Malaysia’s death penalty laws, particularly Section 302 which mandates capital punishment for murder, have long been a subject of intense debate. Recent reforms have sparked a transformative era in the country’s approach to sentencing and executions. These changes reflect shifting public opinions and growing international pressure to address human rights concerns surrounding the death penalty.
The ongoing reform process has an impact on various aspects of Malaysia’s criminal justice system. It calls for a careful examination of historical context, implementation challenges, and transitional measures. This article aims to analyze the recent changes to Malaysia’s death penalty laws, explore public sentiment, and discuss the international factors influencing this significant shift in the nation’s approach to capital punishment.
Historical Context of Malaysia’s Death Penalty
The death penalty has occupied a place in Malaysia’s criminal justice system since the British colonial administration, when the mandatory death penalty was originally enforced for murder. 1 2 When Malaya achieved independence in 1957, it inherited the common law system, including the death penalty, introduced during British rule. 2
Evolution of capital punishment
Although the Dangerous Drugs Act (DDA) was introduced by the British colonial government in 1952 to combat drug-related substances, the DDA did not carry the death penalty until 1975. 1 3 During this period, the government’s campaign against drugs began, and capital punishment was introduced as a discretionary penalty for drug traffickers. This punishment was made mandatory in 1983. 1 3
Under Prime Minister Mahathir’s administration, the use of the death penalty (both sentencing and executions) was expanded, with the government viewing drug crime as one of the country’s most important security concerns. 1 Malaysia’s drug laws were considered among the harshest in the world, with a “no-mercy” policy applied towards drug convicts applying for clemency until the early 1990s. 1
Mandatory death sentences
Between 1980 and 1996, there was an average of 15-16 executions per year in Malaysia. 1 In 1992, there were at least 39 executions, representing the highest minimum total that Amnesty International has ever recorded in one year in the country. 1 Malaysian authorities hanged more than 120 prisoners convicted of capital drug offenses from 1983 to 1992. 1
Crimes punishable by death
As of March 2023, there were 34 capital crimes in Malaysia, including murder and drug trafficking, with 11 of them carrying the mandatory death penalty. 4 The Abolition of Mandatory Death Penalty Act 2023 (Act 846) came into force on 4 July 2023, amending the list of offenses punishable by death. 4
The following is a list of 27 criminal offenses that carried the death penalty in Malaysia as of 4 July 2023: 4
- Murder
- Drug trafficking
- Treason
- Waging war against the Yang di-Pertuan Agong (the King)
- Terrorism
- Abetting Mutiny (Armed Forces)
- Hostage taking resulting in death
Recent Reforms to Malaysia’s Death Penalty Laws
Abolition of mandatory death penalty
In 2023, Malaysia took a significant step by abolishing the mandatory death penalty and introducing sentencing discretion for all offenses for which it was previously applicable. 3 This reform was achieved through the Abolition of Mandatory Death Penalty Bill 2023 and the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of The Federal Court) Bill 2023. 3
The Abolition of Mandatory Death Penalty Bill 2023 removed the mandatory death penalty for 12 offenses, including drug trafficking, murder, treason, and terrorism. 5 Additionally, it abolished the death penalty entirely as a sentencing option for seven offenses, such as attempted murder and kidnapping. 5
Changes to Section 302
A key reform introduced by the Abolition of Mandatory Death Penalty Bill 2023 was the amendment to Section 302 of the Penal Code, which deals with the offense of murder. 6 7 The amendment abolished the mandatory death penalty for murder and introduced sentencing discretion for judges. 6 7
New sentencing guidelines
Under the new sentencing guidelines, the death penalty remains as a discretionary punishment for murder, with an alternative sentence of imprisonment for 30 to 40 years and 12 strokes of the whip. 6 Additionally, the sentence of life imprisonment for murder was removed and substituted with a term of imprisonment for 30 to 40 years. 6
The reforms also introduced changes to other offenses related to murder. For instance, the amendment to Section 364 of the Penal Code abolished the death penalty for the offense of kidnapping or abducting in order to murder. 7 Similarly, the amendment to Section 374a abolished the death penalty for hostage-taking resulting in death. 6 7
Since 12 September 2023, a resentencing process has been underway, granting those already under the sentence of death and natural life imprisonment in Malaysia an opportunity to have their sentences reviewed and possibly commuted. 3
Public Opinion on Capital Punishment in Malaysia
Survey findings
A major public opinion survey conducted on a representative sample of 1,535 Malaysian citizens revealed significant insights into the public’s stance on capital punishment. 8 While a large majority expressed support for the death penalty in theory – 91% for murder, 74-80% for drug trafficking (depending on the drug), and 83% for firearms offenses 8 – there was a notable gap between this theoretical support and the willingness to impose the death sentence in realistic scenarios.
Specifically, when presented with hypothetical cases involving mandatory death sentences, public support dropped drastically. For instance, the initial 56% support for the mandatory death penalty for murder declined to a mere 14% when respondents were faced with an actual scenario. 9 This discrepancy highlights the complexities surrounding public opinion on capital punishment in Malaysia.
