Death Penalty in Malaysia: To Abolish or Not to Abolish?
[2019] 2 MLJ xliv
Malayan Law Journal Articles
DEATH PENALTY IN MALAYSIA: TO ABOLISH OR NOT TO ABOLISH?
Rueben Ananthan Santhana Dass1
Khazanah Research Institute
Email: srueben92@gmail.com
This paper provides an overview of the use of the death penalty in Malaysia. In view of the global abolitionist movement, the
purpose of this paper is to study the use and effectiveness of the death penalty in the global and Malaysian context, analyse
arguments both for and against the death penalty and finally propose a possible stand that the Government of Malaysia should
take on the death penalty in Malaysia. It is found that most cases where the death sentence is imposed in Malaysia are for
drug trafficking offences. As of 2017, 71% of the prisoners on death row in Malaysia were drug traffickers. It is proposed that
the Government of Malaysia remove the mandatory death sentence and replace it with a discretionary death sentence which
should be of limited use. A narrowing down of offences punishable by death in Malaysia needs to be done. Finally, it is
proposed that certain sections in the Dangerous Drugs Act 1952, the Dangerous Drugs (Amendment) Act 2017 and the
method of execution in Malaysia be reviewed.
Keywords: Death penalty, drug trafficking, mandatory death sentence
INTRODUCTION
In late 2017, the Malaysian government removed the mandatory death sentence for drug trafficking. Section
39B of the Dangerous Drugs Act 1952 was amended and the mandatory death sentence was removed and
replaced with a discretionary death sentence for drug trafficking. This is clearly shown in s 2(a) of the
Dangerous Drugs (Amendment) Act 2017 which substitutes s 39B(2) and states that any person convicted of
drug trafficking shall be punished with death or life imprisonment with whipping of not less than 15 strokes.
A person may only be sentenced to life imprisonment instead of death under the following conditions:
(a) there was no evidence of buying or selling of drugs at the time of arrest;
(b) there was no involvement of an agent provocateur;2 or
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(c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a
dangerous drug (he or she is a mere drug mule); and
(d) the convicted person has assisted a drug enforcement agency in disrupting drug trafficking activities
within or outside the country.
The removal of the mandatory death sentence for drug trafficking was seen as a rather uncanny move by the
Malaysian government which has been extremely strict and at times draconian with their drug laws. The
strictness of the Malaysian government and judiciary on drug laws can be seen in the judgement delivered by
Raja Azlan Shah, former Chief Justice of Malaysia in the appeal case, Chang Liang Sang & Ors v Public Prosecutor
[1982] 2 MLJ 231, where he said:
Other than in the most exceptional circumstances, a sentence of death should be imposed following a conviction for trafficking, in order to
mark the gravity of the offence, to emphasise public disapproval, to serve as a warning to others, to punish the offenders and most of all to
protect the public.
Since the removal of the mandatory death sentence for drug trafficking, several public representatives, lawyers
and human rights movements such as Suruhanjaya Hak Asasi Manusia Malaysia (SUHAKAM) and the
National Human Rights Society (HAKAM) have been pushing for the abolition of the death penalty all
together. This paper attempts to give a brief overview of the death penalty in the global and Malaysian
context, the death penalty in the context of Islam, arguments for and against the death penalty, views from
experts in the field and finally a discussion on the possible stand that Malaysia should take with respect to the
death penalty. While most countries around the world are moving towards the abolition of the death penalty,
Malaysia needs to retain a discretionary death penalty for reasons discussed below.
BRIEF HISTORY OF CAPITAL PUNISHMENT
The imposition of capital punishment3 also known as the death penalty on individuals convicted of specific
crimes dates back to pre-historic times. The oldest documented law that is believed to have imposed the death
penalty is the Sumerian Code of the Mesopotamian King Ur-Nammu which was written in the 21st Century
BC (Knowles 2015). In the 18th Century BC, the Babylonian Code of Hammurabi was found to have
imposed the death penalty on more than 20 different types of crimes (Dhaliwal 2014). The death penalty was
also part of many other historic codes of law such as Hittite Code of Hattusa, the Draconian Law of Athens
and the Roman Laws of the Twelve Tablets (Knowles 2015). The types of sentences include beheading,
boiling in oil, impalement, crucifixion, stoning, burning and hanging. These punishments, often barbaric in
nature, were meant inflict as much pain and suffering on the victim as possible.
As time went on, capital punishment found its way to medieval Europe and Britain. By the 1700s, 222 crimes
including trivial crimes such as stealing and cutting down a tree, were punishable by the death penalty in
Britain (Death Penalty Information Center nd). The usage of the death penalty in Britain was a great influence
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on the United States which followed suit when European settlers arrived there and introduced the practice
(Death Penalty Information Center nd). By the 1750s, the abolitionist movement began with the works of
great philosophers and criminologists such as Cesare Beccaria and Jeremy Bentham (Dhaliwal 2014). They
questioned the deterrent effect of the death penalty and argued that it was unnecessary.
The death penalty remains an issue of international debate today. Many organisations and countries
throughout the world have been working towards a complete abolition of the death penalty, a form of
punishment deemed to be archaic and ineffective. As of 2017, 106 countries abolished the death penalty for
all crimes and 146 abolished it either in law or practice (Amnesty International 2018). However, 56 countries
are still retentionist. The different execution methods used at present are hanging (used by most countries),
death by firing squad, electrocution, gaseous asphyxiation, lethal injection, stoning, beheading and being
thrown off a high wall.
DEATH PENALTY IN MALAYSIA
Malaysia is one of the 56 countries that remains a staunch retentionist of the death penalty. The method of
execution in Malaysia is hanging as stated in s 277 of the Criminal Procedure Code:
When any person is sentenced to death the sentence shall direct that he be hanged by the neck till he is dead …
Women who are pregnant at the time of sentencing, minors (offenders who were under the age of 18 at the
time of the offence) and those who are of unsound mind cannot be sentenced to death.
