We know that, together, we can end the death penalty everywhere.

Every day, people are executed and sentenced to death by the state as punishment for a variety of crimes – sometimes for acts that should not be criminalized. In some countries, it can be for drug-related offences, in others it is reserved for terrorism-related acts and murder.

Some countries execute people who were under the age of 18 when the crime for which they have been convicted was committed, others use the death penalty against people with mental and intellectual disabilities and several others apply the death penalty after unfair trials – in clear violation of international law and standards. People can spend years on death row, not knowing when their time is up, or whether they will see their families one last time.

The death penalty is the ultimate cruel, inhuman and degrading punishment. Amnesty International opposes the death penalty in all cases without exception – regardless of who is accused, the nature or circumstances of the crime, guilt or innocence or method of execution.

KEY FACTS AND FIGURES

469
executions carried out in Malaysia since the country gained independence in 1957.
906
people are currently on death row in Malaysia.
415
out of the 906 individuals on death row in Malaysia are foreign nationals (45.8%).

BASED ON STATISTICS OBTAINED IN 2019

67.5%
of all individuals on death row were convicted of drug trafficking under section 39(b) of the Dangerous Drugs Act 1952, an offence that does meet the threshold of “most serious crimes” under international law.
141
women were reported to be on death row, 86% of which were foreign nationals.
95%
of all women on death row were convicted for drug-related offenses.

All death penalty will be abolished. Full stop.

Liew Vui Keong, de facto Law Minister, 10 October 2018

Current Status of the Death Penalty in Malaysia
(as of 10 October 2023)

The death penalty is currently retained for 27 offences in Malaysia, and in recent years has been used mostly for murder and drug trafficking. As of September 2023, 906 people were reported to be on death row in Malaysia, more than 45% of which represent foreign nationals. Of the total, more than half have been convicted of drug trafficking. Some ethnic minorities are over-represented on death row, while the limited available information indicates that a large proportion of those on death row are people with less advantaged socio-economic backgrounds.   

In the past few years, however, there have been important reforms that have brought Malaysia closer towards full abolition of the death penalty. In July 2018, the government imposed a nation-wide moratorium on executions. Although the courts in Malaysia continued sentencing people to death, there have been no executions known to have taken place since the moratorium came into force.    

In 2023, Malaysia took the critical step of abolishing the mandatory death penalty and introducing sentencing discretion for all offenses for which it was applicable. Also included in this set of reforms was the repeal of natural life imprisonment as well as the abolition of the death penalty in full for seven offences. This leaves Malaysia with 27 offenses that are still punishable by death subject to the discretion of the courts. 

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. 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. 

CLICK HERE TO VIEW A STEP-BY-STEP FLOWCHART
(ISSUED BY THE MALAYSIAN GOVERNMENT ON 12 SEPTEMBER 2023)
DETAILING THE RESENTENCING PROCESS


Mainthan A/L Arumugam: still on death row despite supposed victim turning up alive.

Crimes punishable by death in Malaysia

  • Murder
  • Drug trafficking
  • Treason
  • Waging war against the Yang di-Pertuan Agong (the King)
  • Terrorism
  • Abetting Mutiny (Armed Forces)
  • Hostage taking resulting in death

Other concerns associated with the death penalty

Secretive pardons process

Only the Yang Di-Pertuan Agong (the King) and Sultans of each state have the power to grant clemency to death row prisoners, through a pardons board, to commute their sentence to life imprisonment — in which the inmates will serve time for a minimum of 30 years. According to the Prisons Department, the pardon boards of various states in Malaysia commuted the death sentences of 165 people who had been sent to death row from 2007 to 2017. During the same time, 35 executions took place. As of September 2023, 906 people are on death row. 

Malaysia’s International commitments

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). Notwithstanding, 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 as well. Though there has been progress in reforming death penalty laws, Malaysia must continue to work towards joining the global trend of fully abolishing of the death penalty. 

It is particularly troubling that the death penalty is still retained as a discretionary punishment for offenses that do not meet the threshold of “most-serious crimes”—to which the use of this punishment must be restricted under international law and standards pending its full abolition. The use of the death penalty for drug-related offences frequently violates international safeguards and restrictions set out to prevent the arbitrary deprivation of life. It disproportionately affects groups that are already marginalized, deepening existing structural socio-economic inequalities, stigmatization and discrimination. 

The Right to A Fair Trial 

Article 5(3) of the Federal Constitution of Malaysia guarantees the right of a person to be allowed to consult and be defended by a legal practitioner of their choice as soon as possible after arrest. However, gaps in legislation and practical barriers have frequently undermined the realization of this right, particularly for those who do not have the means to instruct their legal representatives independently. A worrying lack of safeguards have led to numerous violations of the right to a fair trial at different points of the criminal justice process, which leave defendants vulnerable to the imposition of the death penalty.  

