LETTER | We, the undersigned organisations, are concerned with the developments surrounding the death penalty following the abolition of the mandatory death penalty in 2023.
Reduction of death row population
We applaud the success of the Malaysian government in significantly reducing the number of death row cases through the abolition of the mandatory death penalty and resentencing efforts. This process has seen death row numbers fall from more than 1,000 to 140 today.
The progress has provided redress for many death row prisoners and their families and brought Malaysia closer in line with its international obligations. Numerous individuals detained indefinitely under the old natural life sentence regime were also given a second chance.
In a recently published parliamentary reply, the Home Ministry indicated that as of Jan 22, 2025, there were 140 death row prisoners in Malaysia.
Of the 140, 113 are Malaysians, with 27 foreign nationals. Of the same, 137 are men, and two are women, with some ambiguity on the unreported person. 40 were convicted for drug offences, but no further disaggregation of the data by the offence was published.
We presume the remaining 100 are convicted of murder and other death penalty-eligible Penal Code offences.
Missed opportunities in the resentencing process
(i) No written judgment provided
It was expected that uncertainties surrounding the broader capital sentencing framework following the abolition of the mandatory death penalty, in the absence of a sentencing guideline, would be addressed through judicial guidance issued in written judgments.
However, no written judgments have been issued in the resentencing process as guidance to practitioners, the appellate, or trial courts on how such sentencing discretion now ought to be exercised fairly and consistently.
This is further compounded by the fact that little to no oral submissions were made in most resentencing applications involving the offence of drug trafficking.
An unexplained sense of urgency to resolve all 1,056 applications within one year appeared to have come at the expense of developing a well-reasoned sentencing framework.
(ii) Juvenile offenders
Significant concerns exist regarding the lack of a resentencing process for juvenile offenders sentenced to indefinite detention instead of the death penalty under Section 97(2) of the Child Act 2001.
Such sentences are tantamount to “natural life” (sepanjang hayat) sentences, but juvenile offenders sentenced to indefinite detention were inexplicably excluded from the resentencing process.
Indefinite detention for juveniles violates Malaysia’s obligations under the Convention on the Rights of the Child, and past reports on this matter indicate a systemic failure and non-compliance in implementing Section 97(4) of the Child Act 2001.
(ii) Persons with mental health conditions
Malaysia has also yet to protect individuals with mental health conditions from receiving death sentences. There is considerable room for any person with psychosocial disabilities to be convicted and sentenced to death for death penalty-eligible offences.
This contravenes international law, including the Convention on the Rights of Persons with Disabilities, as the prohibition of the imposition of the death penalty on persons with mental or intellectual disabilities has been affirmed by the UN General Assembly, the UN Economic and Social Council and in domestic and regional courts around the world.
There was also a reported case where a death row prisoner refused to proceed with their resentencing application hearing, resulting in his death sentence being maintained.
There was no inquiry made of the prisoner during the hearing despite his request to withdraw his application, clearly indicating a high potential for psychosocial disabilities, which is particularly concerning as a resentencing application can only be filed once.
(iii) Caning
The abolition of the mandatory death penalty resulted in the creation of the only alternative sentences to death sentences involving imprisonment together with caning (unless exemptions around gender or age apply).
Courts are not permitted to exempt individuals from whipping sentences even in the most clear-cut cases where individuals would not meet the requirement of being “medically fit” to undergo whipping sentences.
We observed closely the devastating case of Thanakorn Sinsanoi, a Thai national who had been working as a sex worker before being trafficked into Malaysia and convicted for drug trafficking.
Due to complications with Tuberculosis while she was in prison, she is presently paraplegic and bed-bound in prison.
Given the limitations of the current law, she was resentenced to 30 years’ imprisonment together with 12 strokes of the cane despite her background and severe medical condition. She had to apply subsequently to be exempted from whipping.
This was unnecessarily cruel and onerous.
In the case of Kamran Illyas, he was medicated for diabetes and, in recent months, underwent an amputation due to his condition. Despite his condition and risk of complication, he was reported to have undergone caning in prison after resentencing.
Sex work remains criminalised throughout Asia, leaving workers vulnerable to exploitation, including human trafficking.
Thanakorn is a transgender woman who is currently detained in a male prison facility in Malaysia. As trans people are not recognised by law, the prison department assigns prisoners based on gender markers on legal documents and status or stages of medical transition.
We are also gravely concerned with the death of Zaidi Abd Hamid due to a caning sentence that was executed as part of his reduced sentence following resentencing.
His death indicates fundamental flaws with the Malaysian processes of executing caning sentences, and possibly denial of life-saving medical treatment following caning sentences.
