On the occasion of the World Drug Day (26 June), Malaysians Against Death Penalty and Torture (Madpet) applauds Malaysia for the elimination of the mandatory death penalty for the offence of drug trafficking, which now finally allows judges, after convicting a person of the offence of drug trafficking, to have the option of sentencing those convicted of drug trafficking offence to life imprisonment and whipping, ie other than the death penalty.
This was made possible after the Abolition of Mandatory Death Penalty Act 2023.
An oversight
However, there was an oversight, when the alternative imprisonment sentence for drug trafficking remains as life imprisonment. Madpet believes that ‘life imprisonment’ should have been amended to 30-40 years’ imprisonment. Madpet hopes Malaysia will speedily carry out the required amendment.
This is inconsistent, as all other previously mandatory capital offence, now carry an alternative sentence of imprisonment – not life imprisonment, which was also abolished with the mandatory death penalty.
Section 39B(2) still reads:
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(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than twelve strokes.
Until that “imprisonment for life” for drug trafficking is speedily amended to a range like 30-40 years’ imprisonment, the courts will have a problem. When they choose the alternative to death sentence, they still have to sentence convicted drug traffickers to imprisonment for life.
Now, some courts have been since sentencing drug traffickers to 30-40 years’ imprisonment and not imprisonment for life, which is just – but still could be seen as illegal when this drug law specifically provides the alternative punishment of “imprisonment for life” for the crime of drug trafficking.
Madpet believes that the offence of drug trafficking ought to broken up to provide for different types of drug trafficking offences with different sentences.
‘Mules’ arrested with drugs in their possession should be subjected to much lower sentences, compared to kingpins or bosses who manufacture, sell or arrange distribution networks. Rather that fixing the minimum imprisonment term at 30 years, it may be just to set it at no more than five years. Or simply not fix any minimum term of imprisonment, and leave it to the judges to determine the appropriate just sentence for each particular case.
Drug offences and death row
In November 2023 in Malaysia, on death row, there were 840 individuals for drug offences and 435 for other offences – about 65% because of drug offence – drug trafficking. Now, in January 2025, only 40 are on death row for drug offences, and another 100 for other offences – about 28% on death row for drug offences (Malay Mail, 5 April 2025).
This happened not only because of the Abolition of Mandatory Death Penalty Act 2023, but more importantly the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 that allowed the Federal Court temporary special jurisdiction to consider the application of death row inmates, who had already exhausted all appeals, to review their death sentence.
…814 individuals were granted a reduction of their death sentences to imprisonment through hearings under the Death Penalty and Life Imprisonment Review (Temporary Jurisdiction of the Federal Court) Act 2023 [Act 847], which came into effect on September 12, 2023,” she[minister in the Prime Minister’s Department (Law and Institutional Reform), Azalina Othman Said] said in a parliamentary written reply to Bukit Gelugor MP Ramkarpal Singh Deo (Malay Mail, 6 November 2024).
After the Abolition of Mandatory Death Penalty Act 2023, courts hearing appeals could also change death sentences in appropriate cases to the imprisonment sentence. The minister also said, “Of that number, 52 were prisoners at the appeal stage who were granted a reduction of their death sentences to imprisonment…” (Malay Mail, 6 November 2024).
Likewise, courts hearing drug trafficking cases can now avail themselves to the alternative to the death sentence if the accused had been found guilty.
People still being sentenced to death
Although Malaysia abolished the mandatory death penalty, the death penalty still exists in all these offences. The only difference, is that now, upon conviction, judges have the option of sentencing to death or imposing an alternative imprisonment-plus-whipping sentence.
The problem is that some judges or courts, despite the abolition of the mandatory death penalty continue to impose the death penalty, both after trial at the court of first instance or the appeals that follow.
In November 2024, the minister acknowledged this. “Azalina noted that 18 individuals received new death sentences – 12 from the High Court and six from the Court of Appeal” (Malay Mail, 6 November 2024).
This means that there will still be death row prisoners, and the numbers will rise in time – and there is no possible way (of knowing) how to deal with the existing and new death row prisoners.
The Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 only gave temporary powers to the Federal Court, and effectively now is a ‘dead’ act – as those on death row cannot anymore apply for a revision of their death penalty.
In Indonesia, at the end of 2022, the revised Criminal Code introduced an automatic 10-year probation for convicts on death row to demonstrate good behaviour for the possibility of having their sentences commuted. This law will take effect on 2 January 2026.
Madpet urges Malaysia to revive the Federal Court’s jurisdiction to be able to revise the death penalty of those on death row who have already exhausted their appeals. Those on death row ought to be allowed to make applications, maybe once every two years or when circumstances warrant such an application.
Madpet also reiterates the call for the abolition of the death penalty, noting Malaysia’s commitment to the world at large to having a moratorium on executions pending the abolition of the death penalty. Malaysia voted in favour of the UN General Assembly resolution in 2018, 2020, 2022 and 2024 which is also Malaysia’s commitment to abolish the death penalty.
No public outcry indicates readiness
There was no public outcry when the mandatory death penalty was abolished. Likewise, there was no outcry when the death sentence was commuted to imprisonment plus whipping.
As such, it is a positive indicator that Malaysia and its people are ready for the abolition of the death penalty.
A possible next step is the abolition of the death penalty for offences that do not directly result in death or grievous bodily harm to any victim or victims.
Drug offences are one such category of offences, where the death penalty ought to be abolished.
Abolish statutory denial of bail
Section 41B(1) of the Dangerous Drugs Act 1952 now states:
Bail shall not be granted to an accused person charged with an offence under this Act – (a) where the offence is punishable with death; or….
The 39B drug trafficking offence carries the sentence of death or life imprisonment, and as such, bail, by law, cannot be granted.
Yusoff Rawther and seven others in three different cases from February this year, had to languish in detention for months, and the worst was for more than five years because of this denial of bail, They ended up being found not guilty and were acquitted (New Straits Times, 6 March 2025) (The Star, 14 March 2025) (New Straits Times, 12 February 2025). These were only the media reported cases, and so there can be more.
It is a gross miscarriage of justice for these innocent people to have suffered prolonged pre-conviction detention because the statute, not judges, denied them bail.
Madpet reiterates the call for the repeal of statutory provisions that deny bail and asks that judges be restored the jurisdiction to hear and decide on all bail applications.
DNAA if trial cannot begin and end quickly
What is of great concern is the delay in the commencement and ending of criminal trials, more so for those who have to suffer pre-conviction detention in Malaysia’s already overcrowded prisons.
Recently, in former Prime Minister Najib Razak’s trial, when there was a delay in starting and ending the trial, the courts discharged Najib – a discharge not amounting to an a acquittal (DNAA).
Madpet asks for similar DNAAs for all pre-conviction or remand prisoners, whether it is for drug offences of other offences, to abide by Malaysia’s constitutional guarantee under Article 8(1): “All persons are equal before the law and entitled to the equal protection of the law.”
If the trial cannot start within three months, they should all be discharged. This will not be prejudicial to the state who can at any time recharge them when the prosecution is ready to start and end the trial speedily.
The maxim “Justice delayed is justice denied” also applies to the presumed innocent accused individuals, especially those subjected to pre-conviction or remand detention.
Madpet also reiterates its call for the abolition of whipping, more so since a recent case where a person died after being whipped.
In dealing with the drug problem, it seems obvious that the death penalty or heavy penalties have not solved the problem of drug use and abuse.
Thus, states should look at the real causes of addiction, mostly done voluntarily, and deal with the problem in more effective ways, like education.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).
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