Amnesty International’s comprehensive report on the use of death penalty in Malaysia highlights in-detail various of these violations such as defendants being held without access to legal counsel from the time of arrest and the failure to enable foreign nationals to access consular assistance in a timely fashion; allegations of torture or other ill-treatment in pre-trial detention in order to obtain a statement or information that is later used to secure convictions, leading to death sentences; failure to provide effective interpretation for foreign nationals and others who could not adequately understand the language used in the proceedings; access to adequate time and facilities to prepare the defence; and the reliance on “presumptions” of guilt, which shift the burden of proof on to the defendant and breach the right to the presumption of innocence. We are also deeply concerned about failures to respect the defendants’ right to appeal against their conviction, especially in cases where new evidence undermines the conviction at its core.  


A BRIEF HISTORY OF THE DEATH PENALTY IN MALAYSIA

The death penalty has occupied a place in the Malaysian criminal justice system since the British colonial administration, when the mandatory death penalty was originally enforced for murder. Although the Dangerous Drugs Act (DDA) was introduced by the British colonial government in 1952 to combat the threat of drug-related substances, the DDA did not carry the death penalty until 1975, when 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.

Under Prime Minister Mahathir, the use of the death penalty (both sentencing and executions) was expanded, with the administration viewing drug crime as one of the country’s most important security concerns. Malaysia’s drug laws were considered one of the harshest in the world, with a “no-mercy” policy applied towards drug convicts applying for clemency until the early 1990s. Indeed, Malaysian authorities hanged more than 120 prisoners convicted of capital drug offences from 1983 to 1992. Between 1980 to 1996, there were 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.

By the mid-1990s, there was a concerted push to lower execution rates. Between 1997 to 2016, there was an average of 2 recorded executions a year, with no recorded executions in 1998, 1999, 2003-5, and 2012. The Malaysian government’s shifting policies on drugs and security offences are likely to have the greatest effect, although 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.

While executions have decreased, total death sentences have not declined, resulting in a hefty death row population, which has risen from 245 prisoners in 1996 to 1,281 in 2019. As noted by scholar Daniel Pascoe, “with neither acquittals on appeal nor clemency being granted as often as is needed to reduce the size of death row, the present pattern for most condemned prisoners is indefinite delay.”

From 2010, a stronger abolitionist movement in civil society emerged, eliciting positive responses from Ministers and politicians. The 2010 Save Vui Kong campaign saw more than 109,346 signatures collected over a span of more than a month. These signatures, together with a formal clemency petition, were submitted to the Istana on 24 August, 2010. Then Law Minister Nazri Aziz stated, “if it is wrong to take someone’s life, then the government should not do it either.” In its 2010 annual report, the national human rights institution, SUHAKAM, stated that it supported full abolition.

By 2011, the Malaysian government had set up the International Centre for Law and Legal Studies (I-CeLLs) to address the use of capital punishment in Malaysia. However, Nazri Aziz stated that abolition of the death penalty could not be done without support from the public. In 2013, the Death Penalty Project’s report exploring the Malaysian public’s views on the death penalty revealed that they were not as anti-abolitionist as initially believed.

In 2017, the government amended section 39B of the DDA to allow the court to impose either the death penalty or life imprisonment, subject to certain conditions by the public prosecutor (limited discretion). This amendment did not have a retrospective effect and was deeply troubling as judges can rely on presumptions of drug possession and trafficking which, when invoked, shifts the burden of proof from the prosecution to the defendant. Contrary to what we hoped for, the bill failed to provide the judiciary with full discretion to impose sentences and to take into account mitigating factors of the defendant.

On 10 June 2022, the then Minister in the Prime Minister’s Department (Parliament and Law) , Wan Junaidi Tuanku Jaafar, said that the government has agreed to abolish the mandatory death penalty and give judges discretionary powers. In October of the same year, amendments to seven separate laws were tabled for their first reading in Dewan Rakyat, with the combined intended effect being the abolition of the mandatory death penalty in Malaysia. However, before the bills were voted upon, parliament had dissolved ahead of the 15th general elections.

Once the new government was formed, efforts to abolish the mandatory death penalty recommenced with two new bills being introduced in parliament—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.

These bills went further than ever before by not only abolishing the mandatory death penalty but also removing the death penalty as a possible sentence for several offences and natural life imprisonment entirely from national legislation. 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.

The two bills were adopted by the Dewan Rakyat (House of Representatives) on 3 April 2023 and by the Dewan Negara (Senate) on 11 April 2023 before being published in the Federal Gazette on 4 July 2023 and 11 September 2023. Amnesty International Malaysia welcomes these amendments as important steps in the right direction but urges the authorities to continue working towards complete abolition of the death penalty in Malaysia

Case Studies

HOO YEW WAH

In 2005, at 20 years old, Hoo Yew Wah was arrested for possession of 188.35 grams of methamphetamine. He was later taken to a police station, where police broke his finger, threatened to beat his girlfriend, and was made to make a statement without a lawyer present. He also made the statement in, his mother tongue, which the police wrote down in Malay. 

