Authored By: Hon Jia Xuan
Multimedia University Malaysia
ABSTRACT
The Abolition of Mandatory Death Penalty Act represents a landmark shift in Malaysia’s approach to capital punishment. This article explores the rationale behind the reform and analyses its legal and societal implications. It gives judges more power to decide on suitable punishments instead of always choosing the death penalty. However, the absence of structured sentencing guidelines raises questions about consistency and transparency. Although the abolition of the mandatory death penalty is a progressive step, but it must be supported by robust safeguards to ensure justice is administered fairly and effectively in every case.
KEYWORDS: Death penalty, Mandatory sentencing, Malaysian criminal law, Abolition of Mandatory Death Penalty Act 2023, Human rights
Introduction
Malaysia has taken a significant step in reforming its criminal justice system. The enactment of the Abolition of Mandatory Death Penalty Act 20231 ended the rule that required judges to give the death sentence for certain crimes. Now, judges can choose from different types of punishment. This new law shows that Malaysia wants to treat people in a fairer and more understanding way. It also follows the global movement to limit the use of capital punishment. This article explains why the law was changed, what the effects are, and what issues may come next. Furthermore, even though the reform is a good move, there must be more steps to keep the justice system fair and balanced.
The Law Before 2023
Before the reform, Malaysian law forced judges to give the death penalty for serious crimes. For example, Section 302 of the Penal Code2 said that murder must automatically lead to death. The Dangerous Drugs Act 1952 also required death for drug trafficking under Section 39B3.
Judges had no discretion. If someone was found guilty, they had to be sentenced to death. This rule did not allow for special circumstances or personal situations and led to unfair outcomes. It treated every case the same, even when there are unique factors in each circumstance.
The Reform: Introducing Judicial Discretion
The 2023 Act alternate how the courts handle capital punishment. At present, judges can decide between the death penalty and other punishments like prison terms of 30 to 40 years, sometimes with whipping. This change affects 11 offenses, including murder and drug trafficking. It is paramount to notice that this act is retrospective. Individual who already sentenced to death can ask for a new sentence under the new rules. This gives hope and chance to many who felt the old law treated them too harshly and to be reconsidered.
Motivations Behind the Reform
There are several factors contributed to the push for reform. To start off, this act enhancing judicial discretion which is gives power back to judges. The rigid of mandatory sentencing limited judges’ ability to consider the full context of each case. The judges are forced to impose death penalty and may lead to unfair trial. Now, the reform empowers judges to deliver more proportionate and fair sentences.
Second, it prevents injustice and inconsistent. When the same punishment is given to very different cases, the results can be unfair. If there is new evidence in the case under death penalty, the case should be reopened. Unfortunately, these principles are not implemented in Malaysia, which may result in wrongful convictions. If death penalty is mandate, the error is irreversible when there are wrongful executions.
The absolute judgement has possibility to put an innocent people to death. The article published by National Geographic highlights that there are at least 182 innocent people had been sentenced to death since 1973 in United States4. Hence, the statistics shown that even in the developed country, wrongful execution can exist. Another clear example is also illustrated in the Malaysia case, Chew Wai Keong & Anor v Public Prosecutor5, the two appellants were charged for murder. One of the accused had little connection to the murder but was still sentenced to death yet there was no DNA evidence shows that he kills the deceased. This kind of wrongful convictions case shows why change was needed.
Third, the reform supports with human rights. International human rights organizations have long said that the mandatory death penalty violates and against the right of life as well as right to a fair trial. Groups like Amnesty International and Human Rights Commission of Malaysia (SUHAKAM) have supported this reform. Additionally, Article 7 of the International Covenant on Civil and Political Rights (ICCPR)6 also state that an individual is not liable to torture, cruel, and inhuman treatment or punishment.
In Malaysia, the Federal Constitution in Article 57 also enshrines the right to life. In the case Public Prosecutor v Lau Kee Hoo8 , argued that the sentencing to the death penalty was unconstitutional which ultra vires the Article 5. Allowing death penalty not only going against the Article 5 of Federal Constitution but also gives power to the government to inflict violence against its people which contradicts the government’s duty to defend its people.
Also, drug trafficking laws were too harsh. Before 2017, drug trafficking almost always led to death. But the law was changed in 2017 to allow life imprisonment if certain conditions were met. If the offenders had met one of the circumstances mentioned in Section 39B (2A) of DDA9, life imprisonment and at least 15 strokes of caning will be sentenced instead of applying the death penalty automatically. This showed a move towards more balanced justice. The 2023 reform continues this trend.
Challenges in Implementing the New Framework
Although the reform is helpful, it also brings new problems. One issue is the lack of sentencing guidelines. Judges now have more freedom, but there are no rules to guide them which will lead to inconsistencies. This means two people guilty of similar crimes might get very different and unfair punishments. Sentences could either remain as the death penalty or be replaced with imprisonment term of up to 40 years or whipping. For example, after the 2018 change in drug laws, only 4 out of 38 people escaped the death penalty. In this circumstances, 15 Different judges impose varying sentences for similar crimes, which is unfair to those 34 defendants who were unable to plead for a sentence of imprisonment. This shows that the results depend too much on which judge hears the case. Consequently, public confidence in the judicial system may be undermined.
In two drug cases, which are Pendakwa Raya v Hasibullah bin Mohd Ghazali10 and Public Prosecutor v Heera Singh A/L Mohan Singh11, both were charged under the same law. However, Hasibullah got 10 years while Heera got life imprisonment and whipping. Their crimes were similar, but their sentences were not. Ultimately, this kind of inconsistency weakens trust in the courts.
