The appellant, his hair so short that he appeared almost bald, shuffled into the courtroom quietly. His wrists and ankles are manacled, connecting to each other via a chain, which made it hard for him to walk.
His eyes, hidden behind round black-rimmed glasses, darted here and there, scrutinising the faces of the people sitting on the benches. Finally, his gaze settled on someone, and he grinned. He waved.
Two women, one in her 30s and the other much older, waved back.
Their affection was heart-warming in such sombre surroundings. Everybody else was serious, their tones hushed and reverent when they spoke. The loud voices were reserved for the bailiffs, lawyers or justices in Courtroom 2 at the Palace of Justice in Putrajaya.
And it was serious business indeed – a matter of life and death – that brought the 43-year old inmate, fondly known as Usu, to the Federal Court.
Usu had been convicted of drug trafficking in November 2012, which carried a mandatory death sentence under Malaysian law. Until recently, he had little hope of a future – his existence relegated to living alone in a small cell, where he was only allowed out an hour a day for physical activity.
According to his family and other former death row prisoners, there were no classes other than religious instruction, no training or preparation for outside life.
After all, why would dead men walking need to learn life skills when they were all headed for the noose?
MANDATORY DEATH PENALTY FOR SOME SERIOUS CRIMES REPEALED
On April 3, 2023, the Parliament passed the law repealing the mandatory death penalty for some serious crimes, such as drug trafficking, and giving sentencing discretion to judges.
It came into effect a few months later on July 4. And on Nov 14, the first drug trafficker had his death sentence reduced to 30 years, and further reduced to 20 years for good behaviour. Over 455 death row prisoners have had their sentences commuted as of June 24, 2024.
Throughout the session, fellow inmates with similar drug convictions have had their death sentences commuted to life sentences, with or without caning depending on the age of the applicant. Usu hoped the panel of judges – Chief Justice Tun Tengku Maimun Tuan Mat, Court of Appeal President Tan Sri Abang Iskandar Abang Hashim, and Federal Court Judge Datuk Nordin Hassan – would grant him the same.
Finally, the court officer called his name. Usu stood up, facing the justices. His lawyer requested Usu’s death sentence be commuted to a life sentence. The deputy public prosecutor said they had no objection.
“Death sentence is set aside,” said Chief Justice Tengku Maimun with a bang on her gavel. She sentenced him to 30 years in prison from the date of his arrest and 12 strokes of the cane.
Usu bowed and thanked the court. Shooting a smile to the two women – half-sibling Fiza and his step aunt – he shuffled towards the side entrance to await transportation back to prison.
Having been in prison for almost 12 years, he still has a little over eight years left to serve. Fiza told Bernama that Usu hoped he would be assigned to serve the rest of his sentence in Kajang Prison.
“He is very excited to go to Kajang Prison. In Kajang Prison, he’ll be able to work and earn money,” she said.
All in all, their family is relieved with how things have turned out for Usu. From death, he is now headed to a “normal” prison, where he would no longer be in isolation. Under the Malaysian prison system, vocational training courses are provided for inmates like cooking and tailoring, and other rehabilitation and reintegration programmes.
Some other former death row inmates, who have been released after serving over 20 years in prison, cannot say the same. Incarcerated for two decades, suddenly free with few job skills and a criminal record, it is no surprise that many are struggling to survive and make their own way in the world.
NOW WHAT?
Sitting in the back with the media was a middle-aged woman with chipmunk cheeks and a quick smile. She stood out as a headscarf amidst a sea of headscarves.
She was not from the media, nor was she related to any of the death penalty convicts present.
As the president of KeKasih, a non-governmental organisation (NGO) supporting death row prisoners, 43-year old Hayati Mohamed felt she had a duty to be there, in case any of the inmates needed her. Not many are lucky enough to have family who will support them during and after imprisonment.
One of them was Afi, 46, who was convicted of drug trafficking in 2002. He was released from death row and prison in February 2024.
His second chance has proven difficult, to put it mildly. He lives in Subang with the help of Hayat-Life, an anti-death penalty NGO working to support and reintegrate former death row prisoners.
Speaking at their office, Hayati told Bernama that Afi, like other death row prisoners,was having trouble finding work due to many factors.
“Many death row prisoners who got out are jobless. Plus they are middle-aged, all are almost or past 50 years old. Another is the injury from caning. It has caused some disability,” she said.