Yew Wah contested this statement in court, noting inaccuracies and threats, but the judge dismissed these claims without ordering an investigation. 

Yew Wah was automatically presumed to be guilty of drug trafficking – and was given the mandatory sentence of death. 

He has now been on death row at Bentong prison since 2011. 

Hoo Yew Wah’s case illustrates the many violations of international human rights law and standards associated with the use of the death penalty in Malaysia. These include lack of adequate and timely legal assistance, concerns of torture and other ill-treatment during police interrogation, the reliance on statements or information obtained without a lawyer present, the presumption of guilt in cases of drug trafficking, secretive pardon processes and the extensive use of this punishment for offences that do not meet the threshold of the “most serious crimes” or intentional killing to which the death penalty must be restricted under international law. 

With the newly introduced reforms to the death penalty laws having now come into force, Hoo Yew Wah, along with hundreds of others under the sentence of death in Malaysia, are granted an opportunity to have their sentences reviewed by the Federal Court.
Activists in Malaysia holding up candles and placards whilst campaigning for the abolition of the death penalty.

Hairun Jalmani

On 15 October 2022, a 55-year-old fishmonger who is also a single mother of nine, Hairun Jalmani was sentenced to death by the Tawau High Court in Sabah. Hairun was charged with possessing & distributing 113.9g of syabu in an unnumbered house in Tawau on 10 Jan 2018. 

Hairun’s life chances were stacked against her. She was a single mother in Malaysia’s poorest state trying to support 9 children. Her case is an example of how Malaysia’s death penalty disproportionately punishes those with disadvantaged socio-economic backgrounds with additional discriminations faced by women. 

She was charged under Section 39B (1) (a) of the Dangerous Drugs Act 1952, which used to carry the mandatory death penalty if convicted. Currently, the death penalty remains as one of the possible punishments for this offens, except that it is now subject to the discretion of the judges.

In Malaysia, 95% of all women known to be under sentence of death in 2019 were convicted for drug-related offences. To read more about the harms and impacts of the death penalty on women, globally and in Malaysia, read Amnesty International’s report: “2021 World Day Against the Death Penalty: The additional burden of the death penalty on women”

UPDATE: On 12 September 2023, the Court of Appeal overturned Hairun’s drug trafficking conviction and sentenced her to 12 years’ jail instead.

THE GLOBAL TREND TOWARDS ABOLITION:
DEATH SENTENCES & EXECUTIONS 2008-2022

*This map indicates the general locations of boundaries and jurisdictions and should not be interpreted as Amnesty International’s view on disputed territories.

**Country names listed reflect nomenclature in May 2023

REASONS TO ABOLISH THE DEATH PENALTY

It is irreversible and mistakes happen

Execution is the ultimate, irrevocable punishment: the risk of executing an innocent person can never be eliminated. Since 1973, for example, more than 191 prisoners sent to death row in the USA have later been exonerated or released from death row on grounds of innocence. Others have been executed despite serious doubts about their guilt.

It does not deter crime

Countries who execute commonly cite the death penalty as a way to deter people from committing crime. This claim has been repeatedly discredited, and there is no evidence that the death penalty is any more effective in reducing crime than life imprisonment.

It is often used within skewed justice systems

In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation. In some countries death sentences are imposed as the mandatory punishment for certain offences, meaning that judges are not able to consider the circumstances of the crime or of the defendant before sentencing.

It is discriminatory

The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority. This includes having limited access to legal representation, for example, or being at greater disadvantage in their experience of the criminal justice system.

It is used as a political tool

The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.

WHAT IS AMNESTY INTERNATIONAL DOING TO ABOLISH THE DEATH PENALTY?

For over 45 years, Amnesty International has been campaigning to abolish the death penalty around the world.

Amnesty International monitors its use by all states to expose and hold to account governments that continue to use the ultimate cruel, inhuman and degrading punishment. We publish a report annually, reporting figures and analysing trends for each country. Amnesty International’s latest report, Death Sentences and Executions 2022, was released in May 2023.

The organization’s work to oppose the death penalty takes many forms, including targeted, advocacy and campaign based projects; strengthening national and international standards against its use, including by supporting the successful adoption of resolutions by the UN General Assembly on a moratorium on the use of the death penalty; and applying pressure on cases that face imminent execution. We also support actions and work by the abolitionist movement, at national, regional and global level.

When Amnesty International started its work in 1977, only 16 countries had totally abolished the death penalty. Today, that number has risen to 112 – more than half the world’s countries. More than two-thirds are abolitionist in law or practice.

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