Isolation and Desolation: conditions of detention of people sentenced to death in Malaysia

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ISOLATION AND DESOLATION
CONDITIONS OF DETENTION OF PEOPLE SENTENCED TO DEATH
MALAYSIA
ISOLATION AND DESOLATION
CONDITIONS OF DETENTION OF PEOPLE SENTENCED TO DEATH
MALAYSIA
“Prolonged detention of individuals sentenced to death is inhumane and is
detrimental to their mental health.” - Dr Suarn Singh, former Head of Psychiatric
Services of the Ministry of Health of Malaysia and psychiatry expert before
Malaysian criminal courts.
“During the day, I am allowed to leave the cell for a period of time, sometimes
45 minutes, sometimes more than that. But we will still be in the building, in
the main hall. I just walk around. » - Michelle, Chinese woman sentenced to
death in 2015.
This book is derived from a fact-finding mission carried out in Malaysia from
July 2019 to February 2020 by ADPAN and ECPM (Together Against the
Death Penalty). It was led by an ADPAN member and two lawyers from the
Malaysian Bar Council, who conducted semi-directive individual interviews
with death row prisoners, relatives of people sentenced to death, faith-based
organisations providing religious counselling in prison, lawyers and psychiatrists
in Malaysia. Carole Berrih, the author of the report, accurately uses all the
accounts collected and puts them in the context of the country’s criminal
and penitentiary systems.
This report is part of the “Fact-Finding mission on death row” collection which
aims to make an assessment of the living conditions on death row in various
countries across the world. The goal is both to report on the reality of death
row and to engage public opinion.
In partnership with:
ISOLATION AND DESOLATION – CONDITIONS OF DETENTION OF PEOPLE SENTENCED TO DEATH – MALAYSIA
CAROLE BERRIH
NGEOW CHOW YING
ECPM
62 bis, avenue Parmentier
75011 Paris
www.ecpm.org
© ECPM, 2020
Price: 20 euros
ISBN: 978-2-491354-09-1
This publication was produced with the financial support
of the European Union. Its content is the sole responsibility of the authors
and does not necessarily reflect the views of the European Union.
Co-funded by the
European Union

Publication Director: Raphaël Chenuil-Hazan
Coordinator: Marie-Lina Samuel
Author: Carole Berrih – Director of Synergies Coopération
Head of the research team: Ngeow Chow Ying
Research team: Siti Nurizzah Binti Mohd Tazali and Amirah Haziqah Binti Amran.
Copy Editors: Ngeow Chow Ying, Alain Morvan, Nicolas Perron, Mathilde Millier
Sub-Editor: Caroline Izoret-About
Layout: Olivier Déchaud
Illustrations and cover by Marty
ECPM
62 bis, avenue Parmentier
75011 Paris
www.ecpm.org
© ECPM, 2020
ISBN : 978-2-491354-09-1
Co-funded by the
European Union
In partnership with:
ISOLATION AND DESOLATION
CONDITIONS OF DETENTION OF PEOPLE SENTENCED TO DEATH
MALAYSIA
CAROLE BERRIH
NGEOW CHOW YING

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Author
As a legal adviser specialising in public international law and a sociology graduate,
Carole Berrih acted as Delegation Leader and Project Coordinator for international
NGOs before founding and running Synergies Coopération, a research centre and
training institute aiming to promote and protect human rights. In particular, she
carries out research and assessments for NGOs and UN international agencies
in the field of criminal justice and the prevention of torture and ill treatment in
prisons. She is an auditor at the Institut des Hautes études de défense nationale
[Institute of Advanced Studies in National Defence].
Head of the Research Team
Ngeow Chow Ying is a practicing lawyer in Malaysia. Vice President of the Civil
Rights Committee of the Kuala Lumpur & Selangor Chinese Assembly Hall,
Chow Ying started her advocacy on the abolition of the death penalty 10 years
ago, with a campaign for clemency for a young Malaysian sentenced to death
in Singapore for drug trafficking. She has been present within the abolitionist
circle since then. She was a member of the Executive Committee of Anti-Death
Penalty Asia Network (ADPAN) from 2015 to 2019 and has represented ADPAN
at various international conferences. She has attended the World Congress
Against the Death Penalty on three consecutive occasions. She works largely on
raising public education, campaigning on individual cases, engaging with media
and policy makers, research and has assisted in developing strategy for a wider
network within the abolitionist movement.
List of acronyms
ADPAN Anti-Death Penalty Asia Network
ASEAN Association of Southeast Asian Nations
DAP Democratic Action Party
ECPM Together Against the Death Penalty
(Ensemble contre la peine de mort)
ESCAR Essential (Security Cases) Regulations
HAKAM National Human Rights Society of Malaysia
ICCPR International Covenant on Civil and Political Rights
ICRC International Committee of the Red Cross
IPC Indian Penal Code
ISA Internal Security Act
MADPET Malaysians Against the Death Penalty and Torture
MCA Malayan Chinese Association, then Malaysian Chinese
Association
MCP Malayan Communist Party
MIC Malayan Indian Congress
MRLA Malayan Races Liberation Army
NEP New Economic Policy
OPCAT Optional Protocol to Convention Against Torture
PAS Parti Islam Se Malaysia
POTA Prevention of Terrorism Act
SOSMA Security Offences (Special Measures) Act
SUARAM Suara Rakyat Malaysia
SUHAKAM Human Rights Commission of Malaysia
(Suruhanjaya Hak Asasi Manusia Malaysia)
UMNO United Malays National Organisation

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TABLE OF CONTENTS
• Death penalty in Malaysia: the new challenge 9
• Introduction 11
• Rationale for this report 11
• Presentation of Malaysia 11
• Overview of the death penalty in Malaysia 14
• Methodology 24
History of Malaysia and the death penalty 27
• Death penalty laws in pre-colonial Malaysian States 28
• Death penalty as a political tool during British colonisation 29
• Creation of the Multi-Ethnic Federation
and first period post-independence (1957-1975) 33
• The increase in executions (1975-1996):
more than 350 persons hanged in 20 years 38
• The war on drugs and the imposition
of the mandatory death penalty in drug-related crimes 40
• A new dynamic (1997-2018) 45
• The “New Malaysia” (2018-2020) 52
The long journey through the criminal justice system 57
• A criminal justice process far from perfect 58
• The indefinite wait: 63 people
on death row for more than 10 years 63
• Interview with Andrew Khoo 66
• Interview with Khaizan Sharizad Bt Ab Razak (Sherrie) 69
Seriously deficient conditions of detention
of people sentenced to death 73
• Places of detention for persons sentenced to death in Malaysia 74
• Detainees on death row, absent from prison reform 75
• The use of solitary confinement for death row prisoners 77
• Poor quality infrastructure 84
• The need for money 84
• Limitation of access to light and food as disciplinary measures 85
• Inadequate access to health care 86
• Death row syndrome: Extreme psychological distress
of people sentenced to death 87
Families of people sentenced to death: the struggle 91
Rushed and secretive executions 95
• Conclusion 99
• Afterword 101
• Recommendations 107
• Recommendations to Malaysia 107
• Recommendations to SUHAKAM 109
• Recommendations to the abolitionist movement 110
• Recommendations to actors working in regional
and international development 110
• Appendix 113
• Appendix 1:
Ratification status of human rights instruments (Malaysia) 113
• Appendix 2:
Bibliography 114

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ECPM
2020
DEATH PENALTY IN MALAYSIA:
THE NEW CHALLENGE
Alain Morvan
ECPM’s President
We all know that abolishing the death penalty is not an easy task.
We take two steps forward and, suddenly, five steps back. It may be
a long path that many would not want to follow for various reasons.
However, as the president of ECPM, I would like to firmly state ECPM’s
support to Malaysia in its struggle to abolish the death penalty.
ECPM has closely monitored the positive efforts undertaken by the
Malaysian government to abolish the death penalty. The statement
on the abolition of the death penalty, made in October 2018 by
Datuk Liew Vui Keong, Minister of Law in the then Prime Minister’s
Department, was a courageous step towards defending the right
to life. It took us all by surprise and gave us great hope of seeing
the death penalty abolished in Malaysia. This first step was followed
by the Malaysian authorities voting, for the first time, in favour of
the United Nations Resolution on the use of the death penalty. The
death penalty and its abolition were more than ever at the forefront
of the political and social debate in Malaysia, showing both great
support for the Minister from the international scene and Malaysian
abolitionist stakeholders, as well as great resistance coming from
some political parties and parts of society.
All the links tied between NGOs, parliamentarians, civil society
organisations and lawyers are strong. Since the Regional Congress
organised by ECPM in Kuala Lumpur in 2015, ECPM and its partner
ADPAN have taken several initiatives: parliamentary roundtables,
organised with Parliamentarians for Global Action (PGA); national
conferences, workshops and side events at the United Nations in
2018 in Geneva for the Malaysia Universal Periodic Review, and in
New York for the UN Resolution on the use of the death penalty. In
November 2019, ECPM, ADPAN and PGA had the honour of being
invited by the Minister of Law’s office to participate in a briefing
session with members of the Special Committee to Review
Alternative Punishments to the Mandatory Death Penalty. This
committee, comprised amongst others of former High Court judges,
criminologists, representatives of the Malaysia Bar Council and

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SUHAKAM (Malaysian human rights commission) and academics,
was tasked to review alternative sentences to the mandatory death
penalty, notably through public consultation, and submitted its final
report in February 2020. We took this opportunity to share what
France experienced when we abolished the death penalty in 1981,
almost 40 years ago.
The recent change in government at the end of February 2020
could slow down the work in progress. The previous government,
led by the Pakatan Harapan coalition, was a symbol of hope after
60 years of a conservative government, ruled by the United Malays
National Organisation (UMNO). We will encourage the new Cabinet
in power, supported by UMNO, to continue the work done by the
Special Committee and to resume a constructive discussion on
the abolition of the death penalty. ECPM and ADPAN are ready to
interact with the new government on this issue and build on what
has been achieved so far.
Isolation and Desolation - Conditions of Detention of People
Sentenced to Death in Malaysia is the first ever fact-finding mission
report on the conditions of detention of death row prisoners in
Malaysia. It examines the use of death penalty in Malaysia as well
as the actual situation of people on death row. This report is not
meant to point fingers but rather to put the facts on the table in a
transparent manner and work from there. It is mainly an advocacy
tool for all abolitionist stakeholders, from civil society actors to the
parliamentarians who will keep fighting for the abolition of the death
penalty.
Step by step and carefully, courageous human rights defenders,
civil society actors and MPs have worked to trace a path towards
abolition. In times of hardship, they pooled and created resources,
evidence based data and tools, and invested many hours of hard
work to strengthen their efforts and change the story.
What we have learnt is that we need the right people who can act
at the right time in the right circumstances. However, there are no
perfect circumstances to abolish the death penalty. Governments
must do what is right under any circumstances.
We will have to continue to push harder in the years to come to
achieve our common goal and I have hope that this can be achieved.
I would like to thank all our partners here, all the CSOs working in Asia
for their spirit, their strength and their passion in our common fight.
April 2020.
INTRODUCTION
Rationale for this report
Little is known about the conditions under which death row prisoners
are held in Malaysia. There are currently 1,280 men and women
on death row in the country, following trials that do not always
respect basic international principles. Recent reports have been
published, illustrating violations of the right to a fair trial in death
penalty cases.1 Our report is not intended to duplicate what has
been reported in other studies. It aims, through the testimonies of
several death row prisoners still in detention, of their families and
of religious organisations working in prisons, to take stock of the
situation of those sentenced to death, at a time when the authorities
are questioning the total abolition of the death penalty. The first
part of this report will analyse the history of the death penalty in the
country. The second part will review the main stages of the criminal
and clemency processes. The third part will detail the conditions of
detention of persons sentenced to death. The fourth part will give
the floor to the families of those sentenced to death. The fifth and
final part will provide some information on the execution process.
Presentation of Malaysia
Malaysia is a multi-ethnic and multi-cultural country, located in
Southeast Asia. It is composed of 13 states (Negeri) and 3 federal
territories (Wilayah Persekutuan), separated by the South China Sea
into two regions, Peninsular Malaysia and East Malaysia.
Malaysia’s population, of more than 32,000,000 inhabitants,2 comprises
three main ethnic groups: 62% Bumiputera (literally translated as “son
of the land”, representing the Malays and the natives of Sabah and
1 See for instance, Amnesty International, Fatally Flawed: Why Malaysia Must Abolish the
Death Penalty [ACT 50/1078/2019], 2019.
2 CIA, The World Fact Book, 2020.

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Sarawak), 21% Chinese and 6% Indian.3 Ethnicity plays an important
role in Malaysian politics. Since independence, successive governments
have taken affirmative actions to advance the rights of Bumiputera
over other groups by giving them preferential treatment in many areas,
including education, employment or business. Islam is recognised as
Malaysia’s established religion. The Malaysian Constitution grants
freedom of religion to non-Muslims.
Malaysia is a constitutional monarchy. The Federal Head of State is
the Yang di-Pertuan Agong, commonly referred to as the “King”, who
mainly plays a ceremonial role, but is of paramount importance in
the clemency process in death penalty cases. Malaysia is governed
by a Prime Minister. From independence in 1957 until 2018, the
country was ruled by a coalition of parties led by the United Malays
National Organisation (UMNO). During this period, the number of
crimes punishable by the mandatory4 or discretionary death penalty
steadily increased and included various offences such as: murder,
3 CIA, The World Fact Book, 2020
4 The death penalty is mandatory where the judiciary has no discretion in capital
punishment cases: judges have no choice but to impose the death penalty for such
crimes, regardless of the circumstances of the crime or the situation of the accused.
firearms offences, drug trafficking, terrorism, etc., making Malaysia
one of the countries that executed the most convicts in the world.
469 people have been executed since Malaysia’s independence,
including 229 for drug trafficking.5
In 2018, the new coalition party Pakatan Harapan won the elections,
ending more than 60 years of UMNO rule. Despite statements
announcing the full abolition of the death penalty, the new
government, led by Prime Minister Mahathir Mohamad, declared
in 2019 that it would abolish only the mandatory death penalty.
A Special Committee to Review Alternative Punishments to the
Mandatory Death Penalty has been set up and has submitted its
report, which had not yet been made public. In February 2020, after
2 years of hope for renewal in the country, Mahathir Mohamad
resigned, undermined by internal quarrels within the ruling party
and his inability to deliver on his election promises. In March 2020,
he was replaced by Muhyiddin Yassin, who defected from the ruling
coalition and allied himself with the UMNO party.
5 Amnesty International, op. cit., 2019, p. 15.
Malaysia
Perlis Kedah
Penang
Perak
Kelantan
Pahang
Terengganu
Selangor
Kuala
Lumpur Negeri
Sembilan
Johore
Labuan
Sabah
Sarawak
Malacca
Putrajaya
Thailand
Island
of Sumatra Indonesia

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Overview of the death penalty in Malaysia
The legislative framework of the death penalty
While the Federal Constitution recognises the right to life, it
provides for exceptions. Section 5 of the Constitution provides
that: “No person may be deprived of life or personal liberty except
in accordance with law.”6 Malaysian law provides for the death
penalty for more than 20 offences. The death penalty is mandatory
by law for several offences, including murder and offences related
to terrorism, making Malaysia one of the few countries where the
judiciary has no discretion in capital cases. Malaysia allows the
application of Shariah law in Islamic courts, but those courts cannot
try capital cases.
Table 1 : Offences punishable by the death penalty in Malaysia (2020)
Source List of offences Mandatory /
Discretionary
death sentence
Penal code
Waging war against Malaysia
(Section 121)
Discretionary
death sentence
Offences against the head of State
(Section 121(A))
Mandatory
death sentence
Terrorist offences
(Sections 130(C), 130(I), 130(N),
130(O), 130(QA), 130(ZB))
Mandatory
death sentence
Mutiny (Section 132) Discretionary
death sentence
False testimony resulting in the
execution of an innocent
(Section 194)
Discretionary
death sentence
Murder (Section 302) Mandatory
death sentence
Assisted suicide (Section 305) Discretionary
death sentence
Attempted murder if the offender
was serving a sentence of 20 years
or more at the time of the offence
(Section 307(2))
Mandatory
death penalty
6 Federal Constitution of Malaysia, Section 5.
Kidnapping in order to murder
a person or put a person in danger
of being murdered
(Section 364)
Discretionary
death sentence
Hostage-taking resulting in death
(Section 374(A))
Mandatory
death sentence
Rape resulting in death
(Section 376(4)
Discretionary
death sentence
Gang-robbery with murder
(Section 396)
Discretionary
death sentence
Other
national
texts
Armed
Forces Act
1972
Military offences: Assisting enemy,
taking part in mutiny, etc.
(Sections 38, 41, 47 and 88)
Discretionary
death sentence
Arms Act
1960
Manufacturing ammunition
(Section 14(1))
Discretionary
death sentence
Dangerous
Drugs Act
1952
Drug trafficking
(Section 39(b))
Mandatory or
discretionary
death sentence,
according to the
circumstances
Firearms
(Increased
Penalties)
Act 1971
Crimes (kidnapping, attempted
murder, burglary, resisting arrest)
committed with a firearm discharge
(Sections 3 and 3(a))
Mandatory
death sentence
Trafficking in firearms of illegal
possession of more than two firearms
(Section 7)
Discretionary
death sentence
Kidnapping
Act 1961
Kidnapping for ransom
(Section 3)
Discretionary
death sentence
Wat er
Services
Industry
Act 2006
Water contamination
(Section 121(2))
Discretionary
death sentence
Strategic
Trad e A c t
2010
Offences relating to strategic or
unlisted items (including arms)
(Sections 6, 10, 11, 12)
Discretionary
death sentence

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Many of these capital offences do not involve any element of
intentional killing, such as drug trafficking or kidnapping. The
imposition of the death penalty in such cases is contrary to
internationally recognised human rights standards, in particular the
United Nations (UN) Death Penalty Safeguards recommendations,
endorsed by the UN General Assembly in 1984, which state that
“Capital punishment may be imposed only for the most serious
crimes, it being understood that their scope should not go
beyond intentional crimes with lethal or other extremely grave
consequences.”7 The prohibition of the imposition of the death
penalty for all but the “Most serious crimes” is also provided in
Article 6 of the International Covenant on Civil and Political Rights
(ICCPR). Although Malaysia has not ratified several international
human rights treaties,8 including the ICCPR, the Malaysian
government has repeatedly asserted that its legislation is in
conformity with the ICCPR.9 In October 2018, the UN Human Rights
Committee clarified the term “Most serious crimes”: “The term ‘the
most serious crimes’ must be read restrictively and appertain only
to crimes of extreme gravity, involving intentional killing. Crimes
not resulting directly and intentionally in death, such as […] drug
7 Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,
adopted by the UN Economic and Social Council in resolution 1984/50 on 25 May 1984
and endorsed by the UN General Assembly in resolution 39/118, adopted without a vote
on 14 December 1984, Safeguard No. 1.
8 See the ratification status of human rights instruments by Malaysia in Appendix 1.
Although Malaysia has not ratified the ICCPR or the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, it has ratified the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
and the Convention on the Rights of the Child with some reservation. In 1998, the NGO
SUARAM considered that these ratifications mark “An important acceptance by the
Malaysian government that the global community does share common standards and
values on human rights, regardless of cultural and geographical origins.” Peerenboom R.,
Petersen C.J., Chen A.H.Y., Human Rights in Asia: A Comparative Legal Study of Twelve
Asian Jurisdictions, France and the USA, Routledge, 2006, p. 192.
9 In 2013, Malaysia stated in its report during the Universal Periodic Review process:
“Malaysia reiterates that the death penalty is only applied on the most serious crimes
which are provided for in law and only after all rights of appeal have been exhausted.
The existing legal framework provides for stringent safeguards that must be complied
with before the death penalty is carried out. The Government maintains that such
safeguards are in line with international standards, in particular Article 6 of ICCPR.”
UN Human Rights Council, National Report Submitted in Accordance with Paragraph
5 of the Annex to Human Rights Council Resolution 16/21 [Universal Periodic Review]:
Malaysia [A/HRC/WG.6/17/MYS/1], 2013, para. 45. See also UN Human Rights Council,
National Report Submitted in Accordance with Paragraph 15(A) of the Annex to
Human Rights Council Resolution 5/1, Malaysia [A/HRC/WG.6/4/MYS/1/Rev.1], 2008,
para. 89; and UN Human Rights Council, National Report Submitted in Accordance with
Paragraph 5 of the Annex to Human Rights Council resolution 16/21, Malaysia [A/HRC/
WG.6/31/MYS/1], 2018, para. 10.
and sexual offences, although serious in nature, can never serve
as the basis, within the framework of Article 6, for the imposition
of the death penalty.”10 In addition, the use of the death penalty to
combat drug-related crimes and the imposition of mandatory death
penalty have been identified as clear violations of international law
by UN Special Rapporteurs on Summary Executions and on Torture.11
Certain categories of persons are excluded from capital punishment.
The execution of pregnant women is prohibited: the law provides for
the commutation of the death penalty to life imprisonment once
pregnancy has been proven.12 No death sentence may be passed
on people who commit an offence when they are under 18 years of
age.13 In addition, the legislation provides that people, “By reason of
unsoundness of mind, are incapable of knowing the nature of the
act, or that [they are] doing what is either wrong or contrary to law”,
do not commit criminal offences.14 Therefore, according to the law,
10 Human Rights Committee, “General comment No. 36 (2018) on Article 6 of the International
Covenant on Civil and Political Rights, on the right to life” [CCPR/C/GC/36], para. 35.
11 On the imposition of the death sentence for drug crimes, see UN Commission on
Human Rights, Extrajudicial, Summary or Arbitrary Executions: Report by the Special
Rapporteur, submitted pursuant to Commission on Human Rights resolution 1996/74
[E/CN.4/1997/60], 1996, para. 92; and UN Human Rights Council, Report of the Special
Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Manfred Nowak [A/HRC/10/44], 2009, para. 66. On the imposition of the mandatory
death sentence, see UN Human Rights Council, Report of the Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions [A/HRC/14/24], 2010, para. 51, recalling
UN Commission on Human Rights, Extrajudicial, Summary or Arbitrary Executions [E/
CN.4/2005/7], 2004, paras. 63-64 and 80; and UN Human Rights Council, Report
of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip
Alston: addendum: Mission to Kenya [A/HRC/11/2/Add.6], 2009, paras. 83-84 and 115.
12 Criminal Procedure Code, Section 275, provides: “Where a woman convicted of an
offence punishable with death is alleged to be pregnant, or where the Court before
whom a woman is so convicted thinks fit, the Court shall direct one or more medical
practitioners to be sworn to examine that woman in some private place and to enquire
whether she is pregnant or not, and if upon the report of any of them it appears that she
is pregnant the sentence to be passed upon her shall be a sentence of imprisonment for
life instead of sentence of death.”
13 Child Act 2001, Article 97(1): “A sentence of death shall not be pronounced or recorded
against a person convicted of an offence if it appears to the Court that at the time
when the offence was committed he was a child.” However, children can still be charged
with a capital offence. This is the case for instance of two 16-year-old boys accused
of murder after being charged with setting a fire that killed 23 people in Tahfiz school
in 2017. At the time of writing, one had been acquitted, the other had entered his
defence. See Free Malaysia Today, “Accused in Tahfiz Fire Ordered to Enter Defence,
Another Acquitted”, 2020, available at: https://www.freemalaysiatoday.com/category/
nation/2020/01/28/accused-in-tahfiz-fire-ordered-to-enter-defence-another-
acquitted/ (last visited on February 13, 2020). See also Malay Mail, “Murder in Tahfiz
School Fire Case Transferred to High Court”, 2018, available at: https://www.malaymail.
com/news/malaysia/2018/01/03/murder-in-tahfiz-school-fire-case-transferred-to-
high-court/1545437 (last visited on February 13, 2020).
14 Penal Code, Sections 84, 309(A) and 309(B).