Crimes punishable with the death penalty in Malaysia can be divided into crimes that are punishable by a
mandatory death sentence and crimes that are punishable by a discretionary (non-mandatory) death sentence
as below:
Table 1: Offences punishable by a Mandatory Death Sentence
Penal Code
Section 121A
Offences against the person of the Yang di-Pertuan Agong, Ruler or
Yang di-Pertua Negeri
Section 130C, 130I, 130N, 130O, 130QA, 130ZB
Offences relating to terrorist and organized crime activities (if the act
results in death)
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Penal Code
Section 302
Murder
Section 374A
Hostage taking (if the act results in death)
Firearms (Increased Penalties) Act 1971
Section 3
Penalty for discharging a firearm in the commission of a scheduled
offence
Section 3A
Penalty for accomplices in case of discharge of firearm
Table 2: Offences punishable by Discretionary Death Sentence (Non-mandatory)
Penal Code
Section 121
Waging or attempting to wage war or abetting the waging of war
against the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri
Section 132
Abetment of mutiny, if mutiny is committed in consequence thereof
Section 194
Giving or fabricating false evidence with intent to procure conviction
of a capital offence (only if an innocent person is convicted and
executed as a consequence of the evidence)
Section 305
Abetment of suicide of child or insane person
Section 307
Attempt to murder under a life sentence (if hurt is caused)
Section 364
Kidnapping or abducting in order to murder
Section 376(4)
Rape (if the act results in death)
Section 396
Gang-robbery with murder
Firearms (Increased Penalties) Act 1971
Section 7
Trafficking in firearms
Arms Act 1960
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Penal Code
Section 14
Penalty for manufacturing without licence and for breach of conditions
of licence
Kidnapping Act 1961
Section 3
Abduction, wrongful restraint or wrongful confinement for ransom
Dangerous Drugs Act 1952
Section 39B
Trafficking in dangerous drugs
Water Services Industry Act 2006
Section 121
Offence of contamination of water (with the intention to cause death if
the act results in death)
Strategic Trade Act 20104
Section 9
Export, transhipment and transit of strategic items and unlisted items
(if the act results in death)
Section 10
Provision of technical assistance (if the act results in death)
Section 11
Brokering of strategic items (if the act results in death)
Section 12
Transactions involving unlisted items and restricted activities (if the act
results in death)
Mandatory death sentences give no discretion to the courts in considering the circumstances and any
mitigating factors that may be involved in the case. The sentence is meted out solely on the type of offence.
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Table 3 shows the number of death sentences and executions in Malaysia in the years 2007–2017.
Table 3: Number of death sentences and executions in Malaysia, 2010-20175
Year
Sentences
Executions
2007
12
–6
2008
>2
>1
2009
>68
>0
2010
>114
>1
2011
>108
>0
2012
>60
–
2013
>76
>2
2014
>38
6
2015
>39
1
2016
>36
9
2017
>38
>4
Total
>611
>24
Source: Amnesty International, Death Sentences and Executions 2007–2017
As of 2017, there were 1,122 prisoners on death row in Malaysia with 799 (71%) of them on death row for
drug trafficking including 416 (37%) foreigners (Amnesty International 2017b). This shows that a high
proportion of the prisoners in Malaysia are sentenced to death for drug trafficking. Harm Reduction
International, a leading non-governmental organisation based in London labelled Malaysia as a ‘High
Application State’ for the use of the death penalty for drug offences (Sander 2018). High application states are
defined to be states: ‘in which the sentencing of those convicted of drug offences to death and/or carrying
out executions is a regular and mainstreamed part of the criminal justice system’ (Sander 2018). In 2016, 17
(47%) out of the (more than) 36 death sentences were for drug offences and in 2017, 21 (55%) of the (more
than) 38 death sentences were for drug offences (Amnesty International 2018). Figure 1 shows a comparison
between death sentences and executions in Malaysia, Singapore, Taiwan and Bangladesh.7
Figure 1
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Malaysia has the second highest number of sentencing in the last ten years as compared to the other three
countries. However, the executions in Malaysia is the second lowest (higher than Singapore by one). This may
be due to the long appeal processes involved in the capital punishment cases. Statistics from Taiping Prison
have shown that the time between sentencing and execution can take anywhere between approximately two
and eight years (Awang 2004).
DEATH PENALTY IN THE CONTEXT OF ISLAM
As a majority Muslim country, it is important to understand the role of capital punishment in the context of
Islam. Islam forbids the killing of a person except by the rule of law. Everyone has the right to life unless
convicted of a capital offence. This is clearly stated in the Quran as follows:
… Take not life, which God has made sacred, except by way of justice and due process of law. Thus does He command you, so that you may
learn wisdom (Quran 6:151)
Peiffer (2005) states that:
Traditional Islamic criminal law is based upon the fulfilment of four goals: the ascertainment of the truth; the determination of the
responsibility of the accused; the remedy to the victim; and the social remedy. The implementation and execution of the death penalty as a
punishment in traditional Islamic law is meant to carry out these goals.
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Apart from these goals the principles of punishment in Islamic criminal law are largely based on the concept
of zajr or deterrence (Peters 2005). The Islamic legal system is based on two elements, Shariah law and the
Fiqh (Schabas 2000). Shariah law is the traditional law that consists of the religious teachings of the Quran and
sunnah. The Quran refers to words spoken by Allah and the sunnah is the words and actions of Prophet
Muhammad. Fiqh or Islamic jurisprudence, are the legal rulings compiled by Muslim scholars which are largely
derived from Shariah law (Schabas 2000). There are four main schools of Islamic jurisprudence in Sunni
Islam,8 namely, the Maliki, Hanbali, Hanafi and Shafi’i (Peters 2005). Interpretations of various aspects of
Islamic law differ among these schools. In general, the conditions by which the death penalty may be given is
stated in the Quran as follows:
… whoever slays a soul, unless it be for murder or for mischief in the land, it is as though he slew all men and whoever keeps it alive, it is as
though he kept alive all men … (Quran 5:32)
As stated above, the death penalty is permitted for two types of crimes:
(a) intentional murder; and
(b) Fasad fil-ardh (spreading mischief in the land):
These are crimes which threaten to undermine the authority or destabilise the state. The crimes
that fall under this category are open to interpretation. However, traditional Islamic jurists include
treason, apostasy, terrorism, piracy, rape and adultery.
A more detailed look at the three systems of crime and punishments in Islamic law are as follows:
Hudud
Hudud crimes are crimes that are specified in the Quran and sunnah and are perceived as crimes that threaten
Islam (Peiffer 2005; Okon 2014). Punishments for hudud crimes are mandatory and the judge has no
discretion as these are punishments which have been fixed by Allah and stated in the Quran (Noor 2014).
There are seven types of hudud crimes, namely, unlawful sexual intercourse (zina), apostasy (riddah), armed
robbery (hirabah), rebellion against the state (baghy), theft (sariqa), drinking of alcohol (shurb khamr) and
unfounded accusation of zina (qadhf) (Peters 2005). Out of the seven, the crimes of unlawful sexual
intercourse, apostasy, armed robbery and rebellion are punishable by death. There are various forms of
execution methods. Upon conviction, the qadi (judge) is free to choose the execution method from the
following options: beheading, lapidation (stoning), burning or dropping from a high wall (Peters 2005). Other
forms of punishment include amputation of limbs, cross-amputation (eg amputation of right hand and left
leg) and lashing (Peters 2005).
