Malaysia
Information current as of: January 3, 2013
General
Official Country Name
Geographical Region
Asia (South-eastern Asia). [2]
Death Penalty Law Status
Retentionist. [3]
Methods of Execution
Hanging. [4]
References
[1]
[2]
[3]
[4]
Country Details
Language(s)
Bahasa Melayu. [1]
Population
28,300,000. [2]
Number of Individuals Currently Under Sentence of Death
1275.
There were 1,275 people on death row in Malaysia at the end of 2018. [3] In July 2018, the government declared a moratorium on executions while it reviewed the death penalty laws. [4] During the year, there were 190 new death penalty sentences, including 132 sentences for drug related offenses. [5]
(This question was last updated on June 3, 2019.)
Annual Number of Reported Executions
Executions in 2020 to date (last updated on July 1, 2020)
0. [6]
Executions in 2019
0. [7]
Executions in 2018
0. [8]
Executions in 2017
4. [9]
Executions in 2016
9. [10]
Executions in 2015
Amnesty International has corroborated executions (more than one) in Malaysia, but had insufficient information to provide a credible minimum figure. [11]
Executions in 2014
At least 2. [12]
Executions in 2013
At least 2. [13]
Executions in 2012
0. [14]
Executions in 2011
At least 1. [15] Because the government does not release data on its use of the death penalty, Amnesty International was unable to confirm the number of executions that had been carried out, but noted that there had been at least 1. [16]
Executions in 2010
At least 1. [17]
Executions in 2009
At least 1. [18]
Executions in 2008
At least 1. [19]
Executions in 2007
At least 1. [20]
Year of Last Known Execution
2017. [21]
References
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[21]
Crimes and Offenders Punishable By Death
Crimes Punishable by Death
Murder. [1]
Other Offenses Resulting in Death.
Malaysia has a felony murder rule: every participant in “dacoity,” a gang robbery involving at least five offenders, is death-eligible if one of the participants commits murder during the robbery. [2] In addition, bearing false witness, resulting in an innocent victim’s conviction and execution, is punishable by death if the witness knows the victim may be convicted of a capital crime as a result of his false testimony. [3] Assisted suicide of a child or insane person is punishable by death as a variety of murder. [4] Rape or attempted rape resulting in the victim’s death is punishable by death. [5]
Terrorism-Related Offenses Not Resulting in Death.
Unlawfully possessing firearms or explosives in a designated security area; supplying, receiving, or preparing to supply or receive firearms in a designated security area; or consorting with individuals who perform such acts, is punishable by death. [6] Malaysia has amended its penal code to address and further define terrorist acts; [7] however, terrorist suspects are typically dealt with under the Internal Security Act and are simply detained without trial. [8]
Robbery Not Resulting in Death.
If a firearm is charged during robbery or extortion in an attempt to murder or cause harm, each of the offenders participating in the robbery or extortion is punishable by death. [9]
Kidnapping Not Resulting in Death.
If the abduction is carried out with the intent to commit murder, [10] or if the abducted person is held for ransom, [11] kidnapping is punishable by death. Kidnapping is also a capital crime if any of the kidnappers, during the offense, discharges a firearm in an attempt to murder or cause harm. [12]
Burglary Not Resulting in Death.
Discharge of a firearm in an attempt to murder or cause harm during a house-break or house-trespass, by any of the participating offenders, makes each offender death-eligible. [13]
Drug Trafficking Not Resulting in Death. [14]
Treason.
Waging war against Malaysia or offenses against the person of any Malaysian federal or federated head of state is punishable by death. [15]
Military Offenses Not Resulting in Death.
Abetting mutiny, if the mutiny is carried out, is punishable by death. [16]
Other Offenses Not Resulting in Death.
- Resisting Arrest/ Escaping from jail: Discharging firearms in an attempt to murder or cause harm while resisting arrest or escaping lawful custody, by any of the offenders, makes each participating offender death-eligible. [17]
- Weapons Trafficking: Trafficking in firearms, or possessing more than two firearms illegally, is punishable by death. [18]
- Repeat Offender: Attempted murder, if harm actually results, is punishable by death if the offender was serving a sentence of 20 years or more at the time of the offense. [19]
Comments.