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they cannot be sentenced to death. Nevertheless, this is not always
the case. Osariakhi Ernest Obyangbon, a Nigerian citizen sentenced
to death in 2000, was diagnosed as suffering from schizophrenia in
2007, before his appeal. His sentence to death was upheld by the
court. He was spared execution in 2014 after strong protests by
human rights organisations. His sentence was commuted in 2017,
10 years after his diagnosis.15
The method of execution is by hanging.16
1,280 people on death row in December 2019
Until recently, the Malaysian authorities did not publish detailed
data on the implementation of death penalty in the country. Data
on death sentences have therefore been estimated by human
rights NGOs, based on the limited information provided by the
authorities or by the families of people sentenced to death. This
lack of transparency does not comply with the UN Economic and
Social Council’s 1989 Resolution, which urged Member States “ To
publish, for each category of offence for which the death penalty
is authorized, and if possible on an annual basis, information about
the use of the death penalty, including the number of persons
sentenced to death, the number of executions actually carried out,
the number of persons under sentence of death, the number of
death sentences reversed or commuted on appeal and the number
of instances in which clemency has been granted, and to include
information on the extent to which the safeguards referred to
above are incorporated in national law.”17 In 2018, disaggregated
data were made available for the first time to international human
rights organisations, which showed that the number of persons
sentenced to death was much higher than previously recorded. The
estimated data presented in Table 2 below are therefore partial,
but nevertheless provide interesting trends.
In the last 10 years, the number of death sentences has increased
considerably, due to the hard-line policy against drug-related
15 Amnesty International, “Malaysia: Commutation of Death Sentence Must Lead
to a Moratorium on Further Executions”, Public Statement [ACT 50/5656/2017],
2017. Amnesty International, “Death Sentence of Mentally Ill Prisoner Commuted in
Malaysia”, 2017.
16 Criminal Procedure Code, Article 277: “When any person is sentenced to death, the
sentence shall direct that he be hanged by the neck till he is dead, but shall not state
the place where nor the time when the sentence is to be carried out.”
17 UN Economic and Social Council’s Resolution 1989/64 adopted on 24 May 1989.
crimes.18 72% of all death sentences recorded in 2018 relate to
drug offences.19 As Harm Reduction International notes in its 2019
report, “While the overall death row population grew 13.8% between
2017 and 2018, death row prisoners for drug offences specifically
increased by 38% during the same period.”20 In December 2019,
the Minister of Home Affairs reported to the Parliament that
1,280 persons were awaiting execution in Malaysian prisons,21 70%
of whom were convicted of drug trafficking. This is a significant
increase since 2011, when 696 people were awaiting execution in
Malaysian prisons.22 That is a very large number of people on death
row, and one of the highest numbers in the world.23 Compared to
the situation in other countries, the proportion of people on death
row among the prison population is 14 times higher in Malaysia
than in the United States.24 In addition, while 1,280 people are on
death row in Malaysia, the number of people on death row in the
United States is 2,656 in 2019, with a population 10 times higher. 25
18 See infra, Sub-section “The war on drugs and the imposition of the mandatory death
penalty in drug-related crimes”.
19 190 people were sentenced to death in 2018 alone, of whom 72% were sentenced to death
for drug trafficking (136 persons), 25% for murder (48 persons), 2% for firearms offences
(3 persons) and 2% for kidnapping and murder (3 persons), as shown in the following
graph. At the time of writing this report in February 2020, data for 2019 was not available.
Amnesty International, Death Sentences and Executions in 2018, 2019, p. 23.
20 Girelli G., The Death Penalty for Drug Offences: Global Overview 2018, Harm Reduction
International, 2019, p. 14.
21 Response of the Minister of Home Affairs to the Parliament on December 3, 2019, p. 30,
available at: https://vdokumen.net/penyata-rasmi-parlimen-dewan-rakyat-parlimen-dr-
3122019-4-tun-dr-mahathir-bin.html (last visited February 13, 2020). See also Malay Mail,
“Minister: Putrajaya Aims to Reduce Prison Population, Not Build More Jails”, 2019, available
at: https://www.malaymail.com/news/malaysia/2019/03/09/minister-putrajaya-aims-to-
reduce-prison-population-not-build-more-jails/1730804 (last visited January 24, 2020).
22 Free Malaysia Today, “Time to Abolish Death Sentence”, 2011, available at: https://
www.malaysia-today.net/2011/04/03/time-to-abolish-death-sentence/ (last visited
January 22, 2020).
23 Malaysia is the fourth Asian country with the highest number of people on death
row after Pakistan (4,864), Bangladesh (1,500+) and Sri Lanka (1,299). China is not
represented in this ranking as there are no official figures. Amnesty International,
op. cit., 2019, p. 19.
24 As of December 2019, the death row population in the United States represents 0.12%
of the prison population (2,656 persons on death row, for a total prison population of
2,121,600). Sources: Prison Studies, World Prison Brief: Malaysia, 2019, available at: https://
www.prisonstudies.org/country/malaysia (last visited January 23, 2020) and NAACP
Death Row U.S.A., report, 2019. The death row population in Malaysia represents 1.73% of
the prison population (1,280 persons on death row, for a total prison population of 74,000).
25 As of December 2019, there are 2,656 people on death row in the United States, for a
total population of 323,000,000. There are 1,280 people on death row in Malaysia, for a
total population of 32,000,000.

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Table 2 : Evolution of death sentences in Malaysia 2007-201826
2007 2008 2009 2010 2011 201 2 2013 2014 2015 2016 2017 2018
# recorded
death
sentences
12 22+ 68+ 114+ 108+ 60+ 76+ 38+ 39+ 14+ 38+ 19 0
# recorded
death
sentences
for drug-
related
offences
N/A 22 50+ 63 83 N/A 47 16 24 521 136
The vast majority of the 1,280 persons on death row has been
convicted for drug trafficking. According to December 2019 data,
persons on death row were convicted of the following offences: 70%
for drug trafficking (899 persons), 27% for murder (350 persons), 1%
for firearms offences (15 persons), 0.6% for crimes against the ruler
of the State27 (8), 0.4% for kidnapping (5), 0.2% for gang robbery
and murder (2), and 0.1% for an offence under the Internal Security
Act (ISA) (1 person) – an offence that has since been repealed.28
Figure 1: % of persons on death row in Malaysia, by offence (December 2019)
26 We used Amnesty International “+” notation, to indicate that the data represent a
minimum. Amnesty International, Annual reports on death sentences and executions
in 2007, 2008, 2009, 2010, 2011, 2012; 2013 to 2018 data: Amnesty International, op.
cit., 2019, p. 16. See also Harm Reduction International, op. cit., (2019). For 2009-2011
data on drug-related offences, see Gallahue P., Gunawan R., Rahman F., El Mufti K.,
U Din N., Felten R., The Death Penalty for Drug Offences: Global Overview 2012, Tipping
the Scale for Abolition, Harm Reduction International, 2012, p. 30. For 2008 data on
drug-related offences, see Gallahue P., Lines R., The Death Penalty for Drug Offences:
Global Overview 2010, Harm Reduction International, 2010, p. 29.
27 Nine Filipino men were sentenced to death in connection with Lahad Datu intrusion. See
The Star Online, “Nine in Lahad Datu Intrusion to Hang”, 2018, available at: https://www.
thestar.com.my/news/nation/2018/01/16/nine-in-lahad-datu-intrusion-to-hang-federal-
court-dismisses-prosecutions-appeal-against-acquittal-o (last visited January 24, 2020).
28 Response of the Minister of Home Affairs to the Parliament on December 3, 2019, p. 30.
The death penalty is highly dependent on the gender of the convicted
person. 141 women are on death row, representing 11% of the death
row population.29 The percentage of women on death row in Malaysia
is very high compared to other countries such as Sri Lanka (6.5%),
Indonesia (2.2%) or the United States (2%).30 Figures released in
March 2019 show that women are over-represented in the population
of people sentenced to death for drug-related crimes: 95% of
women on death row have been convicted of drug-related crimes,
compared to 70% of men.31
The people on death row are mostly young: 397 people awaiting
execution are between 21 and 30 years old (31%). 17 persons on
death row are over 60 (1%).32
Figure 2: % of persons on death row in Malaysia, by age group (December 2019)
In terms of nationality, 43% of persons on death row are foreign
nationals from 43 countries (546 people).33 73% of foreign citizens
have been convicted of drug-related offences and 25% of
murder. According to Amnesty International, the most represented
nationalities are Nigerian (21%), Indonesian (16%), Iranian (15%),
Indian (10%), Filipino (8%) and Thai (6%).34 The Malaysian population
is divided among Malay (349), Indian (193), Chinese (158) and other
ethnic groups (34).35
29 Amnesty International, op. cit., 2019, p. 19.
30 In 2018, 84 women were on death row in Sri Lanka (total death row population of
1,299 people), 6 women in Indonesia (total death row population of 268 people) and 53
in the United States (total death row population of 2,656).
31 Ibid., p. 5.
32 Response of the Minister of Home Affairs to the Parliament on December 3, 2019.
33 Ibid.
34 Amnesty International, op. cit., 2019, p. 19.
35 Response of the Minister of Home Affairs to the Parliament on December 3, 2019.
Drug trafficking (70%)
Murder (27%)
Firearms offences (1%)
Kidnapping (1%)
Crimes against the ruler of the State (1%)
Gang robbery and murder (0%)
Offence under the ISA (0%)
21- 30 (31%)
31-40 (41%)
41-50 (21%)
51-60 (6%)
>-60 (1%)

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Figure 3: % of persons on death row in Malaysia, by nationality
(December 2019)36
An analysis conducted by Prisons Department among 48% of the
death row population revealed that the most represented group was
the unemployed (240 people out of 613 analysed). The other groups
are divided between workers (143), businessmen (140) and people
who own their businesses (90).37
Evolution of executions in Malaysia
The lack of transparency on the application of the death penalty has
prevented international and national human rights organisations from
closely monitoring its imposition for decades. Moreover, executions
are carried out in secret, without prior notice – a practice that has
been regularly denounced by international and national human rights
institutions and by families of those executed.38
469 people have been executed since the 1957 independence.39 The
following figure shows a significant decrease in executions since
the mid-1990s. 20 persons have been hanged by the Malaysian
authorities in the last 10 years, between 2010 and 2019.40
36 Ibid.
37 Response of the Minister of Home Affairs to the Parliament on December 3, 2019. The
division of the Prisons Department between the last two groups is not very clear. Nor is
it clear why the analysis was performed on less than half of the individuals on death row.
These data should therefore be taken with caution.
38 More information on the execution process infra, “Rushed and secretive executions”.
39 Amnesty International, op. cit., 2019, p. 15.
40 More information on the history of the imposition of the death sentence infra, “History
of Malaysia and the death penalty”.
Figure 4: Evolution of the number of executions in Malaysia 1980-201941
No execution was carried out since 2017. An official moratorium on
executions was imposed in 2018, a few weeks after the election of
the new government, led by the party Pakatan Harapan.42 According
to the government, as of December 2019, all those sentenced to
death either had pending legal appeals (827 persons) or were seeking
clemency (453 persons).43 Since executions while legal actions and
clemency procedures are ongoing are prohibited by international
standards, no executions can be carried out legally. It should be
recalled, however, that two prisoners, the Batumalai brothers, were
executed in March 2017, while their applications for clemency were
still pending.44
Malaysia’s position on the moratorium on the death penalty
Until 2018, Malaysia had continuously voted against the UN
Resolution for a universal moratorium on execution. In December
2018, for the first time in the country’s history, Malaysia reversed
its vote from “against” to “in favour” of the resolution. A few months
later, on the occasion of the 31st session of the Universal Periodic
Review, Malaysia has accepted several recommendations of the
41 1980-2012 data: Pascoe D., Last Chance for Life: Clemency in Southeast Asian Death
Penalty Cases, Oxford University Press, 2019, p. 129; 2013, 2017 and 2019 data: see
Amnesty International annual reports, note supra. 2014 to 2016 data: see Amnesty
International, Death Sentences and Executions in 2016, 2017, citing official figures.
42 Amnesty International, op. cit., 2019, p. 11.
43 Response of the Minister of Home Affairs to the Parliament on December 3, 2019.
44 More information on the illegality of the executions infra, “Rushed and secretive
executions”. Malaysia Kini, “Batumalai Brothers Hanged at Dawn Today”, 2017, available
at: https://www.malaysiakini.com/news/375744 (last visited February 10, 2020).
Malaysians (57%)
Foreigners (43%)
45
40
35
30
25
20
15
10
5
0
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019

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international community to amend its legislation on the death
penalty, but not for all crimes.45
Methodology
This report is based on in-depth research46 and semi-directive
interviews conducted from July 2019 to February 2020. Interviews
with people sentenced to death, families and NGOs were conducted
by the team of Anti-Death Penalty Asia Network (ADPAN). Interviews
with the Human Rights Commission of Malaysia – Suruhanjaya Hak
Asasi Manusia Malaysia (SUHAKAM) – and a psychiatry expert
before Malaysian criminal courts were conducted by the author of
the report.
While the government is now more open to the publication of data on
death row prisoners, it still strongly restricts access to those sentenced
to death. Permission to monitor prison conditions or talk to death row
prisoners is only granted to SUHAKAM, the International Committee of
the Red Cross (ICRC), religious organisations, lawyers and families.47
The ADPAN team has been able to visit three persons on death row,
whom they represent in legal matters. Among them, two Malaysian
men and a foreign woman from China. All meetings were held in their
mother tongue and then translated into English by the interviewer. All
three cases are final, with an ongoing clemency application. Interview
data were collected using a standardized questionnaire.
45 Malaysia supported the recommendations of 12 countries to abolish death penalty
(Moldova, Albania, Portugal, Romania, Spain, Cyprus, Georgia, Fiji, Italy, Switzerland,
Norway and Paraguay) and noted the recommendations of seven countries to
completely abolish the death penalty and/or ratify the second option protocol to the
ICCPR (Ukraine, Australia, Germany, Sweden, Finland, France and Montenegro). During
the previous review in 2013, Malaysia did not support any recommendation aiming
to abolish the death penalty. The sole recommendation that was supported was the
recommendation from Egypt to “Maintain its good example in observing the legal
safeguards surrounding the application of death penalty.” UN Human Rights Council,
Report of the Working Group on the Universal Periodic Review, Malaysia, Addendum –
Views on Conclusions and/or Recommendations, Voluntary Commitments and Replies
Presented by the State Under Review [A/HRC/40/11/Add.1], 2019; UPR of Malaysia (31st
session), Thematic list of recommendations; UPR of Malaysia (17th session), Thematic
list of recommendations. More information on the hesitations regarding abolition infra,
sub-section “A U-turn on the abolition of the death penalty?”.
46 See complete list of documents consulted in Appendix 2.
47 Interview with national NGOs. See also infra, Sub-Section “Restricted human interactions”.
See also United States Department of State – Bureau of Democracy, Human Rights and
Labor, Malaysia 2018 Human Rights Report, 20 19.
Although these three persons are not representative of the entire
death row population, the interviews provide information that
may be applicable beyond their own situation. These interviews
were triangulated with interviews with other people or institutions:
SUHAKAM; medical doctors; faith-based organisations providing
religious counselling to Muslim, Buddhist or Christian women and
men sentenced to death; human rights NGOs; and nine relatives of
death row prisoners: mother, sister, brother or friend. Several relatives
of persons sentenced to death cried during the interviews, showing
their great emotion about their loved ones’ situation. Some interviews
were conducted in persons, others by telephone.
For security reasons, no interviews were recorded. Detailed notes
were taken during all interviews. In order to ensure the safety of
the men and women sentenced to death who were interviewed,
the names of respondents have been changed and their place of
detention is not indicated.

27
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HISTORY OF MALAYSIA
AND THE DEATH PENALTY

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The following sections aim to provide an overview of the history
of the use of death penalty in Malaysia since the 19th century.
Archaeological evidence shows that the death penalty existed in
territories composing modern Malaysia as early as the 14th century.
Colonisation in the 19th and 20th centuries led to the application
of British legislation, including the death penalty legislation. After
independence, the death penalty remained in force and was
incorporated into the new national criminal legislation. Since colonial
times, the history of the use of the death penalty has been linked
to the application of special texts.
Death penalty laws in pre-colonial Malaysian States
Before the British arrived in Malaya, the inhabitants of the various
territories now composing Malaysia followed a legal system based
on their own laws and traditions, which incorporated elements of
Sharia or Islamic law. The earliest mention of Islamic law in Malaysia
has been identified on an inscribed stone in Terengganu, which dates
back to 1303. According to researchers and UNESCO, the inscriptions
on the stone are one of the oldest testimonies of the establishment
of Islam as a State religion in the region.48 Some inscriptions relate
directly to the death penalty for adulterous women:
“Peril be to adulterers.
To repent, the following be done, command the Almighty.
A hundred whips, for free man, a wife hath.
A married woman, to be buried
To the waist and stoned to death.” 49
The influence of Islamic law was found in other subsequent texts, in
particular the 15th century’s compilation of laws in Malacca, Undang-
undang Melaka, which provided for the death penalty in several
cases, including apostasy, murder (“He who kills shall be killed”), and
adultery or sodomy.50 Undang-undang Melaka was then adapted
48 UNESCO, Memory Of The World Register, Batu Bersurat, Terengganu (Inscribed Stone of
Terengganu), Malaysia [Ref. No. 2008-37], 2009, available at: http://www.unesco.org/new/
fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/mow/nomination_forms/Malaysia+Terengganu.
pdf (last visited January 15, 2020). See also Nor M.R.M., Abdullah A.T., Ali A.K., From
Undang-Undang Melaka to Federal Constitution: the Dynamics of Multicultural Malaysia,
SpringerPlus 5, 1683 (2016), 5:1683.
49 UNESCO, op. cit., 2009, p. 2. Nor M.R.M., Abdullah A.T., Ali, A.K., op. cit., 2016, p. 2.
50 Ibid., pp. 3-4.
and applied in several Malay States, including Pahang, Johore and
Kedah.51 The arrival of the British in the early 19th century led to
the replacement of customary law by British legislation, which also
provided for the death penalty.
Death penalty as a political tool during British colonisation
When Malaysia was established, it was composed of several territories
formerly under British rule: Malaya (now Peninsular Malaysia), the
island of Singapore (independent since 1965) and the colonies of
Sarawak and Sabah in Northern Borneo.
British influence and control over the territories (1819-1942)
From 1819 onwards, the British established their control over Malaya
in various ways: direct colonial rule in Penang, Malacca and Singapore,
headed by a governor under the supervision of the Colonial Office in
London; indirect control in some sultanates; and control by families
or businesses in Northern Borneo.
Malaysia – End of the 19th century
“Straits Settlements” (direct colonial rule) Sultanates (indirect control)
Control by British families or businesses
51 Ibrahim, 2010, in Nor M.R.M., Abdullah A.T., Ali, A.K., op. cit., 2016, p. 5.
Malaysia
Perlis Kedah
Penang
Perak
Kelantan
Pahang
Terengganu
Selangor
Kuala
Lumpur Negeri
Sembilan
Johore
Sabah
Sarawak
Malacca
Putrajaya
Thailand
Island of
Sumatra Indonesia
Singapore

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British influence began in 1819, when the British representative
Sir Raffles occupied the island of Singapore, in the southern part
of Malaya peninsula, which quickly became a major economic and
political centre. The Anglo-Dutch treaty of 1824, which divided the
Malay States between Great Britain and the Netherlands, ensured
British hegemony over these territories: Great Britain obtained
Malacca and directly governed three ports of the “Straits Settlements”,
namely Penang, Malacca and Singapore. The Straits Settlements were
considered part of the British Indian Empire: the Charter of Justice of
1826 was introduced and Muslim law remained in force in matters of
marriage and divorce.52 In 1871, the “Straits Settlement Penal Code”,
first Penal Code in Malaya, was introduced in Penang and Malacca.53
This code was based on the 1860 Indian Penal Code (IPC), drafted by
the British, which served as a model for the legal systems of the British
colonies in Asia and Africa. The IPC recognised the death penalty for
a variety of crimes including waging war against the Queen,54 giving
or fabricating false evidence by means of which an innocent person
is convicted and executed55 or committing murder.56
While the Straits Settlements were colonies under direct British
administration, the rest of the States composing Malaya were ruled
by Sultans. Beginning in the 1870s, Great Britain established strong
political influence over several Malay sultanates by entering into
treaties, under which the sultanates accepted the settlement of
British residents in exchange for their protection. Officially, British
residents had only an advisory role to the Sultans. However, they
quickly became the effective rulers, although they pledged not to
interfere in matters of religion and customs and in the political
role of the Sultans. British residents advised the Sultans to enact
laws also based on the IPC.57 At the beginning of the 20th century,
Great Britain indirectly controlled nine Malay States, including
four Federated Malay States and five Unfederated Malay States:58
52 Nor M.R.M., Abdullah A.T., Ali, A.K., op. cit., 2016, p. 6.
53 Nazeri N.M., “Criminal Law Codification and Reform in Malaysia: An Overview”, Singapore
Journal of Legal Studies, December 2010, p. 375
54 1860 Indian Penal Code, Section 121, available at: https://archive.org/stream/
indianpenalcode00macpgoog/indianpenalcode00macpgoog_djvu.txt (last visited
January 15, 2020).
55 Ibid., Section 194.
56 Ibid., Sections 302, 303, 305 and 396.
57 Nor M.R.M., Abdullah A.T., Ali, A.K., op. cit., 2016, p. 6
58 Federated Malay States included the States of Pahang, Selangor, Perak and Negeri
Sembilan; Unfederated Malay States included the States of Johore, Kedah, Kelantan,
Perlis and Terenggan
some of which retained some autonomy over local matters but
were administered by the Governor of the Straits Settlements, who
acted as High Commissioner.59 In 1936, a new Penal Code, based on
the 1871 Penal Code, was introduced in all Federal Malay States.60
Meanwhile, Sarawak territory, located in northwestern Borneo Island,
was ruled by an English family (the “Brooke Raj” dynasty) and
became an independent State under British protection at the end
of the 19th century. Northeast Borneo (now Sabah) was controlled
by the British under the British North Borneo Company. Sarawak
and Northeast Borneo became British Crown colonies in 1945. The
Penal Code was extended to the Federation of Malaya in 1948.61
The use of the death penalty during the Malayan Emergency
(1942-1957)
During the Second World War, between February 1942 and September
1945, Japan invaded the territories of Malaya and Borneo. After the
Japanese defeat, the British proposed to form a “Malayan Union”,
incorporating all the territories, except Singapore, into a single Crown
colony. This proposal was largely rejected by the Malays, who feared
that it would pave the way for a reduction in the autonomy of the
States and for equal citizenship for all. Indeed, several million Chinese
and Indian people entered the territories to work between 1900 and
1941. The colonial authorities favoured a compartmentalized society,
in which Malay, Chinese and Indian communities lived in their own
localities, practiced their own religions, spoke their own languages,
and developed their own political organisations.62 At the end of the
19th century, Chinese immigrants accounted for about half of the
total population of the States of Perak, Selangor and Sungai Ujung.63
Ensuring equal citizenships was a major political issue for Malays, who
were worried about becoming a minority population in their country.
The United Malays National Organisation (UMNO), headed by Chief
Minister Johor Dato’ Onn bin Jaafar, was established in 1946 in
59 Ahmad S.S.S., Introduction to the Malaysian Legal System and Sources of Law, 2014,
available at: https://www.nyulawglobal.org/globalex/Sources_Law_Malaysia1.html (last
visited January 14, 2020).
60 Nazeri N.M., op. cit., 2010, p. 376.
61 Ibid.
62 “The Impact of British Rule”, in Encyclopaedia Britannica, available at: https://www.
britannica.com/place/Malaysia/The-impact-of-British-rule (last visited January 14,
2020).
63 The first census took place in 1891. Andaya B., Andaya L., A History of Malaysia, Palgrave,
Third edition, 2017, p. 18.

