For as long as Section 39B of the Dangerous Drugs Act states the punishment for drug trafficking “shall be punished on conviction with death or imprisonment for life”, anyone convicted of the offence will be sentenced to death and if not to imprisonment for life plus whipping.
That means that the convicted person will be hanged to death or languish in prison until death, and so it can be said to still be a death penalty, be it expedited or delayed until the person dies naturally in prison.
As such, when even the Federal Court, through the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023, revised the death penalty of drug traffickers, it had no choice but to impose life imprisonment only. It could not sentence them to imprisonment for a term of 30-40 years as it could for all other death penalty offences. Pope Francis previously stated: “Life imprisonment is a hidden death penalty.”
That means that the majority on death row, who are convicted drug traffickers, may have escaped death by hanging, but they are now subjected to life imprisonment, and this is just wrong.
It was previously reported:
- Sign up for Aliran's free daily email updates or weekly newsletters or both
- Make a one-off donation to Persatuan Aliran Kesedaran Negara, CIMB a/c 8004240948
- Make a pledge or schedule an auto donation to Aliran every month or every quarter
- Become an Aliran member
Of the 1,281 people on death row as of Feb 2019, 73 percent (935 people) were convicted of trafficking illicit substances under Section 39(b) of the Dangerous Drugs Act 1952 … – Malaysiakini, 10 October 2019
This means that more than 70% convicted drug traffickers who had the death penalty revised to imprisonment are now sentenced to life imprisonment, and this is unacceptable and most unjust – more so after the realisation that most of those convicted for drug trafficking are not kingpins or crime bosses, but mere mules, often young, poor, ‘duped’ and possibly first-time offenders.
The case of Umi Azlim Lazim, a 24-year-old university graduate, convicted for trafficking 2.9kg of heroin into China, in May and who was sentenced to death (South China Morning Post, 13 December 2007) and other cases finally opened the eyes of many in Malaysia to the fact that those convicted for trafficking may simply be young, poor or ‘foolish’ persons who were duped – and that led to the thinking that a mandatory death penalty may not be a just sentence.
Umi’s sentence was subsequently commuted to imprisonment as in China, all death sentences are reviewed by the Supreme People’s Court. Sentences with a two-year reprieve may be commuted to life imprisonment due to good behaviour.
Mandatory death penalty for drug trafficking was abolished first in 2017
The mandatory death penalty was abolished earlier in March 2018 for the offence of drug trafficking through the Dangerous Drugs (Amendment) Act 2017. Thereafter, Section 39B(2), read as follows:
(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 fifteen strokes.
When Malaysia abolished the remaining mandatory death penalty and life imprisonment through the Abolition of Mandatory Death Penalty Act 2023 (AMDP Act), which came into force on 4 July 2023, it abolished the mandatory death penalty and provided an alternative sentence of “imprisonment for a term of not less than thirty years but not exceeding forty years and with whipping”.
However, it failed to amend the alternative life imprisonment sentence for drug trafficking (Section 39B(1) of the Dangerous Drugs Act).
Malaysians Against Death Penalty and Torture (Madpet) believes it was probably an oversight of the government and Parliament, and that means, even if not sentenced to death, they will be sentenced to life imprisonment.
When the AMDP Act was introduced, it was the government’s intention to not only abolish the mandatory death penalty but also life imprisonment.
Thus, Madpet calls on the government and Parliament to speedily do the needful amendment, amending the alternative sentence of ‘imprisonment for life’ to “imprisonment for a term of not less than thirty years but not exceeding forty years”.
Madpet also calls for the removal of the lower limit of the sentence, allowing the courts the discretion to impose a just sentence. Alternatively, the lower limit maybe should be three or five years.
First-time offenders duped into committing crime should be imprisoned for a short period…
Trust in the courts to impose a just sentence.
It is a serious matter, as the courts are still sentencing those convicted for drug trafficking to life imprisonment.
