Look to 'ta'zir' for guidance in drug sentencing

Published in: New Straits Times, Friday 5 January 2018

By Dr Mohamed Azam Mohamed Adil & Dr Ahmad Badri Abdullah

Source : https://www.nst.com.my/opinion/columnists/2018/01/321784/look-tazir-guidance-drug-
sentencing

The Dangerous Drug Act 1952 has been amended twice. In 1975, Section 39B was
inserted, introducing the death penalty, life imprisonment and flogging as
punishments. A further amendment in 1983 made death penalty mandatory for drug
trafficking.

There is, however, an ongoing global debate on whether drug-related offences

should carry capital punishment. To date, the worldwide trend is towards abolishing
the death penalty for such offences. The international drug control and enforcement
treaties, as well as international drug control agencies have not supported capital
punishment to deter drug trafficking, even in countries where drug-related crimes are
rampant. It is argued that the death penalty is disproportionate to the gravity of the
offences.

Malaysia has followed the global trend in doing away with the death penalty for drug-
related crimes. At the end of 2015, the government announced that the mandatory
death penalty for drug trafficking would be abolished by March 2016. However, this
only materialised in November last year with the passing of the Dangerous Drugs
(Amendment) Bill 2017 in Parliament.

It is proposed here that the principle of ta’zir (unprescribed punishment in Islamic

law) may help guide judges in exercising their discretionary powers in drug-related
cases, and thereby fulfil the higher objectives of the syariah in the practice of the
Malaysian judiciary.

A brief account of the relevant guidelines is as follows:

FIRST, to consider the legal status of drug-related offences via the lens of ta’zir.
Since the punishment for drug-related offences is not prescribed in the syariah
textual sources, it is subject to the procedures of ta’zir. A number of jurists suggest
that drug-related offences are analogous to intoxication. But, since drug addiction is
more serious than alcohol addiction, the jurists maintain that harsher punishment is
required, i.e., more than 80 lashes. Furthermore, prohibiting illicit drugs needs to be
in tandem with restricting its production, trading, and trafficking. Since all these inflict
damage on the nation, the death penalty may be acceptable in principle.

Drawing this analogy is, however, not without problems. This is because one of the
principles of analogy is that the ta’zir ruling should be of similar or to a lesser extent
than the original ruling. Hence, the punishment for drug offences should be similar or
lesser than that of intoxication. To sentence drug offenders to death, is, therefore, at
variance with the syariah, since the right to life can only be taken by an explicit ruling
of the text;

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SECOND, the need to maintain balance in punishment. The move by the
government to abolish this punishment is commendable. Nonetheless, it means a
new punishment is needed. The new sentence, however, should be neither too
lenient that it may compromise societal well-being, nor too harsh, that it may be
unjust. The need for such a balanced solution is underlined by the sharp increase in
drug-trafficking offences reported under Section 39B of the Dangerous Drugs Act
(DDA 1952) between 2005 and 2011;

THIRD, the decreed punishment should not inflict physical harm on the offender. By
referring to the third guideline of ta’zir, it is proposed that judges circumvent any form
of punishment that could result in bodily injury. Arguably, imprisonment and
measures to reform the convicted offender may be the best option for judges when
sentencing drug traffickers;

FOURTH, the need for proportionity in punishment. Mandatory death sentences for
drug trafficking compel the courts to treat all such cases equally, even though there
might be substantial variations between them. The ta’zir guidelines recommend that
judges tailor punishments to suit each and every case, so as to temper justice with
mercy and fairness to all sides. As such, the punishments for drug-related offences
should not be automatically determined based on the quantity of illicit drug found in
the possession of the offenders, but through careful observation of the case-specific
circumstances;

FIFTH, the incremental approach in punishment. This should guide judges when
exercising their discretionary power in sentencing. Different levels of punishment
should be made available to them, from the most lenient to the most severe, in
proportion to the gravity of the offence and the circumstances surrounding the crime.
Lenient sentences should be given priority by the judges, before moving on to the
more severe punishments;

SIXTH, to consider the future consequences of punishment. This should not be

taken for granted by judges. Judges need to establish a mechanism by which the
future socio-economic effects of a punishment can be effectively gauged. Moreover,
judges need to be aware that any punishment meted out for drug-trafficking offences
may affect both the local and global perceptions of the country’s judicial institutions.
Sentences need to be seen as capable of delivering equal justice for all levels of
society; and,

SEVENTH, Parliament may provide guidelines to judges on the application of ta’zir.

To progress, Malaysia needs to constantly weigh the effectiveness of its legal
system in curbing criminal offences. The death penalty, for instance, has failed as a
deterrent to drug trafficking. Parliament’s decision to do away with this implies that
the judiciary is ready to move forward.

Dr Mohamed Azam Mohamed Adil is deputy chief executive officer and principal
fellow of the International Institute of Advanced Islamic Studies (IAIS) Malaysia;
Dr Ahmad Badri Abdullah is IAIS Malaysia research fellow.