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response to this proposal. Unrest, strikes and demonstrations led by the
UMNO spread throughout the territory, forcing the British to negotiate
with the organisation. In 1948, negotiations led to the creation of the
Federation of Malaya, which provided special guarantees for the rights
of Malays. However, the Chinese-dominated Malayan Communist Party
(MCP), concerned that the Federation would lead to racial inequality,
launched guerrilla operations against British plantation managers.
On 16 June 1948, following a long series of attacks in the States
of Penang, Selangor and Johore, three European rubber plantation
managers were shot dead by MCP guerrillas in northern Malaya. The
British government declared a state of emergency in Perak and Johore,
which was extended a few days later to the whole of Malaya. The MCP
was banned and more than 1,000 people were arrested by the British
authorities.64 Former members of the MCP created the Malayan Races
Liberation Army, which led a violent insurgency. Repressive regulations
were promulgated by the British, resulting in the displacement and
confinement of 650,000 persons.65 “Seditious” publications were
banned.66 The Emergency Regulations Ordinance 1948 gave the High
Commissioner the unlimited right to make regulations and prescribe
sanctions, including the death penalty – the only limitation being that
no regulation made by the High Commissioner could confer the right
to punish without trial.67 A few weeks after the declaration of the state
of emergency, the High Commissioner imposed a mandatory death
penalty on those convicted of firearms offences.68 In an attempt to
reduce the amount of food and supplies for the insurgents, the death
penalty was extended in June 1950 to anyone convicted of extorting
food or money on behalf of the insurgents.69 Shortly afterwards, the
burden of proof in criminal matters was reversed: it was now up to
the suspects to prove their innocence.70
64 Deery P., “Malaya 1948: Britain’s Asian Cold War?”, Journal of Cold War Studies, Vol. 9,
No 1, Winter 2007, p. 29.
65 Renick R., “The Emergency Regulations of Malaya, Causes and Effects”, Journal of
Southeast Asian History, 1965, 6(2), p. 35.
66 Sedition Act, 1948.
67 Emergency Regulations Ordinance 1948 as cited in Renick R., op. cit., 1965, p. 17.
68 TNA CO 717/161/1, “High Commissioner Malaya to Colonial Secretary, 2 July 1948”, in
French D., The British Way in Counter-Insurgency, 1945-1967, Oxford University Press,
2011, p. 80.
69 TNA CAB 21/1681/MAL.C(50)23, “Federation Plan for the Elimination of the Communist
Organisation and Armed Forces in Malay, 24 May 1950”, Ibid., p. 80.
70 TNA CO 822/729, “Emergency Regulations Made Under the Emergency Powers Order-
in-Council, Regulation 33”, Ibid., p. 80.
As a result of the new regulations, 62 people were executed under the
Emergency Regulations, charged with unlawful possession of arms
and ammunition, during the first 11 months following the declaration
of the emergency.71 During this first period, the Federal Executive
Council called for the introduction of summary trials: “[…] Judicial
arrangements should be made whereby, without sacrificing any of
the principles of British justice, clear-cut cases of possession of arms
and murder should be immediately brought to trial, and if convictions
are secured the sentences be immediately carried out.”72 When the
British High Commissioner, Sir Henry Gurney, was assassinated in
1951, many members of the Federal Executive Council insisted on
retaliating by speeding up legal proceedings and executions. However,
these suggestions were rejected by British military officials, as
they considered them to be “A result of panic and emotion.”73 This
reaction was viewed as having prevented a more widespread use
of the death penalty during the Malayan Emergency.74 Nonetheless,
during the 12 years of the state of the emergency, which lasted until
1960, 226 people were executed for insurgent offences.75
Creation of the Multi-Ethnic Federation
and first period post-independence (1957-1975)
The Federal Constitution and the Independence
The British generally agreed with the principle of the country’s
independence. In 1955, UMNO, the new party Malayan Chinese
Association (MCA) and the Malayan Indian Congress (MIC) joined
forces to form a coalition that won the legislative elections. The
elections marked the beginning of a permanent political alliance,
the main force of which was UMNO, led by Tunku Abdul Rahman.
In January and February 1956, a Constitutional conference was
held in London, attended by representatives of Malay, Alliance and
71 “Written answers on Arms (Unlawful Possession)”, Hansard HD 18 may 1949, vol 465
c20W, available at: https://api.parliament.uk/historic-hansard/written-answers/1949/
may/18/arms-unlawful-possession (last visited January 15, 2020).
72 TNA CO 537/3692, “Minutes of an Extraordinary Meeting of the Federal Executive
Council, 26 June 1948”, in French D., op. cit., 2011, p. 93.
73 TNA CO 1022/58, “Minutes, 21 November 1951”, in French D., op. cit., 2011, p. 93.
74 Ibid., p. 94.
75 Bonner D., Executive Measures, Terrorism and National Security: Have the Rules of the
Game Changed?, Routledge, 2007, p. 147, as cited in French D., op. cit., 2011, p. 93.

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British representatives. An agreement was reached and the “London
Treaty” was signed by Tunku Abdul Rahman on 8 February 1956.
From March 1956 to February 1957, the Reid Commission – a team
of five international legal experts led by British judge William Reid –
drafted the Federal Constitution of Malaya. It should be recalled
that the Constitution was drafted during the state of emergency:
it provided extended powers for the government, such as the power
to use any means to stop political opposition.76 Nevertheless, the
Constitution included a few fundamental rights, including the right
to life. However, while its Section 5 expressly recognises the right to
life, it then provides for the legality of the death penalty: “No person
may be deprived of life or personal liberty except in accordance with
law.”77 In accordance with Section 162(1) of the Constitution, existing
laws remained in force, including the British Emergency regulations
and the imposition of mandatory death penalty for murder.78
On 31 August 1957, Tunku Abdul Rahman addressed the population:
“For many years past our fortunes have been linked with those of Great
Britain and we recall in particular the comradeship of two world wars.
We remember too the products of our association; justice before the
law, the legacy of an efficient public service and the highest standard
of living in Asia. We shall therefore always remember with gratitude
the assistance which we have received from Great Britain down our
long path to nationhood; an assistance which culminates today with
the proclamation of Malaya’s Independence. […] At this solemn moment
therefore I call upon you all to dedicate yourselves to the service of
the new Malaya: to work and strive with hand and brain to create a
new nation, inspired by the ideals of justice and liberty – a beacon of
light in a disturbed and distracted world. High confidence has been
reposed in us; let us unitedly face the challenge of the years. And so
with remembrance for the past, and with confidence in the future,
under the providence of God, we shall succeed.”79
76 Lent J., “Human Rights in Malaysia”, Journal of Contemporary Asia, 14:4, 1984, p. 442
77 Federal Constitution of Malaysia, Section 5(1).
78 Federal Constitution of Malaysia, Section 162(1) provides: “Subject to the following
provisions of this Article and Article 163, the existing laws shall, until repealed by the
authority having power to do so under this Constitution, continue in force on and after
Merdeka Day, with such modifications as may be made therein under this Article and
subject to any amendments made by federal or State law.”
79 Tunku Abdul Rahman, Address at the proclamation of independence of Malaya, 1957,
available at: https://www.cvce.eu/content/publication/2015/10/20/1603372c-fc78-4d4b-
b156-d737106ee1a2/publishable_en.pdf (last visited February 14, 2020).
The independence of the Federation of Malaya, “A sovereign democratic
and independent State founded upon the principles of liberty and
justice and ever seeking the welfare and happiness of its people and
the maintenance of a just peace among all nations”,80 is declared.
A few years later, North Borneo, Sarawak and Singapore merged with
the new Federation. North Borneo was renamed Sabah. The Malaysia
Act 1963 created the State called Malaysia, consisting of Malaya,
Sabah, Sarawak and Singapore. The Constitution was amended in 1963
to admit the additional Member States of the Federation. In August
1965, after 2 years of merger, Singapore became an independent State.
The 1960 Internal Security Act to fight communist activities
In 1960, in view of the defeat of communist forces, the state
of emergency was lifted, as well as the Emergency Regulations.
However, in the same year, the Malayan government passed the
Internal Security Act (ISA), on the ground that it was still necessary
to counter the remaining communist threat within the country.81 The
Deputy Prime Minister at the time said in Parliament:
“The Bill was introduced mainly because the emergency was to be
lifted. But the government does not intend to relax its vigilance
against the enemy who remained a threat and who are now
attempting by subversion to succeed by force of arms. […] The ISA
has two aims. […] First, to counter subversion throughout the country,
and second to enable the necessary measure to be taken on the
border area to counter terrorism. The armed terrorist still exists at
the Malaysian border waiting or remaining in existence waiting for
an opportunity to revive their arm struggle against the people of
Malaysia. This remain as a potential threat to the security of the
country, which cannot be disregarded.” 82
Acknowledging the “Immense powers given to the government
under the ISA”, the Deputy Prime Minister gave “A solemn promise
to Parliament and the nation that [these powers] would never be
used to stifle legitimate opposition and silence lawful dissent.”83
Unlike the Emergency Regulations of 1948, the ISA was intended to be
80 Malayan Declaration of Independence 1957, para. 10.
81 Amnesty International, Malaysia: The Internal Security Act (ISA) [ASA 28/06/2003], 2003.
82 Hansard Malaysia, House of Representatives, Part 1, vol II, 1960, in Nazeri N.M., Child
offender. Policies and the Emergency Rule, 2008, p. 3. See also Human Rights Watch,
Abdication of Responsibility: The Commonwealth and Human Rights, 1991, p. 36.
83 Ibid.

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a permanent law that could not be repealed by an act of Parliament.84
The ISA was strongly criticized, as its provisions constituted serious
violations of due process of law. The ISA provided for preventive
detention. The security forces had the powers to search and arrest,
on the simple basis of hearsay and suspicion, and to detain people
for 60 days. The ISA also provided that initial detention could be
followed by 2 years’ detention without trial before a court, which
could be extended every 2 years at the discretion of the Minister of
Home Affairs.85 Over the years, the use of the ISA was widespread:
1,119 people were arrested and detained between 1960 and 1969, and
1,713 between 1970 and 1979.86 More importantly for our topic, the ISA
prescribed a mandatory death penalty for certain firearms offences,
such as the possession of a firearm. Its Section 57(1) provides:
“(1) Any person who without lawful excuse, the onus of proving
which shall be on that person, in any security area carries or has in
his possession or under his control—
(a) any firearm without lawful authority therefor; or
(b) any ammunition or explosive without lawful authority therefor,
shall be guilty of an offence and shall, on conviction, be punished
with death.”
The mandatory death penalty for those security offences was not
immediately applied. In fact, no execution is reported from 1965 to
the mid-1970s. However, this provision will be widely used afterwards,
after the promulgation of repressive security regulations.87
The 1969 riots
The new multi-ethnic State quickly faced serious challenges. The
organisation of populations along racial lines was established
during British colonisation, resulting in significant inequalities.
The Chinese were perceived as controlling the economy, while
the Malays were generally poorer workers. In order to give greater
support to the Bumiputera, Article 153 of the Federal Constitution
recognised the need to safeguard a special position to these
groups, in relation to other ethnic groups residing in the country.
84 Lee, T., “Malaysia and the Internal Security Act: the Insecurity of Human Rights after
September 11”, Singapore Journal of Legal Studies, July 2002, p. 57.
85 Lent J., op. cit., 1984, p. 443.
86 Amnesty International, Human Rights Undermined [ASA 28/06/99], 1999, p. 21.
87 See infra, Sub-Section “New regulatory procedure for security offences”.
The government has taken “affirmative actions” in favour of
Bumiputera on the basis of the Constitution, first of all in the
education sector. The 1961 Education Act established common
curriculum in which Malay language was the main medium of
instruction, and the use of the Malay and English languages
was the basis for the national public examination system,
excluding the Chinese language from the reform. Moreover,
after Singapore’s separation from Malaysia, Nanyang University
of Singapore became a foreign university. In 1967, the Minister
of Education made it compulsory to issue certificates to go
abroad for higher education, which was difficult to obtain: most
Chinese could not afford to go to university. In response to
this policy, Chinese political parties were established, including
the Democratic Action Party (DAP), which advocates in favour
of ethnic equality and opposes the principle of separation
between Bumiputera and non-Bumiputera.88 Although the plan
to create a new university using Chinese as its main medium
of instruction was approved by the government a few weeks
before the 1969 general election, the election was a major
setback for the Alliance coalition. The coalition had won less
than half of the popular vote, losing the Chinese votes to the
DAP and non-Bumiputera votes to Parti Islam Se Malaysia
(PAS), an Islamic party that considered the pre-eminence
of the Malay race as a fundamental of Malaysian politics.89
Race riots broke out the day after the election. Between 100
(according to the police) and 600 people (according to other
data) were killed during the riots.90 The state of emergency
was declared, and the Constitution and Parliament were
suspended until 1971.91
The government had been heavily criticized. Professional
imbalances between the predominantly rural Malay communities
and the more urban Chinese communities had been identified as
88 See Setapak Declaration, DAP National Congress of Kuala Lumpur on July 29, 1967.
89 Eldridge P.J., The Politics of Human Rights in Southeast Asia, Routledge, 2002, p. 91.
De Ting Hui L., Chinese Schools in Peninsular Malaysia: The Struggle for Survival, ISEAS
Singapore, 2011, pp. 110-111.
90 Time, “Race War in Malaysia”, 23 May 1969, available at
https://web.archive.org/web/20070518061525
http://www.time.com/time/magazine/article/0%2C9171%2C900859%2C00.html
(last visited January 15, 2020). The Merkeda University was prohibited from raising funds.
The idea to create a university using Chinese as its main medium of instruction was finally
abandoned. De Ting Hui L., op. cit., 2011, p. 112.
91 Amnesty International, op. cit., 1999, p. 4.

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a factor behind the 1969 riots. The Prime Minister Tunku Abdul
Rahman resigned and was replaced by Tun Abdul Razak. The
ruling coalition was enlarged and renamed “Barisan Nasional”. In
1970, the National Principles (Rukun Negara) were declared, with
a view of strengthening harmony and unity among races for the
sake of the success and stability of the country. In 1971, the new
Prime Minister developed the New Economic Policy (NEP), which
aimed at economic equality, by narrowing the economic gap
between Bumiputera and other communities in Malaysia, while
advancing the situation of rural Malay communities.92 Ethnic
quotas were imposed on several aspects of the economy and
education.93 Although several changes have been made over
the years, the promotion of Bumiputera communities remains
a cornerstone of Malaysian State policy today.94
The increase in executions (1975-1996):
more than 350persons hanged in 20years
While the death penalty has not been executed since 1965, several
legislations adopted in the mid-1970s have contributed to the
resurgence of executions. The year 1975 was a turning point in the
modern history of the death penalty in Malaysia. Between 1975 and
1996, 358 people were executed by hanging, 150 of them for drug-
related crimes.95 In 1992 alone, 39 executions were recorded.96
92 The NEP aimed at “Reducing and eventually eradicating poverty among all Malaysians,
irrespective of race” and at “Restructuring Malaysian society to correct the economic
imbalance among racial groups and reduce and eventually eradicate the identification
of race with economic function.” Prime Minister’s Department, Malaysia: 30 Years of
Poverty Reduction, Growth and Racial Harmony, 2004, p. 2.
93 For instance, 30% of shared capital was to be reserved for Bumiputera. A quota system
– 55% Bumiputera, 45% non-Bumiputera – has been imposed for entry into the public
universities in the country. See Barlow C., Modern Malaysia in the Global Economy,
Edward Elgar Publishing, 2001, p. 80; and DeBernardi J., Penang: Rites of Belonging in a
Malaysian Chinese Community, NUS Press, 2009, p. 120.
94 Eldridge P.J., op.cit., 2002, p. 91 and p. 101.
95 Malaysia Kini, “Gov’t Reveals Execution Statistics: 358 Hanged in 24 Years”, 2005,
available at: http://madpet06.blogspot.com/2005/02/mkini-govt-reveals-execution.
html (last visited January 20, 2020).
96 Amnesty International Malaysia, “A Brief History of the Death Penalty in Malaysia”, 2019,
available at: https://www.amnesty.my/abolish-death-penalty/a-brief-history-of-the-
death-penalty-in-malaysia/ (last visited January 17, 2020).
Mahathir Mohamad’s Prime Ministership 1981-2003:
Human Rights and the Asian values
In 1981, Mahathir Mohamad became Prime Minister. He
advocated in favour of the “Asian values”. According to this
concept, Western political values are not compatible with
Asian societies because they promote individualism and
undermine social order. Thus, in Asia, democratic rights may
be limited in the name of national interest. Prime Minister
Mahathir Mohamad said in 1995: “Let us not be slaves to
democracy. […] If by practicing certain aspects of democracy
we run the risk of causing chaos in our party and country, we
have to choose our party and country above democracy.”97
Economic development should be a key priority over the
enjoyment of individual rights. According to Datuk Abdallah
Badawi, the then Minister of Foreign Affairs: “For us, the
underlying foundation of a democratic and successful nation
remains the need for strong and good governance for a
disciplined and productive society, for continuing emphasis
on political stability and quality economic growth with
human beings at the centre of development efforts...”98 This
strategy was incorporated into the 1993 Bangkok Declaration
of the countries of the Association of Southeast Asian
Nations (ASEAN), which provides that the State Parties are
“Convinced that economic and social progress facilitates the
growing trend towards democracy and the promotion and
protection of human rights.”99 The imposition of this policy
was the basis of Mahathir’s administration, until the Asian
financial crisis in 1997.100
97 Mahathir M., in Christie K., Regime Security and Human Rights in Southeast Asia, Political
Studies, 1995, XLIII, p. 215.
98 Peerenboom R., Petersen C. J., Chen A.H.Y., op. cit., 2006, p. 193.
99 The ASEAN was established on 8 August 1967 in Bangkok by Indonesia, Malaysia,
Philippines, Singapore and Thailand. Bangkok Declaration 1993, Preamble.
100 Tinio M.L., Les Droits de l’Homme en Asie du Sud-Est, L’Harmattan, 2004, p. 39.

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The war on drugs and the imposition
of the mandatory death penalty in drug-related crimes
Although the Dangerous Drugs Act was enacted in 1952 during
colonisation, increased use of drugs by Malays and Indian communities
in the 1970s and 1980s became a national problem in Malaysia.101
Legislative amendments to the Dangerous Drugs Act were passed
in 1975,102 prescribing the death penalty as a discretionary sentence
for drug traffickers.103 In 1977, the definition of trafficking was
broadened to include possession of drugs and provided a series of
statutory presumptions to establish the elements of the offence
of trafficking.104 Numerous criticisms were expressed, considering
that the presumption of guilt was contrary to the fundamental
principles of Malaysian jurisprudence and the international legal
guarantee that the accused has the right to be presumed innocent
until proved guilty.105
In 1983, the government further amended the law and introduced
the mandatory death penalty for drug trafficking under Section 39B
of the Dangerous Drugs Act.106 During Parliamentary debates,
the government indicated that life imprisonment and whipping
did not have the desired deterrent effect, as drug trafficking
activities increased between 1980 and 1983. Drug traffickers
were regarded as “Traders of death, destruction and misery”, and
their acts as “Acts of treason”, which could not be pardoned or
sympathized.107 For the government, the mandatory death penalty
was a mean of ending inconsistencies in sentencing, because the
highest courts in Malaysia – the Federal Court and its successor
the Supreme Court – created a “Presumptive death penalty” for
101 Harring S., “Death, Drugs and Development: Malaysia’s Mandatory Death Penalty for
Traffickers and the International War on Drugs”, Columbia Journal of Transnational Law,
Vol 29, 1991, pp. 364-365.
102 Dangerous Drugs (Amendment) Act 1975.
103 Other punishments include life imprisonment and/or whipping. Kamariah M.,
“Amendments to the Dangerous Drugs Act”, Journal of Malaysian and Comparative
Law, 1988, p. 134.
104 Dangerous Drugs (Amendment) Act 1977. Harring S., op. cit., 1991, p. 374.
105 Amnesty International, The Death Penalty, No Solution to Illicit Drugs [ACT 51/02/95],
1995, pp. 54-55.
106 Dangerous Drugs (Amendment) Act 1983.
107 Kamarudin A.R., “The Misuse of Drugs in Malaysia: Past and Present”, Malaysian Anti-
Drugs Journal, 2007, p. 16.
drug traffickers, where lowers courts imposed life sentences.108
With the mandatory death penalty, the Parliament has followed
the doctrine created by the judiciary. According to the Act,
“trafficking” includes “Manufacturing, importing, exporting, keeping,
concealing, buying, selling, giving, receiving, storing, administering,
transporting, carrying, sending, delivering, procuring, supplying or
distributing any dangerous drug.”109 The amendment also reduced
the quantity in possession required to invoke the presumption of
trafficking: 15 grams of heroin or morphine, 1,000 grams of opium
or 200 grams of cannabis.110
Malaysia’s policy on drug trafficking was clearly expressed by Prime
Minister Mahathir Mohamad in 1986:
“Malaysia views the drug problem as a major threat to the security
and well-being of the country. Drugs have been used in the past
to subjugate a country. We do not wish to be colonised once again
or to have our security and economy undermined. Accordingly we
have promulgated the death penalty against drug traffickers. We
make no apology for this punishment. The traffickers are killing our
people and causing untold misery. They deserve the death penalty,
irrespective of colour.”111
In 1987, the country’s involvement in narcotics control increased
when Prime Minister Mahathir Mohamad was elected Chairman
of the Vienna International Conference on Drug Abuse and Illegal
Trafficking.112 In 1987 alone, 14 executions were recorded for drug
trafficking.113 The anti-drug law was then the toughest in the world.114
As Kamariah noted in 1988: “Drugs became the Nation’s Number
One Enemy.”115
The first execution took place in 1985, when a Malaysian citizen was
executed after being sentenced to death for carrying 79.93 grams
of heroin.116 In 1986, Barlow and Chambers were the first non-
108 Harring S., op. cit., 1991, p. 378; Kamariah M., op. cit., 1988, p. 149.
109 Dangerous Drugs Act, Section 2.
110 Harring S., op. cit., 1991, p. 375; Amnesty International, op. cit., 1995, p. 53.
111 Mahathir Mohamed’s declaration during the 1987 Conference of Heads of State or
Government of the Non-Aligned Movement in Harare, Zimbabwe, available at: https://
www.pmo.gov.my/ucapan/?m=p&p=mahathir&id=990 (last visited January 21, 2020).
112 Sodhy P., “Malaysia and the United States in the 1980s”, Asian Survey, Vol 27, No. 10,
1987, p. 1081.
113 Amnesty International, op. cit., 1995, p. 54.
114 Pascoe D., op. cit., 2019, p. 128.
115 Kamariah M., op. cit., 1988, p. 156.
116 Amnesty International, op. cit., 1995, p. 53.