Qisas
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Qisas crimes are crimes against the person. These include both voluntary and involuntary murder and physical
assault. The word qisas means ‘equality’ or ‘equivalence’ (Lippman 1989). Punishments for qisas crimes are to
be chosen by the victim’s next of kin. They may choose two forms of punishment, retaliation based on the
concept of retributive justice, where the offender is subject to the same injuries as the victim (or death if the
victim was murdered) or to forgive the victim in which case he will be made to pay a compensation in the
form of blood money (diya) which is loosely based on the concept of restorative justice. One is usually
encouraged to choose diya over the death sentence as it is an act of forgiveness and will be rewarded by Allah.
Peiffer (2005) quoted an excerpt of the Quran which shows the retributive and restorative justice components
of qisas punishments:
We ordained therein for them:
‘Life for life, eye for eye,
Nose for nose, ear for ear,
Tooth for tooth, and wounds
Equal for equal.’
But if Anyone remits the retaliation
By way of charity, it is
An act of atonement for himself.
Ta’zir
Ta’zir crimes are crimes that do not fall under the category of hudud or qisas. Judges have full discretion in
meting out punishments for these crimes. Examples of ta’zir crimes include consumption of pork,
provocative dressing, sodomy, indecent behaviour and failure of a wife to obey her husband (Lippman 1989).
Punishments for these crimes may range from reprimand right up to the death penalty (Lippman 1989). The
purpose of punishments for these crimes are mainly for deterrence and reform (Peiffer 2005).
Islamic Law in Malaysia
In Malaysia, Islamic or Shariah law is a state law and might differ from one state to another. As stated in the
Ninth Schedule of the Federal Constitution (Item 1 of the State List), Shariah law has jurisdiction only over
people who profess Islam and on matters relating to personal law such as marriage and inheritance and a
limited number of criminal offences. Shariah Courts have the power to punish only for offences which are
considered to be against the precepts of Islam and shall not be able to exercise its jurisdiction for any offences
which are punishable with imprisonment for a term exceeding three years, or with any fine exceeding
RM5,000 or with whipping exceeding six strokes or any combination thereof (Syariah Courts (Criminal
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Jurisdiction) Act 1965).
The Shariah Courts do not have jurisdiction over serious offences such as murder, robbery, rape, etc. These
offences come under the Federal Law and the Penal Code. However, in the past the states of Kelantan and
Terengganu have proposed legislations namely the controversial Syariah Criminal Code (II) Enactment 1993
(Kelantan) and the Syariah Criminal Offence (Hudud and Qisas) Terengganu Enactment (Terengganu) which
permits amputation of limbs and death by stoning for offences such as hirabah and zina. However, these
legislations remained unenforceable as Shariah Courts may only be conferred the jurisdiction to pass
sentences by Federal Laws such as the Syariah Courts (Criminal Jurisdiction) Act 1965 and not State laws
(Thind 2015). Furthermore, these controversial legislations have jurisdictions only over a limited number of
offences as stated above.
THE DEATH PENALTY DEBATE
Sithambaram (2005) states that there are four main principles of sentencing; retribution, deterrence
rehabilitation and prevention. Retribution is aimed at obtaining justice for the victim of the criminal offence,
or in other words righting a wrong. A person who has committed an offence must be punished and suffer
the consequences of his or her actions. Punishments must also serve as a deterrent to reduce future crimes. In
addition to that, sentences such as imprisonment serve as a time for rehabilitation for the offenders, a time to
contemplate their actions and repent to become a better person. Prevention is linked to the incapacitative
nature of punishments such as imprisonment and death.
Deterrence
Retentionist views — Arguments for the death penalty
Deterrence can be divided into two types, specific deterrence and general deterrence. Specific deterrence
applies to the offender himself, who after committing a crime has been caught and punished for an offence,
will not repeat the offence in future for fear of being caught and punished again (Piquero 2016). General
deterrence applies to would-be offenders, who looking at the punishments meted out on other criminals,
refrain from engaging in the crime for fear of the same punishment being handed out to them (Piquero 2016).
The death penalty can be said to be the highest and most feared form of punishment. Human beings have an
inherent fear of death. It is this fear of death or being killed which is theoretically believed to be the greatest
deterring power of the death penalty. In the words of the great English lawyer and judge, Sir James Fitzjames
Stephen:
No other punishment deters man so effectually from committing crimes as the punishment of death … ‘All that a man has will he give for
his life’. In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly
(Stephen 1864).
Various studies have shown that capital punishment reduces the number of crimes such as murder. A famous
study by Isaac Ehrlich in 1975 found a significant deterrent effect of capital punishment. Applying
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econometric modelling to execution and murder data in the years 1933–1969 in the United States (US), he
found that the execution of one offender per year could have resulted in, on average seven to eight fewer
murders. He also found that a decline in the execution risk, which is the fraction of people convicted of
murder who were subsequently executed, accounted for 25% of the increase in the murder rate between 1960
and 1967 in the US (Ehrlich 1975).
Mocan and Gittings (2003) analysed all the death sentences handed out in the US between 1977 and 1997 and
found that each additional execution reduces homicides by five, each additional commutation increases
homicides by five and each additional removal from death row generates one murder. Also in the US,
Shepherd (2004) found that each execution results in, on average, three fewer murders and deters murders
which were previously thought to be undeterrable such as crimes of passion and murders by intimate partners.
Dezhbakhsh and Shepherd (2006) also found a deterrent effect of capital punishment.
However, for capital punishment to be effective in its deterrence it has to be swift and be made public so that
any potential offenders may be aware of the gravity of the punishment (Carlsmith, Darley, and Robinson
2002; Kwai 1981). Longer waits on death row before execution have been found to lessen the deterrence
(Shepherd 2004). As in the words of renowned criminologist and philosopher Cesare Beccaria, a punishment
should be ‘public, immediate, and necessary, the least possible in the case given, proportioned to the crime,
and determined by the laws’ (Beccaria 1764).
Cook (1977) stated that long term prison sentences such as life imprisonment, which is often argued to be a
better substitute to the death penalty, leads to a higher post release recidivism rate. He also states that high
severity of punishment for crimes where ‘moral inhibition’ plays an important role is more important than
high probability of punishment. For example, for crimes such as murder, a more severe punishment such as
the death penalty will morally inhibit others from committing the crime more than when less severe
punishments such as imprisonment is given. Furthermore, Andenaes (1974) argues that for murder, a
reduction in penalty may lead to reduced inhibitions against committing murder in cases where ‘murder seems
a tempting escape from a situation of emotional conflict’.
