Capital Punishment: The Government’s New Fix for an Old Problem?

On July 30, President Dr Mohamed Muizzu announced this administration’s intention to include stricter penalties for drug trafficking, including capital punishment.

The President stated that this is done in numerous other countries, and said a key aim of this government is to cultivate a drug-free generation and eliminate the societal harms caused by drugs.

The government announced last year that the death penalty had been included in the draft bill of amendments to the Drugs Act. However, this was omitted from the bill when it was submitted to parliament late last year. Now, the government aims to once again include it, prescribing capital punishment for drug trafficking in the law.

<b>Capital punishment for drug trafficking: the global trend</b>

As per a report by Harm Reduction International (HRI), there were over 3700 people on death row for drug related crimes worldwide as of December 2022.

It states that as of then, 35 countries worldwide prescribe death penalty for drug related offences. Amnesty International declared six of these as abolitionist (no executions for any crimes in ten years despite sentencing).

In some other countries in the list, capital punishment is neither sentenced nor enforced despite laws prescribing it.

Implementation of death penalty is observed as being highest in Asian countries, with countries like China, Indonesia, Malaysia, Iran, North Korea, Saudi Arabia, Vietnam and Singapore on the top of the list. Exact numbers of executions are unavailable due to lack of transparency and media censorship in some of these countries.

Singapore enforces the death penalty for drug trafficking. Should the Maldives adopt similar legislation, it would become the second South Asian nation to actively implement capital punishment for such offences. While Sri Lanka’s law also prescribes the death penalty for drug trafficking, the country currently maintains an unofficial moratorium on its enforcement.

As per the Drugs Act, the current penalty for drug trafficking is a life sentence in prison, along with a fine of between MVR 100,000 and MVR 10 million.

This stands the same regardless of the scale of offence, as if the offender is seen to possess anything above a set threshold, for example 14g of cannabis, it becomes considered as drug trafficking.

With this, the same hefty fine and long prison sentence apply to those on whom 14g are found, or 1400g or more.

“There is no distinction between a young offender, who may be dappling in drugs as experimentation, or a hardcore drug dealer. Both are faced with the same harsh sentences,” Defence Lawyer Hamza Latheef opined.

In his view, it would be more rational to use logical deductions, such as through their history or financial state, to determine if an offender was, in fact, trafficking drugs, or was possessing some amount for personal use.

Hamza said that the penal code, which covers about 90 percent of criminal offences, allows the judge the prerogative to issue graded sentences based on the offence in question. However, the Drugs Act allows no such distinction.

This, he said, creates an environment where people try to escape ‘by hook or by crook’.

Hamza believes the allowance of graded sentencing would save valuable time for all involved, including law enforcement, courts, prosecutors and defence lawyers.

He reflected on how major drug cartel operators had been prosecuted during the administration led by former President Mohamed Nasheed and the latter days of former President Maumoon Abdul Gayoom.

Since then, major drug busts have seen a decline, with what amounts to multiple cases of what can be considered ‘small fry’ in the drug trade increasing in prevalence.

“I believe this is because the system is inundated by cases due to there being no graded system. Every case, including those involving 14g of cannabis, is being proceeded as a major drug case, leaving institutions buried in the process and unable to prioritize.”

This, Hamza feels, limits law enforcement and the judicial system from categorizing cases by their weight, and from leading the war against drugs in a meaningful way.

<b>Death Penalty: a burden on the State</b>

As the law stands, capital punishment is only sentenced in cases of intentional killing. There are, even at present, a number of prisoners on death row.

However, Maldives has had a moratorium on the implementation of death penalty since 1953.

Hamza raised the point that even though death sentences are handed out in cases of intentional killing, with the moratorium on enforcement, they remain in prison for long periods on State expenses.

“People remain on death row for 99 years, or until such a time comes when the death sentence is implemented, so it is in effect a burden on the State to keep them incarcerated for life,” Hamza said.

He pointed out that former President Abdulla Yameen had also announced that he would be lifting the moratorium, setting in place a regulation for its enforcement. However, it had remained unenforced even as his term came to end.