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Malaysian citizens – an Australian and a person with dual British
and Australian citizenship – to be hanged for drug trafficking,
despite calls for clemency from the Australian and British Prime
Ministers.117 Numerous other executions followed. From 1990 to 1992,
at least five persons were sentenced to death under this legislation,
for crimes committed when they were minors. Two sentences have
been commuted; human rights organisations did not know whether
the other sentences had been carried out.118
Since 1991, the proportion of convictions under Section 39B has
declined due to a combination of factors: an increase in the number
of acquittals, the creation by the judiciary of common law exceptions
to the mandatory death sentence,119 and more frequent dropping of
charges by the police.120 Meanwhile, more and more voices have risen
to denounce the ineffectiveness of the mandatory death penalty
in the fight against drugs. As Harring pointed out in 1991: “Drug
wars, like many other wars, originate in failed social and political
policy. Drug use is deeply rooted in social problems. Addressing the
causes of these problems is distinct from conducting a drug war to
combat their manifestations.”121 Between 1991 and 1995, the number
of executions for drug-related crimes decreased, with an average
of six executions per year.
In total, between 1975 and 1996, Malaysian authorities hanged more
than 150 persons convicted of drug-related offences.122
New regulatory procedure for security offences
In the early 1970s, the ISA was the only regulation applicable to
firearms possession offences. As the ISA was originally intended to
combat subversion, another regulation was passed to address other
“more common” firearms offences. In 1971, the Firearms (Increased
Penalties) Act was enacted. This new regulation provides for the
death penalty for trafficking in firearms or discharging a firearm
in the commission of a prescribed offence. In the case of illegal
possession of firearms, the new Act excludes the death penalty
117 Ibid., pp. 53-54.
118 Ibid., p. 56.
119 This included, for instance, finding defendants guilty of possession but not of trafficking.
See Harring S., op. cit., 1991, p. 404.
120 Ibid., pp. 400-401.
121 Ibid., p. 405.
122 Johnson D.T, Zimring F.E., The Next Frontier. National Development, Political Change and
the Death Penalty, 2009, p. 307.
and sets a maximum penalty of 14 years’ imprisonment, with a
presumption of guilt.123
In 1975, the government, under the justification of a resurgence
of communist subversion attributed to the Chinese community,
bypassed Parliament and promulgated the controversial Essential
(Security cases) Regulations (ESCAR).124 The then Minister of Law,
Tan Sri Abdul Kadir, said:
“The communist agents as well as the communists themselves have
come into town areas and started killing people. The communist tries
to disrupt the country’s development by instilling fear into the people,
by killing people at random. Their ideology was spreading fast. […]
If there is more peace and if there is less attack in the urban area,
ESCAR will be repealed. The regulation is a temporary measure and
it will not be forever and will not be used for the future.”125
The ESCAR modified the rules of evidence and procedure for the
trial of “security offences”, i.e. offences related to firearms, explosive
and ammunition, as provided for by one of the existing legislation
applicable, including the ISA and the Firearms (Increased Penalties)
Act 1971.126 The ESCAR allowed for the arrests of individuals without a
warrant and for the detention for questioning for more than 60 days.
Severe limitations on the right to cross-examine witnesses have been
implemented, undermining the principle of fairness and equality of
arms. The ESCAR also placed a presumption of guilt on the accused,
as was the case with the anti-drug law. Consequently, the new ESCAR
procedures meant that those accused of capital crimes under the ISA,
as in cases of firearms possession, had to prove their innocence in
order to avoid the death penalty.127 This new regulation was applicable
regardless of the age of the accused.128
123 Firearms (Increased Penalties) Act, Section 9 provides: “Any person who consorts with,
or is found in the company of, another person who is in unlawful possession of a firearm
in circumstances which raise a reasonable presumption that he knew that such other
person was in unlawful possession of the firearm shall, unless he proves that he had
reasonable grounds for believing that such other person was not in unlawful possession
of the firearm, be punished with imprisonment for a term which may extend to fourteen
years and with whipping with not less than six strokes.”
124 Lent J., op. cit., 1984, p. 444.
125 Nazeri N.M., op. cit., 2008, pp. 3-4.
126 Munro-Kua A., Authoritarian Populism in Malaysia, MacMillan Press, 1996, p. 96.
127 Amnesty International, op. cit., 1999, p. 35.
128 Regulation 3(3) provided: “Where a person is accused of or charged with a security offence, he
shall regardless of his age, be dealt with in accordance with the provision of the Regulations,
and the Juvenile Courts Act 1947 shall not apply to such person.” The Juvenile Courts Act
1947 indeed prohibited the death sentence against a person convicted of an offence if he/
she was a juvenile when the offence was committed. See Nazeri N.M., op. cit., 2008.

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In September 1977, the death sentence of Lim Heang Seoh, a
14-year-old boy charged with illegal possession of a firearm under
Section 57(1) of the ISA caused a national and international outcry.129
The presiding judge was firm. He stated:
“It must be made clear that any juvenile, any person who has attained
the age of criminal responsibility described in Section 8 of the Penal
Code, that is 10 and under the age of 18, is liable to be sentenced
to death if he is convicted under the Internal Security Act.”130
The first anti-death penalty movement in Malaysia was born out
of this case.131 The Malaysian Bar Council strongly protested and
unanimously adopted a resolution calling on lawyers to boycott
trials under ESCAR, considering that “Regulations are oppressive
and against the rule of law.”132 A major signature campaign was
conducted and joined by opposition parties.133 The boycott of ISA
cases was observed by a majority of lawyers and lasted 3 years.134
The schoolboy’s sentence was eventually commuted and the child
was placed in a juvenile detention centre.
The ISA was widely invoked until the mid-1990s, including for
ordinary offences that should have been prosecuted under the
Firearms (Increased Penalties) Act 1971.135 While the ISA was
originally intended solely to combat the communist insurgency, the
regulation was transformed into a catch-all.136 Common criminals
were arrested and hanged, such as Botak Chin, a gangster known
for his numerous armed robberies in Kuala Lumpur. This notorious
criminal, who saw himself as a modern Robin Hood, was arrested
in 1976. He was the first person to plead guilty under the ISA for
the possession of a pistol and ammunitions. He was hanged in
June 1981.137
The new regulations resulted in 31 to 39 executions – figures vary
depending on the author – and 64 death sentences for unlawful
129 Lent J., op. cit., 1984, p. 445.
130 Mr Justice Arulanandon, in Munro-Kua A., op. cit., 1996, p. 96.
131 See infra, Sub-Section “A growing anti-death penalty movement”. Nazeri N.M., op. cit.,
2008, p. 1.
132 Lent J., op. cit., 1984, p. 445.
133 Munro-Kua A., op. cit., 1996, p. 97.
134 Ibid., p. 98.
135 This is one of the arguments of DAP lawyer Karpal Singh. Donoghue T., Karpal Singh,
Tiger of Jelutong. The Full Biography 1940-2014, Marshall Cavendish Editions, 2014.
136 Munro-Kua A., op. cit., 1996, p. 89.
137 Donoghue T., op. cit., 2014.
possession of firearms from 1976 to 1984.138 The first woman to be
executed under the ISA was a seamstress named Thye Siew Hong,
accused of belonging to a communist group. She was hanged in March
1983 next to her husband, also convicted.139 Additional statistics
provided by the government revealed that another 12 people were
hanged for security offences between 1984 and 1993.140 According
to some, such as DAP lawyer Karpal Singh, the ESCAR legislation has
been more frequently used against Chinese communities.141
A new dynamic (1997-2018)
While the government had justified repressive laws by the need
to advance economic development, the 1997 Asian financial crisis
changed that. Since the implementation of the NEP, Malaysia had had
one of the most dynamic and fastest growing economies in Asia.142
After years of economic growth, Malaysia was threatened by the
financial crisis in the region and its discourse on Asian values had
lost its legitimacy. In neighbouring countries, a wave of democracy
had spread, paving the way for political and legislative reforms.143
In Malaysia, disparities in wealth within the Malay community had
become increasingly apparent.144 Strong differences of opinion on
public policy emerged between Prime Minister Mahathir Mohamad
and his Deputy Prime Minister Anwar Ibrahim, who argued for a
less authoritarian regime.145 In 1998, Anwar Ibrahim was dismissed
138 According to Lent, 31 executions were carried between 1976 and 1984. Lent J., op. cit.,
1984, p. 445. According to Donoghue, in March 1963, the Deputy Minister in the Prime
Minister’s Department reported the execution of 39 people between 1980 and 1983 for
offences under the ISA. Donoghue T., op. cit., 2014.
139 Donoghue T., op. cit., 2014.
140 Malaysia Kini, “Gov’t Reveals Execution Statistics: 358 Hanged in 24 Years”, 2005,
available at: http://madpet06.blogspot.com/2005/02/mkini-govt-reveals-execution.
html (last visited January 20, 2020).
141 Donoghue T., op. cit., 2014.
142 Amnesty International, op. cit., 1999, p. 4.
143 In Indonesia, President Suharto resigned in 1998 after 32 years in power.
144 Amnesty International, op. cit., 1999, p. 4.
145 Anwar for instance stated: “I emphasize the issues of civil society, fundamental liberties
and the trust and wisdom that the public, with exposure to education and knowledge,
should be able to exercise.” Anwar in Langlois A.J., The Politics of Justice and Human
Rights: Southeast Asia and Universalist Theory, Cambridge University Press, 2001, p. 15.
It shall be noted that the economic policies supported by Mahathir have caused the
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from office and arrested for sodomy and corruption under the
ISA. Between September 1998 and early 1999, at least 27 others
were arrested under the ISA, including Anwar’s political associates,
friends and members of student movements.146 Nallakaruppan, a
friend of Anwar Ibrahim’s, was charged with illegal possession of
ammunition, an offence punishable by death. Several observers
saw this detention as a means of increasing pressure on Anwar.147
Nallakaruppan’s lawyer indicated that he was offered a reduction
of his charges if he agreed to testify falsely against Anwar Ibrahim.
His charges were eventually reduced in 1999. Anwar’s politicized trial
and subsequent conviction for sodomy and corruption were seen by
the international community as signs of the decline of democracy
in Malaysia.148 The Reformasi, a protest movement launched after
Anwar Ibrahim’s arrest, spread throughout the country and brought
civil society closer together.149 Prime Minister Mahathir Mohamad
remained in power until his voluntary resignation in 2003.
A growing anti-death penalty movement
From the mid-1990s onwards, human rights became an increasingly
prominent issue in the public debate in Asia. The ASEAN Ministers
recognised the importance of establishing a regional human rights
mechanism and initiated numerous meetings to enhance dialogue
on this subject.
The debate on the death penalty has grown and the anti-death
penalty movement has strengthened. While the Malaysian Bar Council
took its first anti-death penalty resolution in 1986, it was in 2006 that
its public stand in favour of the abolition of the death penalty became
more and more visible. Anti-death penalty resolutions have been
regularly adopted since then. In 2009, SUHAKAM recommended the
abolition of the death penalty: “SUHAKAM views the death penalty
as a cruel, inhuman and degrading punishment. A serious review is
required in terms of its relevance and effectiveness in Malaysia as a
form of punishment toward retribution and deterrence. In the short
term, the Government should consider a moratorium on the death
146 Amnesty International, op. cit., 1999, pp. 25-26.
147 Hwang I., Personalized Politics: The Malaysian State Under Mahathir, ISEAS, 2003, p. 304;
Singh D., Southeast Asian Affairs, ISEAS, 2000.
148 Eldridge P., op. cit., 2002, p. 11. Several countries, including the Philippines and the United
States, expressed regrets over this conviction. In 1999, Amnesty International declared
him a prisoner of conscience.
149 Eldridge P., op. cit., 2002, p. 99.
sentence or commuting the death sentence to life imprisonment,
especially for those who have been on death row for more than
5 years. In the long term, the Commission recommends abolition of
the capital sentence.”150 Since 2009, SUHAKAM is accredited with an
A status, meaning that it fully complies with the Principles relating
to the Status of National Institution, illustrating, among others, its
independence and impartiality.151 SUHAKAM is one of the world’s
most active National Human Rights Institutions on the abolition of
the death penalty.
Since that time, the abolitionist movement, led by the Bar Council
and SUHAKAM,152 has become more and more structured. In 2010, the
campaign in favour of Yong Vui Kong, a Malaysian citizen sentenced to
death when he was 19 for carrying out 47.27 grams of heroin in Singapore,
was overwhelmingly supported by Malaysian and Singaporean citizens
and opposition parties: more than 100,000 signatures were collected
in one month.153 Yong Vui Kong’s death penalty was eventually lifted
in 2013, after amendments in Singapore’s anti-drug law.
The abolitionist movement has been joined and actively supported
by a number of national, regional and international actors. At the
national level, numerous abolition activities were implemented by the
Civil Rights Committee of the Kuala Lumpur and Selangor Chinese
Assembly Hall, Malaysians against the Death Penalty and Torture
(MADPET), Lawyers for Liberty, SUARAM and the National Human
Rights Society of Malaysia (HAKAM). At the international level, the
movement was supported by Amnesty International, The Death Penalty
Project, Harm Reduction International, Together Against the Death
Penalty (ECPM) and the World Coalition Against the Death Penalty.
At the regional level, the Anti-Death Penalty Asia Network (ADPAN),
initially led by Amnesty International, was transformed in 2012 into
an independent network: building on the existence of a structured
network in Malaysia, the headquarters of ADPAN was established in
Kuala Lumpur, strengthening abolitionist action in the country. The rise
of the anti-death penalty movement led notably to the organisation
by ECPM, in partnership with ADPAN and the Malaysian Bar Council,
150 SUHAKAM, Annual report 2009 – Human Rights Commission of Malaysia, 2010.
151 Global Alliance of National Human Rights Institutions, Accreditation status as of
8 August 2018.
152 See the many activities carried out by SUHAKAM in ECPM, Abolition of the Death
Penalty: A Practical Guide for NHRIs, 2019, pp. 70-71.
153 The Online Citizen, “Vui Kong’s Family Pleads at Istana”, 2010, available at: https://
www.theonlinecitizen.com/2010/08/24/breaking-news-vui-kongs-family-pleads-at-
istana/ (last visited January 20, 2020).

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of the Second Regional Congress against the Death Penalty in Kuala
Lumpur in 2016. These efforts towards abolition have been reinforced
by an advocacy work with Parliamentarians, led by ADPAN, ECPM, and
Parliamentarians for Global Action, in partnership with the Ministry
of Justice. Several round tables, consultations and interviews were
organised with Malaysian Members of the Parliament, in Malaysia and
abroad. A regional seminar was held in Kuala Lumpur in 2018 with
representatives of the Australian, Filipino, Malaysian, Pakistani and
Papua-New-Guinean Parliaments. In 2018, the Malaysian Coalition
Against the Death Penalty was born: initially composed of three
organisations (the Civil Rights Committee of the Kuala Lumpur and
Selangor Chinese Assembly Hall, SUARAM and Amnesty International
Malaysia), the Coalition has since expanded to include individual
members (lawyers Abdul Rashid Ismail, Khaizan Sharizad Bt Ab Razak
(Sherrie) and Andrew Khoo).154
In the meantime, a number of reports and studies have been
published, illustrating the many flaws and miscarriages of justice in
the administration of the death penalty.155 In 2018, a study by the
Penang Institute, conducted on 289 court cases, revealed that 28%
of the High Court and 50% of the Court of Appeal judgments on
death penalty cases were overturned by the respective immediate
higher courts.156 The frequency and inconsistency of court decisions
in death penalty cases illustrate the high likelihood of wrongful
executions and miscarriages of justice.157
Decrease in executions and signs of a change in attitude
Since 1997, the number of executions has decreased considerably.
Between 1997 and 2015, Amnesty International reported an average
of two executions recorded per year, with no executions recorded in
1998-1999, 2003-2005 and 2012.158 Nevertheless, at least 13 people
were executed in 2016 and 2017.159
154 Read Khaizan Sharizad Bt Ab Razak (Sherrie) and Andrew Khoo’s interviews on p. 66
and 69.
155 See for instance, reports of SUHAKAM, Amnesty International, ADPAN, MADPET or ECPM.
156 Chee Han L., Chow Ying N., Arivananthan H., High Incidence of Judicial Errors in Capital
Punishment Cases in Malaysia, Penang Institute, 2018, p. 9.
157 Ibid.
158 Amnesty International Malaysia, “A Brief History of the Death Penalty in Malaysia”,
2019, available at: https://www.amnesty.my/abolish-death-penalty/a-brief-history-of-
the-death-penalty-in-malaysia/ (last visited January 17, 2020). See also Johnson D.T.,
Zimring F.E, “Death Penalty Messons from Asia”, The Asia-Pacific Journal, Vol 7, Issue 39,
2009; and Pascoe D., op. cit., 2019, p. 129-130.
159 Amnesty International, op. cit., 2019, p. 16.
The death penalty was last introduced into Malaysian law in 2003
for people convicted of rape resulting in death and child rape. Since
then, decision-makers have begun to recognise the ineffectiveness
of the death penalty in combating drug trafficking and to criticize
the application of the death penalty. After long considering the
death penalty as a symbolic deterrent to drug use and drug-related
crime, a member of the ruling party stated during a Parliamentary
debate in 2005 that “The mandatory death sentence […] has not
been effective in curtailing drug trafficking.”160
In 2006, the Ministry of Justice stated that he supported the abolition
of the death penalty because “No one has the right to take someone
else’s life, even if that person is a murderer.”161 In 2010, the Minister
in the Prime Minister’s office in charge of Legal and Parliamentary
affairs declared his opposition to the death penalty. He stated: “If
it is wrong to take someone’s life, then the government should not
do it either.”162 However, he made abolition conditional on public
support.163 In fact, despite the success of the Vui Kong campaign,
it has often been said that the public supports the use of the
mandatory death penalty, which would be an obstacle to any reform
of the death penalty in Malaysia.164 In 2013, the report on Malaysian
citizens’ attitudes and opinions towards the use of death penalty
concluded that “There would be little public opposition to abolition
of the mandatory death penalty for drug trafficking, murder, and
firearms offences. Public support for the death penalty for murder
is also lower than is perhaps assumed, so may not be regarded as
a definite barrier to complete abolition.”165
In 2013, the Malaysian government demonstrated a change in
attitude towards the death penalty during the UPR review. It stated:
“The Government had taken the initiatives to undertake a study
on comprehensive reform of administration of criminal justice in
Malaysia, including on death penalty. […] Only very few cases result
160 Malaysia Kini, “229 Executed for Drug Trafficking in Past 30 Years”, in Harm Reduction
International, “‘I’m a Believer’… Singapore’s Use of the Death Penalty for Drugs Defended
Using Faith-Based Evidence”, 2009.
161 Citations in “Malaysians Against the Death Penalty and Torture blog”, in Johnson D.T.,
Zimring F.E, op. cit., 2009.
162 Chee Han L., Chow Ying N., Arivananthan H., op. cit., 2018.
163 Hood R., Hoyle C., The Death Penalty. A Worldwide Perspective, Oxford University Press,
2008, p. 106.
164 Lehrfreund S., Jabbar P., in Hood R., The Death Penalty in Malaysia. Public Opinion on
the Mandatory Death Penalty for Drug Trafficking, Murder and Firearms Offences, The
Death Penalty Project, p. iii-iv.
165 Ibid., p. 43.

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in the accused being sentenced to death. In this connection, it seems
fair to conclude that there exists to a certain extent a conscious
initiative or trend against the implementation or execution of the
death penalty.”166 This shift was confirmed several times subsequently,
including in 2016 by Nancy Shukri, the then Minister of Law, who
stated at the Oslo Congress against the Death Penalty that: “There
are positive signs in Malaysia and a steady momentum towards
possible change in the death penalty legislation.”167
Several amendments were made to the legal framework. In 2012, the
ISA was repealed, resulting in the removal of the mandatory death
penalty for illegal possession of firearms.168 In 2017, the Dangerous
Drug Act was amended to abolish, under certain conditions, the
mandatory requirement of the death penalty for drug crimes. The
reform has allowed judges to use their discretion and take mitigating
factors into account in sentencing. However, this discretion can be
exercised only if: 1) the person convicted has assisted an enforcement
agency in disrupting drug trafficking activities within or outside
Malaysia; and 2) there is no evidence of buying and selling of a
controlled substance at the time when the person convicted was
arrested; or 3) there is no involvement of agent provocateur;169 or
4) the involvement of the person convicted is limited to the role of
courier.170 These conditions are difficult to reach. If they are not met,
the death penalty remains mandatory. In other cases, the penalty is
imprisonment and whipping. It should be noted the amendment has
retained the presumption of guilt of drug trafficking if defendants
are found with a specific quantity of drugs. Furthermore, the
amendment, which came into force in March 2018, does not apply
166 UN Human Rights Council, op. cit., 2013, para. 47.
167 The Star Online, “Nancy: Malaysia One Step Closer to Amending Death Penalty”, 2016,
available at: https://www.thestar.com.my/news/nation/2016/06/22/nancy-malaysia-
one-step-closer-to-abolishing-death-penalty/ (last visited March 5, 2020).
168 Since its enactment in 1960, more than 4,000 have been detained under the ISA to
counter the remain communist threat in Malaysia, to justify inter-ethnic harmony or
to fight terrorism. Amnesty International, 2003. Despite the abolition of the ISA, the
indefinite detention without trial provided in the ISA will remain, since the act was
replaced by other security laws which fail to meet international human rights standards
and may result in torture or ill-treatment. The Security Offences (Special Measures)
Act (SOSMA) which was introduced in April 2012, allows police to detain suspects
incommunicado for 48 hours and allows detention without charge or access to courts
for up to 28 days. The Prevention of Terrorism Act (POTA) provides for the indefinite
detention of terrorism suspects without charge, trial or judicial review.
169 An agent provocateur may be an undercover police or customs officer, used to entice or
provoke the commission of an offence.
170 The role of courier is defined as transporting, carrying, sending or delivering a controlled
substance.
retroactively: those sentenced to death for drug trafficking before
that date do not benefit from the change of the law, contrary to
norms of international law.171 Thus, hundreds of men and women may
currently be on death row in Malaysia for crimes that are no longer
punishable by the death penalty.
While the number of people executed has decreased, Malaysian
judges continued to impose the death penalty. As a result, the death
row population has continued to increase, from 245 persons in 1996
to 1,280 in 2019.172
Focus on the death penalty and public opinion
By Roger Hood and Saul Lehrfreund173
In 2013, The Death Penalty Project, with the support of the
Bar Council and the Human Rights Commission, published a
public opinion survey aimed to assess the level of support
for the death penalty and, in particular, for the mandatory
death penalty.
This showed conclusively that when faced with making
decisions on 12 “scenarios” representing various examples
of cases where persons had been convicted of murder,
trafficking in narcotics or intentionally discharging a firearm
while committing various crimes – for all of which the legal
penalty was a mandatory death sentence – only 1.2 per cent
of the sample of 1,535 citizens chose death as the appropriate
penalty for all the cases they were asked to judge. As far as
cases of drug trafficking were concerned, only one in 12 of
the respondents chose death as the punishment for all four
examples of drug trafficking, as the law would have required
them to do. In fact, death was rarely chosen when a mitigating
circumstance was present and even when they were asked
171 The UN Death Penalty Safeguard No. 2 provides that: “Capital punishment may be
imposed only for a crime for which the death penalty is prescribed by law at the time of
its commission, it being understood that if, subsequent to the commission of the crime,
provision is made by law for the imposition of a lighter penalty, the offender shall benefit
th er eb y.”
172 Liew Chin Tong, Deputy Defence Minister of Malaysia, in The Malaysian Insight,
“Rethinking the Death Penalty”, 2018 available at: https://www.themalaysianinsight.
com/s/105908 (last visited January 20, 2020).
173 Authors of The Death Penalty in Malaysia. Public Opinion on the Mandatory Death Penalty
for Drug Trafficking, Murder and Firearms Offences, The Death Penalty Project, 2013