On 7 January 2025, the High Court sentenced a former air steward and his two accomplices to life imprisonment for drug trafficking. “The court sentences each accused to life imprisonment and 12 strokes of the cane for the first charge and life imprisonment with six strokes of the cane for the second charge” (Malay Mail, 7 January 2025).
Rightfully and reasonably, the AMDP Act should have abolished that imprisonment for life in that Section 39B offence, and replaced the “imprisonment for life” with “imprisonment for a term of not less than thirty years but not exceeding forty years and with whipping”.
Sadly, the act failed to do this for Section 39B offence in the Dangerous Drugs Act and only just amended the number of whippings, reducing the minimum whipping from “not less than fifteen strokes” to “not less than twelve strokes”.
Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said said 866 individuals received reduced sentences from the Federal Court between Jan 1 and Oct 14, 2024.
“Of that number, 52 were prisoners at the appeal stage who were granted a reduction of their death sentences to imprisonment.
“Additionally, another 814 individuals were granted a reduction of their death sentences to imprisonment. – Malay Mail, 6 November 2024
Unfortunately, the minister did not reveal how many were for the offence of drug trafficking, and they, as the law stands now, would have been sentenced to imprisonment for life.
Yusoff Rawther and many others are facing trials on charges of drug trafficking, so when Parliament does the needed amendment, the new revised sentence should apply to all crimes, even those committed before that new law comes into force.
If not, it will not apply to crimes committed earlier, and the courts will only still be able to sentence them to death or life imprisonment.
Convicted drug traffickers serving life imprisonment
Due to this oversight, the question arises whether those who were previously sentenced to death, and now sentenced to life imprisonment after the Federal Court revision, ought to have their sentence revised again by the Federal Court after Parliament amends the Dangerous Drugs Act deleting “imprisonment for life” and replacing it for imprisonment within a certain range.
The question also arises whether the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 ought to be amended to give permanent jurisdiction to the Federal Court to consider revising death or life imprisonment sentences.
Of concern are those who have had to be sentenced to life imprisonment for drug trafficking because of Parliament’s failure.
Periodic review by courts
In China, following a death sentence, the sentenced is reviewed after two years.
In Indonesia, the new Penal Code (KUHP), adopted in late 2022 which will take effect in 2026, states that people sentenced to death under the new law would be given a probation period of 10 years, during which the death penalty can be commuted to life imprisonment if the convict demonstrates “commendable behaviour”.
Hence, Madpet proposes that a law be enacted that will give the courts the right to review those still facing the death penalty, after two years or more, to consider whether the death penalty ought to be revised to a prison sentence, taking into consideration good behaviour, repentance and other factors.
This is a solution, as there remains about 140 on death row, and the courts still will sentence people to death so long as the law provides for the death penalty. So, the number on death row will increase, and Malaysia no longer wants to execute anyone.
It was revealed in Parliament that between November 2023 and October 2024, the number of people on death row dramatically declined from more than 1,300 to 140 (Aliran, 22 March 2025).
Madpet calls for a speedy amendment of the Dangerous Drugs Act to substitute life imprisonment with “imprisonment for a term of not less than thirty years but not exceeding forty years and with whipping”. This is to prevent the injustice of still having to be imprisoned until death even if one is spared the death penalty.
Madpet also urges for the abolition of the sentence of whipping, where it recently resulted in death (Malaysiakini, 9 October 2024), or at least not stating any mandatory minimum number of whipping strokes that the convicted should receive.
In light of the recent tragedy at Pokok Sena Prison, Sukaham also called on the government to immediately abolish all forms of corporal punishment, including those codified in the Penal Code, the Criminal Procedure Code, the Prisons Act, and related legislation (Suhakam, 22 October 2024).
Madpet reiterates its call for the total abolition of the death penalty and a moratorium on executions pending the abolition. – Madpet
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture.
AGENDA RAKYAT - Lima perkara utama
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
