ALSA 2025 meeting

Reports indicate that over 60% of persons on death row in Malaysia are convicted for drug trafficking offences (under S.39B Dangerous Drugs Act 1952). In 2023, Malaysia abolished its mandatory death penalty, and those on death row underwent the resentencing process. However, the discretionary death penalty continues to exist, and there are calls by Amnesty International and the Anti-Death Penalty Asia Network to address the issue of the drug mules convicted under this provision. Reports indicate that the drug mules are mostly persons from marginalised communities (from lower socioeconomic backgrounds or class; racial, ethnic and/or national minorities; and gender). This study examines the social and intersectional identities of persons convicted under S.39B DDA 1952, from 1980 to 2024 using two methodologies: doctrinal analysis and legal archaeology. Using a collected sample of 915 legal cases reported in the Malaysian law reports from 1980 - 2024, doctrinal analysis of the legal cases was conducted in order to determine the changes in the law, legal arguments and judicial attitudes. A sociolegal methodology called ‘legal archaeology’ (Nottingham, 2022) was used to ‘dig deeper’ into the historical, social, political and economic climate of that period which spans 44 years. The findings indicate links between the conviction rates and social, political and economic changes in Malaysia. There is a peak in convictions of foreign nationals in the early 1980s, during a time when national policy was emphasizing state sovereignty. A high conviction rate of racial minorities from lower socioeconomic groups in the 2000s indicate a link to national socioeconomic and development policies which favoured rapid urbanization in rural communities. By examining the phenomenon of drug trafficking convictions, this study questions the ‘mischief’ behind the provision S.39B DDA 1952 which targets the drug trafficker or drug mules from marginalised communities.