Malaysia: Cabinet agreement on death penalty reforms welcomed
Amnesty International Malaysia welcomes the Cabinet’s decision to allow judges to impose other forms of punishment in place of the mandatory death penalty against those convicted of drug trafficking.
"We welcome the move as a recognition that the mandatory death penalty is egregious form of punishment. However, we remain concerned that the legislative changes are limited to the Dangerous Drugs Act 1952 and that executions continue to be carried out against others who have also been mandatorily sentenced to death,” Amnesty International Malaysia Executive Director Shamini Darshni Kaliemuthu said.
Malaysia imposes the mandatory death penalty for 12 offences, including murder, drug trafficking, terrorism-related offences when these result in death, and some firearms offences. The imposition of the mandatory death penalty is prohibited under international law.
The UN Human Rights Committee has stated that ‘the automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of life […] in circumstances where the death penalty is imposed without any possibility of taking into account the defendant’s personal circumstances or the circumstances of the particular offence’.
In addition, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions has stated that ‘the death penalty should under no circumstances be mandatory by law’ and that ‘[the] mandatory death penalty which precludes the possibility of a lesser sentence being imposed regardless of the circumstances, is inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment’.
“While Malaysia is studying death penalty reforms, all executions must be halted. Malaysia must impose a moratorium on executions immediately, and we urge the government to broaden the scope of the proposed reforms to encompass all capital offences,” Shamini said.
Amnesty International opposes the death penalty unconditionally as a violation of the right to life as proclaimed in the Universal Declaration of Human Rights.
To date, 141 countries have abolished the death penalty in law or practice. In the Asia Pacific region, 19 countries have abolished the death penalty for all crimes and a further eight are abolitionist in practice. Malaysia remains among the minority of countries (23 in 2016) which retains the death penalty, alongside China, Iran, Saudi Arabia and Singapore – countries with deplorable human rights records.
There are currently 1,122 prisoners on death row, with some 60% incarcerated for drug-related offences.
“Most people on death row for drug-related offences are people who have been tricked into smuggling drugs into the country, some, even without their knowledge. As surprising as this may seem, it does happen, and due to Malaysia’s mandatory death sentencing, mitigation factors are not considered by the courts. This is why the mandatory death sentence must be scrapped in totality, for drugs and other offences,” Shamini said.
Alongside amendments to Section 39B of the Dangerous Drugs Act, the government must also consider revisions to Sections 36 and 37.
“Under Section 37, Amnesty International Malaysia is concerned with the retention of ‘presumptions’, where defendants found with specified amounts of certain drugs, or even simply in possession or in control of objects or premises in which prohibited substances are found, are guilty of drug trafficking. In those circumstances, the burden of proof is shifted onto the defendant (Section 36), in violation of the presumption of innocence and fair trial rights,” Shamini said.
UN Safeguards guaranteeing protection of the rights of those facing the death penalty state that: ‘Capital punishment may only be carried out pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights.’
“While the announcement for changes to the mandatory death penalty in its limited form to drug trafficking is a welcome move, it must only be considered a first step towards total abolition. The imposition of the death penalty, including the mandatory death penalty, is a violation of the right to life,” Shamini said.
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