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 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, 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 give the court to impose either the death penalty or life imprisonment, subject to certain conditions by the public prosecutor (limited discretion). This amendment also did not have retrospective effect. Amnesty International Malaysia considers it deeply troubling, as the judges can rely on presumptions of drug possession and trafficking which, when invoked, shift 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.