Malaysia’s Death Penalty Reform: A Shift Toward Justice and Judicial Discretion

Introduction

Mandatory death penalty refers to the fact that the death penalty is the sole lawful sanction for specific offences, and judges are not permitted to consider alternative penalties or alternatives to death. This implies that the court is obligated to administer the death penalty to an individual who has been convicted of an offence that carries the mandatory penalty, irrespective of the defendant’s background or the specifics of the case. For example, Malaysia previously enforced mandatory death sentences for offences such as drug trafficking, homicide, treason, and terrorism1. 

In 2023, Malaysia made the critical decision to abolish the mandatory death penalty, a decision that was met with mixed reactions from supporters and opponents. The death penalty is being administered to individuals on a daily basis, and certain offences that could result in death are being executed. The elimination of the mandatory death penalty in Malaysia represents a significant change in the legal framework of the country, as it demonstrates a heightened interest in human rights, judicial discretion, and a more empathetic approach to criminal justice, while simultaneously preserving mechanisms to ensure public safety. 

Evolution of the Death Penalty in Malaysia

Malaysia’s criminal justice system has included the death penalty since British colonial rule, when it was mandated for homicide. The death penalty was not initially included in the Dangerous Drugs Act (DDA), which was introduced in 1952. It was made a discretionary sanction for drug trafficking in 1975, and it was subsequently made mandatory in 19832. 

The use of the death penalty increased during the tenure of Prime Minister Mahathir, particularly in the context of drug offences, which were perceived as a significant security concern. From 1983 to 1992, Malaysia implemented a severe “no mercy” policy, which led to more than 120 executions for narcotic offences. By the mid-1990s, execution rates had begun to decrease. This change was likely influenced by evolving policies regarding drug and security offences, as well as concerns regarding the efficacy of the death penalty. 

The number of individuals on death row increased from 245 in 1996 to 1,281 in 2019, despite a decrease in the number of executions.3 Efforts to abolish the death penalty by civil society increased since 2010. In 2011, the government established I-CeLLs to investigate the death penalty. A report released in 2013 indicated that public opinion was not overwhelmingly anti-abolition. The DDA was amended in 2017 to permit limited judicial discretion; however, the modifications were perceived as inadequate. 

One of the cases prior to the 2023 reform in which the mandatory death penalty was enforced solely for the sake of being mandatory, without any discretion by the courts, is illustrated in Letitia Bosman v Public Prosecutor and Other Appeals,4the Federal Court upheld the legitimacy of the mandatory death penalty under Section 39B of the Dangerous Drugs Act and Section 302 of the Penal Code. The appellant contended that the law was unjust because it denied judges the ability to examine individual circumstances, thereby violating Articles 5, 8 and 121 of the Federal Constitution. Nevertheless, the majority of the court determined that the responsibility for prescribing punishment belongs to Parliament, not the courts, and that the law must be adhered to as long as it is duly enacted. The court underscored that international standards are not legally binding unless they are adopted by Malaysia, and life can be lived “in accordance with the law.” There was only one justice who dissented, terming the mandatory death penalty as unconstitutional and arbitrary. Ultimately, the appeal was denied, and the law remained unaltered. 

The government consented to abolish the mandatory death penalty on June 10, 2022. In 2023, the government introduced and passed two significant bills that authorised retroactive sentence reviews and abolished mandatory death sentences and natural life imprisonment.  The measures were gazetted later in the year after passing both houses of Parliament.  

The 2023 Abolition of Mandatory Death Penalty

Although the death penalty was still in the law and justices had the discretion to impose it, it has not been executed since 2018. Nevertheless, it was not implemented during the reforms’ deliberations. Alternative punishments such as imprisonment for 30–40 years and lashing were implemented by the Abolition of Mandatory Death Penalty Act 2023 (Act 846)5. 

The Malaysian parliament has voted to abolish the country’s mandatory death penalty during the 2023 reform process. This action has the potential to save the lives of over 1,300 prisoners who are currently on death row for 11 serious crimes. 6 Nevertheless, justices will retain the authority to administer the death penalty in cases that they deem appropriate. The death penalty will only be applied for the commission of severe offences. 

The 2023 reforms’ retroactive application component enables individuals who were previously sentenced to death or natural life imprisonment to request a review of their sentence. This applies not only to new cases that are currently pending but also to those who were sentenced to death or natural life imprisonment prior to the legal change, as shown in  Section 39 of the Abolition of Mandatory Death Penalty Act 2023 (Act 846).7 Therefore, individuals who were already on death row prior to the implementation of the Abolition of Mandatory Death Penalty Act 2023 are not automatically resentenced. However, they are now eligible to request that the Federal Court reconsider their sentence under the new law, which enables judges to impose less severe penalties 

Balancing Act of Legal Rationale and Human Rights in Death Penalty Debates

In general, the abolishing of the mandatory death penalty is supported and encouraged, as it violates the fundamental human right to life. Nevertheless, there are people who are opposed to this abolishment and believe that capital punishment should remain in its current form.  Nevertheless, I am of the opinion that capital punishment is inhumane and cruel, as it is explicitly stated in Article 5(1) of our Federal Constitution8, which states that no person shall be deprived of their life or personal liberty except in accordance with the law.  Therefore, the mandatory death penalty violates the human right to life when the judge is not granted discretion, which may result in the hanging of an individual who does not deserve it.  However, the new amendment ensures that only those who truly deserve capital punishment will be punished, provided that the judges are convinced of this fact as a result of their extensive and thorough judgement and their comprehensive expertise in the relevant field from years of experience. Consequently, the implementation of this amendment would reduce the likelihood of the unjust murdering of an individual who did not deserve to be taken without any consideration. 

