August 5, 2025
KUALA LUMPUR – Malaysia’s abolition of all mandatory death sentences was a good first step. However, further reforms are needed.
THERE is a global debate about the death penalty – its morality and utility, and its clash with evolving conceptions of justice and human rights.
Malaysia has about 33 capital penalty offences in a variety of statutes like the Penal Code, Dangerous Drugs Act 1952, Internal Security Act 1960 (now repealed), Strategic Trade Act 2010, and Water Services Industry Act 2006.
Till 2023, 13 of these 33 offences carried a mandatory death sentence. However, beginning in 2012, a number of significant reforms illuminated our legal horizon.
The number of capital penalty offences was reduced. The mandatory death penalty for some offences was amended to give judges discretion to impose death or detention.
The Internal Security Act, with its death penalty offences, was repealed in 2012. In 2018, the mandatory death sentence for drug trafficking was replaced with discretion to impose imprisonment. An administrative moratorium on hangings was announced the same year, though the law was not formally amended to abolish the death penalty.
The most significant reform was the Abolition of Mandatory Death Penalty Act 2023 (Act 846), which abolished the mandatory death penalty for all crimes, thereby allowing judges sentencing discretion in all capital cases.
The Revision of Sentence of Death and Imprisonment for Natural Life Act 2023 permits a resentencing process for those already on death row to have their sentences reviewed and potentially reduced.
Commendable though these reforms are, the abolitionists point to many persisting unsatisfactory features in our law.
Moral objection: The right to life is an inalienable right. Provisions for the death penalty are a violation of Article 3 of the Universal Declaration of Human Rights that “Everyone has the right to life, liberty and security of person”.
Fallibility and finality: There is overwhelming evidence that as long as the death penalty is maintained, the risk of executing the innocent can never be eliminated due to prosecutorial or police misconduct, forced confessions, unreliable witnesses, and inadequate defence representation.
No deterrence: The utilitarian argument that the death penalty deters is not supported by sufficient empirical evidence. This is especially so in relation to murder, which is often a crime committed in the heat of the moment when consequences are farthest from contemplation. Further, United Nation studies indicate that abolitionist countries do not show any upsurge in crime.
Imposed on the poor: There is a fair amount of social data that, around the world, the death penalty is unequally administered. It tends to apply disproportionately to the poor, marginalised, ethnic minorities, and foreign nationals. There is unequal administration of the law.
Malaysia remains a retentionist country.
Despite the de facto 2018 moratorium, death sentences continue to be handed down by the courts. As of 2022, there were 1,337 individuals known to be under sentence of death in Malaysia, according to Amnesty International.
Whipping: With the abolition of mandatory death sentence, judges will now have the discretion to impose a prison sentence ranging from 30 to 40 years, accompanied by a minimum of 12 strokes of whipping – a practice considered a form of torture and classified with other cruel, inhumane or degrading punishment under international human rights law.
Death for drugs: The death penalty for drug trafficking under the Dangerous Drugs Act 1952 is a violation of international law because drug offences do not meet the threshold of “most serious crimes” under international law.
Also, under Malaysia’s Dangerous Drugs Act, a number of crushing, unfair presumptions apply against the accused. And then there is the fact that in most cases, drug mules get arrested while the masterminds, often operating from abroad, remain free.
Trend towards abolition: According to Amnesty International, 87 countries and territories have abolished the death penalty for all crimes. Eleven countries have abolished it for all but exceptional crimes such as war-time betrayals.
Twenty-seven countries retain the death penalty but have not carried out any execution for the past 10 years. This makes a total of 125 countries that have moved away from the death penalty in law or practice. Malaysia should emulate them.
Even war crimes are not punishable with death: For war crimes, crimes against humanity, or genocide triable by the International Criminal Court or the tribunals created by the United Nations Security Council for former Yugoslavia and Rwanda, the maximum penalty is life imprisonment and not death.
Proponents of the death penalty condemn this argument. Wars cause death and suffering to millions. Why should war criminals be punished only with imprisonment?
Legalised murder: Finally, critics charge that the death penalty is a form of legalised murder. It reflects primordial instincts of violence. It perpetuates a vicious cycle of brutality. A civilisation is judged not only by how it honours its heroes but also by how it treats the worst in its midst. The death penalty belongs to a punitive past, not a just future.
In reply to the passionate pleas of the abolitionists, the retentionists defend the status quo with the following reasons:
Reverence for life is not an absolute principle: Though life is sacred, no existing legal system exhibits an unconditional and absolute reverence for life.
> Everywhere in the world, there are laws on private defence of person and property which permit the taking away life in self-defence of life and property (Malaysia Penal Code, Sections 96, 99(1), 99(2), 100 and 103).
> Some countries allow euthanasia and/or assisted suicide. Among them are Austria, Belgium, Finland, Germany, Luxembourg, Netherlands, Norway, Spain, Switzerland, and 10 states of the United States.
> Most countries allow abortion (Malaysia: Section 312, Penal Code).
> All countries empower the police to shoot to kill in certain circumstances.
> The Charter of the UN permits wars of self-defence. Wars invariably extinguish lives.
> Even in religion, though killing is generally frowned upon, in some circumstances, the extinguishing of life is allowed as just retribution.
The death penalty is permitted by international law: Under Article 6(2) of the International Covenant on Civil and Political Rights 1966, there is no absolute ban on death sentences. Though the “inherent right to life” is recognised, the death sentence may be imposed “for the most serious crimes”.
Just retribution: Many people, especially those whose families have been devastated by the loss of a loved one, strongly feel that the death penalty should be retained.
Society must take a tough stand against extreme, violent crimes and exact revenge or retribution, retentionists maintain.
Malaysia is not alone in having the death penalty: 71 other countries, including the US, China, Iran, Saudi Arabia and Singapore, retain and use the death penalty.
To sum up, I submit that Malaysia’s abolition of all mandatory death sentences was a good first step. However, further reforms are needed.
> Presumptions of guilt are an exception to the rule that everyone is innocent till proven guilty. We must remove all these presumptions from our law, especially in capital offences.
> A further narrowing down of the offences for which the death penalty is imposed should be considered. The death penalty should be available only for the most heinous, brutal, monstrous offences like mass killings, terrorism, genocide, and crimes against humanity.
> Each death sentence should be mandatorily reviewed by the Pardons Board within a statutorily fixed time period. The procedures of the Pardons Board should be reformed to allow representation and due process.
> The Islamic system of diyat (compensation) should be incorporated into our criminal process. Diyah or diyat is the financial compensation, or “blood money”, paid to the victim (or heirs in the case of murder) of bodily harm or property damage. It applies when the victim or the victim’s family agrees to compromise with the guilty party.
The beauty of the diyat system is that it merges the law of torts (damages) with the law of crime. The victim or family gets compensated; the violator has his or her penalty commuted to something lesser.
Diyat plays a role in the legal system of Iran, Pakistan, Saudi Arabia, and the United Arab Emirates.
With these reforms, a balance can be achieved among the many conflicting perspectives on the death penalty.
Admittedly, there are no simple, right answers. Nevertheless, we have to try to find answers suitable for our time and place.
Prof Emeritus Datuk Dr Shad Saleem Faruqi is principal research fellow at Universiti Malaya. The views expressed here are the writer’s own.