Demographic trends
The survey data revealed some demographic trends in public opinion on the death penalty. Older respondents and those with lower education levels were more likely to support capital punishment, while younger and more educated individuals tended to be more opposed. 8 Additionally, there were variations in attitudes across different ethnic groups, with the Malay and Indian communities generally expressing stronger support for the death penalty compared to the Chinese community. 8
Reasons for support/opposition
Among those who supported the death penalty, the primary reasons cited were deterrence, retribution, and the belief that capital punishment was an appropriate punishment for serious crimes. 8 10 Conversely, opponents of the death penalty expressed concerns about potential miscarriages of justice, the irreversibility of executions, and the belief that life imprisonment could serve as an effective alternative. 8 10
It is worth noting that public opinion on the death penalty in Malaysia has been actively shaped by various stakeholders, including the Bar Council of Malaysia, the Human Rights Commission of Malaysia (SUHAKAM), and civil society organizations like Lawyers for Liberty and Amnesty International Malaysia. 10 These groups have played a crucial role in raising awareness and advocating for reforms in the country’s capital punishment laws.
International Pressure and Human Rights Concerns
Malaysia’s stance on the death penalty has been a subject of international scrutiny and pressure, particularly from the United Nations and human rights organizations.
UN resolutions
Malaysia is neither a party to the International Convention on Civil and Political Rights (ICCPR) nor its Second Optional Protocol aiming at the abolition of the death penalty (1989). 3 However, Malaysia imposed an official moratorium on executions in 2018 and has since consistently supported the United Nations General Assembly resolution calling for a moratorium on executions with a view towards its ultimate abolition. 3
In 2007, the UN General Assembly stated that ‘there is no conclusive evidence of the death penalty’s deterrent value and that any miscarriage or failure of justice in the death penalty’s implementation is irreversible and irreparable.’ 5 UN experts have reiterated that the ‘death row phenomenon’ – the psychological effects of being on death row – ‘has long been characterized as a form of inhuman treatment.’ 5
Diplomatic efforts
UN human rights experts hailed Malaysia’s decision to revoke the mandatory death penalty for many serious crimes, a move that could potentially spare the lives of 1,300 prisoners on death row. 11 They stated, “The decision bolsters the global trend towards universal abolition. The death penalty is incompatible with fundamental tenets of human rights and dignity.” 11
The experts stressed that those sentenced to death, often hail from ethnic minority groups and, in some cases, include persons with disabilities, who suffer from a severe deterioration of their mental health due to prolonged periods of imprisonment. 11 They expressed hope that the recent decision would pave the way for the complete abolition of the death penalty in Malaysia and eventually in the whole region. 11
Human rights organizations’ stance
Amnesty International Malaysia welcomed the amendments as important steps in the right direction but urged the authorities to continue working towards complete abolition of the death penalty in Malaysia. 3 The organization has been campaigning against the death penalty globally for over 45 years, monitoring its use by all states and applying pressure on cases facing imminent execution. 3
Human Rights Watch stated that Malaysia’s abolition of the mandatory death penalty is an important step toward aligning with international human rights norms and growing global opposition to capital punishment. 5 The organization highlighted Malaysia’s vote in favor of the UN resolution for a moratorium on the use of the death penalty in December 2022. 5
Human rights groups have played a crucial role in raising awareness and advocating for reforms in Malaysia’s capital punishment laws. 10
Implementation Challenges and Transitional Measures
Resentencing existing death row inmates
Since 12 September 2023, a resentencing process has been underway, granting those already under the sentence of death and natural life imprisonment in Malaysia an opportunity to have their sentences reviewed and possibly commuted. 3 5 More than 1,300 persons currently under the sentence of death in Malaysia will now be entitled to have their sentences reviewed. 9
Parliament passed the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Bill 2023, which allows prisoners sentenced to death or natural life imprisonment to apply for resentencing by the Federal Court within 90 days of the law being formally published, which the court can extend. 5 The Federal Court, which will not review the conviction itself, can either uphold the original sentence or replace it with 30 to 40 years in prison. 5 Prisoners will only be allowed to apply once. 5
Amnesty International Malaysia urges authorities to ensure that the resentencing process is made to be a fair and meaningful opportunity for all those involved, and that Malaysia continues working towards ending this cruel, inhumane, and degrading punishment once and for all. 3 In a significant advance from the previous bills, it was a welcome move that the amendments will see the measures applied retroactively and that all individuals on death row will have a chance to apply to have their sentences reviewed. 3
Training judges and prosecutors
The reforms have introduced sentencing discretion for judges, necessitating comprehensive training programs to ensure consistent and fair application of the new sentencing guidelines. Prosecutors will also require training to adapt to the revised legal framework and present appropriate sentencing recommendations to the courts.
Malaysia should ensure that all resentencing efforts uphold the right to a fair trial, with sufficient time and resources. 5
Updating legal procedures
The abolition of the mandatory death penalty and the introduction of sentencing discretion will require updates to various legal procedures and protocols. This includes revising guidelines for prosecutors, updating court procedures for sentencing hearings, and establishing clear criteria for judges to consider mitigating and aggravating factors in determining appropriate sentences.
Amnesty International Malaysia and other human rights organizations have played a significant role in influencing the Malaysian government’s decisions on the topic through legal advocacy work, research, and collaboration with academic experts. 9 Their efforts have contributed to the historic legal reforms to abolish the mandatory death penalty.
Conclusion
Malaysia’s recent reforms to its death penalty laws, particularly the changes to Section 302, mark a significant shift in the country’s approach to capital punishment. These changes have an impact on various aspects of the criminal justice system, from sentencing guidelines to the resentencing of existing death row inmates. The reforms reflect changing public attitudes and growing international pressure to address human rights concerns surrounding the death penalty.
To wrap up, the abolition of the mandatory death penalty in Malaysia is a crucial step towards aligning with international human rights norms. However, the implementation of these reforms presents challenges, including the need to train judges and prosecutors, and to update legal procedures. As Malaysia navigates this transformative era, it’s essential to continue monitoring the effects of these changes and to consider further reforms to improve the country’s justice system.