How two women on death row changed Malaysia's drug lawabout 2 months ago Tanusha Sharma
When Alma Nudo Atenza, a then 38-year-old Filipino woman, was apprehended by the customs officer in the early hours of 19 August 2014 at KLIA, she must have thought this was the end for her.
When her luggage was scanned at customs, the officer noticed something suspicious. They investigated and found that it contained nine handbags, each filled with four clear plastic packages hidden inside the back cover. Inside the packages, 36 in total, contained 2kg of methamphetamine.
A month earlier, a Thai woman, was also apprehended. Then 22-year-old Orathai Prommatat was caught at Hotel Arena Star Luxury in Jalan Hang Lekiu, with 693 grams of cocaine hidden in the inside wall of her luggage bag.
Both women were found guilty of possession and drug trafficking, and were sentenced to death. Both were charged under Section 37A of the Dangerous Drugs Act 1952, dubbed the ‘double presumption’.
And both women would share the same appeal hearing 5 years later, where Section 37A was deemed unconstitutional, sparing them the death sentence.
How the rule of double presumption functions
We tend to assume that we are always innocent of a crime until proven guilty. Not so with drugs. If you’re caught with drugs and it has been proven in court, you’re presumed to be guilty unless you could prove otherwise. There are three sections of the law in play here for their conviction, and all three are based on presumption.
Presumption is a legal construct that allows the court to presume certain facts, if it’s supported by other facts. For drugs, under Section 37(d) of the Dangerous Drugs Act, they only have to prove that you were in physical custody and in control of the bag. That will allow them to presume that you had knowledge of the drugs, which means you are in possession of it.
For drug trafficking, presumption is based on the weight of the drugs. Under Section 37(da), if it’s above a certain weight, it’s presumed that you intend to traffic it. So for example if you have 2.5kg of cocaine and it was proven that you were found with it, that must mean you were aware of carrying it and that you wanted to traffic it.
Under Section 37A, it is stated that:
As mentioned before, this double presumption allows the court to invoke the presumption of possession and trafficking of drugs to convict an accused.
But things didn’t use to be that way. You can’t just apply double presumptions in drug cases. For a couple of years, at least.
The case that pushed Parliament to create Section 37A
Back in 1998, there was another case involving double presumptions, which prompted Section 37A to be created.
In Muhammed bin Hassan v Public Prosecutor (1998), the accused was convicted of drug possession and trafficking in the High Court, under Section 39B of the Dangerous Drug Act 1952 by way of a double presumption under Section 37(d) and Section 37(da). He appealed all the way to the Federal Court. There, the judges decide that it was actually harsh and oppressive to automatically presume trafficking upon the presumption of possession. This was because of the difference in these two words: “deemed” under Section 37(d) and “found” under Section 37(da).
Section 37(d) states that:
Whereas Section 37(da) states that:
See the difference? One says deemed, one says found. It was due to this difference that the Federal Court went on to say that:
The 'deemed' state of affairs in s 37(d) (ie deemed possession and deemed knowledge) is by operation of law and there is no necessity to prove how that particular state of affairs is arrived at. There need only to be established the basic or primary facts necessary to give rise to that state of affairs, ie the finding of custody or control….
On the other hand, the word 'found' in the opening phrase of s 37(da) connotes a finding after a trial by the court.
This is a very simplified explanation of the meaning.
For deemed, only basic facts are needed to presume that you were in possession of the drugs. Eg. you were caught holding 1kg of drugs. Hence, you are deemed to be in possession of it.
For found, this basically requires a little bit more work. They can’t just catch you holding the drugs. It means the judge will have to go through every single evidence, and after going through a trial and are positive it’s yours, only then can you be found in possession of drugs. And that will allow them to presume you intend to traffic as well.
But parliament had other ideas.
