Malaysia Repeals Mandatory Death Penalty

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(Bangkok) – 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, Human Rights Watch said today.

On April 11, 2023, the Dewan Negara, or upper house of parliament, passed two bills reforming death penalty sentencing, following their passage by the Dewan Rakyat, or lower house, on April 3. The bills will now be sent to the king to be signed into law. Malaysian lawmakers should build on this momentum by taking further steps toward total abolition of this inherently cruel punishment.

“The abolition of the mandatory death penalty brings Malaysia closer to the majority of countries that have eliminated capital punishment altogether,” said Elaine Pearson, Asia director at Human Rights Watch. “Malaysia’s next step should be ending its use of the punishment entirely and commuting the sentences of the 1,300 prisoners sitting on death row.”

Malaysia previously retained the death penalty for 33 offenses. The Abolition of Mandatory Death Penalty Bill 2023 removes the mandatory death penalty for the 12 offenses that carried it, including drug trafficking, murder, treason, and terrorism. The bill also removes the death penalty entirely as an option for seven offenses, including attempted murder and kidnapping. “Natural life imprisonment,” which incarcerates prisoners until death, will be replaced by 30- to 40-year prison terms.

However, the new law retains the death sentence for drug trafficking under the Dangerous Drugs Act 1952, the most common conviction for death row prisoners. The Malaysian government should swiftly remove the death penalty as a sentencing option for all drug-related charges, which do not meet the threshold for “most serious crimes” under international law, Human Rights Watch said. Such disproportionate punishments are also counterproductive to public health and safety efforts.

For most offenses that will retain the death sentence, judges will be granted the discretion to impose either the death penalty or a prison sentence of 30 to 40 years and caning. Alternative sentencing should be amended to remove caning, a punishment that amounts to torture under international human rights law, Human Rights Watch said.

When the mandatory death penalty was made optional for certain drug charges in 2018, it had little impact: 34 of 38 defendants were still sentenced to death for drug trafficking over the ensuing year and a half, with judges exercising their discretion to impose a life sentence in only four cases. “The judiciary remains reluctant to exercise discretion when it can,” anti-death penalty researchers concluded.

Parliament also passed the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Bill 2023, which will allow 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. 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. Prisoners will only be allowed to apply once.

Law Minister Azalina Othman Said, who put forward the bills, reported that the new laws will affect about 1,340 prisoners currently on death row and over 100 serving natural life sentences, including 840 death row prisoners who have exhausted all appeals. More than a third of death row prisoners are foreign nationals.

Malaysia should ensure that all resentencing efforts uphold the right to a fair trial, with sufficient time and resources.

Malaysia has maintained a de facto moratorium on executions since 2018, having last carried out a death sentence by hanging in 2017. But with the mandatory death penalty in effect, the tally of death row prisoners has inevitably grown. Malaysia was one of only 11 countries that imposed the death penalty for drug-related offenses in 2021.

Human Rights Watch opposes capital punishment in all countries and under all circumstances because of its inherent cruelty and finality, and has long called on Malaysia to end all use of the death penalty. The death penalty is inevitably and universally plagued with arbitrariness, prejudice, and error.

“We cannot arbitrarily ignore the existence of the inherent right to life of every individual,” Deputy Law Minister Ramkarpal Singh said during the lower house debate. “The death penalty has not brought the results it was intended to bring.”

In December 2022, Malaysia voted in favor of the ninth resolution for a moratorium on the use of the death penalty at the United Nations General Assembly. In 2007, in its first resolution calling for a worldwide moratorium, the 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.” UN experts recently reiterated that the “death row phenomenon” – the psychological effects of being on death row – “has long been characterized as a form of inhuman treatment.”

While the world is shifting toward abolition, many Asian countries – particularly China, Singapore, Vietnam, Myanmar, and North Korea – have lagged behind or reversed course.

“The risks of irreversible harm, while subjecting prisoners to psychologically damaging conditions, should be taken off the table entirely,” Pearson said. “Malaysia has the opportunity to further its regional leadership by fully eliminating state-sanctioned executions and upholding people’s rights to life and freedom from torture.”