On the occasion of the 2023 World Day Against the Death Penalty on 10 October, and three months since the coming into force of legislative amendments repealing the mandatory death penalty, Amnesty International Malaysia renews its calls on the government of Malaysia to swiftly move to abolish this cruel punishment once and for all.
Pending this, Amnesty International Malaysia urges the authorities to continue to observe the official moratorium on executions established in 2018 until this cruel punishment is consigned to the history books and all death sentences are commuted.
Three months of sentencing discretion
The first three months since the coming into force of the Abolition of Mandatory Death Penalty Act 2023 concluded on 4 October.
Our initial assessment indicates that worryingly the death penalty was imposed or upheld in 10 out of 23 cases (43%) where it was an applicable punishment. This preliminary assessment, which is based on the organisation’s monitoring of media reports covering judicial decisions during the period 4 July-4 October 2023, also points to a higher incidence of resort to the death penalty at first instance level.
According to Amnesty International’s monitoring, High Courts across the country imposed seven new death sentences on six men and one woman, all convicted of murder (70% of all recorded cases before High Courts). In three other separate murder cases, the courts sentenced the men to 35 or 38 years of imprisonment. Three women and one man who had been charged with drug trafficking were acquitted.
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Of the 16 cases decided by the Court of Appeal during the period under consideration, six people had appeals on their convictions granted, resulting in charges being amended to non-capital offences in five cases (which involved four foreign nationals, including one woman) and one acquittal.
In the remaining 10 cases, the Court of Appeal upheld the conviction and death sentences in two cases (20%), one for murder and one for drug trafficking. Eight people, including three women, had their death sentences commuted – seven had been convicted of murder and one of drug trafficking.
During the three-month period, the Federal Court upheld the death sentence imposed on a man convicted of murder; and commuted the death sentences imposed on two men, one convicted of murder and one of drug trafficking.
Continued, unlawful and arbitrary use
Despite the welcome reforms to the mandatory death penalty earlier in the year, it remained alarming that the death penalty continued to be imposed and upheld by Malaysian courts, including for drug-related offences, which do not meet the threshold of the “most serious crimes” to which the use of the death penalty must be restricted in countries that have not yet abolished it.
A new briefing published by Amnesty International on the occasion of the 2023 World Day Against the Death Penalty highlights how Malaysia is among the minority of countries that still resorts to impose the death penalty for drug-related offences.
Of additional concern is the retention of legal presumptions of guilt which have rendered trials unfair as these contravene the right to be presumed innocent.
These statutory presumptions, when invoked, allow the prosecution to automatically infer guilt when drugs are found in objects or premises that the defendants were responsible for or owned; or that a defendant had knowledge of the drugs when found in possession of them; or that a defendant intended to traffic the drugs when the amounts in their possession went beyond statutory minimums.
When these legal presumptions are invoked, the burden of proof is shifted onto the defendant to be rebutted to the higher legal standard of “on a balance of probabilities”, with the effect of lowering the threshold of evidence needed to secure a conviction in capital cases.
The systemic violations of human rights associated with the death penalty are frequently compounded by multiple and intersecting layers of discrimination to which those facing the ultimate cruel, inhuman and degrading punishment are subjected, including in their experience of criminal justice. Whenever there is discrimination in its application, the use of the death penalty is rendered arbitrary.
In Malaysia, Amnesty International Malaysia has repeatedly expressed concern, for example, at gaps in legal aid in death penalty cases that left many people without a lawyer of their choosing, particularly foreign nationals who were unrepresented at the time of arrest, or during remand before the charges were brought.
Ensuring right to appeal is guaranteed
In addition to these long-standing issues, we are further concerned that the resentencing process established before the Federal Court to review the mandatory death sentences of those who had their conviction finalised does not guarantee the possibility of a review of the new sentencing decisions.
The right to appeal a judicial decision is a key element to guarantee the right to a fair trial. We call on the Malaysian authorities to work towards ensuring that the right to a judicial review of the resentencing decision is guaranteed for anyone who might seek to appeal their death sentences, if confirmed.
Improved pardons process needed
Those on death row, should their sentences be upheld after the resentencing process, will be eligible to apply for pardon from the sultan or ruler.
In these cases, and those following the ordinary court process, Amnesty International Malaysia is concerned that the existing pardons process lacks a transparent and regulated process in relation to the consideration and communication of pardon requests. This results in insufficient safeguards that expose people to the risk of arbitrary decisions that could lead to execution, as well as extreme distress at not knowing about their fate.
Therefore, we urgently request for the government to outline a clear, defined, and detailed process for the consideration and communication of pardon requests so that it serves its purpose of being a meaningful safeguard of due process.
This includes disclosing all relevant information with regards to the criteria used for the consideration of pardon requests; as well as promptly notifying the prisoners, their family members and legal representative of the set time for the consideration of their petition and outcome of such deliberations.
End cruel whipping
Based on Amnesty International’s monitoring, the use of whipping (mandatory not less than 12 strokes), was imposed in seven out of 13 cases where the death sentences were commuted. In addition, in one reported case, the relevant High Court imposed 17 strokes of whipping as an alternative punishment to the death penalty.
We call on the government to impose an immediate moratorium on whipping and urgently introduce legislative amendments to remove whipping as a punishment for all offences for which it is retained.
Amnesty International Malaysia further urges the government of Malaysia to take swift steps to ratify the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Extend moratorium on executions
The government of Malaysia needs to reaffirm its commitment to a moratorium on executions, which has been in place since 2018 and ensure it will be maintained until the death penalty is fully abolished and all death sentences are commuted.
The Abolition of Mandatory Death Penalty Act 2023 and the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of The Federal Court) Act 2023 (Act 847) – came into effect on 4 July and 12 September respectively.
In addition to repealing the mandatory death penalty and introducing sentencing discretion for all offences for which it was applicable, the act replaces life and natural life imprisonment with alternative sentences of imprisonment between 30 and 40 years and whipping of no fewer than 12 strokes.
The act allows 1,020 individuals under the sentence of death or imprisonment for natural life – with their sentences already confirmed by the Federal Court – to file an application in court to review their sentences.
An official moratorium on executions has been in place since July 2018, but the courts in Malaysia have continued to sentence countless people to death.
Amnesty International opposes the death penalty in all cases without exception, regardless of the nature or circumstances of the crime, the guilt, innocence or other characteristics of the offender or the method used by the state to carry out the execution. – Amnesty International Malaysia