Additionally, the abolition of the mandatory death penalty is a significant advancement that not only promotes Article 5 of the Federal Constitution but also honours the dignity of human beings. This is due to the fact that all individuals, regardless of their criminal record, are entitled to be regarded with respect. The death penalty dehumanises offenders and regards them as beyond redemption. This reform is consistent with Malaysia’s transition to a more compassionate justice system. 

Moreover, the charge of life imprisonment with the potential for parole or review, rather than a mandatory death penalty, enables offenders to undergo rehabilitation and change. This underscores the fact that justice is not solely about imposing punishment; it also involves providing individuals with the opportunity to change their behaviour. This is due to the fact that a significant number of the offenders who were previously convicted for offences that carried mandatory death sentences were coerced and manipulated into committing the act and subsequently apprehended. 

Next, although our legal and judicial system is both equitable and advanced, like any other legal system in the world, it also contains loopholes and room for error. This is due to the prevalence of unjust trials, cheating, and violating the law, which can result in the imprisonment of an innocent individual with a mandatory death penalty as a charge. For example, a case study provided by Amnesty International where Hoo Yew Wah9, a 20-year-old Malaysian national of Chinese descent, was arrested in 2005 with methamphetamine and subsequently convicted on the basis of a statement he made in Mandarin, his native language, but which was documented in Malay by the police. He claims that the statement they required him to sign is inaccurate, and that the police broke his finger during the interrogation. He also claims that they threatened to beat his fiancée if he refused to sign the statement. During the specified timeframe, he was not represented by an attorney. Consequently, this case is a prime example of numerous other instances in which individuals are falsely accused as a result of systemic errors and errors, both known and unknown.

Abolition or Adaptation: Debating the Future of Capital Punishment

Although the mandatory death penalty has been officially abolished since 2023, there are still opinions and movements that argue that the death penalty should be abolished in its entirety.  I concur that the act of removing someone’s life is cruel and inhuman, which is why I opposed the mandatory death penalty since it is irreversible, which would result in conflict and could be used as a form of capital punishment. Nevertheless, I believe that the conventional death penalty may continue to be enforced for severe offences, such as murder, and when the crime is deliberate. Due to the fact that there are serial killers who are psychologically drawn to murdering individuals and find it to be a source of pleasure, as well as murderers who intend to eliminate an innocent human being for no absurd reason. 

For example, in the case of Robin Radjaini Saih @ Amjan Patta v Public Prosecutor [2024] 6 MLJ 77310, a man was brutally attacked and killed, and a child was severely injured with a parang. In this case, he was convicted of murder. In this case, the question is whether the appellant’s death sentence should be upheld or replaced with imprisonment under the new discretionary framework in light of the Abolition of Mandatory Death Penalty Act 2023.  Despite the introduction of the Abolition of Mandatory Death Penalty Act 2023, the High Court sentenced him to death under the law in effect at the time, and the Court of Appeal upheld the sentence. The court determined that the death sentence was warranted by the violent, premeditated nature of the attack and its impact, despite the fact that justices now have discretion. The court rejected the application of the “rarest of the rare” standard from Indian law, asserting that Malaysian courts have complete discretion under the new law and must prioritise public interest over limiting factors. The court upheld the death penalty, asserting that it was justified by the violent nature of the attack, the sustained trauma inflicted on the injured victim, and the premeditated intent to murder both the deceased and the injured victim. Therefore based on this case, it can be said that the victim was killed as an innocent by a murder where the court believed he deserved a death penalty although it is not mandatory after the abolishment of compulsory death penalty. However, i also believe that that death as a punishment is not the solution for these offences and the nation may use other punishments that would benefit more than death.

Malaysia’s Position in the Global Movement Against the Death Penalty

Malaysia has not carried out any executions in relation to its international obligations since 2018.11 This is referred to as a de facto moratorium, which indicates that the government has elected not to implement the death penalty, despite the fact that it remains lawful as mentioned earlier in this article. This is perceived as a potential step towards the complete abolition of the death penalty. It also demonstrates that Malaysia is gradually striving to comply with international human rights standards. 

Nevertheless, Malaysia is not a member nation to The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), a treaty that stipulates that nations must abolish the death penalty. Malaysia has not either signed or consented to this treaty, which implies that it is not legally obligated to abolish the death penalty.  

Consequently, if Malaysia is committed to the complete abolition of the death penalty, it should become a member of this community in order to progress in this direction. 

