Malaysia set to abolish the mandatory death penalty

UPDATE: On 11 April, the Dewan Negar (The Senate) passed the bills abolishing the mandatory death penalty in Malaysia. Once gazetted, the death penalty will no longer be the mandatory (automatic) sentence and judges will have the discretion to consider all the circumstances of a case before deciding on the appropriate sentence, including a prison sentence not exceeding 40 years.

On 3 April, Malaysia’s Parliament unanimously voted to abolish the mandatory death penalty, reducing the number of offences punishable by death and abolishing natural life prison sentences. This is a huge step for Malaysia and will hopefully lead to other countries in the region reforming their death penalty laws. Malaysia has had a moratorium on executions since 2018 and The Death Penalty Project welcomes these sweeping legal reforms – a significant step restricting the imposition of capital punishment which will hopefully lead to the complete eradication of the death penalty in Malaysia.

More than 1,300 persons currently under sentence of death in Malaysia will now be entitled to have their sentences reviewed.

On 3 April, The Abolition of Mandatory Death Penalty Bill 2023 went through its third reading and was successfully passed in the Dewan Rakyat or lower house of Malaysia’s Parliament. If passed by The Dewan Negara, or upper house, it will be sent to the King to be signed into law. The bills will be tested in the Upper House (Senate) next Monday 11 April.

Eleven offences previously punishable by an automatic death sentence, will be replaced with discretionary sentences to be decided by judges on a case-by-case basis. Capital punishment will also be removed as an option for some serious crimes that do not cause death, such as discharging of a firearm and trafficking and kidnapping. Malaysia still retains the death penalty for over 30 offences, but the abolition of the mandatory death penalty means that judges will now have the discretion to consider all the circumstances of the offence and the offender before deciding whether to impose a death sentence or a prison sentence not exceeding 40 years.

Malaysia’s move comes at a time when some Southeast Asian countries have increased their use of capital punishment. Last year, Singapore executed 11 people for drug offences and Myanmar carried out its first execution in decades. The breakthrough in Malaysia should hopefully encourage other governments in ASEAN to re-assess their continued use of the death penalty.

The Death Penalty Project’s work in Malaysia

For more than a decade, we have been working in Malaysia providing legal assistance to individuals facing the death penalty, commissioning independent research and implementing training programmes for those working in the criminal justice sector. Our partner organisations include: the Malaysian Bar, the Human Rights Commission of Malaysia (SUHAKAM), Anti-Death Penalty Asia Network (ADPAN) and other key stakeholders.

In 2013, working with the Malaysian Mental Health Association and Forensic Psychiatry Chambers, we led a workshop for mental health and legal professionals, focusing on the legal aspects of psychiatric and psychological practice in capital cases and other serious criminal cases.

Our empirical research in 2015, The Death Penalty in Malaysia, presents the findings of a public opinion survey on the mandatory death penalty, providing unique data from a large scale and detailed analysis of the views of 1,535 Malaysian citizens. Significantly our research revealed that the public did not support the use of the mandatory death penalty. Our findings revealed that 56% of the public who initially supported the mandatory death penalty for murder, drastically reduced to just 14% when presented with a realistic scenario. Since its publication, our research has continued to make a significant contribution to debates on reforming the death penalty and frequently cited by Government Ministers, Parliamentarians and the diplomatic community.

Our legal and advocacy work over the years has played a major role in influencing the Malaysian Government’s decisions on the topic. In 2015 we were invited to participate in a roundtable event on the abolition of the mandatory death penalty organised by Parliamentarians for Global Action discussing our research and the implications for legal reform.

In 2018, the same year that an official moratorium was introduced on executions, the Bar Council invited us to participate at the International Malaysia Law Conference where we led a session focusing on the mandatory death penalty and launched our infographic video. In January 2019, invited by local lawyers and advocacy groups, we participated in a symposium on the death penalty at Monash University, Kuala Lumpur, providing detailed legal advice on abolition.

We also submitted a memorandum to the Special Committee on Alternative Sentences to the Mandatory Death Penalty (‘The Special Committee’), in collaboration with academic experts at the University of Oxford, providing technical assistance on sentencing in serious criminal offences and alternatives to the death penalty. The Special Committee presented their report to Cabinet on 8^th June 2022, a prelude to yesterday’s historic legal reforms to abolish the  mandatory death penalty.

Saul Lehrfreund, Co-Executive Director of The Death Penalty Project said:

This is a hugely significant breakthrough that will restrict the use of capital punishment in Malaysia. More than 1,300 people currently on death row will now be entitled to have their death sentences reviewed, and in the future, the death penalty will be the maximum but not the only sentence a judge can impose. The reforms have been a long time coming and individuals and human rights organisations in Malaysia should be applauded for their persistence and courage in advocating for change. This is a first step towards the complete eradication of the death penalty and sets an example to other countries in the region who need to re-think their continued use of capital punishment.

Notes to Editors

The Death Penalty Project
The Death Penalty Project (DPP) is a legal action NGO based at and supported by London legal firm, Simons Muirhead Burton LLP. For more than three decades, the DPP has worked to protect the human rights of those facing the death penalty.

For interview requests, quotes or more information please contact Isobelle Degale, The Death Penalty Project, Communications Officer, [email protected]

The Bills

The Abolition Act abolishes two penalties. The mandatory death penalty and the sentence of ‘Imprisonment for Natural Life’ or ‘Imprisonment for Life’ (INL).

• The Abolition of Mandatory Death Penalty Bill of 2023
• The Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court Bill 2023 (the Review Act)

Alternative punishments to the mandatory death penalty include imprisonment of between 30 to 40 years and whipping.

The passed bills are available to view on the Parliament of Malaysia website here.

Abolition around the world

At the end of 2022, 165 countries had abolished the death penalty in law or are classified by the United Nations as abolitionist de facto. Most recently, Zambia (Africa) joined the ever-growing number of countries that have taken the significant step to abolish the death penalty through legislative reform. However, more than 30,000 people, including at least 1,000 women, are estimated to be on death row worldwide.

Death penalty in Malaysia

Historically, Malaysia has been classified as a retentionist country, and the last known execution took place in 2017. In July 2018 an official moratorium was introduced on executions, halting executions whilst the government contemplated policy changes.

As of February 2023, 1,337 people were reported to be on death row. 67.5% of those on death row were convicted of drug trafficking offences.

Death penalty in Asia

The Asia-Pacific region remains a retentionist stronghold with 24 states retaining the death penalty. 17 countries have abolished the death penalty in law. Eight countries in Asia are classified as “de facto abolitionist” states by the United Nations.