Bias is another concern. Judges may be influenced by public pressure or personal views. Rich or famous people might get lighter sentences. Poor or unknown people may not. In the Canny Ong case, formerly known as Ahmad Najib bin Aris v Public Prosecutor12, the public was very angry. The accused got the death sentence. He appealed several times, but all the appeals were dismissed. If this happened after the 2023 law, the judge might face pressure to still give the harshest sentence. Besides, gender bias also exists. Studies show that women charged with murder are more likely to get reduced sentences. But women charged with drug crimes are less likely to have their cases reviewed.
There is also public worry that crime might rise. Some believe that removing the mandatory death penalty sends a weak message. Politicians and the public might push for the return of harsh penalties. Also, resentencing and appeals take time. This slows down the courts. The Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act13 allows the Federal Court to resentence 906 people under death penalty. Until November 2023, 96.8% of cases were still waiting for decisions. Judges and lawyers now have more workload as judges must conduct detailed sentencing hearings to determine the appropriate punishment for each case.
In addition, the Islamic jurisprudence of qiyas, often expressed as “an eye for an eye”, which supports the idea that the death penalty is a just punishment for murder. However, the Quran also offers an alternative through forgiveness by the victim’s family. As stated in Surah al-Isra’ (17:33)14, this verse shows that while justice and retribution are key, forgiveness is also a valid and even encouraged option. This has critics argue that the new law may conflict with the concept of qiyas, as it shifts the power of decision entirely to the judge without requiring consultation or forgiveness from the victim’s family. Given that Article 3 of the Federal Constitution15 declares Islam as the religion of the Federation, some may view the Bill as inconsistent with Islamic principles of justice and retribution.
The Path Forward: Ensuring Fair and Consistent Application
Although the law modification is a significant move, the successful execution of this legislation necessitates a carefully planned approach. Hence, essential tactics are needed to solve and guarantee the successful implementation of the bill. To address these challenges, several measures are recommended. First, clear and comprehensive sentencing guidelines must be made. These will help judges give fair and equal punishments. Second, judges need training. They should learn how to use their discretion properly to reduce the risk of bias and enhance the quality of sentencing decisions.
Third, the public needs to understand the reform. Groups like the Malaysian Bar Council can hold public forums to explain why the change was made and the rationale behind the reform. This will help people see that Malaysia is not being soft on crime. Instead, it is trying to be fair. Moreover, the inclusion of human rights and judicial fairness in school curriculums by the Ministry of Education can promote a foundational understanding of these issues in young learners. This system could also be included as a mandatory requirement in all schools under the Education Act 199616.
Subsequently, the courts should watch how sentences are given. If there are patterns of unfairness, the rules can be updated. Finally, bias must be addressed. This includes gender bias. Sentences should be based on facts, not on who the accused is.
Conclusion
The abolition of the mandatory death penalty in Malaysia represents a significant advancement in a more just and humane legal system. It shows a new way of thinking about justice. It gives judges the power to look at each case and decide what is right. But this power must be used wisely. With good training, clear rules, and support from the public, this reform can bring real fairness to Malaysia’s legal system. It is a chance to move from finality to fairness in the way the country handles the most serious crimes.
Reference(S)
Bibliography
Primary Sources
Legislations
Abolition of Mandatory Death Penalty Act 2023 (Act 846) (Malaysia)
Dangerous Drugs Act 1952 (Act 234) (Malaysia)
Education Act 1996 (Malaysia)
Federal Constitution (Malaysia)
International Covenant on Civil and Political Rights
Penal Code (Act 574) (Malaysia)
Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 (Malaysia)
Cases
Ahmad Najib bin Aris v Public Prosecutor [2009] 2 MLJ 613
Chew Wai Keong & Anor v Public Prosecutor [2016] 5 MLJ 509
Pendakwa Raya v Hasibullah bin Mohd Ghazali [2018] MLJU 1444
Public Prosecutor v Heera Singh A/L Mohan Singh [2018] MLJU 1445 Public Prosecutor v Lau Kee Hoo [1983] 1 MLJ 157
Secondary Source
Website
Morris P, ‘Sentenced to Death, but Innocent: These Are Stories of Justice Gone Wrong.’ (National Geographic18 February 2021)
<https://www.nationalgeographic.com/history/article/sentenced-to-death-but-innocent-these are-stories-of-justice-gone-wrong> accessed 12 April 2025
1 Abolition of Mandatory Death Penalty Act 2023 (Act 846)
2 Penal Code (Act 574), s 302
3 Dangerous Drugs Act 1952 (Act 234), s 39B
4 Phillip Morris, ‘Sentenced to Death, but Innocent: These Are Stories of Justice Gone Wrong.’ (National Geographic18 February 2021) <https://www.nationalgeographic.com/history/article/sentenced-to-death-but innocent-these-are-stories-of-justice-gone-wrong> accessed 12 April 2025
5 Chew Wai Keong & Anor v Public Prosecutor [2016] 5 MLJ 509
6 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), 999 UNTS 171, art 7
7 Federal Constitution, art 5(1)
8 Public Prosecutor v Lau Kee Hoo [1983] 1 MLJ 157
9 Dangerous Drugs Act 1952 (Act 234), s 39B(2A)
10 Pendakwa Raya v Hasibullah bin Mohd Ghazali [2018] MLJU 1444
11 Public Prosecutor v Heera Singh A/L Mohan Singh [2018] MLJU 1445
12 Ahmad Najib bin Aris v Public Prosecutor [2009] 2 MLJ 613
13 Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023
14 The Quran, Surah al-Isra’ (17:33)
15 Federal Constitution, art 3 16 Education Act 1996 (Malaysia)