‘Life for a life’
The ‘life for a life’ death penalty stems from the principles of retributive justice. Retributive justice is a system
of justice in which the offender is punished in proportion to the moral magnitude of the crimes (Carlsmith
and Darley 2008). In other words, crimes which are more serious or generate more moral outrage are
punished with more severe punishments. Justification for punishments in retributive justice comes from a
theory of punishments known as the ‘just deserts’ theory where the punishment is proportional to the moral
wrong. Carlsmith, Darley, and Robinson (2002) state that the justification of punishments in this theory ‘lies
in righting a wrong, not in achieving some future benefit’. Furthermore, the famous English philosopher
Jeremy Bentham said, ‘the quantum of the punishment must rise with the profit of the offense’ (Bentham
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1996).
Punishment with death is considered to be fair retribution for serious crimes especially in the case of murder,
rape and drugs. The rationale behind this kind of thinking is that a person who takes a life must pay back his
actions by giving up his life. This may seem to be common sense. As a matter of fact, much of the
fundamental principles of criminal law have underlying influences of ‘common sense’ as early criminal law
was based on the common law and the roles of citizens as jurists as opposed to legal statutes (Carlsmith and
Darley 2008).
Incapacitation
Incapacitation is regarded as one of the philosophical foundations of the criminal justice system (Piquero
2016). Incapacitation is very much a utilitarian theory of punishment which has less ambitious goals than
deterrence theory (Carlsmith, Darley, and Robinson 2002). Its main purpose is to prevent future crimes and
protect society from criminals and repeat offenders by means of incarceration and the death penalty. Both
incarceration and the death sentence incapacitates offenders and does not give them the chance to offend
again.
Failure of being a deterrent
Abolitionist views — Arguments against the death penalty
Many have questioned the effectiveness of the death penalty as a deterrent. As many as there are people who
support the notion that the death penalty is an exceptional deterrent against crime, more so have argued that
these claims are baseless. The death penalty does not deter crimes as greatly as it is proclaimed to do in
theory. Beccaria was one of the early academicians who challenged the deterrent effect of the death penalty.
In his seminal work titled On Crimes and Punishments, he said:
The death of a criminal is a terrible but momentary spectacle, and therefore a less efficacious method of deterring others than the continued
example of a man deprived of his liberty, condemned, as a beast of burden, to repair, by his labour, the injury he has done to society, If I
commit such a crime, says the spectator to himself, I shall be reduced to that miserable condition for the rest of my life. A much more
powerful preventive than the fear of death which men always behold in distant obscurity. (Beccaria 1764)
He argues that the momentary and quick nature of the death penalty reduces the deterrent effect of the death
penalty as compared to a form of punishment which incurs prolonged suffering. One might recall the phrase
‘I’d rather die than be in prison’ as a justification to Beccaria’s argument.
Studies have also shown that the imposition of the death penalty has failed to reduce the rates of capital
crimes. In a survey with 67 leading American criminologists, Radelet and Akers (1996) found the wide
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consensus among the criminologists surveyed was that the death penalty does not add any significant effect
above that of long term imprisonment.
Figure 2 shows the murder rates in the death penalty and non-death penalty states in the United States for the
years 1990-2016:
Figure 2
The murder rates in the death penalty states are higher than the non-death penalty states. In an analysis by the
New York Times, they found that the homicide rates in death penalty states were 48-101% higher than the
states without the death penalty.
Figure 3 shows the number of murder cases and drug trafficking arrests in Malaysia between 2006–2016:
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Figure 3
There is a significant increase in the number of drug trafficking arrests in Malaysia between 2006 and 2016.
On the other hand, the number of murder cases do not show a significant decrease. Abolitionists may argue
that despite the imposition of harsh punishments such as the death sentence for these offences, the pattern of
crimes above shows that it has failed to deter individuals from committing these crimes. Mokhtar (2006)
suggests that the severity of punishments does not influence the crime rate. Based on statistics from the Klang
Sessions Court, there seems to be no reduction in the number of rape and drug cases despite severe
punishments for those crimes (Mokhtar 2006). The death sentence which is very often shrouded in secrecy in
most countries including Malaysia lessens the deterrent effect. What use is there in proclaiming the deterrent
effect of the death penalty when nobody even knows about it?
In the case of murder, the deterring effect of the death penalty may seem to be questionable as murder is
often impulsive and committed in the heat or spur of the moment rather than as cold blooded, premeditated
acts (Puthucheary 1982). Murders may also be linked to anger and aggressive behaviour (Mohammad Rahim
et al. 2016). In these cases, the killer may not have the time to think about the consequences of committing
murder at that point of time. Albert Pierrepoint, one of England’s longest serving executioners and perhaps
the most famous one, who is believed to have executed more than 600 people including some of England’s
most notorious criminals, said the following in his autobiography titled Executioner: Pierrepoint:
It (capital punishment) is said to be a deterrent. I cannot agree. There have been murders since the beginning of time, and we shall go on
looking for deterrents until the end of time. If death were a deterrent, I might be expected to know. It is I who have faced them last, young
men and girls, working men, grandmothers. I have been amazed to see the courage with which they take that walk into the unknown. It did
not deter them then, and it had not deterred them when they committed what they were convicted for. All the men and women whom I
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have faced at that final moment convince me that in what I have done I have not prevented a single murder (Pierrepoint 2005).
In the case of drug trafficking, many have argued that the death penalty is ineffective. Edwards et al (2009)
was of the view that:
… execution of people convicted of drug trafficking and other drug-related offences is a penalty that should be abolished, as it is both
ineffective as a policy measure and abhorrent in terms of human rights violation.
Harring (1991) who conducted a study on the use of the mandatory death sentence for drug trafficking was of
the view that the death penalty did not serve the deterrent effect that the government had conceived it might
and s 39B of the Dangerous Drugs Act 1952 has had no effect on drug use in Malaysia. A total of 41,168
arrests were made under s 39B alone in the years 2007–2016 (AADK 2011, 2016, 2017, 2018). As a matter of
fact, the drug problem in Malaysia is becoming worse. Table 4 shows the number of drug cases and arrests in
Malaysia in the years 2013–2017.
Table 4: Number of cases and arrests under Dangerous Drugs Act 1952 (under all sections — both capital
and non-capital offences)
Year
Number of arrests
Number of cases
2013
128,127
118,812
2014
131,777
120,548
2015
140,908
128,994
2016
153,164
137,753
2017
158,334
137,890
Total
712,310
643,997
Source: MOHA
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The number of arrests and cases under the Dangerous Drugs Acts 1952 (comprising all drug offences) in the
years 2013–2017 have been increasing. The high number of arrests is a very worrying sign. This goes to show
that drugs are still a major issue of concern despite the harsh penalties. The problem lies in the fact that most
of the people getting arrested for drug trafficking are the drug runners or mules and not the drug lords and
dealers (Edwards et al 2009; Sander 2018). These are individuals who are desperate for money and willing to
take the risk despite the death sentence. In an interview with Mr V Arunasalam, a prominent lawyer and
former Deputy Superintendent of Police, Narcotics Division, Bukit Aman, he said the following based on his
experiences:
Although they (the drug mules) know they will be sentenced to death, people are still willing to take the risk to traffic drugs … Because the
drug money is so lucrative, people are prepared to take risks especially the mules and the runners. They may be unemployed or those who are
desperately in need of money to pay debts and so on, therefore they are prepared to do anything for the money even though they are
conscious of the death penalty. And also seeing some people who have gone away undetected, they are willing to try.