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to “judge” the very serious offence of attempting to import
a large amount of heroin, only 30% thought that the person
convicted deserved the death penalty: even though 74% had
said they were in favour of the death penalty for trafficking
heroin. In six cases of murder, 91% said they supported the
death penalty, but the highest proportion of citizens choosing
the death penalty when presented with the facts of a case
was 65%, for an aggravated case of a robbery-murder by
a previously twice-convicted robber. In two of the three
scenarios where there were mitigating circumstances, less
than a quarter imposed the death penalty. Thus “saying” that
one is in favour of the death penalty was not the same as
choosing death as the appropriate punishment in all, or even
the majority of, circumstances. The findings of this research
were widely accepted in Malaysia and ought to be remembered
when people turn to public opinion as their justification for
resisting proposals to abolish capital punishment.
The “New Malaysia” (2018-2020)
The momentum towards full abolition
of the death penalty
In May 2018, for the first time since the country’s independence,
Malaysia experienced a change of government. The Pakatan Harapan
alliance (Alliance of Hope), led by former Prime Minister Mahathir
Mohamad, won the elections with the commitment to “Make
[Malaysia’s] human rights record respected by the world” and to
abolish oppressive laws, including all acts providing for mandatory
death by hanging.174 In July 2018, the government imposed a
moratorium on executions. In August 2018, the death sentence of
Muhammad Lukman Mohamad, convicted of possessing, processing
and distributing cannabis oil to cancer patients, provoked a wave
of protests in the country and internationally.175
174 Principles 26 and 27, in Pakatan Harapan, Rebuilding our Nation, Fulfilling our Hopes,
2018, pp. 60-61.
175 See for instance The New York Times, “Malaysia to Repeal Death Penalty and Sedition
Law”, 2018, available at: https://www.nytimes.com/2018/10/11/world/asia/malaysia-
death-penalty-repeal.html (last visited February 18, 2020).
In September 2018, the Prime Minister pledged at the UN General
Assembly that “The ‘New Malaysia’ will firmly espouse the principles
promoted by the United Nations in its international engagements”,
which include “The principles of truth, human rights, the rule of
law, justice, fairness, responsibility and accountability, as well as
sustainability.”176 A few weeks later, on 10 October 2018, on the
occasion of the World Day Against the Death Penalty, the government
pledged to officially abolish the death penalty for all crimes. At the
end of October, and for the first time, the Malaysian government
took an interest in the situation of its citizens sentenced to death
abroad and intervened before the authorities of Singapore to stop
the execution of one of its nationals.177
In December 2018, the country voted for the first time in favour of
the UN Resolution on the abolition of the death penalty.
A U-turn on the abolition of the death penalty?
While the abolitionist movement warmly welcomed the government’s
announcements, some civil society, opposition movements and
victims’ families expressed strong dissatisfaction, calling for
demonstrations against abolition.178 Several surveys on the death
penalty were carried out by media, with percentages of people
opposed to the abolition of the death penalty varying from 45%
to 82%, illustrating the strong polarization of the public opinion on
this matter.179 This vehement opposition to abolition had not been
expected by the authorities, and led to a policy change.
In March 2019, the government stated that it only planned to abolish
the mandatory death penalty for 11 offences under the Penal Code
176 New Straits Times, “Dr M Pledges to Uphold UN Principles in New Malaysia”, 2018,
available at: https://www.nst.com.my/news/nation/2018/09/415933/dr-m-pledges-
uphold-un-principles-new-malaysia (last visited January 20, 2020).
177 New Straits Times, “Despite Pleas, Malaysian Prabu Pathmanathan Executed in Singapore”,
2018, available at: https://www.nst.com.my/news/crime-courts/2018/10/425084/despite-
pleas-malaysian-prabu-pathmanathan-executed-singapore (last visited February 18,
2020).
178 The Star Online, “Ummah Threatens to March if Govt Goes Ahead with Death Penalty
Abolition”, 2019, available at: https://www.thestar.com.my/news/nation/2019/02/12/
ummah-threatens-to-march-if-govt-goes-ahead-with-death-penalty-abolition (last
visited March 05, 2020).
179 The Star Online, “45% Against Total Abolition of Death Penalty”, 2018, available at:
https://www.thestar.com.my/news/nation/2018/10/13/45-against-total-abolition-of-
death-penalty (last visited March 05, 2020); New Straits Time, “Online Poll Reveals
Majority of Netizens Opposed to Death Penalty Abolition”, 2018, available at: https://
www.nst.com.my/news/nation/2018/10/420315/online-poll-reveals-majority-netizens-
opposed-death-penalty-abolition (last visited March 05, 2020).

54 Isolation and Desolation
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and the Firearms (Increased Penalties) Act 1971, leaving it to the
courts to decide on the death sentence. No further amendments to
the Dangerous Drugs (Amendment) Act are envisaged, although 72%
of those sentenced to death have been convicted on this basis in
2018 alone.180 According to observers, this reversal of commitments
was due to pressure from opposition parties, specifically the
MCA.181 Human rights organisations expressed their profound
disappointment.182 A Special Committee to Review Alternative
Punishments to the Mandatory Death Penalty has been set up and
has submitted its report, but its conclusions had not yet been made
public at the time of writing this report.
In February 2020, the Pakatan Harapan alliance collapsed, undermined
by internal struggles and controversies. The abrupt resignation of
Prime Minister Mahathir Mohamad came as a surprise. In March 2020,
the nomination of Muhyiddin Yassin, a Malay nationalist supported
by UMNO, created unprecedented uncertainty about the reforms
initiated by the previous government, in particular regarding the
abolition of the death penalty.
Death sentence cases continued to be handed down. In 2018 alone,
official figures indicate that 190 people were sentenced to death
during the year, including 136 for drug-related offences (72%), 48 for
murder (25%), 3 for firearms offences (2%) and 3 for kidnapping
and murder (2%).183
180 Amnesty International, op. cit., 2019, p. 23.
181 SUARAM, Human Rights Report 2018: Civil and Political Rights, 2019, p. 132.
182 The Star Online, “Pakatan’s Human Rights Reforms a ‘Profound Disappointment’,
Says Human Rights Watch”, 2019, available at: https://www.thestar.com.my/news/
nation/2019/05/08/pakatans-human-rights-reforms-a-profound-disappointment-
says-human-rights-watch (last visited January 20, 2020).
183 Amnesty International, op. cit., 2019, p. 23.

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THE LONG JOURNEY THROUGH
THE CRIMINAL JUSTICE SYSTEM

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investigation, while interviews are the basis of the entire subsequent
criminal process.187
According to the legislation, the police may hold a person in custody
without a warrant for up to 24 hours to complete the investigation,188
but this remand phase may be extended to 7 days, renewable once if
the offence is punishable by a prison sentence of 14 years or more,
including in cases of capital punishment.189 NGOs report that this
period may in practice be much longer than what is provided for in
the legislation, due to the practice of “Chain Remand”, whereby the
police re-arrests a person for a different or similar offence when the
remand order expires.190 Numerous cases of police brutality have
been reported during this period of detention. According to the
Malaysian NGO Suara Rakyat Malaysia (SUARAM), the number of
people who have been tortured or ill-treated and who die in police
custody is quite high. Between 2014 and 2018, 59 people died in
police custody.191
Proceedings in court
There are three levels of courts in Malaysia. At the first level, while
several courts have jurisdiction over criminal cases, the High Courts
are the only ones with jurisdiction over capital offences.192 The Court
of Appeal (second level) hears appeals from the High Court. The
Federal Court (third level) hears appeals from the Court of Appeal.
In Malaysia, the death sentence can be imposed at any stage of
criminal proceedings: High Court, Court of Appeal and Federal
Court. It is quite common for the death penalty to be handed down
in the Court of Appeal or Federal Court, even if a person has been
acquitted by the lower court.
Detailed provisions on appeal procedures and on the execution are
set out in Section 281 of the Malaysia Criminal Procedure Code.
187 Ibid., p. 7.
188 Criminal Procedure Code, Section 28(3).
189 Criminal Procedure Code, Section 117(2)(b).
190 See for instance SUARAM, Malaysia: Human Rights Report 2017 Overview, 2017, p. 14.
See also Amnesty International, op. cit., 2019, p. 30.
191 SUARAM, op. cit., 2019, p. 18: 18 people died under police custody in 2014, 12 in 2015,
15 in 2016, 10 in 2017 and 4 in 2018. These figures do not include figures of death in
immigration centres or prisons.
192 In criminal matters, the first instance is divided between High Courts, Sessions Courts
(which have jurisdiction to try all criminal offences except those punishable by death)
and Magistrates Courts (for smaller offences). For the jurisdiction of High Courts, see
Courts of Judicature Act 1964, Section 22.
Between their arrest for a capital offence and the result of their
clemency application, people sentenced to death undergo a long
journey through the criminal justice system. Research conducted in
recent years and interviews have shown that each of these steps
is likely to result in a miscarriage of justice. Moreover, the duration
of this process, in particular the wait for a response to a clemency
application, which can take more than 10 years, is extremely trying.
A criminal justice process far from perfect
Malaysian criminal procedure for capital cases has four main phases:
arrest, remand, trial – which may comprise three procedural stages –
and the clemency process.
Figure 5: Main phases of the criminal justice system
Arrest Remand Trial Clemency
Arrest and remand phases
According to the Constitution and laws of Malaysia, people arrested
in the country hold several rights, such as the right to be informed
as soon as may be of the grounds of their arrest, the right to
consult and be defended by a legal practitioner of their choice,184
or the right to communicate with a relative or a friend to inform
of their whereabouts.185 Despite the legal framework, human rights
organisations have repeatedly revealed the critical restrictions on
access to legal counsel, which prevent persons arrested for capital
crimes from receiving good quality legal assistance before charges
are brought.186 The situation of foreign citizens or Malaysian nationals
who do not speak Bahasa Malaysia is particularly concerning:
they do not always receive professional interpretation during the
184 Federal Constitution, Section 5(3); Criminal Procedure Code, Section 28(A).
185 Criminal Procedure Code, Section 28(A).
186 Amnesty International, op. cit., 2019, p. 30. See also ADPAN, ECPM, The Advocates for
Human Rights, MADPET, The KL and Selangor Chinese Assembly Hall, Harm Reduction
International and the World Coalition Against the Death Penalty, Malaysia – 31st
session of the working group on the Universal Periodic Review, 2018, p. 7.

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Figure 6: Stages of court proceedings in capital cases
Several recent reports have highlighted the many shortcomings of
the right to a fair trial before the criminal courts in Malaysia. The
quality of legal representation was found to be poor. In addition,
while extortion of confessions is a criminal offence carrying a penalty
of imprisonment and a fine, coerced confessions or statements
are often used in drug trafficking cases by the prosecution to
strengthen their evidence against defendants.193 Furthermore, the
presumption of guilt established under the Dangerous Drug Act and
the Firearms (Increased Penalties) Act194 is in direct contradiction
with the fundamental principle of the presumption of innocence,
which is one of the foundations of criminal justice. Article 11(1)
of the Universal Declaration of Human Rights provides: “Everyone
charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he
has had all the guarantees necessary for his defence.” In Malaysia,
people have been sentenced to death simply because they failed
to prove that they were not guilty.195
193 Amnesty International, op. cit., 2019, p. 30. On the penalties applicable to forced
extortion, see Penal Code, Sections 330 (extorting confession by voluntarily causing
hurt), 331 (extorting confession by voluntarily causing grievous hurt) and 348 (wrongful
confinement to extort confession).
194 Contrary to the Dangerous Drugs Act, that provides for a presumption of guilt in death
penalty cases, the Firearms (Increased Penalties) Act provides for a presumption of
guilt in cases of unlawful possession of firearms, but this offence does not carry the
death penalty. See Firearms (Increased Penalties) Act, Section 9.
195 See for instance ADPAN, Malaysia: Reza Mohammed Shah Bin Ahmed Shah, 2011; The
Advocates for Human Rights and Harm Reduction International, Report to the 17th
Session of the Working Group on the Universal Periodic Review, United Human Rights
Council, 2013, para. 15.
The lack of due process of law in Malaysia is contrary to the 1984
UN Safeguards which provide that “Capital punishment may be
imposed only when the guilt of the person charged is based upon
clear and convincing evidence leaving no room for an alternative
explanation of the facts”.196 In a legal system where a person is
presumed guilty of committing an offence carrying the death penalty,
may be forcibly compelled to make a confession and may not always
be represented by quality counsel, there is indeed a significant risk
of sentencing innocent people to death, and a high probability of
irreversible wrongdoing. As one Malaysian lawyer interviewed said:
“How do you bring back a dead person?”
Lack of information on the clemency process
“It is all in limbo”
– Lawyer, speaking of a case awaiting the outcome of a clemency
application
An application for clemency is the last resort available to people
sentenced to death. If these proceedings are successful, they can
have their sentence commuted to a prison term, a full pardon or be
granted a temporary stay of execution.197 The power to grant clemency
is exercised, on the advice of a Pardons Board,198 by the Malaysian
King (the Yang di-Pertuan Agong) in federal and security cases, and
by the rulers of the State in other cases.199 While Section 42 of the
Constitution and Sections 300 and 301 of the Malaysian Criminal
Procedure Code provide some information on the composition of the
Pardons Board and the power to suspend or commute sentences, the
clemency process is very opaque. There are no laws or regulations
describing clemency application procedures or the criteria used in
such procedures. Some families explained that they had no idea they
had this last resort. Mohamed, whose brother has been on death row
196 UN Death Penalty Safeguards No. 4. See, among others, the numerous Amnesty
International reports on death penalty cases; Chee Han L., Chow Ying N., Arivananthan H.,
op. cit., 2018.
197 Pascoe D., op. cit., p. 134; and Criminal Procedure Code, Sections 281(C) and 281(D).
198 Section 42 of the Constitution provides: “The Yang di-Pertuan Agong has power to grant
pardons, reprieves and respites in respect of all offences which have been tried by court-
martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and
Putrajaya; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons,
reprieves and respites in respect of all other offences committed in his State.”
199 There are nine States which have hereditary rulers (Sultans of State, or Yang di-Pertuan
Besar). There are four States which do not have rulers. In these States, the clemency is
exercised by appointed State governors (Yang di-Pertua Negeri). See Pascoe D., op. cit.,
2019, p. 133.
1st level:
Decision of High Courts
2nd level:
Court of Appeal
3rd
level:
Decision
of Federal Court
Clemency process
(Ruler of the State
or the King)

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for 20 years, has just discovered that this recourse exists, thanks
to an NGO. Anna, wife of a man sentenced to death 10 years ago,
was also only recently informed of the right to seek clemency by
an NGO. She explained that she is lost in the process: “The process
is vague. There are no procedure or guidelines to refer to.” The law
also does not provide for the right to legal counsel in a clemency
procedure. In addition, there is no statutory time limit for the hearing
of a clemency application: the Attorney General requests an audience
with the ruler or the governor before a Pardons Board meeting is
initiated, but it is the ruler or governor who decides if and when
the meeting will take place. It can take several years for a Pardons
Board to meet, although in recent years the Pardons Boards have
been meeting more frequently.20 0
Once the application is sent, no information is provided to the
prisoners or their families until the outcome is known. Some people
are not even sure that the clemency petition was received. Amirah,
a friend of a person detained for drug use, said: “I have submitted
documents related to the clemency petition to the Ministry of Home
Affairs. They said they would submit it to the Pardons Board. But
when I went there and checked, the Board said they had not received
receive anything from the Ministry.” Michelle, a foreigner from China,
was arrested in 2010 and her last appeal was finalized in 2015. She
filed the clemency application on her own, after her appeal: “I cannot
write in their language, so I wrote my petition in Chinese. I do not
know what has happened to my petition.”
In 2018, the Prison Department reported that 165 persons sentenced
to death between 2007 and 2017 had had their sentence reduced
by the Pardons Boards of various States.201 This is a relatively high
clemency rate. Pascoe estimates that 55-63% of all finalized death
penalty cases were granted clemency between 1991 and 2016.202 On
the basis of his studies, he explained that most clemency grants “May
have been based on good behaviour, religious piety, and expressed
remorse over the course of a long period spent on death row.”203
Pascoe points out that the long stay on death row may have been
used by the authorities as a justification for granting clemency, as it
200 Pascoe D., op. cit., 2019, pp. 153-154.
201 The Star Online, “165 on Death Row Escaped the Gallows From 2007 to 2017”, 2018,
available at: https://www.thestar.com.my/news/nation/2018/06/28/165-on-death-
row-escaped-the-gallows-from-2007-to-2017/ (last visited February 10, 2020).
202 Pascoe D., op. cit., 2019, p. 136
203 Ibid., p. 139.
may increase remorse and positive change of attitude of prisoners.
However, the secrecy of the clemency process has very serious
consequences for the mental state of prisoners and their families,
as will be discussed in the next section.
The indefinite wait:
63 people on death row for more than 10 years
“I am old, and I do not have much time to live. I just wish that we
can have information about the clemency process”
– Rina, mother of a man detained since 2003
Figure 7: Duration of the criminal justice process in capital cases
Pre-trial
• 2 to 5 years
Trial
(three
stages)
• Up to 10
years
Clemency
• Up to 12
years
Total =
Up to 27
years
The length of time in prison is often “interminable”.204 Pre-trial
detention may be quite long. Amnesty International estimates that
the majority of those sentenced to death have spent between 2
and 5 years in pre-trial detention.205 If the accused appeals the
decision up to the Federal Court, the time elapsed between the initial
conviction and the final appeal can take up to 10 years.206 This was
confirmed by the lawyers interviewed for this report. According to
discussions with SUHAKAM, it is common for prisoners sentenced
to death to wait 10 to 12 years for a clemency decision. The total
length of the criminal proceedings in capital cases can therefore
be of up to 27 years.
The duration of stay in prison under a death sentence can be very
long. As Pascoe points out, “With neither acquittals on appeal nor
clemency being granted as often as is needed to reduce the size
204 Ibid., p. 154.
205 Amnesty International, op. cit., 2019, p. 24.
206 SUARAM, Human Rights Report 2016: Civil and Political Rights, 2016, p. 173.

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of death row, the present pattern for most condemned prisoners
is indefinite delay.”207 In 2019, Amnesty International reported that
453 persons sentenced to death (36% of death row prisoners)
have spent between 6 and 10 years in Malaysian prisons, awaiting
execution. 49 persons (4%) have been on death row between 11
and 15 years, and 14 people (1%) for more than 15 years.208 One
person, detained in Simpang Renggam prison, was sentenced to
death in 1992, 27 years at the time of publication of Amnesty
International’s report.
Figure 8: % of persons on death row in Malaysia,
by year of death sentence (February 2019)209
Prisoners, families and institutions interviewed indicated that the
anxiety of waiting for the outcome of the clemency is the worst of
all. Ali, who has been on death row for 12 years, said: “Waiting for
my clemency petition feels like hanging out of nowhere.” He has
attempted suicide twice since his incarceration.210
207 Pascoe D., op. cit., 2019, p. 132.
208 Information based on Amnesty International, op. cit., Annex 2, 2019, pp. 52-56.
209 Ibid.
210 See more information on the mental health of death row prisoners infra, Sub-Section
“Death row syndrome: Extreme psychological distress of people sentenced to death”.
Before 2018 (16%)
Between 2014 and 2017 (42%)
Between 2009 and 2013 (36%)
Between 2004 and 2008 (4%)
Before 2004 (1%)
Unspecified (1%)

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been discussed. The Malaysian Bar has also brought up this issue
in its dialogues and discussions with the government, the judiciary,
the police and officials from the prisons department.
The Malaysian Bar has continued to highlight the issue of the
death penalty, and also the mandatory death penalty, at various
international human rights meetings and conferences, including all
three cycles of the Universal Periodic Review of Malaysia by the
United Nations Human Rights Council in 2008, 2013 and 2018. I am
the author/editor of the three Malaysian Bar’s written submissions
to the Universal Periodic Review process. In each, I have highlighted
the injustice of the death penalty, in line with the Malaysian Bar’s
position. I have been a part of many civil society efforts to abolish
the death penalty in Malaysia.
More recently, in 2017, when the then-government proposed to amend
the Dangerous Drugs Act 1952 to provide for judicial discretion
in imposing the death penalty for drug trafficking, I was part of a
delegation of lawyers that briefed the parliamentary opposition on the
drawbacks of the government’s proposals. This led to the government
withdrawing some of the more objectionable provisions. In 2018, after
the new government came into office in Malaysia, I wrote to several
ministers of the new government to ask them to totally abolish the
death penalty in Malaysia. This was above and beyond the new
government’s manifesto pledge to abolish only the mandatory death
penalty. On 10 October 2018 the government of Malaysia agreed to
totally abolish the death penalty. Sadly, however, within a few months
that decision was reversed due to domestic political pressure.
I was invited to be part of a joint European Union-United Kingdom
delegation that visited Taiwan in March 2019 to lobby the government
of Taiwan to abolish the death penalty. Our visit was favourably
received. In February 2019 I was invited to speak at one of the panels
of the 7th World Congress Against the Death Penalty in Brussels,
Belgium. In October 2019, I returned to Taiwan to speak about the
role of civil society in abolishing the death penalty at the 40th
Congress of the International Federation of Human Rights. I have
also spoken at various conferences, meetings, forums, seminars and
workshops on the abolition of the death penalty in Belgium, Canada,
Indonesia, Nepal, Switzerland, Thailand and the United States, and in
Malaysia. I have spoken to governments, human rights commissions,
law enforcement agencies, lawyers and law associations, university
students and members of the public. I have also done radio and
online media interviews.
INTERVIEW WITH ANDREW KHOO
Lawyer, elected member of the Malaysian Bar Council, Co-Chair
of the Constitutional Law Committee
What has been the role of the Malaysian Bar Council in the fight
against the death penalty?
The Malaysian Bar Council is the principal body of practising lawyers
in peninsular Malaysia. Our current membership is approximately
20,000. One of the objectives of the Malaysian Bar pursuant to our
establishing legislation, the Legal Profession Act 1976, has been to
uphold the rule of law and the cause of justice, without fear or favour.
As part of these objectives, the Malaysian Bar seeks to explain the
law to members of the public, and to intervene in cases of manifest
injustice. Explanations and education normally take the form of
press statements, ‘op-eds’ and other articles published both in print
and online media. Members of the Malaysian Bar have also been
interviewed on television, radio and online to disseminate our views on
the abolition of the death penalty. Intervention may take the form of
directly speaking, writing or advocating to the Malaysian government,
or commencing or participating in legal proceedings in Malaysian
courts. Members of the Malaysian Bar who practise criminal law offer
themselves as counsel in capital punishment cases as part of a legal
representation system managed by the courts. The Malaysian Bar has
also worked to prevent or defer executions of death-row inmates both
in Malaysia and Singapore, including by making last-minute verbal
appeals to the government of Malaysia and also petitions to the High
Commission of Singapore in Kuala Lumpur.
What have been the main actions undertaken by the Bar, and by
you in particular?
The Malaysian Bar has on several occasions over the past years
adopted resolutions at its Annual General Meetings, calling upon
the Malaysian government to totally abolish the death penalty.
They have been reaffirmed several times. In furtherance of these
resolutions, the Malaysian Bar has both organised and participated
in public forums, seminars and workshops where the rule of law,
access to justice, criminal law reform and the death penalty have

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INTERVIEW WITH
KHAIZAN SHARIZAD BT AB RAZAK (SHERRIE)
Filmmaker and lawyer
How did you come to represent death row prisoners?
I was assisting my former law firm partner Amer Hamzah Arshad,
who is a senior criminal law counsel.
You’ve been following death row prisoners for several years. From your
point of view, how does detention, especially prolonged detention,
affect their psychological state?
In my view, it depends on the individual. Those with whom I have
been in contact remained hopeful of their chances to be released.
It also depends on the support from family and friends that they
received either via physical visits or phone calls.
Has the representation of prisoners sentenced to death changed
the way you work as a lawyer?
Not really because access to justice for marginalised groups cuts
across different criminal offences. Their knowledge of their rights
and access to legal representation are usually the biggest hurdles.
Most of those I have worked with are from the lower income and less
educated groups. From the moment they were arrested, what they
were told by the police and what exactly their legal rights are, are
usually blurred. There is a huge misinformation gap and/or pressure
to confess a crime that they may not have committed.
My experience in assisting people facing the death penalty is more
harrowing because the end result if the appeal and/or the pardon
is not allowed is an irreversible punishment for them. It is after all
an imperfect justice system that we are working with.
You co-directed a documentary, Menunggu Masa, about a man
wrongfully sentenced to death for murder and on death row for
more than 15 years now. What message did you want to convey
with that documentary?
We wanted to highlight the impact of the death penalty. It affects
not only the accused, but also his family and people around him.
Did the Bar have any specific role
during the Task Force consultations?
The Malaysian Bar was invited to nominate one representative to be
a member of the Task Force. I was nominated and then appointed
by the Prime Minister. The Task Force conducted various town
hall meetings around the country, focus group discussions and
invited written opinions and submissions from lawyers, scholars,
civil society organisations and interested individuals. We also
interviewed death row inmates. The Task Force conducted an online
questionnaire as well. Eventually, the Task Force produced a report
and recommendations which were submitted to the government of
Malaysia in February 2020.