After that case, there was difficulty in getting convictions of drug traffickers. This did not sit well in parliament. They decided to insert section 37A into the Dangerous Drugs Act 1952 to overrule the decision by the Federal Court in Muhammad Hassan v PP. This then allowed for double presumptions to be used and essentially said presumption of possession under Section 37(d) equals to presumption of trafficking under Section 37(da).
After that, almost every case was read in that way. Presumption of carrying, equals presumption of trafficking, if it's beyond the right amount.
This is how Alma Nudo and Orathai were convicted for their sentences. The authorities found that they had drugs, that the drugs were over the limit, and that means they wanted to traffic the drugs. Clear as day according to Section 37A.
A matter of firsts and lasts, beginnings and ends
Historical events demand larger than life characters.
Enter Gopal Sri Ram. The first lawyer from a private firm to be appointed to the Court of Appeal, when everyone had to go through the ranks and serve at each level. He was retired but went back into private practice and is currently a defense lawyer. The defense lawyer, for Alma Nudo and Orathai.
The people to convince were the bench of nine Federal Court judges including the Chief Justice, Richard Malanjum, a story maker, whose dissenting opinions is sometimes cited more than the judgement in his cases. This is his last case before retiring at the end of a 27 year career.
Their two main grounds of appeal:
- Section 37A contravened the principle of separation of powers in the Federal Constitution
- Section 37A violated Articles 5 and 8 of the Federal Constitution
Sri Ram argued that since the decision in Muhammad Hassan v PP had already declared that it was harsh and oppressive to be using the double presumption rule for Section 37(d) and Section 37(da), Parliament could not overstep their powers to interfere with the court’s decision and insert Section 37A into the DDA just to overrule the judges’ decision.
The second argument was that Section 37A actually violates Articles 5 and 8 of the Federal Constitution. Article 5 guarantees a person his right to life and personal liberty whereas Article 8 provides that all persons are equal before the law and entitled to the equal protection of the law. The argument was that while whoever is accused of a crime should be presumed innocent until proven guilty, Section 37A actually had an effect of reversing that rule where the burden is put on the accused to prove his or her innocence after being presumed guilty of possession AND trafficking drugs.
The decision that changed future drug cases
On the next day, the nine decided. Richard Malanjum, chief judge, read the decision.
They went through the grounds of appeal and it was a unanimous decision.
For the first ground of appeal, the Federal Court rejected the non separation of powers argument and held that the insertion of Section 37A into the DDA 1952 wasn’t to overrule the decision in Mohammad Hassan as it did not affect the outcome of that case. Parliament’s aim was only to generally alter the law AFTER that case based on that decision. So the court felt they were within their powers of altering the law and not overstepping the judicial powers.
For the second ground of appeal however, the court actually agreed with the argument that Section 37A was in fact in violation of Articles 5 and 8 of the Federal Constitution. The judges decided that Section 37A, that convicted both Alma Nudo and Orathai Prommatat of drug trafficking, by virtue of possessing drugs, as unconstitutional. The gavel drops: Alma Nudo and Orathai are not guilty of trafficking; the death penalty is overturned. They are not dead women walking anymore.
However, since they didn’t challenge their conviction of possessing the drugs, the two women are now just guilty of drug possession.
The decision made headlines. While Parliament has not made any official changes to the DDA 1952 regarding Section 37A, this section may now be seen as a section that is unconstitutional in future cases from the decision in this case.
Still, Alma Nudo and Orathai Prommatat aren’t free women. Alma still has to serve 18 years in prison and Orathai to serve 15 for possessing drugs. But the threat of the noose isn't hanging over them anymore.
But unlike Orathai, by the luck of case name, Alma Nudo will live on in Malaysian courts, whether rightfully or wrongfully, in fame and infamy, as the case cited by future lawyers—the case of Alma Nudo Atenza vs Public Prosecutor, the precedent to interpret Section 37A of the Dangerous Drug Act 1952, which was in violation of Article 5(a) and 8 of the Malaysian constitution: the right to life and liberty; that we are all equal under the law, and we are all equally protected under the law.
This article is cowritten by Tanusha and Ariff.