While Malaysia does permit the application of Shariah law in Islamic courts, only the High Court, which applies only the civil and criminal law of Malaysia, may try capital cases. [20]
Does the country have a mandatory death penalty?
Yes. [21]
For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?
Murder. [22]
Terrorism-Related Offenses Not Resulting in Death.
Unlawfully possessing firearms or explosives in a designated security area; and supplying, receiving, or preparing to supply or receive firearms in a designated security area, are punished by death. [23] Malaysia has amended its penal code to address and further define terrorist acts; [24] however, terrorist suspects are typically dealt with under the Internal Security Act and are detained without trial. [25]
Robbery Not Resulting in Death.
If a firearm is charged in an attempt to murder or cause harm during a robbery or as part of extortion, the offender discharging the firearm is punished by death. Other participants must be punished by death if they cannot prove they took all reasonable measures to prevent the weapon from being discharged. [26]
Kidnapping Not Resulting in Death.
A kidnapper who discharges a firearm during a kidnapping in an attempt to murder or cause harm must be punished by death. Other participants must be punished by death if they cannot prove they took all reasonable measures to prevent the weapon from being discharged. [27]
Burglary Not Resulting in Death.
An offender who discharges a firearm in an attempt to murder or cause harm during a house-break or house-trespass must be punished by death. Other participants must be punished by death if they cannot prove they took all reasonable measures to prevent the weapon from being discharged. [28]
Drug Trafficking Not Resulting in Death. [29]
Treason.
Offenses against the person of any Malaysian federal or federated head of state are punished by death. [30]
Other Offenses Not Resulting in Death.
An offender who discharges a firearm in an attempt to murder or cause harm while resisting arrest or escaping lawful custody is death-eligible. Other participants must be punished by death if they cannot prove they took all reasonable measures to prevent the discharge. [31]
Crimes For Which Individuals Have Been Executed Since January 2008:
Murder.
According to human rights organizations, on December 19, 2008, a bus driver was hanged at Kajang prison for raping and murdering a computer engineer. [32]
According to a MADPET report from April 2011, of the 441 people hanged in Malaysia from 1960 to early 2011, 78 were convicted of murder. [33]
Other Offenses Not Resulting in Death.
According to various human rights and news sources, drug trafficking crimes may compose the majority of death sentences in Malaysia, with murder generally making up the difference. [34]
MADPET reported in April 2011 that of the 441 people hanged in Malaysia from 1960 to early 2011, 228 of them were convicted of drug trafficking, 130 were convicted of illegal possessions of arms, four were convicted of waging war against the king, and one individual was hanged for kidnapping. [35]
Comments.
Very little, if any, information is available to determine crimes for which individuals were executed recently. According to Amnesty International, while exact numbers are difficult to come by, it is believed that at least one execution did take place in 2010 [36] and at least one in 2011. [37]
Categories of Offenders Excluded From the Death Penalty:
Individuals Below Age 18 At Time of Crime.
Children under the age of ten cannot be criminally prosecuted in Malaysia. [38] In 1995, Malaysia acceded to the Convention on the Rights of the Child with certain reservations, and by 2001 legislatively confirmed that persons committing an offense while under the age of 18 cannot be executed. [39]
Pregnant Women.
The maximum sentence for a woman pregnant at the time of sentencing is 20 years’ imprisonment. [40]
Mentally Ill.
No offense can be committed by a person who, at the time an act is committed, “by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." [41]
References
[1]
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[41]
International Commitments
ICCPR
Party?
No. [1]
Date of Accession
Not Applicable.
Signed?
No. [2]
Date of Signature
Not Applicable.
First Optional Protocol to the ICCPR, Recognizing Jurisdiction of the Human Rights Committee
Party?
No. [3]
Date of Accession
Not Applicable.
Signed?
No. [4]
Date of Signature
Not Applicable.
Second Optional Protocol to the ICCPR, Toward the Abolition of the Death Penalty
Party?
No. [5]
Date of Accession
Not Applicable.
Signed?
No. [6]
Date of Signature
Not Applicable.
American Convention on Human Rights
Party?
Not Applicable.
Date of Accession
Signed?
Not Applicable.
Date of Signature
Death Penalty Protocol to the ACHR
Party?
Not Applicable.
Date of Accession
Signed?
Not Applicable.
