On July 4th 2023, the Abolition of the Mandatory Death Penalty Act 2023 (Act 846) came into force, formally abolishing the use of the death penalty in Malaysia, more or less. Under this Act, the court now has the discretion to impose the death penalty or imprisonment for a period of not less than 30 years, but not exceeding 40 years, and if not sentenced to death, shall also be punished with whipping of not less than 12 strokes[1]. This follows a moratorium on death sentences that has been in effect since 2018.
Advocacy groups have battled against the mandatory death penalty in Malaysia for centuries. The passing of this Act represents not only a significant triumph in this struggle. It is also a substantial advancement in the realm of human rights throughout the Southeast Asia region.
A History Of The Death Penalty In Malaysia
1952: The Dangerous Drugs Act (DDA) was enforced although it did carry the threat of the death penalty.
1975: The DDA introduced capital punishment as a discretionary penalty for drug traffickers.
1983: The death penalty was made mandatory for drug-related crimes.
Under Prime Minister Mahathir, the use of the death penalty (both sentencing and executions) was expanded, creating some of the harshest drug laws in the world, with a “no-mercy” policy applied towards drug convicts applying for clemency until the early 1990s[2].
1980 to 1996: There was an average of 15-16 executions per year. In 1992, there were at least 39 executions, representing the highest minimum total that Amnesty International has ever recorded in one year in Malaysia[2].
By the mid-1990s, however, there had been a concerted push to lower execution rates.
1997 to 2016: While the changes to Malaysia’s drug and security offences likely had the greatest effect on this shift, a latent recognition that executions were not effective in deterring crime may also have influenced this pattern. From 1998 onwards, only 33 executions have been recorded[2].
Dec 7th 2015: Muhammad Lukman Mohamad and his then-pregnant wife were arrested for possessing, processing and distributing cannabis oil. Although his wife was released on Aug 30, 2018, Lukman was sentenced to death for possession of 3.1 litres of cannabis oil, 279g of compressed cannabis and 1.4kg of substances containing tetrahydrocannabinol (THC)[3].
Mar 25th 2016: Malaysia executed three men for murder in what rights groups called a “secretive” hanging in which the men’s families were given only two days’ notice.
Gunasegar Pitchaymuthu, 35, Ramesh Jayakumar, 34, and his brother Sasivarnam Jayakumar, 37, were sentenced to the gallows after they were found guilty by the high court of murdering a 25-year-old man in a playground in 2005.
Amnesty International has condemned what it called a “last-minute” execution of the men accused of murder[4].
2017: The parliament amended the Dangerous Drugs Act to insert Section 39B(2A), which abolished the mandatory death penalty for drug trafficking. This was later implemented officially in 2018[5].
Feb 17th 2021: Chief Justice Tengku Maimun Tuan Mat allowed Muhammad’s appeal to set aside his conviction on two counts of drug trafficking. They substituted the charges to possession under Section 9 of the Dangerous Drugs Act (DDA) and sentenced him to five years in jail on each charge which are to run concurrently from the date of his arrest[3].
June 10th 2022: Following the presentation of a report on the study of alternative sentences for the mandatory death penalty during the Cabinet meeting on June 8th 2022, Minister in the Prime Minister’s Department (Parliament and Law) Wan Junadi Tuanku Jaafar said that Capital punishment would be replaced by other types of punishment at the court’s discretion[6].
This action is very significant in ensuring that the amendments to the related Acts take into account the principles of ‘proportionality’ and constitutionality in whatever proposals to the government later. – Prime Minister’s Department (Parliament and Law) Wan Junadi Tuanku Jaafar[6]
April 11th 2023: Dewan Negara passed two bills reforming death penalty sentencing, following their passage by the Dewan Rakyat, or lower house, on April 3rd [7].
July 4th 2023: The Abolition of the Mandatory Death Penalty Act 2023 (Act 846) was formally enacted, officially repealing the mandatory death penalty.
The Abolition of Mandatory Death Penalty Bill 2023 removes the mandatory death penalty for the 12 offences that carried it, including drug trafficking, murder, treason, and terrorism. The bill also removes the death penalty entirely as an option for seven offences, including attempted murder and kidnapping. “Natural life imprisonment,” which incarcerates prisoners until death, will be replaced by 30- to 40-year prison terms[7].
Why This New Act Is Important
Malaysia’s abolition of the mandatory death penalty came about when its neighbours stepped up to enforce their own capital punishments.
In 2022, the neighbouring city-state of Singapore executed 11 people for drug trafficking offences[8], including Nagaenthran Dharmalingam, a 34-year-old Malaysian man who had been on death row for more than a decade for trafficking 44 grams (1.5 oz) of heroin into Singapore. Singapore has some of the world’s toughest narcotics laws[9].
The military government in Myanmar, likewise, also handed down its first death sentences in decades, executing four pro-democracy activists[8].
Malaysia’s reforming of its sentences has been hailed by rights groups as a major step forward for human rights in Southeast Asia.
