How two women on death row, convicted of drug trafficking, changed Malaysian law

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 due to Section 37A of the Dangerous Drug Act, dubbed the ‘double presumption’, which allowed presumption of possession to mean presumption of trafficking. And both women would share the same appeal hearing 5 years later, where Section 37A was deemed unconstitutional, sparing them the death sentence.

Double presumption (reword header later)

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, you’re assumed 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. For Alma Nudo and Orathai, they went well beyond the threshold: 50g for methamphetamine and 40g for cocaine. 

And under Section 37A, as mentioned before, this double presumption allows presumption of trafficking for presumption of possession, if it’s above a certain weight. So if you have 2.5kg of cocaine, that must mean it’s yours, and that means you wanted to traffic it. 

[Read more: It's not just the death penalty. 5 MORE things you need to know about Malaysia's drug laws] 

But things didn’t use to be that way. You couldn’t just apply double presumptions in drug cases. For a couple of years, at least.

The case that pushed Parliament to create Section 37A

(Just put your understanding of the case here)

Back in 1998, there was another case involving double presumptions, which prompted Section 37A to be created. 

In Muhammed bin Hassan v Public Prosecutor, 

Back in some year, some guy, another case, before section 37A was created, there was a similar case. It was a Malaysian, Mr Mohd something. He was charged with 37a, and as set by usual precedent, convicted of section 37(ad). But the judges decided that this wasn't right; it was a violation of rights. Cite something that the judge said.

Ater that, section 37a could not immediately be assumed to be 37ad. Presumption of drugs, does not imemdiately meam you are guilty of trafficking. Only after you can prove, without a doubt their guilt, only then can section 37ad be applied. (It was regarded as harsh)

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 mvoed the motion and createad section 37A, which essentially said 37a means 37ad.

They even said it themselves. Cite the quote.

After that, 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 was convicted of her sentence. They found that she had drugs, that the drugs were 2kg, which means she wanted to traffic them. Clear as day according to 37A. 

Other thoughts: A matter of firsts and lasts, beginnings and ends

Historical events demand larger than life characters.

Enter Gopal Sri Ram. Youngest judge ever sent to court appeal, when everyone had to go through the ranks and serve at each level. He was retired and now a defense lawyer. 

The man to convince was the Chief Justice, Richard Malanjum, 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 three grounds: 

Gopal Sri Ram (shorten?) went with the simplest defense: 37a and 37ad is unconstitutional. The judge turned down, telling him that he has to get leave from court; the court has to agree that it's the right decision.

He didn't have to. He pointed out how certain laws don't need to. They are something something something. The judges sat. They decided it wasn't right. Nice try. But remember his argument. 

Something something happened. The nine judges convened to decide the fate of Alma Nudo Atenza.

Something something closing header

ON the next day, the nine decided. Richard Malanjum, head judge, read the decision. 

They went through the three grounds of defence. It was a unanimous decision.

The judges decided that Section 37A, that conviceted of her of drug trafficking, by virtue of possessing drugs, as unconstitutional. Under the Federal Constiution, it violated Article 5, (cite the case), and then mention again article 8. The gavel drops: Alma Nudo is not guilty of trafficking. She is not a dead woman walking anymore. (As there was no challenge on their conviction of having the drugs, they are now just guilty of possession)

The decision made headlines. Section 37A was struck down. It is now illegal as it was unconstitutional. 

But Alma Nudo isn't a free woman. She still has to serve how many years in prison for possessing drugs. But the threat of the noose isn't hanging over her anymore. When she released, in 20XX, she will be 43, a Filipino migrant in Malaysia, soon to be forgotten. There isn't a single picture of her online.

(But these two aren’t free women yet. Alma and Thai lady still have to serve however many years in prison for possessing drugs. But the threat of the noose isn’t hanging over them anymore. When they are released, Alma Nudo will be 60?? Thai lady around there, soon to be forgotten. There isn’t a single picture of them online.

But unlike Thai lady, 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 defendant Alma Nudo Atenza vs Public Prosecutor, the precedent that removed Section 37A the Dangerous Drug Act 1952, in violation of Article 5(a) and 8 of 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.