As long as the drug dealers and lords are not arrested and tried, drugs will remain a rampant problem. Crimes
such as drugs and terrorism can be compared to the growing of weeds. If one is to cut the weeds from the
top, it will keep growing. The only way to get rid of it is to remove it from the roots.
Violation of human rights
One of the main arguments that abolitionists tend to make in justifying the abolition of the death penalty is
that it is a violation of human rights. Everyone has the right to life and no one has the right to take the life of
another person. The Second Optional Protocol to the International Covenant on Civil and Political Rights
(‘ICCPR’), created in 1989, is the only universal and international treaty which aims to abolish the death
penalty (Neumayer 2008). The Preamble to the Second Protocol demonstrates the beliefs of its component
parties that the ‘abolition of the death penalty contributes to enhancement of human dignity and progressive
development of human rights with all measures of abolition to be considered as ‘progress in the enjoyment of
the right to life’. (Neumayer 2008).
Hood (2009) states that: ‘Capital punishment should instead be treated as a fundamental violation of universal
human rights: not only the right to life but the right to be free from excessive, repressive and tortuous
punishments’. One must also consider the emotional and psychological trauma faced by the prisoners and
their families. Knowing that you are going to be executed but not knowing when, is in itself a form of
psychological torture. Individuals may be killed ‘emotionally’ even before the death sentence as the period
between sentencing and execution may take years due to the appeal process.
Many have also questioned the rather brutal nature of some of the methods of execution such as gaseous
asphyxiation, electrocution, hanging, death by firing squad and stoning. Although the use of the current
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execution methods is meant to be bring about a quick and swift death, the implementation of the sentence
may not go as planned in some cases. In these instances, the prisoner goes through extreme pain and
suffering before death (Hillman 1993; Harding 1996). As for the case of stoning, the prisoner is subject to a
long and extremely painful period of suffering before death.
Abolitionists also believe that every person convicted of a crime has the right to reform, the right to a second
chance in life (Kwai 1981). In this case, the death penalty is a one-way sentence, the criminal is executed and
removed from society without a chance of repenting as one would get in alternative sentences such as longterm imprisonment.
Miscarriage of justice — Possibility of executing an innocent person
Wrongful convictions and executions of innocent people have happened in the past. This is often seen as a
miscarriage of the legal system meant to bring about justice to the people. In the words of Ernest van den
Haag, Professor of Jurisprudence at Fordham University:
Despite all precautions, errors will occur in judicial proceedings: the innocent may be found guilty; or the guilty rich may more easily escape
conviction, or receive lesser penalties than the guilty poor (Hagg 1969).
There has been numerous cases where individuals on death row have received lesser sentences following
appeals and re-evaluation of the cases. Greenberg (1982) says that in the US, there have been an indeterminate
number of cases where defendants who were previously sentenced to death had their convictions reversed
and were convicted of non-capital offenses. Some were even resentenced to less than a life sentence.
One also cannot discount the weaknesses in police interrogation procedures in capital cases. There have been
cases where confessions were extracted by use of force and torture, gruelling interrogations, mishandling and
manipulation of evidence and improper investigations by the police that have led to the wrongful convictions
of individuals. In Malaysia, the case of Hoo Yew Wah who was sentenced to death for drug trafficking and
remains on death row in Bentong prison after seven years is an example. He was allegedly convicted on the
basis of a statement which he made in the absence of a lawyer and claimed that on the day of his arrest, the
police at the District Police Headquarters in Johor broke his finger and threatened to beat his girlfriend in
order to make him sign the statement (Amnesty International 2017b).
Hood et al (2014) highlights a number of cases which involved wrongful convictions throughout the world.
For example, the case of Iwao Hakamada who was released from death row after 47 years of solitary
confinement. Hakamada, who was convicted of the quadrupule murder of a manager of a miso producing
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factory and his family, stated that the police tortured and forced him into making a confession. There was also
suspicion that evidence was fabricated in the case.
In the United Kingdom (UK), there was a series of shocking wrongful convictions for very serious crimes,
namely the case of the Birmingham Six (six men who were wrongfully sentenced to life imprisonment in 1975
for bombing two central Birmingham pubs), the Guildford Four (the four who were wrongfully convicted for
the Guildford pub bombings and sentenced to life in 1975) and the Stephen Kiszko, a mentally challenged
man wrongfully sentenced to life imprisonment for the sexual assault and murder of 11 year old Lesley
Molseed in 1976.
Puthucheary (1982) highlights the case of Timothy Evans, who was wrongfully convicted and hanged in 1950
for the murder of his wife and two children. The murders were later believed to have been committed by his
friend and co-tenant, John Christie. His case played a major part in the abolition of capital punishment for
murder in the United Kingdom. The reason for this is because it involved the execution of an innocent,
illiterate man whose confessions were forcefully elicited from him and believed by the police. Evans was also
mentally disturbed at the time he made those final confessions as he stated during his trial that, ‘the police
would take me downstairs and start knocking me about if I did not make a statement’.
Another example of wrongful conviction is the Noida double murder case which happened in Uttar Pradesh,
India. In 2012, Dr Rajesh Talwar and Dr Nupur Talwar were convicted of the double murder of their 13-yearold daughter, Aarushi Talwar and servant, Hemraj on the night of 5 May 2008. They were subsequently
acquitted on 12 October 2017 by the Allahabad High Court who stated that, ‘the circumstances are neither
conclusive in nature nor they exclude every possible hypothesis except the one of the guilt of the appellant’
(Criminal Appeal No 293 and 294 of 2014, 2017). The case was a classic example of improper investigation by
the police, tampering of evidence, leaking of information and a disregard of journalistic ethics by the media
(Saxena 2017). It remains to be one of India’s most infamous murder mysteries to date.
The fact remains that judges who are responsible for meting out sentences to the convicted are human beings
who are subject to error and misjudgements. Wrongful convictions do happen and no form of compensation
or remittance can repay the pain and suffering experienced by the innocent convicted. In the case of the death
penalty, the execution of an innocent is indeed a miscarriage of justice as once a life is taken, it cannot be
repaid.