Caning and other forms of corporal punishment are considered a form of cruel and unusual punishment and Malaysia should implement a moratorium on the execution of caning sentences to review the continued use of corporal punishment.
Death penalty for drug offences against international standards
The resentencing process has resulted in a huge reduction in the number of people on death row convicted of drug offences from 705 individuals in 2024 to 40 individuals in 2025.
We consider this a step in the right direction given the strong international consensus that the death penalty should not be imposed for drug offences (per the UN 'most serious crimes' threshold).
While we are not aware of anyone resentenced to death for drug offences, we observed that the prosecution sought the death penalty for resentencing applicants who had been convicted of offences involving the manufacturing of drugs or sales of drugs to enforcement agencies.
In the wake of the abolition of the mandatory death penalty, prosecuting authorities continue to seek imposition of the death penalty in new drug cases.
This flies in the face of the “most serious crimes” threshold and undoes the progress made during the resentencing process.
Domestic experiences, including those from neighbouring countries, have consistently shown that those convicted of drug offences are mostly drug couriers who are exploited by drug syndicates, or individuals carrying small amounts of drugs whose activities are inconsequential to the syndicates.
This is particularly notable in cases of women who are foreign nationals previously sentenced to death for drug offences, and who have been victimised and exploited by drug trafficking syndicates operating within the Asean region.
Numerous documented cases reveal that these women were deceived and trafficked into Malaysia, often with illicit substances covertly placed on their persons during transit.
They continue to serve life imprisonment while their recruiters receive comparatively lenient sentences in their countries of origin.
The death penalty for drug offences benefits no one and does not resolve the fundamental issues and challenges of substance use and drug trafficking.
Narrowing death penalty to extremely rare cases
At the time of the abolition of the mandatory death penalty in Malaysia, the clear intention of Parliament was to narrow the scope of the death penalty to extremely rare cases.
It was explicitly acknowledged in Parliament that the “rarest of the rare” test adopted in Indian courts should be a guiding principle in the wake of the abolition of the mandatory death penalty.
Disappointingly, we observe through the resentencing process and in new capital cases arising after the abolition of the mandatory death penalty that prosecuting authorities persistently depart from the “rarest of the rare” principle and have tried to manoeuvre Malaysia away from the position established by Parliament.
The Malaysian Federal Court is currently preparing to hear two seminal cases on sentencing in capital cases. The debate in the lower courts has centred on whether to adopt guidance from Indian courts, where the “rarest of the rare” test is applied to narrow the scope of the death penalty to the most serious offences, or from Singaporean courts.
This is deeply concerning as Singaporean Courts have rejected the “rarest of the rare” principle in favour of the much more vague principle of imposing the death penalty where “the offender’s actions would outrage the feelings of the community”.
Malaysia should create sentencing guidelines, which would be essential to ensuring that Malaysian courts hand down sentences compatible with international law and narrow the scope for the application of the death penalty.
Recommendations
We appeal to the Malaysian government to continue its reform process to bring Malaysia closer to its international obligations. In addition, we call on the Malaysian government to:
Maintain the moratorium on all executions
Create sentencing guidelines for offences where the discretionary death penalty remains applicable
Implement a moratorium on corporal punishment and whipping, while carrying out a thorough review of the legislation and the standard operating procedures for caning
Investigate the death of Zaidi and provide due compensation to his family
Release or repatriate Thanakorn on humanitarian grounds
Review and amend Section 97 of the Child Act 2001 and provide redress to juvenile offenders detained indefinitely
Recognise the significant intersection between human trafficking and drug trafficking in line with its obligations to protect victims of human trafficking
Endorsed by:
1. Hayat, Malaysia
2. Siuman Collective, Malaysia
3. Citizens Against Enforced Disappearances (Caged), Malaysia
4. Mandiri, Malaysia
5. Family Frontiers, Malaysia
6. North South Initiative, Malaysia
7. Galen Centre for Health and Social Policy, Malaysia
8. The OKU Rights Matter Project, Malaysia
9. Iman Research, Malaysia
10. Sebaran Kasih (Spread Love), Malaysia
11. Pusat Komas, Malaysia
12. Justice For Sisters, Malaysia
13. Suara Rakyat Malaysia (Suaram), Malaysia
14. Sisters in Islam (SIS), Malaysia
15. Initiative to Promote Tolerance and Prevent Violence (Initiate.my), Malaysia
16. Lembaga Bantuan Hukum Masyarakat (LBHM), Indonesia
17. NoBox, Philippines
18. Reprieve, United Kingdom
19. Cornell Center on the Death Penalty Worldwide, United States
20. StopTheDrugWar.org, United States
21. The Advocates for Human Rights, United States
22. Youth Rise (Resources, Information, Support, Education), International
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
