Poverty and drug trafficking: a denial of mercy

All too often, states disproportionately apply the death penalty to the 'small fish' in drug trafficking organisations. That these people usually poor, often young and occasionally ignorant of the contents of their cargo does nothing to elicit mercy

Patrick Gallahue
7 September 2011

Yong Vui Kong has been deprived of many things.

He was denied an education, leaving school at 11-years-old. He was denied the company of his family after he left his hometown of Sabah for Kuala Lumpur at 15 to work as an apprentice cook. More recently, he has been denied a shred of mercy.

Vui Kong is on death row after being arrested in Singapore with 47.27 grams of diamorphine when he was barely out of childhood. He was sentenced to die by the High Court in 2008 and the young Malaysian’s subsequent appeals have since been rejected.

One of the major tragedies of Vui Kong’s case is that he is so emblematic of those condemned to die for drug offences. 

Last March, China executed three Filipino drug mules, including Sally Ordinario-Villanueva, 32. Villanueva worked in China as a domestic helper when a dorm-mate offered her a job delivering 'spare parts.' When she arrived in China, it turned out she had been carrying a little over 4 kilos of heroin. Her final request before facing lethal injection was for her two children to receive an education.

There are literally thousands more examples like these.

Politically, it is popular to argue that major traffickers and elite drug kingpins are worthy of the state’s strongest punishment. But common sense dictates that the Pablo Escobars of the world do not strap drugs to their bodies and cross borders.

Serving as a drug mule is exclusively the vocation of the desperate, the poor and/or the naive. Thus the severest penalties, imposed to enforce already draconian drug laws, tend to disproportionately affect the poor.

As the Global Commission on Drug Policy wrote recently, “Around the world, the vast majority of arrests are of these nonviolent and low-ranking ‘little fish’ in the drug market. They are most visible and easy to catch, and do not have the means to pay their way out of trouble. (They cannot afford bribes or bail, for example.) The result is that governments are filling prisons with minor offenders serving long sentences, at great cost, and with no impact on the scale or profitability of the market.”

Yet in 32 countries or territories drug offenders – including ‘low-ranking little fish’ – also face the death penalty, many of whom are foreigners who have been apprehended with international support

While some policymakers would like to assume that the courts are capable of recognising a defendant’s role in the value chain of a drug trafficking organisation, the reality is that in at least 12 countries, the death penalty is mandatory for anyone caught with more than specified (often small) quantities of drugs. Judges’ hands are tied to do anything other than impose death – which does not always sit well with jurists.

In Malaysia, when High Court Justice Mohtarudin Baki imposed a death sentence on Seok Hann for drug trafficking, he said,  “I did not have any choice but impose a death sentence on you. There is not a single judge who is happy to impose a death sentence. I have searched for opportunities not to impose the death sentence on you but failed.”

This joined another case in Malaysia where the judge nearly wept while handing down a death sentence.

Courts around the world are fully aware that they are not getting the ‘big smugglers’.

Tehran prosecutor Abbas Jafan Dolatabadi said  “Three-hundred people have been sentenced to death in relation to drug smuggling. However, these people are not the major drug traffickers … We need to move towards the big smugglers.”

This is an astonishing admission – especially considering Iran has executed drug offenders at a frantic pace, reportedly well over 10,000 drug offenders since the 1979 revolution. 

And the rate is not slowing down. According to the UK's Foreign and Commonwealth Office's Human Rights and Democracy report, “Credible reports suggest that the execution figure rose from at least 388 publicly reported executions in 2009, to more than 650 in 2010. Reports indicate that roughly 590 people were executed for drugs trafficking in 2010.”

A reasonable defence of these laws might be that no matter how poor or desperate these drug mules are, they made a choice that has potentially serious social impacts necessitating punishment. 

But even this view wrongly presumes the courts will spare the ignorant or gullible. 

In 2007, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, protested Singapore’s pending execution of a Nigerian named Iwuchukwu Amara Tochi, who was arrested with drugs as a teenager.

The trial judge appears to have accepted that Tochi might have been ignorant of what he was carrying, indeed stating “there was no direct evidence that he knew the capsules contained diamorphine.” However, according to the judge, that “ignorance did not exculpate him”; Tochi was convicted and sentenced to death. The appeal court rejected the suggestion that it was irrelevant whether Tochi had knowledge of what he was carrying. Nevertheless, it upheld his conviction, reasoning that under Singapore law such knowledge is presumed until the defendant rebuts that presumption “on a balance of probabilities”; “It is not sufficient for a defendant merely to raise a reasonable doubt.”

Tochi was executed later that year. He was just 21-years-old.

What then does it take to presume lethal ‘knowledge’ in Singapore?

Singapore’s Misuse of Drugs Act states that a person in possession of drugs above a specified quantity “shall be presumed to have had that drug in possession for the purpose of trafficking unless it is proved that his possession of that drug was not for that purpose.” The Act further states that people can “be presumed to have had that drug” in possession based on possessing “(a) anything containing a controlled drug; (b) the keys of anything containing a controlled drug; (c) the keys of any place or premises or any part thereof in which a controlled drug is found; or (d) a document of title relating to a controlled drug or any other document intended for the delivery of a controlled drug, shall, until the contrary is proved.”

So one had better be very careful about choosing flatmates or tenants.

The section even adds: “The presumptions provided for in this section shall not be rebutted by proof that the accused never had physical possession of the controlled drug.”

While features – such as youth and poverty – may be factors in what led people to death row they are not causes for mercy. Singapore’s Law Minister argued that softening the laws would, “send a signal to all the drug barons out there: just make sure you choose a victim who is young, or a mother of a young child, and use them as the people to carry the drugs into Singapore.”

By this logic, drug mules are executed in order to send a message to their bosses ( as if they care). 

It is entirely possible that some powerful ‘bad’ people are executed for drugs. Governments could probably trot out some examples of major traffickers who were shot, hanged or lethally injected.

But all too often, states disproportionately apply the ultimate sanction to the lowest value figures of a drug trafficking organisation. That these people are sometimes young, usually poor and occasionally ignorant of the contents of their cargo does nothing to elicit mercy.

And for all the deprivations boys like Vui Kong have experienced – this denial of mercy is the cruellest of all.

This article stems from a paper presented at the 10th International Congress on AIDS in Asia and the Pacific

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