Economic capacity to commute death to life sentences
As of September 2017, the prison population in Malaysia was 55,413 (‘World Prison Brief’ 2017). In 2017, the
number of death row prisoners was 1,122 as stated previously. The number of death row prisoners make up
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approximately only 0.02% of the total prison population. The average cost of maintaining a prisoner is RM35
per day (Yaacob 2012). This translates to a yearly expenditure of approximately RM14m on death row
prisoners. Assuming death row sentences were converted to life imprisonment (20 years), the cost of
maintaining death row prisoners over the life sentence of 20 years is approximately RM286m which is still
lower than the yearly cost of maintaining non-death row prisoners, which translates to approximately
RM693m. The cost of maintaining death row prisoners over the life sentence makes up only approximately
44% of the total allocation given to the Prisons Department between 2010 and 2013 which was RM655.96m
(Rahim 2013). Thus, this goes to show that because the population of death row prisoners are so small in
Malaysia, commuting death sentences to life sentences is clearly feasible in terms of additional costs of
maintaining these prisoners. However, this analysis is solely based on the maintenance costs of these
prisoners. It will be interesting to investigate the difference between cost of capital and non-capital trials.
Numerous studies in the US have shown that the costs of seeking and maintaining the death penalty are much
higher than the costs of other forms of punishment such as life imprisonment without the possibility of
parole (Kaplan, Collins, and Mayhew 2016; Collins et al 2015; Collins, Hickman, and Boruchowitz 2017;
Goss, Strain, and Blalock 2016).
PUBLIC OPINION — HOOD (2013)
In late 2012, Professor Roger Hood, Professor Emeritus of Criminology at the University of Oxford, together
with The Death Penalty Project in London and Bar Council of Malaysia carried out a nationwide public
opinion survey with Malaysians on the mandatory death sentence in Malaysia for the three offences, ie
murder, drug trafficking and discharging of a firearm with intent to kill or harm. The survey consisted of faceto-face interviews with 1,535 Malaysians over a period of approximately one and a half months. The sample
was roughly divided in half and each half was presented with six scenarios (12 in all); four cases of drug
trafficking, six cases of murder and two cases of discharging a firearm. Each of the cases were of different
complexities and had different circumstances (aggravating/mitigating) attached to it. The respondents were
asked to judge the cases and choose the most suitable punishments. The findings were designed and analysed
by Prof Hood and presented in a report entitled ‘The Death Penalty in Malaysia: Public opinion on the
mandatory death penalty for drug trafficking, murder and firearms offences’. Some of the key results of the
survey are presented below:9
(a) ‘Greater number of executions’ was the least popular choice of recommended policies to reduce
violent crimes and drug trafficking;
(b) when faced with the reality of punishments, majority felt the need for discretion as opposed to a
mandatory death sentence; and
(c) public opinion would not be a barrier to the abolition of the mandatory death sentence for murder,
drug trafficking and firearms offences.
DISCUSSION — TO ABOLISH OR NOT TO ABOLISH?
The question as to whether to abolish or not to abolish the death penalty will always be subject to lengthy
debates among retentionists and abolitionists. Those who prefer to take a more legalistic stand may support
the retentionist view whereas those who take a more moral stand may support the abolitionists view. This
paper has attempted to give readers an overview of capital punishment, as well as arguments for and against
capital punishment. Although this paper might seem to lean towards an abolitionist stand, the author would
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like to take the stand of a partial retentionist.
Removal of the mandatory death sentence
With regards to Malaysia, the death penalty should not be abolished all together. However, the mandatory
nature of the death sentence should be removed and replaced with a discretionary death sentence for all
offences. The reason for this is that the mandatory death sentence does not give any allowance to the judges
to consider the circumstances surrounding the case before making a judgment. Sentences are decided solely
on the offence. For example, if it is a case of discharging a firearm, the sentence is death. However,
sometimes the act committed may not be intentional and there may be mitigating circumstances surrounding
the act. In these cases, the judges should be given the allowance to take these circumstances into account and
decide whether the sentence should be death or otherwise. A joint statement by the Malaysian Bar, the
Advocates’ Association of Sarawak and the Sabah Law Association stated that:
Sentencing is part of the cardinal principle of judicial independence and should always be left to our Judges. Judges use their experience in
hearing cases, take into account the peculiar facts and circumstances of each case, and consider the case comprehensively before meting out
punishment (Meera 2015).
the death penalty
Narrowing down of offences — Review of capital offences and limited use of
Article 6(2) of the ICCPR adopted by the United Nations states that:
In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance
with the law in force at the time of the commission of the crime (United Nations 1966).
In line with the ICCPR, the death penalty in Malaysia should be used only for the most serious crimes and for
criminals who are beyond rehabilitation and pose a threat to the safety and security of the nation. The United
Nations Special Rapporteur on extrajudicial, summary or arbitrary executions restricts the use of the term
‘most serious crimes’ only to cases of intentional killing (Amnesty International 2017b). Many may remember
the case of Mona Fandey, who was convicted of murdering and dismembering the body of politician, Mazlan
Idris in 1993 and the case of Canny Ong who was abducted from a shopping complex and murdered in 2003.
These cases are considered to be among the most gruesome murder cases in the history of Malaysia and a
clear example of pre-meditated intentional killing. These are examples of exceptional crimes which may be
considered as ‘most serious crimes’. In an interview with Assoc Prof Dr Sundaramoorthy, a renowned
criminologist from Universiti Sains Malaysia (USM), he was of the view that Malaysia is not ready for a
complete abolition of the death penalty.
However, a review of the offences punishable by death in Malaysia must be done by a panel of experts who
are neutral and who do not have any preconceived views on the death sentence (Assoc Prof Dr
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Sundaramoorthy 2018). Death penalty laws in Malaysia seem to be rather harsh as many of the criminal
offences currently punishable by death in Malaysia are not worthy of the death sentence. Offences which do
not involve intentional killing should not be punishable by death. These include offences such as kidnapping,
abetment of suicide and discharging of a firearm. As mentioned above, only offences which involve the
intentional killing of persons and offences which threaten the safety and sovereignty of the country should be
punishable by death. Dato’ Mah Weng Kwai, a prominent lawyer and retired Court of Appeal judge, in an
article titled, Should the Death Penalty be Abolished? published in the Current Law Journal [1981] 1 CLJ 25 stated
that:
It is with these considerations in mind and the views expressed for the Retention Movement that the death penalty should not be abolished
for homicide and drug trafficking, offences which I hold to be the most heinous and horrendous of crimes-offences which involve the taking
of human life or the debasing of the value and quality of life; and for ‘treason’ — an offence which involves the sovereignty of the nation
and the concept of rule of law (Kwai 1981).
A proposed review of the offences which are punishable by death in Malaysia is as follows.