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For 15 years, Mainthan’s wife, who was a housewife with four young
children, had to find a job to be the sole earner, not only to provide
for herself and her kids but also to look after Mainthan’s parents
when they were still alive. We also wanted to show how his family’s
support and encouragement is important to him and how much he
cares about the well-being of his wife and children despite being
on death row.
We wanted to show how the justice system is imperfect and that
despite all the doubts present in the case, Mainthan was still
convicted and his conviction was confirmed on appeal to the Federal
Court, whereas the other three co-accused, who gave a consistent
defense similar to Mainthan’s, were acquitted by the Federal Court.
We wanted to highlight that there were so many loopholes in the
case, despite the existence of new evidence. For example, the alleged
victim of the crime is still alive: he presented himself at the Federal
Court during the review application, yet the Federal Court rejected
the application.
At this stage, Mainthan has exhausted all the legal avenues and his
last chance to escape the gallows is the pardon board’s decision,
which is currently pending.

73
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SERIOUSLY DEFICIENT CONDITIONS
OF DETENTION OF PEOPLE
SENTENCED TO DEATH

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housed in the following prisons:216
Table 3: Prisons housing death row convicts (February 2019, Amnesty International)
Prison Male
prisoners
Female
prisoners
Prison Male
prisoners
Female
prisoners
Peninsular
Malaysia
East Malaysia
Kajang 243 34 Kota Kinabalu 36 3
Tapah 71 50 Puncak Borneo 28 4
Simpang Renggam 100 0Sandakan 30 0
Pokok Sena 71 22 Limbang 12 0
Kluang 86 0Sibu 10 1
Seberang Perai 72 11 Miri 8 0
Sungai Buloh 56 0Ta w a u 7 0
Pengkalan Chepa 48 7Labuan 3 0
Bentong 50 0
Taiping 48 0
Sungai Udang 36 9
Perlis 34 0
Marang 29 0
Alor Setar 27 0
Johor Bahru 23 0
Pulau Pinang 12 0
Detainees on death row, absent from prison reform
The conditions of detention of prisoners – both death row
convicts and common prisoners – are widely regarded as harsh
in Malaysia.217 In the SUHAKAM 2018 annual report, Chairman
Tan Sri Razali Ismail wrote: “Conditions of detention should not
be an added punishment, and I lament the deplorable state of
some of our prisons and detention centres that are in breach of
a number of United Nations standards.”218 Prison overcrowding
has been widely reported, particularly near major cities: 20 of the
216 Ibid., Annex 2.
217 United States Department of State – Bureau of Democracy, Human Rights and Labor,
op. cit., 2 019.
218 SUHAKAM, Annual report 2018 – Human Rights Commission of Malaysia, 2019, p. ix.
“All prisoners shall be treated with the respect due to their inherent
dignity and value as human beings. No prisoner shall be subjected
to, and all prisoners shall be protected from, torture and other
cruel, inhuman or degrading treatment or punishment, for which
no circumstances whatsoever may be invoked as a justification…”
– Rule 1, UN Standard Minimum Rules for the Treatment of Prisoners
(also known as the “Nelson Mandela Rules”)
Malaysia’s Constitution does not prohibit torture or cruel, inhuman
and degrading treatment or punishment. Malaysia has also not
ratified the Convention Against Torture nor the Optional Protocol
to Convention Against Torture (OPCAT), which obliges States to
establish an independent National Preventive Mechanism (NPM) to
monitor places where people are deprived of their liberty.211 The NPM
is an important tool for the prevention of torture and ill-treatment
in prisons, as it keeps an outside eye on prison conditions and
provides public recommendations. To date, no NPM has been set
up in Malaysia, and only SUHAKAM and the ICRC are authorized to
monitor conditions of detention, on a case-by-case basis.212
Places of detention for persons sentenced to death in Malaysia
The situation of persons sentenced to death is governed by the
Prisons Regulations 2000.213 Although death row prisoners may be
housed in the same prison than other prisoners, they live in separate
blocks and in individual cells. Prisoners on death row are spread
across 26 prisons in Malaysia, most of which are located on the
peninsula.214 Some prisons house more than 100 people sentenced to
death. For instance, Kajang men prison houses more than 240 people
on death row.215 Women are held in nine institutions. According to
Amnesty International 2019 data, people sentenced to death are
211 The prohibition of torture is, however, a norm of international customary law that applies
even if countries have not ratified the Convention. See International Criminal Tribunal for
the Former Yugoslavia (2018), The Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T.
212 United States Department of State – Bureau of Democracy, Human Rights and Labor,
op. cit., 2 019.
213 Prisons Regulations 2000, P.U.(A) 325/2000.
214 89% of death row convicts are held in prisons in peninsular Malaysia. Amnesty
International, op. cit., 2019, p. 18.
215 Ibid., p. 18.

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However, the main priority of the reform is to reduce overcrowding.227
Persons sentenced to death are therefore not considered a priority
group in the reform, since they live in individual cells.228 While the
reform aims at improving certain aspects of the living conditions
of all detainees, including those on death row (nutrition, access to
medicine, medical resources, etc.), the reform does not include any
specific provisions to make the conditions of death row prisoners
more bearable. Men and women on death row are classified as high-
risk prisoners on the basis of their death sentence. They are held in
identical conditions of detention, irrespective of their personality,
behaviour, age or mental state. For the Prison Department, men
and women sentenced to death are considered as a homogenous
group. Thus, persons who have attempted suicide, those who
behave violently towards other prisoners or officers, those who
have attempted to escape from prison, persons aged 21 or 60: all
are treated equally until their sentences are cancelled, pardoned or
executed. This issue was raised at the September 2019 prison reform
workshop with civil society. However, to date, it does not seem to
have been taken into consideration by authorities.
The use of solitary confinement for death row prisoners
“There is no real human contact here. It is just so difficult”
— Michelle, sentenced to death in 2015
The Prisons Regulations 2000 provide for very strict treatment of
death row prisoners, including limited access to outside visitors and
recreational activities.
227 In December 2019, the Deputy Minister of Home Affairs for instance instructed the
Prison Department to begin a feasibility study to introduce profit-minded prisons
for minor offences in the country. This initiative raised serious concerns from CSOs
and Parliamentarians. Malay Mail, “Profit-Driven Private Prisons not the Solution to
Overcrowding in Malaysian Prisons, Say Rights Groups and MPs”, 2019, available
at: https://www.malaymail.com/news/malaysia/2019/12/10/profit-driven-private-
prisons-not-the-solution-to-overcrowding-in-malaysian/1817673 (last visited
January 23, 2020).
228 According to SUHAKAM, three main groups are to be targeted by the reform: remand
prisoners who cannot pay bail; drug users; and people detained for immigration offences.
Interview with SUHAKAM representatives, February 2020. See infra, Sub-Section “The
use of solitary confinement for death row prisoners”.
37 prisons are reported overcrowded by the government.219 The
prison population tripled between 2002 and 2019, mainly as a result
of anti-drug policy.220 According to the government, 56% of the
total prison population is imprisoned for drug-related offences.221
As of December 2019, the overall prison occupancy rate was 142%:
while the official capacity of the prison system is 52,000, the total
prison population is 74,000.222
The detention of a person is very expensive for the Malaysian State:
the daily cost for a prisoner ranges from 38 to 41 ringgit (equivalent
of 8.46 to 9.13 euros), including the cost for amenities and the salary
of prison officers.223 Lacking sufficient financial resources, the State
cannot meet the needs of prisoners. The situation of overcrowding
is thus a major problem to be solved, as it has repercussions on
all other aspects of prison life, such as infrastructure, hygiene,
quality and quantity of food, or access to health care. According
to SUHAKAM, more than 800 persons died in prison between 2015
and 2017: 319 persons died in prison in 2017, 269 in 2016 and 252
in 2015.224 In 2017, a petition was filed by prisoners held in Sungai
Buloh prison, complaining about contaminated food and water,
widespread disease and lack of medical care.225 This prison houses
more than 50 people sentenced to death.226
The authorities are very well aware of these difficulties and have
initiated a reform in 2019 aimed at improving the situation in prisons.
219 United States Department of State – Bureau of Democracy, Human Rights and Labor,
op. cit., 2 019.
220 According to Prison Studies, 28,804 people were detained in prison in 2002, versus
74,000 in December 2019. Prison Studies, World Prison Brief: Malaysia, 2019, available
at: https://www.prisonstudies.org/country/malaysia (last visited January 23, 2020).
221 Malay Mail, “Minister: Putrajaya Aims to Reduce Prison Population, not Build more Jails”,
2019, available at: https://www.malaymail.com/news/malaysia/2019/03/09/minister-
putrajaya-aims-to-reduce-prison-population-not-build-more-jails/1730804 (last
visited January 24, 2020). UN Human Rights Council, Summary of Stakeholders’
submissions on Malaysia, Report of the Office of the United Nations High Commissioner
for Human Rights [A/HRC/WG.6/31/MYS/3], 2018, para. 50.
222 Malay Mail, “Profit-Driven Private Prisons not the Solution to Overcrowding in Malaysian
Prisons, Say Rights Groups and MPs”, 2019, available at: https://www.malaymail.com/
news/malaysia/2019/12/10/profit-driven-private-prisons-not-the-solution-to-
overcrowding-in-malaysian/1817673 (last visited January 23, 2020).
223 Ibid.
224 SUHAKAM, Annual report 2017 – Human Rights Commission of Malaysia, 2018, p. 81.
225 United States Department of State – Bureau of Democracy, Human Rights and Labor,
op. cit., 2 019.
226 As of February 2019, Sungai Buloh prison housed 56 people sentenced to death. Amnesty
International, op. cit., 2019, p. 18.

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that the rehabilitation and the reintegration of all prisoners is at the
heart of the mission of the Prison Department in Malaysia.231 The
indefinite detention of death row prisoners under such conditions is
clearly not an adequate response to the rehabilitation and potential
reintegration of these persons into society – persons who might one
day be released, either because of a successful appeal or application
for clemency232 or because of less severe criminal legislation.
A normal day in the life of Michelle,
sentenced to death in 2015 and currently detained:
“I usually wake up at about 5am, do some stretching in the
cell, brush my teeth, freshen up and go to prayer. Around 7am,
the warden will do the counting round and then I will have
breakfast. Breakfast consists of two pieces of bread and milo,
sometimes a biscuit. Some Mondays, the Buddhism religion
teacher comes to visit us, and we are allowed to sit in the
hallway to listen to the teaching. But they do not come every
week. They come every two weeks. Otherwise, I am just staying
in the cell. Sometimes I write. I cannot go to the library, but
there are not many books there anyway. I asked my cousin
to bring me an MP3 with music and family photos, but I have
not received it yet. I also asked my lawyer to bring me some
books and outdated magazines. I have some in my cell and I
read them over and over again. There is not much to do really.
Most of the time, I am daydreaming and thinking about my
life and my family. During the day, I am allowed to leave the
cell for a period of time, sometimes 45 minutes, sometimes
more than that. But we will still be in the building, in the main
hall. I just walk around. Sometimes I talk to other people. The
warden does a recount in the evening, before dinner.”
231 The mission of the Prison Department is “To nurture productive individuals through
effective rehabilitation, a conducive environment and strategic integration.” It has five
objectives, among which: “Rehabilitation: To ensure all categories of prisoner/inmate/
detainee undergo appropriate and effective rehabilitation programmes; reintegration:
To ensure the implementation of an effective social reintegration programme for the
prisoners/inmates/detainees.” Prison Department website, available at: http://www.
prison.gov.my/portal/page/portal/english/visi_en (last visited February 20, 2020).
232 As mentioned above, the clemency rate is above 55%. See supra, Sub-Section “Lack on
information on the clemency process”.
Detention in individual cells 23 hours per day
In all prisons, death row prisoners are housed in quarters separated
from other prisoners. The cell must be locked at all times, in accordance
with Prison Regulation 176(4): “The cell or room shall not be unlocked
except under supervision of prison officers and it shall be thoroughly
examined and searched daily while occupied by a condemned prisoner.”
Their cells are under constant supervision, as provided for in Prisons
Regulations 176(2): “A prisoner condemned to death shall be confined
in a separate cell and be kept apart from all other prisoners and be
under the constant supervision of a prison officer both by day and
by night.” This lack of privacy applies to the entire cell, including the
sanitary facilities. Toilets are located in the cells and are placed so as
to be visible from outside the cell, allowing no privacy for prisoners.229
According to the persons sentenced to death and SUHAKAM, death
row convicts spend 23 hours per day in their individual locked cells.
There, men and women sentenced to death have almost nothing to
do, all day, every day. Ali, who has been on death row for 12 years,
indicated: “For 23 hours, we are in our own cell and we do our activities.
We can read, pray, exercise or listen to music.” Indeed, unlike prisoners
who are not sentenced to death, prisoners on death row are generally
allowed to keep books, an MP3 player and/or prayer material.
However, those sentenced to death are prohibited from working “Except
for keeping [their] person and dress in proper state and the place
[they are] confined in clean”.230 In addition, they do not have access
to the education or rehabilitation programs. It should be remembered
that many of them are young: 397 of those sentenced to death are
between 21 and 30 years of age. These young people, as well as older
people, spend their days without any activity to kill time or release
the stress of being locked up in cells awaiting execution.
Many religious counsellors have expressed doubts about the purpose
of these detentions. As one religious counsellor said: “I think the
ultimate goal of rehabilitation is to make prisoners understand
their wrongdoing, to feel remorse and to be good again. There is no
rehabilitation program for those on death row. Is it because they are
supposed to die anyway? Why does the government not give them
a chance to learn and be useful again? Some of them have been
staying in prison for more than 10 years.” It should be remembered
229 SUHAKAM, The Right to Health in Prison. Results of a Nationwide Survey and Report,
2017, p. 75.
230 Prisons Regulations 2000, Regulation 181.

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or may not be handcuffed; in some cases, a warden stays outside
the room, with the door open, and cannot hear the conversation,
while in others, a warden stays in the room. The constant presence
of guards is contrary to international detention standards, which
provide that consultations with legal advisers may be within sight
but not within hearing of prison staff.235
The key role of religious organisations
For prisoners on death row, a light of hope is the visit of religious
organisations that come to pray and provide counselling to
prisoners. Religious counsellors interviewed indicated that
they have the right to enter the prison halls. They hold groups
sessions of about 20 to 30 people, every week or every two
weeks, for one to two hours, depending on the prison. They
explained that they teach prisoners about religious concepts.
For example, a Buddhist religious group would help them to
study the Dharma and the concept of causality, in order to
increase self-reflection and promote empathy and compassion.
They are usually allowed to give out a few photocopies of
religious texts. The religious teaching goes beyond religious
studies: people talk about their emotional distress, their poor
living condition, ask for a way to contact their families, seek
lawyers or need help in writing a clemency application. One
religious counsellor explained: “Sometimes when they talk, they
will break down and cry.”
Religious groups working in prison indicated that most people
have indeed reflected about their lives and would like to behave
differently if they were given another chance. Most religious
counsellors interviewed question the lack of humanity of the
situation of those sentenced to death, which leaves very little
room for rehabilitation. As one counsellor indicated: “What
really gets a person back on the right path is a conceptual
change. Prolonged confinement, disconnecting a person from
society and affecting intimacy will lead to social problems.”
235 Nelson Mandela Rules, Rule 61(1).
Restricted human interactions
Death row prisoners spend most of their time alone in their cells,
unlike other prisoners. In addition, people sentenced to death may not
be visited by outside visitors, with the exception of family members,
their lawyers and religious counsellors. Visiting conditions are strictly
limited. All discussions, including with religious counsellors, must take
place in the “sight and hearing” of prison guards.233 The duration of
relatives’ visit may not exceed 45 minutes per week. Writing a letter
replaces a visit from relatives.234
Families of men and women sentenced to death indicate that they
generally have no difficulty in visiting their relatives. They have a
pocket-sized logbook that they must bring with them on every
visit. Permissions to visits are granted, except when there are many
visitors at the same time. This happened once to Chan, the mother
of a man sentenced to death, who was then unable to meet her son.
Communication with prisoners takes place in a room through a
telephone booth with a transparent glass window, in the presence
of an officer. Mohamed, the brother of a person sentenced to death,
explained that this limits the conversation topics. He said: “Since
there are officers who hear the conversation, we only talk about what
is necessary. We do not talk about politics or anything outside.” All
families indicated that they have relatively good relationship with
Prisons guards.
Although some prisoners receive a visit every week, the majority
of those sentenced to death do not have family living close to the
prison. Nayla, the sister of a death row prisoner, explained that the
economic situation of the families of death row prisoners is an
obstacle to prison visits. She indicated that her brother had asked
her to contact the family of another prisoner who was feeling very
isolated and miserable. She said: “When I contacted them and asked
them why they were not visiting their relative, they told me they did
not have the money. So, I gave them the money to visit the prison.”
Lawyers interviewed also indicated they have no difficulty meeting
people on death row. Lawyers only need to announce their visit
2 days in advance to be allowed to meet with their clients. Lawyers
indicated that there are generally no time restrictions when talking to
their clients. The level of security depends on the prison: clients may
233 Prisons Regulations 2000, Regulation 177(2).
234 Ibid., Regulation 179(4): “Such prisoner shall receive a visit from his relatives of forty-five
minutes duration every week or to write one letter in lieu.”

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Indefinite isolation
The situation of men and women on death row amounts to
indefinite solitary confinement, which is defined as an indefinite
confinement for more than 22 hours a day without meaningful
human contact. This practice is strictly prohibited by international
human rights standards. Rule 43 of the Nelson Mandela Rules
provides: “In no circumstances may restrictions or disciplinary
sanctions amount to torture or other cruel, inhuman or degrading
treatment or punishment. The following practices, in particular, shall
be prohibited: (a) Indefinite solitary confinement…”239 In addition,
the Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment has repeatedly stressed that
the use of solitary confinement should be absolutely prohibited
for prisoners on death row by virtue of their sentence.240 In 2012,
the Special rapporteur further stated: “Solitary confinement used
on death row is by definition prolonged and indefinite and thus
constitutes cruel, inhuman or degrading treatment or punishment
or even torture.”241
When SUHAKAM voiced its concerns about this practice to the
authorities, they responded by denying the use of solitary confinement:
“Solitary confinement does not exist in Malaysian Prisons. Single
cells provided for death row prisoners is not solitary confinement
but is a single occupancy cell as stipulated in the Prison Rules for
security reason; for the safety and security of the prisoner and other
prisoners”.242
239 Nelson Mandela Rules, Rule 43.
240 In 2013, the Special Rapporteur on Torture reported: “No prisoner, including those
serving life sentence and prisoners on death row, shall be held in solitary confinement
merely because of the gravity of the crime.” Special Rapporteur on Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Interim Report of the Special
Rapporteur on Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment
[A/68/295], 2013, para. 61. Special Rapporteur on Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, Interim Report of the Special Rapporteur on
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [A/63/175],
2008, p. 25.
241 Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, Interim Report of the Special Rapporteur on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment [A/67/279], 2012, para. 48.
242 SUHAKAM, op. cit., 2017, pp. 73-74.
The situation of foreigners, which account for 43% of those sentenced
to death, is particularly worrying. According to the available data,
most of them come from other Asian countries (Indonesia, Iran, India,
Philippines, Thailand, etc.) or from Africa (mainly Nigeria)236 – most
of them do not speak Bahasa Malaysia. Due to this situation, they
are unable to communicate with the guards or even the medical
staff. They also cannot participate in religious group sessions. Some
prisons, however, allow short individual discussions between religious
counsellor and death row prisoners if they are able to understand
each other. For instance, if both speak the Chinese language, some
prisons authorize 30-minute individual discussions between them.
However, these are only rare cases and many foreign convicts, such as
those from Nigeria, Iran or India, simply have no one to communicate
with. For foreigners, visits to prisons by their relatives are very rare.
Michelle’s family lives in China. She said: “My family does not visit me
often. In the last 5 years, my mother has visited me twice. She is old,
it is difficult for her to travel.” Although Michelle buys phone cards to
call her mother and son every week, she explains that her isolation is
extreme and causes unbearable suffering: “As a foreigner, I have no
one here. Being so far away from home and from my family hurts me.
I feel lonely and hopeless. There is nothing here to help me through
this difficult time. Thinking about my mother and my son makes me
feel better. I have a picture of them, I look at it all the time.”
In addition, other restrictions apply to foreigners. It should be noted
that all books must be filtered before they reach the convicted men
and women: as prison staff cannot understand the contents of books
written in another language, death row prisoners may not receive books
in their own language, even if this is theoretically allowed. Furthermore,
while Malaysian law provides for the right to inform an embassy or
consulate when a foreign national is arrested or detained, in order
to assist prisoners in their legal proceedings, religious counsellors
reported that some prisoners told them that they have many difficulties
in contacting their consulate.237 This may be partially explained by
mistakes with the identification and attribution of nationality.238
236 Amnesty International, op. cit., (2019), p. 19.
237 Article 36(1)(c) of the Vienna Convention on Consular Relations provides: “Consular
officers shall have the right to visit a national of the sending State who is in prison,
custody or detention, to converse and correspond with him and to arrange for his legal
representation.” This convention was ratified by Malaysia by the Consular Relations
(Vienna Convention) Act 1999.
238 Amnesty International reported such difficulties. See Amnesty International, op. cit.,
2019, note 47, p. 19.

