A MALAYSIAN law reform advocate says Australians on trial in Malaysia for drug trafficking may face an unfair trial, and there’s little chance of Malaysia’s mandatory death penalty for drug possession being changed in the near term.
Surendran Nagarajan, founder of Kuala Lumpur-based legal rights group Lawyers for Liberty, says Malaysia’s Dangerous Drugs Act undermines common law principles of “presumption of innocence” in the trial process.
“Right now the Australians facing trial in (Malaysia) may not have a fair trial for the simple reason there are presumptions in the law that mitigate against the principle that the prosecution must prove the case beyond reasonable doubt,” Surendran told AAP.
His comments came as Australian Emma Louise L’Aiguille, 34, and a Nigerian man, Anthony Esikalam Ndidi, were provisionally charged on Tuesday with one count of joint drug trafficking.
The pair were arrested on July 17 after Malaysian police allegedly found 1.005kg of methamphetamine under the seat of a car.
In March, Perth man Dominic Jude Christopher Bird, 32, was arrested under Malaysia’s tough drug laws that set down the mandatory death penalty for drug trafficking.
Malaysian police allege the Australian was seeking to sell 167 grams of methamphetamine.
Malaysia’s Drug law Section 39B carries a presumption of trafficking of anyone found in possession of more than 50 grams of illicit drugs.
“If the amount of the drugs is a certain amount, then it is up to the accused person to prove that he is not a trafficker,” he said.
“The judge has got no discretion but to impose the death sentence upon conviction. He cannot take into account mitigating factors – he cannot take into account for example if the accused was just a mule … and that is of course a serious infringement of human rights,” he said.
He says the mandatory death penalty “is an attempt to show the public they are doing something about the drug trafficking problem”.
“When in fact what they are doing is simply executing mules, drug mules, and not going after the kingpins,” he said.
Surendran says there were also few prospects of reform to the law, with little public debate over the death penalty.
“The Malaysian government has always done things in a hush-hush manner. Executions are not announced beforehand. Statistics are not released by the government as to how many are being executed,” he said.
Three Australians have been executed for drug trafficking offences in Malaysia.
In July 1986 Perth men Kevin Barlow and Brian Chambers were hanged in Pudu Prison, and in 1993 Michael McAuliffe from Queensland was executed.