Table 5: Offences for which the death sentence should be removed completely (replaced with life
imprisonment)
Penal Code
Section 194
Giving or fabricating false evidence with intent to procure conviction
of a capital offence (only if an innocent person is convicted and
executed as a consequence of the evidence)
Section 305
Abetment of suicide of child or insane person
Section 307
Attempt to murder under a life sentence (if hurt is caused)
Section 364
Kidnapping or abducting in order to murder
Firearms (Increased Penalties) Act 1971
Section 3
Penalty for discharging a firearm in the commission of a scheduled
offence
Section 3A
Penalty for accomplices in case of discharge of firearm
Section 7
Trafficking in firearms
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Arms Act 1960
Section 14
Penalty for manufacturing without licence and for breach of conditions
of licence
Kidnapping Act 1961
Section 3
Abduction, wrongful restraint or wrongful confinement for ransom
Table 6: Offences for which there should be a discretionary death sentence
Penal Code
Section 121
Waging or attempting to wage war or abetting the waging of war
against the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri
(if the act jeopardises the safety and security of the nation)
Section 121A
Offences against the person of the Yang di-Pertuan Agong, Ruler or
Yang di-Pertua Negeri (if the act jeopardises the safety and security of
the nation)
Sections 130C, 130I, 130N, 130O, 130QA, 130ZB
Offences relating to terrorist and organized crime activities (if the act
results in death)
Section 132
Abetment of mutiny, if mutiny is committed in consequence thereof (if
the act jeopardises the safety and security of the nation)
Section 302
Murder (only where pre-meditation is involved)
Section 374A
Hostage taking (if the act results in death)
Section 376(4)
Rape (if the act results in death)
Section 396
Gang-robbery with murder (if the murder was pre-meditated)
Dangerous Drugs Act 1952
Section 39B
Trafficking in dangerous drugs
Water Services Industry Act 2006
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Section 121
Offence of contamination of water (with the intention to cause death if
the act results in death)
Strategic Trade Act 2010
Section 9
Export, transhipment and transit of strategic items and unlisted items
(if the act results in death)
Section 10
Provision of technical assistance (if the act results in death)
Section 11
Brokering of strategic items (if the act results in death)
Section 12
Transactions involving unlisted items and restricted activities (if the act
results in death)
Many have argued that drug trafficking should not be a capital offence and the death sentence should be
removed completely for the offence. While it may be true for those who are implicated as mere transporters
of the drug (the Dangerous Drugs (Amendment) Act 2017 is a welcome change), drug dealers and those who
delve into drug trafficking intentionally must face the law and its consquences as it is an offence which
involves the loss of many lives. It should be left up to the relevant government authorities to decide on the
definition of ‘most serious crimes’ and hence the definition of a capital offence in the context of Malaysia.
As shown in the previous section, statistical evidence shows an increase in the number of drug trafficking
arrests. Also, the number of murder cases in the country does not show a significant decrease. Although
abolitionists may argue that the death penalty has no deterrent effect on these crimes in view of the increasing
number of cases involving these crimes, one cannot come to the conclusion that the rise in the number of
these crimes is solely due to the failure of the death penalty as being a deterrent. There are many other factors
that have to be taken into consideration. There is no guarantee that abolishing the death penalty will reduce
the number of these crimes.
With the case of drugs and firearms, border control and a lack of proper enforcement play a major role in the
rise in the number of these cases. Why is it that only the drug mules get caught and executed for trafficking?
Is it because the drug lords are too elusive and manage to find ways of evading the police? It is the drug lords
who should be tried and sentenced rather than the drug mules for eliminating the drug mules will not solve
the drug problem at all. There are deeper, root causes of these crimes such as lack of education, poverty and
socio-economic conditions which are at play.
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However, having said the above, the death sentence should be of limited use and used only in exceptional
cases where the individuals are beyond rehabilitation and pose a threat to the safety and security of the
country. Rather than for purposes of retributive justice, the death sentence should only be imposed where
absolutely necessary to protect the safety and security of the public and the nation. Every person deserves a
second chance and the right to repent and make amends for mistakes of his or her past. For those already on
death row, the authorities must consider individuals who have demonstrated good behaviour and repentance
while serving sentences and grant them commutations of their sentences from death to life imprisonment.
Review of the Dangerous Drugs Act 1952
The Government of Malaysia should also review the drug laws in Malaysia in particular the Dangerous Drugs
Act 1952 (‘the DDA’). As mentioned previously the majority of offenders currently on death row in Malaysia
are drug traffickers. However, there are issues in the DDA which seem to be rather unjust and unfair to the
accused. Teh (2014) highlights numerous drug cases where miscarriages of justice have occurred and the right
of the accused to a fair trial has been deprived. This is the result of various instances where the trial court
failed to appreciate the defence case due to the failure to consider the cautioned statement of the accused,
failure to consider core evidence of the defence case, failure to consider the evidence of key defence witnesses
and the investigating officers not carrying out proper investigations (Teh 2014). Section 36 of the DDA states
that the burden of proof for any offence under the act lies on the defendant. This is against traditional legal
principles as in any criminal case, the burden of proof should always lie on the prosecution. Furthermore, the
legal presumptions under s 37 of the DDA assumes the accused to be guilty until proven innocent. There are
in total 12 presumptions under this section. As an example, s 37(d) states that:
Any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the
contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the
nature of such drug.
This is clearly against the principle of criminal jurisprudence which states that an accused is innocent until
proven guilty. Further, legal allowance of the prosecution to use a combination of presumptions by virtue of
the Dangerous Drugs (Amendment) Act 2014 to bring home a conviction puts the accused at a greater
disadvantage and no possibility of a fair trial (Teh 2014). Next, s 40A of the DDA states that the evidence of
the agent provocateur is always admissible and his credit worthiness is always presumed (Teh 2014). This
immunity given to agent provocateurs is very precarious and does not discount the possibility of them
planting drugs on unsuspecting individuals to secure convictions (Amnesty International 1993). These are
issues which need to be addressed as every individual has the right to a fair and just trial.
The Dangerous Drugs (Amendment) Act 2017 (‘the DDAA’) was a much awaited act which replaced the
mandatory death sentence with a discretionary death sentence for drug trafficking. However, it too has certain
issues. A convicted person may be charged with life imprisonment instead of death only under certain
conditions, one of it being that the individual has assisted an enforcement agency in disrupting drug
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trafficking activities in or out of the country. This condition is rather unfair and unnecessary as an individual
charged of trafficking may not always have the opportunity to assist a government agency in disrupting drug
trafficking activities. Therefore, this condition should not be made a compulsory condition for a sentence to
be reduced to life imprisonment. The review and changes to the DDA and DDAA must be done to ensure
the right of each and every individual to a fair and just trial.