Date of Signature
African Charter on Human and Peoples' Rights (ACHPR)
Party?
Not Applicable.
Date of Accession
Signed?
Not Applicable.
Date of Signature
Protocol to the ACHPR on the Rights of Women in Africa
Party?
Not Applicable.
Date of Accession
Signed?
Not Applicable.
Date of Signature
African Charter on the Rights and Welfare of the Child
Party?
Not Applicable.
Date of Accession
Signed?
Not Applicable.
Date of Signature
Arab Charter on Human Rights
Party?
Not Applicable.
Date of Accession
Signed?
Not Applicable.
Date of Signature
2018 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [7]
Vote
In Favor. [8]
Signed the Note Verbale of Dissociation
No. [9]
2016 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [10]
Vote
Against. [11]
Signed the Note Verbale of Dissociation
Yes. [12]
2014 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [13]
Vote
Against. [14]
Signed the Note Verbale of Dissociation
Yes. [15]
2012 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [16]
Vote
Against. [17]
Signed the Note Verbale of Dissociation
Yes. [18]
2010 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [19]
Vote
Against. [20]
Signed the Note Verbale of Dissociation
Yes. [21]
2008 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [22]
Vote
Against. [23]
Signed the Note Verbale of Dissociation
Yes. [24]
2007 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [25]
Vote
Against. [26]
Signed the Note Verbale of Dissociation
Yes. [27]
References
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Death Penalty In Law
Does the country’s constitution make reference to capital punishment?
Yes. Article 5(1) states that no person may be deprived of life save “in accordance with law.” Article 119(3)(b) excludes death-sentenced persons from the right to vote. [1]
Does the country’s constitution make reference to international law?
Yes. Malaysia is a federation of states, and the federal Parliament’s ability to legislate some areas is restricted except when pursuant to a treaty or decision of an international organization of which Malaysia is a member. [2] Decisions of international bodies accepted by the United Kingdom on Malaysia’s behalf prior to independence continue to be binding international law in Malaysia. [3] These provisions concerning international law may make some international law applicable in Malaysia.
Have there been any significant changes in the application of the death penalty over the last several years?
On October 10, 2018, marking World Day Against the Death Penalty, Malaysia’s Minister of Law Datuk Liew Vui Keong announced that “all death penalty will be abolished. Full stop.” [4] He added, “since we are abolishing the sentence, all executions should not be carried out.” [5] The abolition of the death penalty will affect more than 1,200 people who are on death row in Malaysia for various crimes including murder, drug trafficking, kidnapping, terrorism, and treason. [6] Amendments to laws prescribing capital punishment are expected to be discussed by parliament during its next session, which begins on October 15, 2018. [7] According to Minister of Law Vui Keong, the death penalty will be replaced with a minimum sentence of 30 years in prison. [8]
In 2017, the Malaysian parliament passed an amendment to the Dangerous Drugs Act, 1952, removing the mandatory death penalty for those convicted of transporting, sending, or delivering a prohibited substance who also co-operated with law enforcement in disrupting drug trafficking activities. [9]
An October 2012 media report stated that the Prime Minister and Malaysian government were seriously considering a moratorium on capital punishment in Malaysia because of concern for the approximately 250 Malaysians under sentence of death abroad for drug crimes. By instating an official moratorium at home, the Malaysian government believed it might be able to better advocate for commutation of the death sentences of Malaysian nationals abroad. [10] Malaysians were on death row in China, Venezuela, Columbia, and Peru. [11]
Is there currently an official moratorium on executions within the country?
Yes. Malaysia’s Minister of Law Datuk Liew Vui Keong announced on October 10, 2018 that since the death penalty will be abolished in Malaysia, “all executions should not be carried out.” [12]
Have there been any significant published cases concerning the death penalty in national courts?
By the end of our research, we found no cases significantly altering the application of the death penalty, but the following cases may shed light on how the Malaysian courts apply capital punishment.