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bedding and such other articles as may be approved by the Director
General.” In practice, the prison does provide food and a mattress,
but this is restricted, and the rest of the goods provided are scarce.
Interviews revealed that the food provided by the Prison administration
is not good in terms of quality and quantity, and is sometimes prepared
in poor hygienic conditions. According to an NGO interviewed, the
amount allocated for food for detainees is low: 14 ringgit for three
meals, or about 3.02 euros per day. The food is sometimes enriched
with farm products from the agricultural programmes implemented
by other prisoners.247 To prevent suicide attempts, prisoners sentenced
to death are served boneless food. As Ali explained, “Food is usually
tasteless.” Consequently, he has to pay more for better food. Families
reported that people detained in Kajang and Pokok Sena prisons
are not allowed to receive food from the outside. Prisoners can
buy products sold inside the prison by the administration, but this
requires money.
In addition, hygienic supplies (soap, shampoo, toothbrush, and
toothpaste), some bedding material (pillows) and phone cards have
to be paid by the prisoners themselves at the kiosk located in the
prison. Prisoners on death row revealed that only one big cup (in
Malay: kole) is provided to them, which is to be used for drinking,
cleaning and toilet use. Moreover, while the prison administration
provides sanitary pads for women, their number is insufficient to cover
their needs. As Michelle explained: “We are given two, sometimes
three sanitary pads per month. If we need anything extra, we need
to buy it.” Payment for goods is a challenge, as prisoners on death
row are not allowed to work.
Limitation of access to light and food as disciplinary measures
Prisoners interviewed indicated that additional disciplinary measures
are taken when a prisoner causes problems. According to one prisoner
interviewed, the problem may be a person who is too noisy, or on
the contrary a “rebellious” person, who refuses to eat or do anything
– in short, a person experiencing mental distress.
In such cases, prisoners on death row are sent to special cells
called Bilik Gelap (the dark room), in which they have absolutely
247 As mentioned above, regulations forbid the work of prisoners in death row.
Poor quality infrastructure
Although men and women sentenced to death are locked in cells for
most of the day, access to light and ventilation is very poor in the cells
of some prisons. In 2017, SUHAKAM published a report after visiting
several prisons and death row quarters. SUHAKAM noted that, in the
cells of the people sentenced to death, “The windows [are] not large
enough to enable the prisoners to read or work by natural light, and [are]
not constructed to allow the entrance of fresh air”, unlike other prisoners
who are not on death row.243 In its 2017 Annual Report, SUHAKAM noted
that, in Tapah Prison, death row prisoners were not allowed to exercise
under direct sunlight due to security reasons: they thus never had direct
access to fresh air.244 Discussions revealed that the situation has not
changed. Poor ventilation in the cells was also highlighted by SUHAKAM
in 2017 in Alor Setar prison.245 This situation was also pointed out by
Ali, a prisoner in Pokok Sena prison: he explained that he sometimes
had to undress in his cell because of the heat. Since prisoners on
death row are not allowed to leave their cell, they stay 23 hours a day
in a room where their toilet is also located, with no fresh air. Moreover,
the artificial light in the rooms do not allow prisoners to read without
damaging their eyesight.246 These conditions are in direct contradiction
with Rule 14(a) of the Nelson Mandela Rules, which provides that, in
all places where people are require to live, “The windows shall be large
enough to enable the prisoners to read or work by natural light and
shall be so constructed that they can allow the entrance of fresh air
whether or not there is artificial ventilation.”
The need for money
“Everything needs money” – Michelle, sentenced to death in 2015
According to Regulation 180 of the Prisons Regulations, “A prisoner
under sentence of death shall be provided with clothing, food and
243 SUHAKAM, op. cit., 2017, p. 74 and p. 89.
244 SUHAKAM, op. cit., 2018, p. 86.
245 Ibid., p. 86.
246 SUHAKAM, op. cit., 2017, p. 75.

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Death Row Syndrome:
Extreme psychological distress of people sentenced to death
“Prolonged detention of individuals sentenced to death is inhumane
and is detrimental to their mental health”
— Dr Suarn Singh, former Head of Psychiatric Services of the
Ministry of Health Malaysia and psychiatry expert before Malaysian
criminal courts
Men and women sentenced to death live in very harsh conditions:
protracted solitary confinement, airless cells, limited lighting, lack
of occupation, lack of hope for the future, limited contact with
outside visitors, etc. Scientific studies have reported that the
conditions of detention of persons awaiting execution, particularly
solitary confinement, produce a higher rate of psychiatric and
psychological health problems than “normal” imprisonment. These
problems may include paranoia, visual and auditory hallucinations,
self-mutilation, suicidal thoughts,252 debilitating depression,253 anger,
bitterness, boredom, stress, loss of a sense of reality and impaired
concentration.254 These psychological illnesses are known as the
“death row syndrome”.255 At the international level, while detention
on death row for more than 10 years does not in itself constitutes
an act of torture or a cruel, inhuman or degrading treatment or
punishment, the prolonged detention aggravated by harsh conditions
of detention is a violation of the prohibition of torture.256
252 Haney C., “Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement”,
Crime and Delinquency, 49: 124, 2003.
253 Abramson L., Seligman M., Teasdale J., “Learned Helplessness in Humans: Critique and
Reformulation”, Journal of Abnormal Psychology, 87: 49, 1978.
254 Scharff Smith P., “The Effects of Solitary Confinement on Prison Inmates. A Brief History
and Review of the Literature”, Crime and Justice, Vol 34, No. 1. The University of Chicago
Press, 2006, p. 476 and p. 488.
255 Death row phenomenon is used to describe the harmful effects of death row conditions,
including exposure to extended periods of solitary confinement and the mental anxiety
that prisoners experience whilst waiting for their death; death row syndrome is used to
describe the consequential psychological illness that can occur as a result of death row
phenomenon. Harrison K., Tamony A., “Death Row Phenomenon, Death Row Syndrome
and their Affect on Capital Cases in the U.S”, Internet Journal of Criminology, 2010, p. 1.
256 Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, op. cit., 2012, para. 78: “The anxiety created by the threat of death and the
other circumstances surrounding an execution, inflicts great psychological pressure and
trauma on persons sentenced to death. A prolonged stay on death row, along with the
accompanying conditions, constitutes a violation of the prohibition of torture itself.”
no access to daylight and access to food is limited. Indeed, Prisons
Regulations provide that, in such cases, outdoor exercise is permitted
only if “The Medical Officer certifies it is absolutely necessary
for health.”248 Confinement on a restricted diet may not exceed
21 days.249 Regulation 129 provides: “Confinement in the punishment
cells shall not exceed an aggregate of 90 days in a year for any
one prisoner.”250
Inadequate access to health care
According to SUHAKAM, almost all prisons have clinics on their
premises, with a doctor assisted by one or more medical assistants,
and death row prisoners have unrestricted access to these clinics.
However, interviews revealed that the clinics are under-budgeted, and
have very limited resources, in terms of medicine, human resources,
or medical supplies. This situation has an impact on the men and
women sentenced to death. They indicated that access to medicine
is very limited and that they only receive paracetamol, regardless of
the disease. Religious counsellors confirmed that very little is done
to give them access to quality medicines. They reported several
examples to the ADPAN team: “Once, a prisoner approached me.
He told me he was having gastric problems. He asked me to pray
for him because he could not get the medicine.” Another said: “One
of the prisoners came to talk to me. He had asthma. Even when he
was breathing, you can hear it. But the wardens do not care about
that. There is no agency to come and check their health.”
It should also be noted that there is no access to gender-specific
health care services, such as access to a gynaecologist, to take care
of the women’s specific needs. This is contrary to the UN Rules for
the Treatment of Women Prisoners and Non-custodial Measures for
Women Offenders, also known as the Bangkok Rules.251
248 Prisons Regulations 2000, Regulation 130.
249 Ibid., Regulation 126.
250 Ibid., Regulation 129.
251 Rule 10(1) of the Bangkok Rules for instance provides: “Gender-specific health-care
services at least equivalent to those available in the community shall be provided to
women prisoners.”

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Religious counsellors working in prison reported several cases of
people having hallucinations, seeing ghosts. Suicide attempts
by people sentenced to death have been reported by prisoners
interviewed. Ali, who has been on death row for 12 years, has tried
to hang himself twice. He indicated that other prisoners have
also attempted suicide. This phenomenon was also highlighted in
SUHAKAM’s 2017 report: “During a particular visit, the Commission
observed a female death row prisoner who repeatedly hit her head
against the cell door.”257 Ali reported that detainees develop different
kinds of psychiatric disorders. He gave an example: “One person
puts his faeces on the wall. I do not know why.”
According to the prisoners interviewed, access to mental
health treatment and psychiatric care is non-existent, although
Regulation 241(1) of the Prisons Regulations provides that the
Medical Officer shall carefully observe the mental state of prisoners
condemned to death. The only support they receive is religion
counselling.
Summary of conditions of detention
of death row prisoners
• Confinement 23 hours per day in individual cells;
• Limited human contact;
• Low access to fresh air and natural light;
• Lack of privacy;
• Poor access to medicine;
• Exclusion from rehabilitation or training programmes;
• Discussions with religious organisations for those who
speak Bahasa;
• No psychological support or psychiatric care;
• Inhumane disciplinary measures for persons in distress
• For foreigners: no access to books in foreign languages,
limited visits and phone calls;
• Blanket categorisation of death row prisoners, regardless
of their age, gender, health situation, type of offence,
behaviour.
257 SUHAKAM, op. cit., 2017, p. 74.

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FAMILIES OF PEOPLE
SENTENCED TO DEATH:
THE STRUGGLE

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“I have no tears left to cry”
— Anna, wife of a man sentenced to death
Criminal trials and prolonged detention have serious consequences
for the families of those sentenced to death. On a financial level,
some have had to borrow money, sometime illegally, to pay for
the lawyers’ fees. Many have been left with no resources. During
detention, those who remain “outside” must also obtain resources
to take care of their family alone. Anna, whose husband has been
on death row for 10 years, explained: “I have to fight on my own to
raise my children. I suddenly became the sole breadwinner, to give
my children a good education.” Chan’s son was only 19 when he was
arrested, 10 years ago: “I only had my son, as the sole source of
income of the family. I was so devastated when he was arrested at
19. Now I go back and forth to the prison, and I survive without him.”
Travel to and from prison is quite expensive, as families do not
necessarily live close to the prison. Fatimah, the mother of a man who
has been sentenced to death 12 years ago, stated: “I have nothing
else but him. I work every day as a maid in other people’s house.
When I go from my house to the prison, it takes almost 2 hours.”
Separation is not just a question of distance between the prison
and the family home. The transparent glass window in the visiting
room that separates prisoners from their families also creates a
lack of body contact. For Chan, it’s one of the hardest things to
live through. She said: “I just wish I could hug my son. It has been
so long since I have hugged him.”
Many people find it difficult to accept befriending a person who
has a relative under a death sentence. In some families, relatives
do not want to hear about the convicted person. A woman whose
brother was sentenced to death over 13 years ago reported that it
took her 2 years to visit him for the first time. She said, “My family
does not accept this situation. My husband doesn’t like to talk about
[my brother], my child either.” For some, it is as if the family was
tainted by the conviction of one of its members, and this also falls
on the children. Anna explained that many people do not treat them
as they used to: “Some people treat us like we are not from a good
family. I know that my children are struggling in school after their
father has been behind bars.” Nayla, the sister of a man sentenced
to death in 2005, said she feared that the people in her office were
aware of her situation. She does not want to talk about it at work,
although her anxiety sometimes affects her performances.
A lot of parents give up. Mohamed is the brother of a man on death
row for 20 years. He explained that his mother told him: “There is no
need to fight, because it’s been a long time and there was nothing
we could do.” Fatiah, whose son was sentenced to death in 2003,
confirmed: “My family is so emotionally affected. My health is not
good at all. However, since I met this [woman working in this NGO], I
have been slowly struggling with emotions. She advised me to fight
for my son. She told me that few Malaysians want to fight for their
family, especially those on death row.”
After so many years in prison, the families are still hoping. Some
hope for an answer to the clemency application. Fatiah, desperate
for information regarding her son’s clemency application, said: “He
has been detained since 2003. I am old and I do not have much
time to live. I would just like some information about the progress
of our request for clemency.” Others wish for abolition by the
government, whose statements initially gave rise to new hope. With
the government’s backtracking, this hope has turned into a new
anxiety. All are waiting to find out whether their relative will have a
new chance to live and rehabilitate themselves. Fatimah stated: “My
son has been behind bars long enough, almost 12 years. I believe he
has changed, and he no longer wants to do anything that is related
to crime. My wish is that he can get out and start a new life.”

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RUSHED AND SECRETIVE
EXECUTIONS

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“… he be hanged by the neck till he is dead…”
— Criminal Procedure Code, Article 277
The Criminal Procedure Code provides that the execution is by
hanging.258 Other provisions related to executions are included in
Regulation 182 of the Prisons Regulations, but this regulation does
not provide much detail. It provides that the persons in charge of the
executions “Shall make themselves familiar with the instructions”259
and must ensure that executions are “Carried out with efficiency
and despatch, in accordance with the instructions”, and that the
gallows and all appliances “Are maintained in good condition and
order.”260 Moreover, Regulation 182(4) provides that only a limited
number of persons shall attend the executions: the officer-in-charge,
the medical officer and other prison officers and staff.
There is no specific prison where all executions take place in the
country. The last executions before the official moratorium took
place on 24 May 2017 at 5.30am in Sungai Buloh prison. Two people
were hanged: one person whose identity was not known, and
Yong Kar Mun, a 48-year-old man, a former mineral water vendor,
convicted of discharging a firearm during a robbery, an offence
carrying the mandatory death penalty. Yong Kar Mun had been
on death row since March 2009. Prior to this, Rames and Suthar
Batumalai, two brothers convicted of murder in 2010 – an offence
which also carries the mandatory death penalty – were hanged in
Kajang prison, despite a clemency appeal pending before the Negri
Sembilan Pardons Board. Executions while legal action and clemency
procedures are ongoing are prohibited by international standards,
including by UN Death Penalty Safeguards No. 8, according to
which the death penalty cannot be carried out “Pending any appeal
or other recourse procedure or proceeding relating to pardon or
commutation of the sentence.”
In those three most recent cases, families were provided either partial
or false information about the day of the execution. While executions
usually take place on Friday at dawn,261 the Batumalai family was
first informed that the brothers would be executed on 17 March (a
Friday), before finally being informed less than 24 hours before that
258 Criminal Procedure Code, Article 277.
259 Prisons Regulations 2000, Regulation 182(1).
260 Ibid., Regulation 182(2).
261 SUARAM, op. cit., 2019, p. 133.
the men would be hanged on 14 March 2017 (a Tuesday).262 Yong Kar
Mun was executed 2 days after his family received a letter from the
authorities informing them that the death sentence would be carried
out “soon”, without a specific date.263 The practice of “last-minute”
notification was already denounced in 2016, when the families of
three men were warned to visit their relatives only 2 days before
their execution.264 The failure to inform death row prisoners in a
timely manner of the date of their execution has been identified
by the Human Rights Committee as a form of ill-treatment, which
renders the subsequent execution contrary to the prohibition of
torture and cruel, inhuman or degrading treatment or punishment.265
International and national human rights institutions and NGOs have
constantly denounced the secret manner in which executions are
carried out in Malaysia.266
262 UN Human Rights Office, “UN Human Rights Office Condemns Secretive Executions
of Two Brothers in Malaysia”, 2017, available at: https://bangkok.ohchr.org/news/press/
Malaybrothers.aspx (last visited on February 13, 2020).
263 Amnesty International, “Two Men Hanged in Secretive Executions”, Urgent Action, [ASA
28/6343/2017], 2017.
264 SUARAM, op. cit., 2017, p. 55.
265 Human Rights Committee, op. cit., 2018, para. 40.
266 UN Human Rights Office, op. cit., 2017.

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CONCLUSION
The objective of this report was to inform policy makers and
criminal justice system actors about the situation of men and
women sentenced to death in Malaysia. This report has shown that,
historically, since the British colonisation, the use of the death
penalty in Malaysia has been linked to the application of special
legislations. Excluding the situation of persons sentenced to death
for murder, almost all persons executed have been convicted of
security offences (Emergency Regulations from 1948 to 1960 under
British colonisation, then under ISA and ESCAR from 1976 to 1993)
or for drug trafficking (Dangerous Drugs Act since 1975). Similarly,
the presumption of guilt in death penalty cases and the imposition
of the mandatory penalty date back to the British rule and the
Malayan Emergency, a particularly trying period in the country’s
history. Yet these violations of the fundamental principle of the
right to a fair trial are still applied today in trials with sometimes
irrevocable consequences.
Although the authorities recognised the ineffectiveness of the
death penalty in the fight against drug offences as early as the late
1990s, 72% of the 190 death sentences handed down by Malaysian
courts in 2018 are related to drug offences. At the time of writing in
March 2020, 1,280 women and men are held on death row following
their conviction in trials that fail to meet international standards.
1,280 women and men who are confined in extreme isolation, with no
activities day and night other than thinking about their lack of hope.
1,280 men and women who have been left out of the prison reform
being developed. Some have been on death row for over 20 years.
Apart from the visit of some religious organisations, no psychological
support is given to them, even though the detainees on death row
have specific pathologies, including depression or hallucinations, and
many have attempted suicide. It must be recalled that every death
sentence affects parents, spouses, sisters, brothers, and children.
For prisoners and families, the uncertainty and the duration of the
clemency process are unbearable.
In 2018, the Pakatan Harapan party was elected on the basis of
promises to repeal repressive laws and abolish the mandatory death
penalty. However, the party partially retracted its position, finally

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considering only the withdrawal of certain provisions providing for
the mandatory death penalty. In March 2020, at the time of writing
this report, the appointment of a new Prime Minister supported by
UMNO created great uncertainty about the reforms undertaken by
the previous government, particularly with regard to the conditions
for abolition.
In view of its knowledge of the ineffectiveness of death sentences
in combating crime, the very high risk of miscarriages of justice
in criminal proceedings, and the atrocious detention conditions of
those sentenced to death, Malaysia must take a firm stand in favour
of the total abolition of the death penalty.
AFTERWORD
Roger Hood and Saul Lehrfreund267
This important study comes at a time when Malaysia appears to
be ready to end years of indecision and dispute over whether or not
to abolish the death penalty completely, or at least to introduce
significant reforms that would substantially reduce its legal scope,
the imposition of death sentences and executions, and the number
of people subject to captivity on “death row”.
A bold decision to abolish capital punishment altogether in all
circumstances and for all crimes would send a powerful signal to
other countries in Asia.
Although executions had been regularly carried out in Malaysia in
the 1980s and 1990s (an average of 17 a year between 1980 and
1999), the 21st century began with a substantial decline in their
frequency, which this report associates with Malaysia’s economic
development and greater involvement in international affairs which
sparked an awakening of concern for human rights and democratic
values. Yet, Malaysia remains one of the few nations not to have
ratify the International Covenant on Civil and Political Rights (ICCPR),
even though its government has claimed that its use of the death
penalty complies with international human right law, in particular with
Article 6 of the ICCPR. Yet an appraisal of the standards enshrined
in the ICCPR reveals that this is far from being the case. Malaysian
law retains the death penalty for 32 offences, and it is still the
mandatory punishment for 12 of them: it is imposed almost exclusively
for murder; for trafficking in narcotics in various amounts depending
on the drugs concerned (with a recently introduced exception); and
for intentionally discharging a firearm while committing various
crimes, whether or not any physical harm is caused.
Only 22 executions were carried out in the first decade of the
21st century, including four in 2006 for waging war against the
King. Indeed, there were several years in which no one was put
to death. For instance, there were no executions between 2003
and 2005 and in 2007. Although 108 people were sentenced to
267 Roger Hood is Professor Emeritus of Criminology, University of Oxford. Saul Lehrfreund
is Co-Executive Director of The Death Penalty Project and a Visiting Professor at the
University of Reading.

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death in 2011 – about two-thirds for drug-related offences – no
one was executed that year. Between 2005 and 2017, only three
of the persons executed had been convicted of a drug trafficking
offence. In these circumstances, the number of prisoners on death
row steadily increased: according to this report, from 245 persons
in 1996 to 1,280 in 2019.
It is now 14 years since, in 2006, the Malaysian Bar Council
unanimously called for complete abolition of the death penalty, which
was welcomed and endorsed by the then Minister of Justice, the
Human Rights Commission of Malaysia (SUHAKAM, which had been
established in 2000), and many other sympathetic NGOs, such as
HAKAM, and subsequently ADPAN. This internal pressure for change
was reflected at the international level, when Malaysia’s representative
to the UN Human Rights Council announced in 2009 that his country
was considering replacing the death penalty with life imprisonment.
In 2013, The Death Penalty Project, with the support of the Bar
Council and the Human Rights Commission, published a study of
public opinion aimed to assess the level of support for the death
penalty and, in particular, for the mandatory death penalty.
In 2014, one of us (Roger Hood) was invited by the Attorney
General to act as a consultant on a review of death penalty laws
and practices in Malaysia, commissioned by the Cabinet, entitled
The Death Penalty in Malaysia: the Way Forward. It was carried out
by The International Centre for Law and Legal Studies (known as
I-CeLLs), a body set up within the Attorney General’s Chambers.
Although its completion was announced by the Minister of Justice,
Nancy Sukri, as a “positive sign” at the opening session of the 2016
World Congress Against the Death Penalty in Oslo, it has never been
published so as to be available for public discussion.
It clearly had no immediate impact on the government, for in 2016,
nine people were executed (the highest number in this century)
and at least four more were put to death in 2017. However, in that
year, the Malaysian Parliament approved an amendment to the
Dangerous Drugs Act 1952 to remove the necessity of imposing
a mandatory death penalty for drug trafficking in circumstances
where a person convicted of transporting, sending or delivering a
prohibited substance had cooperated with law enforcement to disrupt
drug trafficking activities. This came into effect in March 2018, but
appears to have had little impact on the total number of death
sentences imposed by the courts. The report on Death Sentences
and Executions in 2018, prepared by Amnesty International, revealed
that 190 people had been sentenced to death and that 136 of them
(72%) had been convicted of a narcotic-related offence. Altogether
the proportion of those under sentence of death in Malaysian prisons
who had been sentenced for drug trafficking was virtually the same
(72%) in 2018 as in 2012.
The case for abolishing the death penalty completely for drug
trafficking offences, in line with international standards, is now
overwhelming, especially given the findings of the Malaysian survey
of public opinion mentioned above. It would cut death row by almost
three-quarters and end for such prisoners the inhumane and painful
uncertainties, the deplorable conditions of segregation, the lack of
individualised treatment, work or education, and other injustices
highlighted in this report and in Amnesty International’s recent
report, Fatally Flawed: why Malaysia Must Abolish the Death Penalty.
The number of persons sentenced to death has apparently increased
over this 20-year period, although the actual figures for some years
are unknown. The number of 190 death sentences imposed in 2018
in a population of 32 million (5.9 per million) was almost twice as
high as in Singapore (3.0 per million) in the same year. In fact, the
number of death sentences in Malaysia was the sixth highest of all
55 countries in the world that imposed a death sentence in 2018.
And because it has continued to impose death sentences at such a
rate, while drastically curbing the number of executions, the number
of death row prisoners in Malaysia is now the fourth highest (equal
to Sri Lanka) among the 21 death-sentencing nations of the Asia-
Pacific region.
The disjunction between law and practice was evident to the new
coalition government that came to power in May 2018. Almost
immediately, on 2 July 2018, it established a moratorium on
executions; and on 10 October 2018 – marking World Day Against
the Death Penalty – the new Minister of Law, Datuk Liew Vui Keong,
announced that the death penalty was to be abolished and replaced
by a maximum sentence of 30 years’ imprisonment. Furthermore,
the Malaysian government for the first time voted in favour of the
resolution brought before the UN General Assembly in December
2018 to establish a universal moratorium on death sentences and
executions. In contrast with the past, it also withdrew its signature
from the Note Verbale sent to the Secretary-General dissociating
itself from the resolution.
Regrettably, the government was unable to agree with the Minister
that the time was ripe for total abolition, arguing that it was faced

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with strong objections and threats of demonstrations from various
bodies, including victims’ organisations, which claimed that complete
abolition would undermine law and order and weaken the deterrent
effect of the death penalty. This report from ECPM mentions that
“several surveys […] were carried out by media, with percentages of
people opposed to abolition […] varying from 45% to 82%.” This is
surely an indication of the unreliability and lack of sophistication of
most opinion surveys on this subject, especially when such data give
no indication of how strongly people would either support or reject
abolition of capital punishment. In fact, some public backlash, often
fuelled by the media, is inevitable when any Government declares its
intention to abolish the death penalty, although there is no example
known to us where it has led to a major social crisis. On the contrary,
wherever abolition of the death penalty has been achieved, it has
come to be accepted in time by the general population, and certainly
by new generations, as a further step by enlightened government to
protect all its citizens from excessive and cruel punishment.
A Special Committee for Alternative Sentencing was set up to try
to find a solution by introducing a discretionary death sentencing
system for all capital crimes that are currently punishable only by
a mandatory death sentence. This system would presumably aim to
ensure that judges use their discretion to ensure that only those
guilty of the most egregious crimes are sentenced to death. After
a four-month inquiry the Committee reported on 11 February 2020.
Of course, we recognise that the introduction of judicial discretion
in place of mandatory sentences would be preferable to the status
quo in, so far as it should reduce the number of death sentences
imposed and subsequent executions. However, this solution goes
not nearly far enough to meet international human rights standards,
which make it clear that pending the complete abolition of capital
punishment, the death penalty can only be retained and imposed
as an exceptional measure for the most serious offence of culpable
homicide. The death penalty should therefore be immediately
abolished for all other crimes.
But even the introduction of a discretionary system of death
sentencing will, in our opinion, inevitably lead to arbitrariness and
discrimination in decisions about who, and in what circumstances,
“deserves death”, especially given the fact that mental abnormality
or incapacity is frequently associated with the crimes that arouse
great public alarm and condemnation. Such an attempt to reform
death penalty legislation was undertaken in the United Kingdom
in 1957, defining a class of “capital murder” subject to capital
punishment. Once implemented, it proved so arbitrary and unpopular
and brought the criminal justice system into such disrepute that it
was abandoned when capital punishment for murder was completely
abolished in 1965. The creation of a defined class of capital murder
in states of the USA has been under fierce attack on similar grounds
and, along with concerns about wrongful convictions, has led the
legislatures of 10 states to abolish the death penalty since 2004.
Attempts by the Supreme Court of India to define murders as
falling into the category of the “worst of the worst”, in which the
offender is no longer “worthy” of the right to life, have led to such a
degree of arbitrariness and dispute that it has been described as a
“lethal lottery”. It was rejected by the Indian Law Commission, which
recommended in 2015 that the death penalty be abolished for all
ordinary crimes. There is no principled method for removing such
arbitrariness and discrimination from capital sentencing and even
the most constrained capital sentencing systems have shown that
they have not been able to overcome the fatal flaw of arbitrariness.
An element of subjectivity is inevitable in the decision-making of
prosecuting authorities in deciding when the death penalty should
be applied and in the judge’s decision as to whether the sentence
should be imposed.
We live in hope that Malaysians who recognise the inhumanity, cruelty,
inevitable arbitrariness and injustices of a merciless punishment will
be able to persuade political leaders to acknowledge that attempts
to construct legal definitions of who deserves to die have always
led to discriminatory injustices and human rights abuses. The death
penalty will eventually be abolished. Why procrastinate any longer?
Why not now?

