Abolition of mandatory death penalty: The legal repercussions and how it affects convicts currently on death row

Malaysia made history after approving a Bill that would abolish the mandatory death penalty in our country. Passed in the Dewan Rakyat on 3 April 2023 via a voice vote, the move has been in the works since 2018 and for many Malaysian human rights activists, this was a culmination of over a decade of struggle.

Now, the Abolition of Mandatory Death Penalty Bill 2023 needs to be approved in the Dewan Negara and presented to the Yang di-Pertuan Agong for royal assent before officially going into effect. With its enforcement, Malaysia will be bucking the trend in Southeast Asia which saw our neighbours Singapore, Vietnam and Myanmar stepping up the use of capital punishment.

Human rights groups lauded the move as a major step forward towards the abolition of the death penalty in the region.  In fact, only two countries – the Philippines and Cambodia – have outright abolished capital punishment in Southeast Asia.

Of course, the move to end mandatory death penalty was not without its challenges. Something that has been part of our legal system since before independence, its removal poses several conundrums, including the need to amend several legislations which prescribe the punishment.

What about inmates that are currently on death row? What would happen to them after the passing of the Bill?

Well, join us as we go in-depth and hopefully, clarify a few misconceptions and misinformation on the matter below.

Will there no longer be capital punishment in Malaysia?

The most prevalent misconception about the abolishment of mandatory death penalty is that capital punishment is no longer an option as a punishment in our country’s laws. On the contrary, mandatory death penalty and death penalty are two separate things.

As the name would suggest, mandatory death penalty is a mandatory sentence prescribed for certain offences. Essentially, for these offences, judges have no room for discretion in meting out punishments, with the only option being capital punishment.

Prior to the Bill, mandatory death penalty was imposed on 11 offences, including murder and drug trafficking. However, when the new legislation formally comes into effect, judges will be given discretion as to what sentence to impose on the accused person in the aforementioned 11 offences.

With that in mind, capital punishment is not abolished, meaning that judges may still pass the death penalty in our country should they be of the view that as such is the fair and right punishment depending on the facts and circumstances of the case. In fact, Malaysia has 33 offences that have the death penalty, one of the highest in the world.

Other laws that were amended to be consistent with the sentence’s abolition

As we’ve alluded to earlier, there are 11 offences which prescribe mandatory death penalty in our country. Hence, the Abolition of Mandatory Death Penalty Bill 2023 also required the relevant laws with the 11 offences to also be amended.

Accordingly, the Dewan Rakyat has also approved amendments to these legislations:

  • Penal Code (Act 574)
  • Firearms (Increased Penalties) Act 1971 (Act 37)
  • Arms Act 1960 (Act 206)
  • Kidnapping Act 1961 (Act 365)
  • Dangerous Drugs Act 1952 (Act 234)
  • Strategic Trade Act 2010 (Act 708)
  • Criminal Procedure Code (Act 593)

Besides that, the amendments also replaced mandatory death penalty with life and natural life imprisonment (until death) as alternatives. These sentences prescribe imprisonment between 30 and 40 years, as well as a minimum of 12 strokes of the cane.

The recent movement to abolish mandatory death penalty

Prior to this, the previous government’s de facto Law Minister Datuk Seri Wan Junaidi Tuanku Jaafar actually tabled a similar Bill on 6 October 2022 in the Dewan Rakyat. However, Parliament was dissolved to pave way for the 15th General Election before the Bill was able to be debated.

The introduction of the Bill was actually part of the Datuk Seri Ismail Sabri’s government Memorandum of Understanding (MoU) on Transformation and Political Stability with Pakatan Harapan (PH) signed on 13 September 2021. Speaking of which, the first concrete initiative for abolishing mandatory death penalty was in 2018 by the then PH government which had promised to do so in its GE14 manifesto.

The PH government set up a Special Committee to review alternative sentences to the mandatory death penalty but was unable to initiate the abolishment before collapsing. However, the then Federal Government did introduce a moratorium on death penalty executions pending institutional reforms in July 2018 which answers the next question:

What happens to those on death row?

Thanks to the moratorium, the last death row prisoner hanged in Malaysia was in 2017. Now that the institutional reform has taken place, the Dewan Rakyat passed the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Bill 2023.

The Bill empowers the Federal Court to retrospectively review death sentences previously delivered, for offences where it was mandatory upon conviction, following the abolition of the mandatory death penalty.

This will affect 1,318 people currently on death row in our country, 842 of which are those who have exhausted all avenues of appeals. Once the Bill formally comes into effect, the inmates have 90 days to file a review of their sentences but not their convictions, meaning that their death sentences may be substituted with the aforementioned alternative punishments but their guilty verdict would still persist.

Moving forward, the abolishment of mandatory death penalty is definitely the right step forward for Malaysia and is a reform that has been a long time coming. However, institutional reforms must not stop there as there are other matters that the government should look into as well, including reforming the Prison Department and improving victim compensation. Moreover, our nation must also look into the reform of punishment, rehabilitation, probation, supervision and after care (life after prison).

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