Abolishment Of Mandatory Death Penalty In Malaysia

• Law Firm: Azmi & Associates
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation, Food and Drugs Law
• Author: Abu Daud Abd Rahim and Muhamad Zuraidi Zulkifli
• Published date: 25 September 2023

Death Penalty in Malaysia

The death penalty has been introduced in the Malaysian Criminal Justice System since the British Colonial Administration when it was originally enforced for the offence of murder. In 1975, death penalty was introduced as a discretionary penalty for drug trafficking and it was made mandatory in 1983. According to official data, some 1,318 prisoners were hanged between 1992 and 2023 in Malaysia.¹

The death penalty is regarded as the most inhuman, degrading punishment and violates the most fundamental human right. However, it is important to acknowledge that the judges' hands are tied as they are administering the law. This begs the question as to who is responsible to fix the law. In the Federal Court decision, Azahar Mohamed CJ held that;

"Under the Federal Constitution, the power to determine the measure of punishment or to prescribe punishment was a legislative power and not a judicial one. It was not an integral part of the core judicial function of adjudicating guilt or innocence but an integral part of the legislative function of creating offences and prescribing their punishments. Hence, it was well within the Legislature's power to enact the impugned provisions since Parliament could lawfully prescribe a fixed punishment for an offence.²"

In light of the above, there is no doubt that the Court is only empowered to pass any sentence within the parameters of a sentence prescribed by Parliament.

Efforts to Abolish Mandatory Death Penalty

On 8th June 2022, Former Minister in the Prime Minister's Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar announced that the government has agreed for further scrutiny and study to be carried out on the proposed substitute sentence for 11 offences carrying the mandatory death penalty, one offence under Section 39B of the Dangerous Drugs Act 1952 (Act 234) and 22 offences carrying the death penalty at the discretion of the court.

On 27th March 2023 Minister in the Prime Minister's Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said tabled the Abolition of Mandatory Death Penalty Bill 2023 and the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of Federal Court) Bill 2023 for first reading in the Dewan Rakyat.

On 3rd April 2023, Deputy Minister in the Prime Minister's Department (Law and Institutional Reform) Ramkarpal Singh tabled the Bills for its second and third reading. The Bills were unanimously passed.

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