In the majority of published murder cases, the Court of Appeal upholds the sentences of the High Court. However, the Court of Appeal has overturned cases for insufficiency of evidence and for abusive police practices in obtaining confessions or self-incrimination. [13]
In drug trafficking cases, the Court of Appeal appears to restrict a finding of drug trafficking to cases where there is absolute, corroborated proof of the actual event of a drug transaction. [14] However, these cases also reveal that Malaysian courts will apply the mandatory death penalty for drug trafficking following a police-initiated sting transaction. [15]
Other judgments suggest that in some cases the Court of Appeal finds ways to avoid the mandatory death penalty. The Court acquitted two men who killed a business partner, allegedly in response to his repeated sexual assaults on one of the men’s wife. However, such cases, as well as a case where “jealousy” was interpreted as “insanity” to preclude criminal liability for a husband’s brutal murder of his wife, could also be interpreted as a permissive attitude towards some honor killings. [16]
Where can one locate or access judicial decisions regarding the death penalty?
Malaysia’s official court website offers some selected decisions: http://www.kehakiman.gov.my/?q=en.
The Malaysian Attorney General maintains a website with the status of ongoing cases, appeals, and recent decisions: http://www.agc.gov.my.
A paid subscription site, http://www.newcljlaw.com, offers court opinions from Malaysia.
A free site, http://www.commonlii.org/my/cases/MYCA/, has some rulings on the death penalty, including appeals court decisions, by Malaysian courts.
What is the clemency process?
The head of state automatically receives a report on each death-eligible case and can either commute the sentence to some other punishment, pardon the offender, or set the time and place of execution. The head of state can also grant an indefinite respite. [17]
Are jury trials provided for defendants charged with capital offenses?
No. There are no jury trials in Malaysia. [18]
Brief Description of Appellate Process
A capital defendant appeals from the High Court to the Court of Appeal. After the Court of Appeal determines whether the appeal may be made, the judge who passed the sentence of death files a report on the case with the Federal Court, which determines the ultimate outcome. [19]
References
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Death Penalty In Practice
Where Are Death-Sentenced Prisoners incarcerated?
Death row inmates are kept in a variety of prison locations, including Pengkalan Chepa prison, Puncak Borneo prison, and Kajang women’s prison. [1] News sources confirmed executions at Kajang and Taiping (among Malaysia’s prisons that are still in operation). [2]
Description of Prison Conditions
By the end of our research, we were unable to find information on prison conditions on death row in particular, but prisons in general are marked by extreme overcrowding. In 2010, reports indicated that Malaysia’s 31 prisons held 38,387 prisoners while they were designed with a maximum capacity of only 36,000. Reports indicate that at least 156 prisoners died while incarcerated between 2000 and February 2011. Abuse by prison guards reportedly occurs, with some complaints indicating torture. Generally, women and men were kept separately, as were juveniles and adults. Pretrial detainees were also generally held separately from convicted prisoners. Detainees reportedly receive inadequate food, water, bedding, medical care, and sanitation. [3]
Are there any known foreign nationals currently under sentence of death?
Yes. There were 569 foreign nationals on death row in Malaysia as of October 2018, constituting about 44% of Malaysia’s death row. [4]
(This question was last updated on December 6, 2018.)
What are the nationalities of the known foreign nationals on death row?
In November 2018, media reported that the largest group of foreign nationals on Malaysia’s death row were from Nigeria (118 inmates) followed by Indonesia and Iran. [5] There were also death row inmates from the Philippines. [6]
(This question was last updated on December 6, 2018.)
Are there any known women currently under sentence of death?
Yes. There were 143 women on death row as of October 2018. [7]
(This question was last updated on December 6, 2018.)
Are there any reports of individuals currently under sentence of death who may have been under the age of 18 at the time the crime was committed?
No. [8]
Comments regarding the racial/ethnic composition on death row
One potential area for research regarding the racial and ethnic composition of death row in Malaysia involves the interaction of drug trafficking and migrant workers. For example, many migrant workers travel from Indonesia to Malaysia, only to find that work opportunities in Malaysia are limited. These individuals sometimes turn to drug trafficking and when they are caught, they face the mandatory death penalty. [9]
Are there lawyers available for indigent defendants facing capital trials?
Defendants facing capital charges in Malaysia have the legal right to an attorney at public expense. [10] In practice they are not always able to secure effective representation.
Are there lawyers available for indigent prisoners on appeal?
Defendants facing capital charges in Malaysia have the legal right to an attorney at public expense. [11] In practice they are not always able to secure effective representation.