Amnesty International and other rights groups have criticised the use of the death penalty as a deterrent against crime, with experts pointing out that those sentenced to death often hail from ethnic minority groups and in some cases include persons with disabilities, who suffer from severe deterioration of their mental health due to prolonged periods of imprisonment[10].
The death penalty is incompatible with fundamental tenets of human rights and dignity. We reiterate that the mandatory use of the death penalty constitutes an arbitrary deprivation of life and is a fundamental infringement upon the independence of the judiciary and fair trial guarantees.
It denies judges the possibility to consider the defendant’s personal circumstances or the circumstances of the particular offence and individualise the sentence. The mandatory death penalty is not compatible with the limitation of capital punishment to the most serious crimes. – UN human rights experts[10]
Although the new law still retains the death sentence for drug trafficking under the Dangerous Drugs Act 1952[7], it nonetheless was lauded by anti-death penalty advocates who express hope that this will be a step closer towards the total abolition of the death penalty in not just Malaysia but the whole of Southeast Asia[5].
We have this arbitrary sentencing scheme which has been in Malaysia for so long, and it doesn’t have any impact or serve any justice. This is a good step to finally move away from this. – Ngeow Chow Ying, lawyer and anti-death penalty activist with the Anti-Death Penalty Asia Network[5]
What It Means For The Future
Besides being a victory for human rights, abolishing the mandatory death penalty represents a significant step towards broader legal reforms in Malaysia, which may include discussions about the legalisation of medical marijuana.
For more than a decade, possession or sale of marijuana, even for medical reasons, was considered a drug crime, such as medical marijuana vendors risking the death penalty even when they meant no harm in their business.
I kept on seeing the same accused person coming for drug offences. [We would] put them in jail or give them a fine but they would keep coming back. – Samantha Chong, lawyer and former prosecutor[11]
In 2014, the founder of the Malaysian Marijuana Education Movement, Mohd Zaireen Zainal, was arrested for possessing several bottles of cannabis oil and a compressed lump of cannabis at his house. The Muar High Court initially sentenced Zaireen to death for trafficking and was upheld by the Court of Appeal[12].
He was running a small therapy centre from home to give out appropriate amounts of cannabis oil to those who had lost hope in getting their diseases cured by prescribed medicine. He only helped to alleviate the pain of patients in his village. – Kitson Foong, lawyer[12]
Fortunately, in 2019, Mohd Zaireen’s sentence was lowered to serving 15 years in jail and receiving 10 strokes of the rotan[12]. Although marijuana is still not legalised for medical usage in Malaysia, the abolishment of mandatory death sentences for drug crimes does at least mark a step closer to this goal.
Regarding the 1,342 individuals who were still awaiting execution when the new Act came into effect, Dr Wan Junaidi stated that the new law would have retroactive applications, granting those on death row a 90-day window to request a review of their sentences[8]. Ms. Ngeow, while advocating for the reevaluation of these former death row inmates’ sentences, also recognised the possibility of constitutional challenges due to their prior sentencing[5].
Another challenge is that once the mandatory death penalty is removed, it has to be replaced with alternative punishments such as imprisonment. So the number of years et cetera has to now be decided by the government in the Penal Code. – Ngeow Chow Ying, lawyer and anti-death penalty activist with the Anti-Death Penalty Asia Network[5]
Although the death penalty remains a part of Malaysia’s capital offence and justice system, the removal of the mandatory death penalty demonstrates a strong desire to move away from this inhumane practice. It sets precedence for the eventual complete abolition of the death penalty in a region where capital punishment is frequently applied to offences that may not always qualify as serious crimes.
Explore our sources:
- Bernama. (2023). Law to abolish mandatory death penalty takes effect on July 4. The Star. Link.
- A Brief History of the Death Penalty in Malaysia. Amnesty International. Link.
- M. Vengadesan. (2021). Freed unexpectedly from death row, Lukman sets sights on religious studies. Malaysiakini. Link.
- O. Holmes. (2016). Malaysia hangs three men for murder in ‘secretive’ execution. The Guardian. Link.
- A. Yusof. (2022). CNA Explains: The Malaysian government wants to end the mandatory death penalty. Where does it go from here? Channel News Asia. Link.
- V. Tan. (2022). Malaysia government agrees to abolish mandatory death penalty. Channel News Asia. Link.
- Human Rights Watch. (2023). Malaysia Repeals Mandatory Death Penalty. Human Rights Watch. Link.
- N. Yong. (2023). Malaysia ends mandatory death penalty for serious crimes. BBC. Link.
- C. Lin & R. Latiff. (2022). Singapore executes Malaysian on drugs charges after rejecting mental disability appeal. Reuters. Link.
- Malaysia: UN experts hail parliamentary decision to end mandatory death penalty. (2023). United Nations. Link.
- K. Ponniah. (2018). Medical cannabis: Death sentence prompts Malaysia to re-think harsh laws. BBC. Link.
- C.L.Y. Ng. (2019). Founder of pro-medical marijuana group escapes death sentence. The Star. Link.
