Capital punishment in Malaysia is a legal penalty in Malaysian law.
Malaysia holds thirty-four capital crimes, including murder, drug trafficking, treason, acts of terrorism, waging war against the Yang di-Pertuan Agong, and, since 2003, rape resulting in death, or the rape of a child. Executions are carried out by hanging. The death penalty was mandatory for eleven crimes for many years. In October 2018, the government imposed a moratorium on all executions until the mandatory death penalty was abolished. On 4 July 2023, the mandatory death penalty was abolished when the Abolition of Mandatory Death Penalty Act 2023 (Act 846) came into force.
The idea behind capital punishment in Malaysia arose from a mix between the common law system that Malaysia inherited during their period of British colonisation, as British Malaya, and the authorisation of capital punishment in Islam.
Death penalties are carried out in Malaysia by hanging. As of 2015[update] the penalty was mandatory in twelve offences and possible in thirty-three. The thirty-three capital crimes included murder, drug trafficking, treason, acts of terrorism, waging war against the Yang di-Pertuan Agong, and, since 2003, rape resulting in death, or the rape of a child. As of March 2023[update], there were thirty-four capital crimes, including murder and drug trafficking, with eleven of them carrying the mandatory death penality.
On 3 April 2023, the Dewan Rakyat approved new legislation abolishing the mandatory death penalty by voice vote.
The abolition of the mandatory death penalty started to gain momentum in Malaysia in the 2010s, and the government started to consider more humane ways to "uphold the justice for the people." It was found that although a substantial portion of the public would agree for the death penalty in cases of murder, drug trafficking or firearms offences, this number took a considerable drop once the participants were told about the various scenarios which merited capital punishment as defined in the relevant statute.
However, 82 per cent of Malaysians opposed the government's move to axe the death penalty, according to a poll by the online edition of Berita Harian, Harian Metro and the online New Straits Times in October 2018.
Malaysia has been reviewed twice by the United Nations Human Rights Council under the Universal Periodic Review (UPR). First in 2009 and the other in 2013. In 2009, Malaysia reported in their national report that the death sentence was only imposed on the most serious crimes and was in line with Article 6 of the ICCPR. They also held that there were several safeguards in place in the legal system that have to be met before a death penalty can be passed.
Of the various non-governmental organisations that made a submission for the review, three had an extract about the death penalty. The first was the Human Rights Commission of Malaysia (SUHAKAM). In their report, they noted that they were against the death penalty and natural life sentences and recommended that such cases be reviewed by the Pardon Board. Amnesty International reported that although such a heavy punishment was being carried out, very little information about execution itself was actually made public. This included when the punishment was set to be carried out, the person being punished and who had been executed.
It appeared in the same report that according to 'Malaysians Against Death Penalty' there were a total of 300 inmates on death row in prison in January 2008. Most of them were for drug related offences. The Coalition of Malaysian NGOs in the UPR Process stated that they took the same stance as Amnesty International and noted that the death penalty went against the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As for the Working Groups report, several nations including France, Djibouti, Egypt and Sudan recommended for a range of actions to be taken against the death penalty. This included suggestions of outright abolition to ratifying the ICCPR and applying the relevant standards when the death penalty was imposed. Malaysia re-affirmed their position on the matter and stated that the death penalty was only applied in the most severe cases. However, they noted that they were at the time attempting to remove the death penalty and caning of those below the age of 18 through an amendment of the Essential (Security Cases) Regulations 1975 and at the same time, would consider a reduction in offences which carry the death penalty in a step towards the abolition of the death penalty outright.
In its national report, Malaysia re-iterated its statement made in the 2009 Periodic Review. They added though that there has recently been discussion with the public about the possibility of aboliition of the death penalty. They also noted that a study has been undertaken to reform the criminal justice in which included offences with a death penalty upon conviction. Amnesty International prepared another report for submission for the 2013 Universal Periodic Review. With regards about their submission to the death penalty in 2009, the organisation reported that none of the past recommendations have been implemented yet and reported that currently, there were a total of 930 inmates on death row. The Child Rights Information Network reported that the death penalty was still in force in Malaysia which allowed for the death penalty sentence to be passed under Article 97 of the Child Act 2001. The report submitted Joint Submission number 8 reported that convictions under s302 of the Penal code for murder still occurs in Malaysia.
The report noted that Malaysia's approach to drug offences violated international standards. They further noted that there was a serious lack of due process given that those accused of drug trafficking are presumed guilty upon arrest. The organisation argued that as a result of these presumptions, it has led to hundreds of death sentences and executions. They next reported that for treason which was punishable by death, at least 4 people were executed because of it in 2007. In the working group's report, several nations commented on the fact that Malaysia still has the death penalty and suggested that the death penalty be abolished or that a moratorium on the death penalty be recognised. Some of the nations that recommended this included Spain, Switzerland, Argentina, Belgium, Costa Rica and Kazakhstan. Malaysia responded with a statement that they would keep their options open and continue to engage the public on this subject. They would also look into alternatives to the death penalty. Malaysia pledged that it would complete its review on the moratorium of the death penalty with the intent to abolish it at a later date.
In 2016, Malaysia carried out nine executions, imposed 36 death sentences, and two death sentences were commuted. Malaysia was also reported to have 1,042 death row inmates, including 413 foreign nationals. According to the World Coalition Against the Death Penalty, Malaysia carried out four executions in 2017.
Ongoing discussions to repeal the death penalty as a mandatory sentence have occurred during the 2010s.