Comments on Quality of Legal Representation
It is unclear that capital defendants are always able to obtain representation. [12] Some reports indicate that Malaysia’s government may intervene to discourage effective representation in certain cases where officials deem that it is necessary to prevent the defendant "from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof,” as stipulated under Article 8 of the Internal Security Act. [13] Suspects under the Act can be detained initially for as many as 60 days without legal representation. The suspect may also be denied appearance before the courts during that time. [14] Finally, Malaysia inhibits the defendant’s access to evidence held by the police, which likely undermines an attorney’s ability to represent a client effectively. [15]
Other Comments on Criminal Justice System
Malaysia prosecutes a number of migrant workers from Indonesia, who may not speak the language or understand their rights in Malaysia, for drug-related crimes carrying the mandatory death penalty. [16] A report from October 2012 concerning the conviction of two Indonesian brothers for murder highlights NGOs’ concerns for migrant workers facing capital punishment in retentionist countries. [17] Reports of arbitrary detention, lengthy detention, police brutality and torture suggest coercive techniques that may undermine the legitimacy of capital convictions in Malaysia. [18]
Following an appointment-fixing scandal and investigation findings released in 2008, there are serious questions concerning corruption in the judiciary and the independence of the judiciary. [19]
Women’s testimony may not hold as much weight as men’s in Shariah courts. [20]
References
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Decisions of International Human Rights Bodies
Decisions of Human Rights Committee
As of June 2019, Malaysia is not a party to the ICCPR, [1] and so the Human Rights Committee has not issued any decisions or observations on Malaysia’s compliance with the treaty.
Decisions of Other Human Rights Bodies
During Malaysia’s third cycle of the Universal Periodic Review, countries issued various recommendations to Malaysia related to the death penalty: ratify the International Covenant on Civil and Political Rights and the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty; establish a de facto moratorium on the death penalty with a view to its abolition; revise the sentences of persons on death row; adopt necessary legislation to abolish the death penalty; limit capital crimes; and introduce a moratorium on executions. [2] Other countries recommended Malaysia amend and repeal legislation that was used in arbitrary detention of people without trial and to cease arbitrary detention and apprehension. [3] The delegation of Malaysia reported that the Dangerous Drugs Act 1952 had been amended to remove the mandatory death penalty for drug-trafficking offenses. [4] It also noted that the government had taken the initiative to abolish capital punishment from other laws, which would require parliamentary action. [5] Malaysia’s efforts to abolish the death penalty and to accede to relevant international human rights treaties and protocols without reservations were acknowledged and welcomed by numerous countries. [6]
In its 2018 Question of the Death Penalty Report, the U.N. Secretary General reported to the U.N. Human Rights Council that in November 2017, Malaysia introduced discretionary sentencing when persons convicted of transporting drugs cooperate with law enforcement. [7] The report noted the U.N.’s condemnation of Malaysia in March 2017 for executing two brothers with pending clemency proceedings concerning allegations that their trials had not met international human rights standards. [8]
References
[1]
[2]
[3]
[4]
[5]
[6]
[7]
[8]
Additional Sources and Contacts
Direct member(s) of World Coalition Against the Death Penalty
None.
Other non-governmental organizations and individuals engaged in advocacy surrounding the death penalty
Malaysians against the Death Penalty and Torture (MADPET http://madpet06.blogspot.com/)
Reprieve
PO Box 72054
London EC3P 3BZ
United Kingdom
Tel 020 7553 8140
Fax 020 7553 8189
[email protected]
http://www.reprieve.org.uk
SUHAKAM (Human Rights Commission of Malaysia): http://www.suhakam.org.my/home
SUARAM (Alternative human rights organization in Malaysia): http://www.suaram.net/.
The Malaysian Bar Council opposes death penalty: http://www.malaysianbar.org.my/.
Helpful Reports and Publications
MALAYSIAKINI, http://www.malaysiakini.com/a
MADPET, http://madpet06.blogspot.com/
Additional notes regarding this country
SUKAHAM, the Human Rights Commission of Malaysia, recognized in its Annual Report for 2011 that public opinion is generally supportive of the death penalty when it concerns murder cases. [1]
The Malaysian Bar Council advocates abolition, and a poll in 2006 showed 64% public opposition to the death penalty. [2]
References
[1]
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