Furthermore, Malaysia could also compare and gain insights from neighbouring ASEAN countries regarding their approaches to severe offences that carry the death penalty on an international scale. For example, the Philippines has abolished it, while Singapore and Indonesia continue to employ it. Malaysia’s decision to suspend executions places it in a middle ground. It is more progressive than some of its neighbours however, it still has a significant amount of work to do in order to completely abolish capital punishment. 

Conclusion

The elimination of the mandatory death penalty is a significant milestone in Malaysia’s legal and human rights development. This reform reinstates judicial discretion, enabling courts to evaluate the distinctive circumstances of each case rather than being constrained by rigorous sentencing regulations. It is indicative of Malaysia’s advancement towards a more equitable justice system that prioritises the dignity of human life, proportionality, and impartiality. The nation is one step closer to guaranteeing that justice is not only executed but also perceived as such by empowering judges to make more informed and individualised decisions. 

Simultaneously, the reform ensures that the state is capable of safeguarding society from the most severe offences. It illustrates that the preservation of human rights and the protection of public safety are not mutually exclusive objectives. In the future, Malaysia has the chance to capitalise on this momentum by considering additional reforms, enhancing its compliance with international human rights standards, and cultivating a justice system that is characterised by accountability, rehabilitation, and compassion. This is not merely a legislative modification and it is a proactive dedication to a more equitable and compassionate society.

Reference(S)

1. Azmi & Associates, ‘Abolishment of Mandatory Death Penalty in Malaysia’ (Azmi & Associates, 4 July 2023) https://www.azmilaw.com/insights/abolishment-of-mandatory-death-penalty-in-malaysia/ accessed 13 April 2025. 
2. Amnesty International, Analysis of the Bills to Abolish the Mandatory Death Penalty in Malaysia (Amnesty International Malaysia, March 2023) https://www.amnesty.my/wp-content/uploads/2023/03/Amnesty-International_Analysis-of-the -Bills-to-Abolish-The-Mandatory-Death-Penalty-in-Malaysia_March-2023-3.pdf accessed 13 April 2025. 
3. Human Rights Watch, ‘Malaysia Repeals Mandatory Death Penalty’ (11 April 2023) https://www.hrw.org/news/2023/04/11/malaysia-repeals-mandatory-death-penalty accessed 13 April 2025. 
4. BBC News, ‘Malaysia Abolishes Mandatory Death Penalty’ (3 April 2023) https://www.bbc.com/news/world-asia-65160091 accessed 13 April 2025.
5. Amnesty International Malaysia, ‘Abolish Death Penalty’ (Amnesty International Malaysia, 10 October 2023) https://www.amnesty.my/abolish-death-penalty/ accessed 13 April 2025.
6. Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ 277 (FC).
7.  Abolition of Mandatory Death Penalty Act 2023 (Act 846), s 39 
8. Federal Constitution, Artcile 5(1) 
9. Robin Radjaini Saih @ Amjan Patta v Public Prosecutor [2024] 6 MLJ 773 (CA). 9

1 Amnesty International, Analysis of the Bills to Abolish the Mandatory Death Penalty in Malaysia (Amnesty International Malaysia, March 2023) https://www.amnesty.my/wp-content/uploads/2023/03/Amnesty-International_Analysis-of-the-Bills-to-A bolish-The-Mandatory-Death-Penalty-in-Malaysia_March-2023-3.pdf accessed 13 April 2025.

2 Azmi & Associates, ‘Abolishment of Mandatory Death Penalty in Malaysia’ (Azmi & Associates, 4 July 2023) https://www.azmilaw.com/insights/abolishment-of-mandatory-death-penalty-in-malaysia/ accessed 13 April 2025. 

3 Amnesty International Malaysia, ‘Abolish Death Penalty’ (Amnesty International Malaysia, 10 October 2023) https://www.amnesty.my/abolish-death-penalty/ accessed 13 April 2025. 4 Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ 277 (FC). 

5 Human Rights Watch, ‘Malaysia Repeals Mandatory Death Penalty’ (11 April 2023) https://www.hrw.org/news/2023/04/11/malaysia-repeals-mandatory-death-penalty accessed 13 April 2025. 

6 BBC News, ‘Malaysia Abolishes Mandatory Death Penalty’ (3 April 2023) 

https://www.bbc.com/news/world-asia-65160091 accessed 13 April 2025. 

7 Abolition of Mandatory Death Penalty Act 2023 (Act 846), s 39

8 Federal Constitution, Artcile 5(1) 

9 Amnesty International Malaysia, ‘Abolish Death Penalty’ (Amnesty International Malaysia, 10 October 2023) https://www.amnesty.my/abolish-death-penalty/ accessed 13 April 2025.

10 Robin Radjaini Saih @ Amjan Patta v Public Prosecutor [2024] 6 MLJ 773 (CA). 6

11 Amnesty International Malaysia, ‘Abolish Death Penalty’ (Amnesty International Malaysia, 10 October 2023) https://www.amnesty.my/abolish-death-penalty/ accessed 13 April 2025.