On 10 October 2018, Liew Vui Keong, the minister in charge of law in the Prime Minister's Department, announced that the Malaysian Government would abolish the death penalty. The minister announced that the government had imposed a moratorium on all executions until the passage of the new law. The Pakatan Harapan government had campaigned on reviewing capital punishment and other "unsuitable" national security laws during the 2018 Malaysian general election. The bill would mean that these serious crimes might only face the possibility of the death penalty in a High Court sentencing.
The government's announcement to abolish capital punishment was welcomed by Kumi Naidoo, Amnesty International's Secretary General, who called on the Malaysian Parliament to consign the death penalty to the history books. In contrast, multiple groups and people have come out against the abolition of the death penalty, including non-governmental Malay dominance organization, Perkasa.
In March 2019, the government announced its decision to retain the death penalty, although it was announced that, despite the death penalty being retained as an official punishment in Malaysia, it will no longer be used as a mandatory punishment.
On 13 July 2019, Minister in Prime Minister's Department Datuk Liew Vui Keong disclosed that a Bill to abolish mandatory death penalty was expected to be tabled in Parliament in October once the government had decided on appropriate prison terms for 11 serious crimes that it covers.
On 10 December 2019, the Law Minister Liew Vui Keong announced that an anticipated proposal on alternatives to the death penalty would be submitted in January 2020, allowing judges a discretion in certain serious crimes. The 2020–2022 Malaysian political crisis beginning in February 2020 led to a change in government, but subsequently the new Law Minister Wan Junaidi Tuanku Jaafar confirmed on 10 June 2022, that mandatory capital punishment would be formally abolished, with capital punishment being under the discretion of a judge. After the 2022 Malaysian general election led to another change in government, the new administration formally passed new legislation in April 2023 officially abolishing the mandatory death penalty, with Deputy Law Minister Ramkarpal Singh telling Parliament, "The death penalty has not brought the results it was intended to bring."
In April 2023, the Anwar Ibrahim cabinet introduced legislation in Parliament formally repealing the mandatory death penalty. The new law would replace the mandatory death penalty with a sentence of 30 to 40 years in prison, with the exception of offences under the Dangerous Drugs Act 1952 where life imprisonment would remain a possibility. The law would repeal the death penalty altogether for 10 offences, and allow judges discretion to either impose the death penalty or a prison sentence in 11 other offences.
On 3 April 2023, the Dewan Rakyat approved the legislation abolishing the mandatory death penalty by voice vote. The death penalty would be retained, but courts would have discretion to replace it with other punishments, including whipping and imprisonment of 30–40 years. This new jail term replaces sentences "for the duration of the offender's natural life". Life imprisonment in Malaysian law a fixed 30-year term, was retained.
The following is a list of the criminal offences that carried the death penalty as of 2009:
Only High Courts had jurisdiction in capital cases. Appeals to the Court of Appeal and the Federal Court are automatic. The last resort for the convicted is to plead pardon for clemency. Pardons or clemency were granted by the Ruler or Yang di-Pertua Negeri (Governor) of the state where the crime was committed or the Yang di-Pertuan Agong if the crime was committed in the Federal Territories or when involving members of the armed forces. Death sentences were carried out by hanging as provided in Section 277 of the Criminal Procedure Code.
Pregnant women and minors may not be sentenced to death. In lieu of the death penalty, women pregnant at the time of sentencing would have their sentences reduced to life imprisonment as provided by Section 275 of the Criminal Procedure Code, while juvenile offenders would be detained at the pleasure of the Ruler, Governor or Yang di-Pertuan Agong depending on where the crime was committed as provided by the Child Act 2001.
The death penalty for drug trafficking was made mandatory in 1983. The main reason for this was because drug trafficking was seen as one of the national challenges of the country. Since then, there has been a relaxation on this rule as death penalties may sometimes be substituted with a lighter sentence which includes mandatory whippings, forced rehabilitation or preventive detention.
The presumption is that a person would be considered to be trafficking drugs if they were in possession of a certain amount of dangerous drugs. Under section 39B of the Dangerous Drugs Act, those in possession of 15 g or more heroin and morphine; 1,000 g or more opium (raw or prepared); 200 g or more cannabis; and 40 g or more cocaine will receive the mandatory death sentence. The courts have affirmed that to establish prima facie drug trafficking, it has to be shown that the accused party was in actual possession of the drug and that the person has to have knowledge that they were in possession of the dangerous drug. Once the death sentence has been passed, the sentence shall be passed on to the chief minister of the state where the judgment was given where a note about the evidence used in the case and a report about the judges opinion of the sentence would be included. The minister then has a choice of either fixing a time and place for the execution to be carried out or may substitute in a lesser punishment if the minister wishes.
The courts though have noted the severity of the sentence and in several instances have tried to impose a lower sentence where possible. One of the methods employed by the court would be to ensure that the procedures set out for the sentence have been strictly adhered to by the prosecution. The court in that case paid close attention to the evidence presented to ensure that the judgment made was the right one. The court has also acquitted a person when the reported amount of drugs seized was only slightly different from the amount of drugs received by the forensics lab chemist. The difference in amount was 10.21 grams.
There have also been suggestions by those in the executive for a re-appeal of the death sentence for drug trafficking. The Law Minister in 2012 held that the government may replace the death sentence with an imprisonment term instead in recognition that such a sentence only punishes the drug mules and not those higher up in the chain. There was also the fact that the death penalty does not seem to have the deterring effect that such a penalty was hoped to create, thus questioning the need for the penalty for that particular offence.
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