and the progress of their judicial proceedings. According to Afridal Darmi, the chairman of Aceh’s Legal Aid Foundation and head of the delegation, some detainees had been jailed for years without ever having been before a judge, adding to the psychological strain of their detention.

Given the large number of Acehnese detainees and its limited resources, the delegation decided to concentrate on those who were already on death row. Eight cases were selected for appeals. In early 2008, the delegation spent 300 million rupiah on hiring a reputable Malaysian law firm to provide legal advice for the subsequent reviews. However, none of these appeals was successful.

Attempts were made to lobby the Malaysian government to commute the death penalties to life sentences, but these also failed. This left Acehnese prisoners on death row one last chance: to appeal for clemency to the Malaysian head of state. As there is no time restriction for a head of state to consider such a plea, the process of decision-making can take years, thus delaying indefinitely (in effect preventing) the executions from taking place.

Now that the media interest in Acehnese prisoners on death row has subsided, Acehnese inmates face uncertainties about what their futures hold. Many have been imprisoned for years but still await their final sentences. Some might be released eventually, while others might never again enjoy freedom. Meanwhile, Afridal and his colleagues still receive phone calls from Acehnese families wanting to explore ways of helping their imprisoned relatives in Malaysia.

Antje Missbach (antjemissbach@gmail.com) wrote her PhD thesis about the Acehnese diaspora in Malaysia and Scandinavia.