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RECOMMENDATIONS
The recommendations of this study are based on the interviews
and the research carried out.
Recommendations to Malaysia
Commit to the abolition of the death penalty
•Ratify the ICCPR and its Second Optional Protocol aiming at the
total abolition of the death penalty
•Commute the sentences of all people sentenced to death to terms
of imprisonment
•Call on judges to stop issuing the death penalty
Immediately bring all national laws and regulations in line with
international standards
•Remove from the scope of the death penalty all offences that
are not the “most serious crimes”, including drug trafficking, with
a view of eliminating the death penalty from all domestic laws
and regulations
•Immediately remove the presumption of guilt from the Dangerous
Drugs Act and the Firearms (Increased Penalties) Act
•Amend the legislation so that the more lenient laws are applied
retroactively
•Review all cases where the laws failed to meet international
standards
Prevent torture and ill-treatment during police investigation
•Ratify the Convention Against Torture and its Optional Protocol
•Define torture in the national legal framework and ensure that its
definition complies with the Convention Against Torture
•Train police forces on the absolute prohibition of torture and
ill-treatment
•Amend the legislation to ensure that all persons accused are
brought promptly before a judge

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Improve the rights of all Malaysian communities and of foreign
nationals during the criminal process
•Guarantee the presence of an interpreter for all people who do
not understand Bahasa Malaysia, during the investigation phase
and throughout the criminal process
•Ensure that persons sentenced to death can effectively contact
their diplomatic representatives, as early as the investigation
phase, if they wish to do so
Ensure transparency on the clemency processes
•Take measures to ensure that the clemency process is known by
all death row convicts and their families
•Publish the criteria used for the review of clemency applications
•Establish precise rules on the functioning of the Pardons Boards,
including regular meetings and an obligation to publish their
findings
•Acknowledge receipt of clemency applications as soon as possible
•Inform death row prisoners, their families or legal counsel of the
estimated length of time it will take to process their clemency
requests
Specifically address the death row population in prison reform
and amend the Prisons Regulations to comply with international
standards
•Amend the Prisons Regulations to prohibit solitary confinement in
all cases, including as disciplinary measures, and limit disciplinary
sanctions to sanctions which comply with international standards
on the treatment of detainees
•Ensure that all prisoners, including death row prisoners, are allowed
to leave their cells for several hours a day
•Allow access to social, cultural, education and recreational
activities for all prisoners sentenced to death
•Stop the practice of blanket categorisation of death row detainees::
treat death row prisoners according to their individual situations
(behaviour, type of offence, mental state, age, etc.)
•Modify the infrastructure of the cells to allow the entrance of
fresh air and natural light
•Modify the structure of the cells so that it respects the privacy
of prisoners
•Provide psychological support and psychiatric health care by
qualified professionals to men and women on death row who need it
•Place those with psychiatric disorders in institutions appropriate
to their state of health
•Increase the number and length of visits per week
•Guarantee that foreigners are able to call their families abroad and
are not restricted in their access to books in their own languages
•Facilitate the access of all foreigners to their diplomatic
representations
•Increase the healthcare budget to provide adequate medicine to
all prisoners, including death row prisoners
•Establish a gender-specific health care framework, including, but not
limited to, access to a gynaecologist and sufficient sanitary pads
•Increase the food budget to improve the quantity and quality of
food provided, and allow prisoners to receive food from the outside
•Ensure that hygiene products (soap, shampoo, toothbrush,
toothpaste, kole, etc.) are available in sufficient quantity to all
men and women sentenced to death
•Allow unrestricted access to NGOs and humanitarian organisations
to all prisons and to all prisoners, to enable them monitor prison
conditions and support prisoners
Publish data on the death penalty
•Every year, publish relevant data, including but not limited to: the
number of people sentenced to death, the nature of the offences for
which they have been sentenced, the number of people sentenced to
death being detained, their nationality, the place where they are being
detained, the number of people sentenced to death who have died
in prison, the reason for their death, the number of death sentences
commuted or confirmed by the Federal Court, and the number of
people sentenced to death who have been granted clemency
Recommendations to SUHAKAM
Strengthen the monitoring of prisons
•Continue to organise regular visits to places of detention, and
pay particular attention to those sentenced to death, including
foreigners
•Publish yearly reports on the conditions of detention
•Continue to advocate for the ratification of international human
rights instruments and the abolition of the death penalty

110 Isolation and Desolation
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Recommendations to the abolitionist movement
Increase the mobilisation of abolitionist actors
•Strengthen advocacy on conditions of detention of people sentenced
to death
•Increase training and awareness raising on the conditions of
detention and on the prohibition of torture and ill-treatment
for several groups including prison staff, lawyers, civil society
organisations, religious leaders and Parliamentarians
•Support men and women sentenced to death, particularly those more
isolated such as foreign citizens, to write clemency applications
Recommendations to actors working
in regional and international development
Ensure high-level advocacy
•Advocate for the full abolition of the death penalty
•Advocate for the prevention of torture and ill-treatment and for
the consideration of death row prisoners in the prison reform
•Advocate for the access of NGOs and humanitarian organisations
in prison settings.

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APPENDIX
Appendix 1:
Ratification status of human rights instruments (Malaysia)268
Treaty Signature
date
Ratification
date,
Accession
date (a)
CAT – Convention Against Torture and Other Cruel
Inhuman or Degrading Treatment or Punishment
OPCAT – Optional Protocol of the Convention
Against Torture
CCPR – International Covenant on Civil and
Political Rights
CCPR-OP2-DP – Second Optional Protocol to the
International Covenant on Civil and Political Rights
aiming to the abolition of the death penalty
CED – Convention for the Protection of All Persons
from Enforced Disappearance
CEDAW – Convention on the Elimination of All
Forms of Discrimination Against Women
5 July 1995
(a)
CERD – International Convention on the
Elimination of All Forms of Racial Discrimination
CESCR – International Covenant on Economic,
Social and Cultural Rights
CMW – International Convention on the Protection
of the Rights of All Migrant Workers and Members
of Their Families
CRC – Convention on the Rights of the Child 17 Feb. 1995
(a)
CRC-OP-AC – Optional Protocol to the Convention
on the Rights of the Child on the involvement of
children in armed conflict
12 April
2012
(a)
CRC-OP-SC – Optional Protocol to the
Convention on the Rights of the Child on the sale
of children child prostitution and child pornography
12 April
2012
(a)
CRPD – Convention on the Rights of Persons with
Disabilities
8 April
2008
19 July
2010
268 Source: United Nations Human Rights - Office of the High Commissioner,
https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.
aspx?CountryID=105&Lang=EN (last accessed: 23 December 2019).

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Appendix 2: Bibliography
Reports and articles
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Critique and Reformulation”, Journal of Abnormal Psychology, 87: 49, 1978
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Parliamentary Session, 2019
•ADPAN, ECPM, The Advocates for Human Rights, MADPET, The KL and
Selangor Chinese Assembly Hall, Harm Reduction International and the
World Coalition Against the Death Penalty, Malaysia – 31st Session of the
Working Group on the Universal Periodic Review, 2018
•ADPAN, Malaysia: Reza Mohammed Shah Bin Ahmed Shah, 2011
•Ahmad S.S.S., Introduction to the Malaysian Legal System and Sources of
Law, 2014
•Amnesty International Malaysia, “A Brief History of the Death Penalty in
Malaysia”, 2019
•Amnesty International, “Death Sentence of Mentally Ill Prisoner Commuted
in Malaysia”, 2017
•Amnesty International, “Malaysia: Commutation of Death Sentence Must
Lead to a Moratorium on Further Executions”, Public Statement [ACT
50/5656/2017], 2017
•Amnesty International, “Two Men Hanged in Secretive Executions”, Public
Statement [ASA 28/6434/2017], 2017
•Amnesty international, Death Sentences and Executions in 2018, 2019
•Amnesty International, Death Sentences and Executions in 2007, 2008
•Amnesty International, Death Sentences and Executions in 2008, 2009
•Amnesty International, Death Sentences and Executions in 2009, 2010
•Amnesty International, Death Sentences and Executions in 2010, 2011
•Amnesty International, Death Sentences and Executions in 2011, 2012
•Amnesty International, Death Sentences and Executions in 2012, 2013
•Amnesty International, Death Sentences and Executions in 2016, 2017
•Amnesty International, Fatally Flawed: Why Malaysia Must Abolish the
Death Penalty [ACT 50/1078/2019], 2019
•Amnesty International, Human Rights Undermined [ASA 28/06/99], 1999
•Amnesty International, Malaysia: The Internal Security Act (ISA)
[ASA 28/06/2003], 2003
•Amnesty International, The Death Penalty, No Solution to Illicit Drugs
[ACT 51/02/95], 1995
•Andaya B., Andaya L., A History of Malaysia, Palgrave, Third edition, 2017
•Barlow C., Modern Malaysia in the Global Economy, Edward Elgar
Publishing, 2001
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Errors in Capital Punishment Cases in Malaysia, Penang Institute, 2018
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Studies, 1995, XLIII
•CIA, World Fact Book, 2020
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The Struggle for Survival, ISEAS Singapore, 2011
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Community, NUS Press, 2009
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Studies, Vol. 9, No 1, Winter 2007
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Marshall Cavendish Editions, 2014
•ECPM, Abolition of the Death Penalty: A Practical Guide for NHRIs, 2019
•Eldridge P.J., The Politics of Human Rights in Southeast Asia, Routledge,
2002
•Encyclopaedia Britannica, “The Impact of British Rule”
•French D., The British Way in Counter-Insurgency, 1945-1967, Oxford
University Press, 2011
•Gallahue P., Gunawan R., Rahman F., El Mufti K., U Din N., Felten R.,
The Death Penalty for Drug Offences: Global Overview 2012,
Tipping the Scale for Abolition, Harm Reduction International, 2012
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Global Overview 2010, Harm Reduction International, 2010
•Girelli G., The Death Penalty for Drug Offences: Global Overview 2018,
Harm Reduction International, 2019
•Global Alliance of National Human Rights Institutions, Accreditation status
as of 8 August 2018
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Confinement”, Crime and Delinquency, 49: 124, 2003.
•Harm Reduction International, “‘I’m a Believer’… Singapore’s Use of the Death
Penalty for Drugs Defended Using Faith-Based Evidence”, 2009
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Penalty for Traffickers and the International War on Drugs”, Columbia
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•Harrison K., Tamony A., “Death Row Phenomenon, Death Row Syndrome
and their Affect on Capital Cases in the U.S”, Internet Journal
of Criminology, 2010
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University Press, 2008
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Death Penalty for Drug Trafficking, Murder and Firearms Offences,
The Death Penalty Project
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of the International Covenant on Civil and Political Rights, on the right
to life” [CCPR/C/GC/36]
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and Human Rights, 1991
•Hwang I., Personalized Politics: The Malaysian State Under Mahathir, ISEAS, 2003
•International Criminal Tribunal for the Former Yugoslavia (2018),
The Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T

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2020
•Johnson D.T, Zimring F.E., The Next Frontier. National Development,
Political Change and the Death Penalty, 2009
•Johnson D.T., Zimring F.E, “Death Penalty Lessons from Asia”,
The Asia-Pacific Journal, Vol 7, Issue 39, 2009
•Kamariah M., “Amendments to the Dangerous Drugs Act”,
Journal of Malaysian and Comparative Law, 1988
•Kamarudin A.R., “The Misuse of Drugs in Malaysia: Past and Present”,
Malaysian Anti-Drugs Journal, 2007
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Southeast Asia and Universalist Theory, Cambridge University Press, 2001
•Lee, T., “Malaysia and the Internal Security Act: the Insecurity of Human
Rights after September 11”, Singapore Journal of Legal Studies, July 2002
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•NAACP Death Row U.S.A., report, 2019
•Nazeri N.M., “Criminal Law Codification and Reform in Malaysia:
An Overview”, Singapore Journal of Legal Studies, December 2010
•Nazeri N.M., Child offender. Policies and the Emergency Rule, 2008
•Nor M.R.M., Abdullah A.T., Ali A.K., From Undang-Undang Melaka to Federal
Constitution: the Dynamics of Multicultural Malaysia, SpringerPlus 5, 1683
(2016), 5:1683
•Pakatan Harapan, Rebuilding our Nation, Fulfilling our Hopes, 2018
•Pascoe D., Last Chance for Life: Clemency in Southeast Asian Death
Penalty Cases, Oxford University Press, 2019
•Peerenboom R., Petersen C.J., Chen A.H.Y., Human Rights in Asia:
A Comparative Legal Study of Twelve Asian Jurisdictions, France
and the USA, Routledge, 2006
•Prime Minister’s Department, Malaysia: 30 Years of Poverty Reduction,
Growth and Racial Harmony, 2004
•Prison Studies, World Prison Brief: Malaysia, 2019
•Renick R., “The Emergency Regulations of Malaya, Causes and Effects”,
Journal of Southeast Asian History, 1965, 6(2)
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A Brief History and Review of the Literature”, Crime and Justice, Vol 34,
No. 1. The University of Chicago Press, 2006
•Setapak Declaration, DAP National Congress of Kuala Lumpur on July 29, 1967
•Singh D., Southeast Asian Affairs, ISEAS, 2000
•Sodhy P., “Malaysia and the United States in the 1980s”, Asian Survey,
Vol 27, No. 10, 1987
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Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[A/63/175], 2007
•Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Interim Report of the Special Rapporteur on
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[A/67/279], 2012
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Treatment or Punishment, Interim Report of the Special Rapporteur on
Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment
[A/68/295], 2013
•SUARAM, Human Rights Report 2016: Civil and Political Rights, 2016
•SUARAM, Human Rights Report 2018: Civil and Political Rights, 2019
•SUARAM, Malaysia: Human Rights Report 2017 Overview, 2017
•SUHAKAM, Annual report 2009 – Human Rights Commission of Malaysia,
2010
•SUHAKAM, Annual report 2017 – Human Rights Commission of Malaysia,
2018
•SUHAKAM, Annual report 2018 – Human Rights Commission of Malaysia,
2019
•SUHAKAM, The Right to Health in Prison. Results of a Nationwide Survey
and Report, 2017
•The Advocates for Human Rights and Harm Reduction International, Repor t
to the 17th Session of the Working Group on the Universal Periodic Review,
United Nations Human Rights Council, 2013
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•Tunku Abdul Rahman, Address at the proclamation of independence
of Malaya, 1957
•UN Commission on Human Rights, Extrajudicial, Summary or Arbitrary
Executions: Report by the Special Rapporteur, submitted pursuant to
Commission on Human Rights resolution 1996/74 [E/CN.4/1997/60], 2018
•UN Commission on Human Rights, Extrajudicial, Summary or Arbitrary
Executions [E/CN.4/2005/7], 2004
•UN Human Rights Council, National Report Submitted in Accordance
with Paragraph 15(A) of the Annex to Human Rights Council Resolution 5/1,
Malaysia [A/HRC/WG.6/4/MYS/1/Rev.1], 2008
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with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21
[Universal Periodic Review]: Malaysia [A/HRC/WG.6/17/MYS/1], 2013
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with Paragraph 5 of the Annex to Human Rights Council resolution 16/21,
Malaysia [A/HRC/WG.6/31/MYS/1], 2018
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Extrajudicial, Summary or Arbitrary Executions, Philip Alston: addendum:
Mission to Kenya [A/HRC/11/2/Add.6], 2009
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Extrajudicial, Summary or Arbitrary Executions [A/HRC/14/24], 2010
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and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Manfred Nowak [A/HRC/10/44], 2009
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Periodic Review, Malaysia, Addendum – Views on Conclusions
and/or Recommendations, Voluntary Commitments and Replies Presented
by the State Under Review [A/HRC/40/11/Add.1], 2019

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•New Straits Times, “Despite Pleas, Malaysian Prabu Pathmanathan Executed
in Singapore”, 2018
•New Straits Times, “Dr M Pledges to Uphold UN Principles
in New Malaysia”, 2018
•The Malaysian Insight, “Rethinking the Death Penalty”, 2018
•The New York Times, “Malaysia to Repeal Death Penalty
and Sedition Law”, 2018
•The Online Citizen, “Vui Kong’s Family Pleads at Istana”, 2010
•The Star Online, “165 on Death Row Escaped the Gallows from 2007
to 2017”, 2018
•The Star Online, “45% Against Total Abolition of Death Penalty”, 2018
•The Star Online, “Nancy: Malaysia One Step Closer to Amending
Death Penalty”, 2016
•The Star Online, “Nine in Lahad Datu Intrusion to Hang”, 2018
•The Star Online, “Pakatan’s Human Rights Reforms a ‘Profound
Disappointment’, says Human Rights Watch”, 2019
•The Star Online, “Ummah Threatens to March if Govt Goes Ahead
With Death Penalty Abolition”, 2019
•Time, “Race War in Malaysia”, 23 May 1969
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on Malaysia, Report of the Office of the United Nations High Commissioner
for Human Rights [A/HRC/WG.6/31/MYS/3], 2018
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Executions of Two Brothers in Malaysia”, 2017
•UNESCO, Memory Of The World Register, Batu Bersurat, Terengganu
(Inscribed Stone of Terengganu), Malaysia [Ref. No. 2008-37], 2009
•United States Department of State – Bureau of Democracy, Human Rights
and Labor, Malaysia 2018 Human Rights Report, 2019
Legal texts
•Bangkok Declaration 1993
•Child Act 2001
•Convention Against Torture
•Courts of Judicature Act 1964
•Criminal Procedure Code
•Dangerous Drugs Act 1952
•Emergency Regulations Ordinance 1948
•Federal Constitution of Malaysia
•Indian Penal Code 1860
•International Covenant on Civil and Political Rights
•Malayan Declaration of Independence 1957
•Optional Protocol to Convention Against Torture
•Penal Code
•Prisons Regulations 2000, P.U.(A) 325/2000
•Safeguards Guaranteeing Protection of the Rights of Those Facing
the Death Penalty, adopted by the UN Economic and Social
Council in resolution 1984/50 on 25 May 1984 and endorsed by
the UN General Assembly in resolution 39/118, adopted without
a vote on 14 December 1984
•UN Economic and Social Council Resolution 1989/64
•Vienna Convention on Consular Relations
Media articles
•Free Malaysia Today, “Accused in Tahfiz Fire Ordered to Enter Defence,
Another Acquitted”, 2020
•Free Malaysia Today, “Time to Abolish Death Sentence”, 2011
•Malay Mail, “Minister: Putrajaya Aims to Reduce Prison Population, not Build
More Jails”, 2019
•Malay Mail, “Murder in Tahfiz School Fire Case Transferred to High Court”, 2018
•Malay Mail, “Profit-Driven Private Prisons not the Solution to Overcrowding
in Malaysian Prisons, Say Rights Groups and MPs”, 2019
•Malaysia Kini, “Batumalai Brothers Hanged at Dawn Today”, 2017
•Malaysia Kini, “Gov’t Reveals Execution Statistics: 358 hanged in 24 years”,
2005
•New Straits Time, “Online Poll Reveals Majority of Netizens Opposed
to Death Penalty Abolition”, 2018

ISOLATION AND DESOLATION
CONDITIONS OF DETENTION OF PEOPLE SENTENCED TO DEATH
MALAYSIA
ISOLATION AND DESOLATION
CONDITIONS OF DETENTION OF PEOPLE SENTENCED TO DEATH
MALAYSIA
“Prolonged detention of individuals sentenced to death is inhumane and is
detrimental to their mental health.” - Dr Suarn Singh, former Head of Psychiatric
Services of the Ministry of Health of Malaysia and psychiatry expert before
Malaysian criminal courts.
“During the day, I am allowed to leave the cell for a period of time, sometimes
45 minutes, sometimes more than that. But we will still be in the building, in
the main hall. I just walk around. » - Michelle, Chinese woman sentenced to
death in 2015.
This book is derived from a fact-finding mission carried out in Malaysia from
July 2019 to February 2020 by ADPAN and ECPM (Together Against the
Death Penalty). It was led by an ADPAN member and two lawyers from the
Malaysian Bar Council, who conducted semi-directive individual interviews
with death row prisoners, relatives of people sentenced to death, faith-based
organisations providing religious counselling in prison, lawyers and psychiatrists
in Malaysia. Carole Berrih, the author of the report, accurately uses all the
accounts collected and puts them in the context of the country’s criminal
and penitentiary systems.
This report is part of the “Fact-Finding mission on death row” collection which
aims to make an assessment of the living conditions on death row in various
countries across the world. The goal is both to report on the reality of death
row and to engage public opinion.
In partnership with:
ISOLATION AND DESOLATION – CONDITIONS OF DETENTION OF PEOPLE SENTENCED TO DEATH – MALAYSIA
CAROLE BERRIH
NGEOW CHOW YING
ECPM
62 bis, avenue Parmentier
75011 Paris
www.ecpm.org
© ECPM, 2020
Price: 20 euros
ISBN: 978-2-491354-09-1
This publication was produced with the financial support
of the European Union. Its content is the sole responsibility of the authors
and does not necessarily reflect the views of the European Union.
Co-funded by the
European Union