On top of that, because Afi had been on death row since he was 23, he has no marketable skills aside from some hospitality training he received prior to his arrest.
He doubts any business would hire him. If so, he would like to start a business, but that requires funds as well. Even basic things that could help him become self-reliant, like getting his driver’s licence, cost over RM1,000.
He wished his family, from whom he is mostly estranged, could loan him some money to help him get a job, but he understood it was not possible.
“My family thinks that since I’ve just gotten out, I have no money. They’re worried they’d have to spend money on me. They have all these commitments—kids, car, house, wife,” he said.
JOBS FOR REINTEGRATION
The prison system provides training and reintegration programmes, consisting of pre-release phases, which former death row prisoners said were only available for regular prisoners. The idea is that these programmes will enable individuals to sustain themselves once released, preventing them from falling back into bad habits and criminality.
Bernama reached out to the Prisons Department for comment but did not get a response.
The Home Ministry reported on Feb 7, 2024 that the recidivism or repeat offender rate is 17 per cent.
However, there is no data on how many of the former convicts are employed, let alone among former death row prisoners.
Former prisoners, as well as experts in the field and social work said the present social infrastructure was not capable of assisting all new releases. While lauding the release of non-violent death row prisoners, they pointed out that joblessness and homelessness were rife among ex-cons even before the new laws.
Human rights lawyer Samantha Chong said there is not enough support for former convicts who have served their time, like death row prisoners who have been in prison for a long time, after their release.
“People think once (the prisoners) are out of prison, they are reformed … and that’s the end of it … (without) considering the culture shock they get and how much society has changed. It’s so fast,” she said.
Criminal justice expert Dr Mohd Alif Jasni told Bernama that his research among the homeless in Kuala Lumpur, many of whom have criminal records, found that family support is a strong factor in determining their life after prison.
"There was someone who received the death penalty but was released, and he couldn't reintegrate into society because his family didn't want to accept him and so on. Eventually, he became homeless," he said, adding that most of his research involved non-death row prisoners.
However, he said the blame should not rest solely with the families. Some former prisoners also choose not to be with their families, feeling ashamed or unwilling to be a burden.
Other factors include mental illness and lack of coping skills. Alif, a senior lecturer at Universiti Utara Malaysia, described many of the former prisoners he worked with as “honest,” but lacking in coping strategies, long-term thinking, and drive, preferring to live for the day instead. Some are drug addicts, whose addiction has damaged their brains so much that they are unable to think clearly and effectively.
Due to their criminal record, they mainly work in the informal sector, where exploitation and abuse are rampant.
CRIMINAL RECORD
No matter how much training a former convict gets and how committed they are to being independent, there is only so much they can do if no one is willing to hire them.
"It's difficult. Everyone says they're already full, they don't need workers. We've already tried," said Hayati, who hails from Kedah.
Other NGOs reported the same. Managing Director of Persatuan Insan Murni, Afiq Khairi told Bernama that he has tried referring some of his charges - drug addicts undergoing methadone treatment, some with criminal records - to businesses via their job placement programme, with mixed success.
He said they usually refer their charges to work in the informal sector, such as guards in buildings or construction sites, or at eateries. However,many employers eventually end up firing these workers.
“Methadone isn't a problem. The problem now is the criminal background,” he added.
Experts say that a criminal record is a major hindrance to the successful reintegration of former convicts. While all agree that the criminal record should be expunged for drug users, applying this to those convicted of nonviolent drug trafficking is a different matter. Former death row convicts, perhaps unsurprisingly, support the idea, with one describing it as "Jackpot," while experts are a bit more cautious.
“It’s a worthwhile discussion,” said Palani Narayanan, head of drug policy at the Malaysia AIDS Foundation. “But the first step is to decriminalise people who use drugs, who are not even involved in sales or any kind of profit-making.”
As a first step, Chong said Malaysia could introduce a law similar to Singapore’s SPENT law. This law expunges or hides the criminal record of a person convicted of non-serious crimes if they spent five or seven years after release without committing a crime.
If not, policymakers should look to amending present laws in Malaysia.
Chong said that the mechanism to expunge non-violent drug offences, from drug use to drug trafficking, is already present under Section 13 of the Registration of Criminals and Undesirable Persons Act.
"You see, the process is there, the mechanism is there. So the law actually provides some leeway, but it has not been updated (since 1998)."
Edited by Salbiah Said
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