Human rights
The issue of human rights is one of great debate in support for the abolition of the death penalty. Some may
argue that the execution of prisoners is a violation of human rights and the act of taking away his or her life is
essentially taking away his or her right to live. After all, no one has the right to take away the life of another
human being. But what about the victim of the offence? In capital cases where lives are lost, the victims have
also been deprived of their right to live. The right of life of the victims are often overlooked when discussing
violation of human rights of the death penalty.
The rise of serious crimes
Another reason why the death penalty should be retained is the rise of serious crimes such as terrorism in
Malaysia. Terrorism is considered to be one of the most serious and heinous crimes which could potentially
endanger the lives of thousands of people. As of April 2018, a total of 389 individuals have been arrested by
Malaysian authorities for terrorism offences, out of which 293 (75.32%) were Malaysians and 96 (24.68%)
were foreigners (Samuel 2018). Between 2013 and 2017, there have been 19 planned attacks that have been
foiled by the Royal Malaysian Police (RMP) (Samuel 2018). However, de-radicalisation programmes in
Malaysia have been shown to have a 95% success rate with only a few detainees relapsing (Samuel 2016). This
is a positive sign. Nevertheless, sentences such as the death penalty together with preventive acts such as
Prevention of Crime Act 1959 (‘the POCA’), Prevention of Terrorism Act 2015 (‘the POTA;’) and the
Security Offences (Special Measures) Act 2012 (‘the SOSMA’) are essential to curb, prevent and control these
activities and to protect the safety and security of the nation.
Review of the execution method
Finally, in view of retaining the death penalty, the government should review the use of hanging as a method
of execution in Malaysia. Although it is believed that hanging brings about a quick and painless death,
research has shown otherwise. Hillman (1993) shows that hanging does not always result in instantaneous
death by means of fracture-dislocation of the neck. In these cases, death results from asphyxia which is much
slower. The heart of the prisoner may continue to beat up to 20 minutes after the drop (Hillman 1993). As a
result, the possibility of the use of lethal injection in Malaysia should be considered. Although, the use of
lethal injection comes with its own set of problems and controversies (Harding 1996; Ewart 2006), if carried
out properly and by trained personnel, it is considered to be the most ‘humane’ method of execution. Hillman
(1993) states that, ‘all of the methods used for executing people, with the possible exception of intravenous
injection, are likely to cause pain’.
Concluding remarks
To conclude, the Government of Malaysia should review the death penalty laws and retain a discretionary
death penalty for only the most serious crimes and criminals who are beyond rehabilitation and have a
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potential to endanger the safety and security of the nation. The needs of the society and victims of heinous
crimes must be addressed (Assoc Prof Dr Sundaramoorthy 2018). The imposition of the death penalty must
be limited only to rare, exceptional cases and carried out with extreme caution and responsibility as it involves
the lives of people. Malaysia should take a similar stand as the Supreme Court of India who stated that the
death sentence should only be used in very rare cases. This can be seen in Bachan Singh v State of Punjab [1980]
2 SCC 684, where the Supreme Court of India stated:
That (death sentence) ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
It is also the responsibility of the police to carry out proper and fair investigations during the process of
investigating a case, more so if the death penalty is involved. Teh (2014) states that:
The hallmark of any investigation rests on three pillars, namely, diligence, fairness and independence and, as the cases will show, the absence
of any these will result in a failure of justice.
Death sentences based on confessions or statements extracted from individuals unethically by means of force
is totally unacceptable. The words of distinguished law expert Professor Shad Saleem Faruqi in an article
published in The Star entitled Catching flies while the hornets fly free are a suitable conclusion to this paper:
A judge must have the right to tailor the penalty to suit the crime and to temper justice with mercy in extenuating circumstances …
Mandatory punishments compel courts to treat all convicts as similarly situated even though there may be substantial differences in the facts
of the case … Even if total abolition is not seen as desirable because of the age of terrorism we are living in, a narrowing down of the
offences for which the death penalty is imposed should be considered. The mandatory nature of the penalty should be lifted and judicial
discretion restored (Faruqi 2015).
CONCLUSION
This paper gives the reader an overview of the use of the death penalty in Malaysia. As of 2017, 71% of the
prisoners on death row were drug traffickers. After considering both retentionist and abolitionist arguments,
it is proposed that the Government of Malaysia take the following steps:
(a) remove the mandatory death sentence and replace it with a discretionary death sentence which should
be of very limited use;
(b) review/narrow down the offences punishable by the death penalty in Malaysia. The death penalty
should be used only for the ‘most serious crimes’ where intentional killing of persons has occurred,
for criminals who are beyond rehabilitation and pose a threat to the country’s security and safety.
Individuals who demonstrate good behaviour and repentance while in prison should be granted
commutation of their sentences from death to life imprisonment;
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(c) review the Dangerous Drugs Act 1952 and the Dangerous Drugs (Amendment) Act 2017 to ensure
that every individual has the right to a fair and just trial; and
(d) review the method of execution in Malaysia.
Acknowledgements
I would like to express my sincere gratitude to Mr V Arunasalam, Dato’ Saseedharan Menon, Mr Hisyam Teh
Poh Teik, Associate Professor Dr P Sundaramoorthy and Mr Zulqarnain bin Suja’ for sharing with me their
thoughts and providing valuable insights on the subject of the death penalty during the course of my
research. I would also like to specially thank Mr Santhana Dass for patiently clarifying any doubts that I had
pertaining to the law and for all the long, interesting debates and discussions on the subject.
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1
The author was formerly a research intern at Khazanah Research Institute.
2
An undercover agent, usually a police officer, who is used to provoke an individual to commit an offence in order to secure his or her conviction.
3
The terms capital punishment, death penalty and death sentence are used interchangeably in this paper.
4
An Act which provides control of strategic items (items, arms and material relating to nuclear weapons and weapons of mass destruction).
5
These numbers are estimates. Exact statistics on the number of death sentences and executions are not publicly available.
6
No information available but it is suspected that executions took place during that year.
7
These numbers are least estimates. For example, there were at least 611 reported death sentences in Malaysia, 74 in Taiwan, 58 in Singapore and
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1,545 in Bangladesh. Similar for number of executions. Exact statistics on the number of death sentences and executions are not publicly available.
8
Briefly, Sunni Islam is a branch of Islam which recognises Abu Bakr, Prophet Muhammad’s father-in-law, as the rightful leader of the Muslim
community after Muhammad and supports a traditional method of election based on community agreement. It is the largest branch of Islam. On
the other hand, Shia Islam is a branch of Islam which recognises Ali, Prophet Muhammad’s son-in-law, as the rightful leader of the Muslim
community after Muhammad and supports a hereditary transition in leadership.
9
Refer to the full report, (Hood 2013) for a detailed analysis of the survey and findings.
End of Document
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