“The procedure is now in a regulation. But the government does not want to implement the death penalty under a regulation,” Minister of Homeland Security and Technology Ali Ihusan said on July 31, reiterating the President’s announcement that it would instead be incorporated in the law.

Hamza also shared the view of many that the Maldivian judiciary is not yet ready to enforce the death penalty – an irreversible act.

“Many have concerns of corruption and other such issues within the judiciary, but I feel there is a more practical reason as well. That is, the judiciary lacks capacity. No administration so far has made sufficient investment in the judiciary. Today, we see the judiciary struggling with space constraints, long working hours, employee dissatisfaction due to low pay and being understaffed and other such fixable woes. Taking into account all of this, the judiciary is not yet ready for implementing the death penalty.”

Hamza feels introducing the death penalty for drug trafficking will only prove to further inundate the judicial system, and increase the potential for subverting justice through various means.

<b>Is death penalty the ideal deterrant?</b>

“This cannot be stopped unless we punish the traffickers severely,” Minister Ihusan previously said, “The death penalty for those taken from supply-side operations will be a permanent solution.”.

The issue has reignited public debate, particularly over the longstanding issue of capital punishment not being enforced in murder cases—raising doubts over whether harsher penalties will deter drug-related crimes.

“Uprooting the drug trade as it is currently in the Maldives is going to need a collaborative, herculean effort. It comes across as a small capital, high return, lucrative endeavour for youth. In the case of established drug traffickers, their money flows into politics, real estate and such, granting them a layer of impunity. A real effort is required to uproot this,” Hamza said.

“The question is do we have the political will and the funds for the war on drugs? Are we willing to invest, are we going to go after the cartels?”

Hamza also pointed out that in Islamic jurisprudence, the death penalty is only prescribed for intentional killing. Drugs, or as it were, narcotics, only carry corporal punishment in the form of lashes.

Former Prosecutor General Hussain Shameem was unequivocal in his response.

“The issue does not lie with prescribed penalties, but rather in the fact that these penalties are not enforced.”

Shameem spoke about how, at present, when a court sentences an offender to prison, appeals are made outside of the system to their MPs or other influential individuals, or during election campaigns, leading to them being freed without serving their time.

“The convicted knows they can get free from jail within five years, which renders the system ineffective,” Shameem said.

“This issue can be resolved through voiding parole and keeping those sentenced incarcerated for the duration of their sentence without external interference.”

The issue lies with lack of enforcement, and not with the penalties prescribed, Shameem reiterated. If, after this is properly implemented, the issue persists, then introducing harsher penalties can be considered, he said.

Shameem took up the example of child sexual abuse cases. He pointed out that no one is recommending the death penalty for such offences.

“This is because everyone is confident that a person convicted of such a crime will stay in jail. In such cases, the family won’t appeal to the PG or an MP for leniency. No one will intervene and try to free them, or grant them pardons,” Shameem said.

Shameem said that the same can be achieved for drug trafficking cases, through collaborative effort from the relevant institutions.

<b>International Organizations weigh in </b>

Nine international organizations issued a statement calling on the Maldives to reject the introduction of death penalty for drug trafficking. This includes Amnesty International, Human Rights Watch, International Federation for Human Rights (FIDH), Harm Reduction International and The Advocates for Human Rights.

“There is no conclusive evidence that the death penalty has a unique deterrent effect on crime,” the statement reads.

“It is further alarming that President Muizzu portrayed the death penalty as a tool “to save the society from the scourge of drugs and to build a generation free from drugs”. The promotion of highly punitive “zero tolerance” and “iron-fist on drug crime” approaches that are not rooted in evidence supports a culture of misinformation and human rights violations. Effective drug control policies must be centered around health and rights, addressing the root causes that lead people to engage in the drug market, including poverty, unemployment and marginalization.”

The introduction of the death penalty for a crime that was not previously punishable by death would go against the goal of abolition set out under Article 6(6) of the ICCPR, to which the Maldives acceded in 2006, the statement points out.