At the end of 2018, the Malaysian authorities published the official statistics on the death penalty for the first time. In that year alone, the figures indicated that 190 people were sentenced to death, which is far beyond the estimates of civil society. They have not released the number of people sentenced to death in 2019 and 2020. Amnesty International reported that at least 22 people were sentenced to death in 2020.
No death sentence may be passed on people who commit an offence when they are under 18.
The death penalty is mandatory for nine offences, including murder and terrorism. Malaysia is one of the very few countries where the judges cannot always use their discretion in the case of the death penalty. Since July 2019, they can give a prison sentence of at least ten years as an alternative to the death penalty for certain crimes linked to drug trafficking. Conditions of this alternative punishment are considered extremely restrictive. In fact, it leads to the death penalty in most cases.
In 2019, a special task force was created to examine alternative punishments to the mandatory death penalty. This task force is made up of, amongst others, former High Court judges, former members of the Attorney General’s Chambers (AGC), former senior officers of the Prisons Department, criminologists, academics, representatives of the Malaysia Bar Council, SUHAKAM (Human Rights Commission of Malaysia) and civil society organisations. Its conclusions submitted in February 2020 recommended alternative punishments for 11 drug-related offences and 21 other types of crimes. The report has not been made public.
Executions are kept secret. Prisoners executed in 2016 were informed the day before their execution.
The execution of pregnant women is forbidden. The law provides for the commutation of the death penalty to life imprisonment once pregnancy has been proven. Twenty people were executed by hanging between 2012 and 2018. An official moratorium on executions has been in place since 2018.
Prisoners sentenced to death awaiting execution.¶
The number of prisoners sentenced to death in the country has nearly doubled in nine years: 696 people in 2011 and more than 1,314 in 2020. The rise in numbers can be linked to the tightening of policies to fight against drug-related crimes. Around 70% of people sentenced to death in 2019 were imprisoned for drug trafficking and 27% for murder.
The length of incarceration for prisoners sentenced to death is generally long, particularly due to delays in judicial procedures. In 2019, Amnesty International reported that 36% of prisoners sentenced to death were incarcerated for six to ten years, nearly 4% for 11 to 15 years, and 1% for more than 15 years. One prisoner sentenced to death has been imprisoned for 27 years.
Women represent 11% of people sentenced to death. This percentage is much higher compared to other countries, such as Sri Lanka (6.5%), Indonesia (2.2%) or the United States (2%). Nearly 95% of women have been sentenced to death for drug-related crimes.
Foreign nationals represent 44 % of people sentenced to death. The proportion of foreign women sentenced to death is much higher than men: 86 % of women and 39 % of men are of foreign nationality.
Pardons and commutations¶
The king at the federal level and the governors or sultans at the state level have the power to grant pardons, through a Pardon Board. Pardons were granted between 2007 and 2017 to 165 prisoners sentenced to death. Between 55 % and 63 % of all finalised death penalty cases were granted pardon between 1991 and 2016 ─ a relatively high clemency rate ─. The reasons given for granting pardon are based on good behaviour, religious piety, and expressed remorse over the course of their detention. On 30 June 2020, nearly 839 prisoners sentenced to death filed a petition for pardon.
The procedure for clemency is opaque and unknown. Family members revealed that they were not informed of this possibility. Prisoners sentenced to death reported that they were not given information on the progress of their request. People sometimes spend ten years in detention before knowing the outcome of their request for clemency. Some family members and lawyers state that people under death sentence hesitate to apply for clemency for fear that this will expedite their execution and worsen their mental health. This might also be taken as an admission of guilt.
Some prisoners explained that, once the legal appeals in a case are finalised, the prison guards encourage them to apply for pardon under Article 42 of the Federal Constitution.