Death sentences¶

At the end of 2018, the Malaysian authorities published the official statistics on the death penalty for the first time. In that year alone, the figures indicated that 190 people were sentenced to death, which is far beyond the estimates of civil society. They have not released the number of people sentenced to death in 2019 and 2020. Amnesty International reported that at least 22 people were sentenced to death in 2020.

No death sentence may be passed on people who commit an offence when they are under 18.

The death penalty is mandatory for nine offences, including murder and terrorism. Malaysia is one of the very few countries where the judges cannot always use their discretion in the case of the death penalty. Since July 2019, they can give a prison sentence of at least ten years as an alternative to the death penalty for certain crimes linked to drug trafficking. Conditions of this alternative punishment are considered extremely restrictive. In fact, it leads to the death penalty in most cases.

In 2019, a special task force was created to examine alternative punishments to the mandatory death penalty. This task force is made up of, amongst others, former High Court judges, former members of the Attorney General’s Chambers (AGC), former senior officers of the Prisons Department, criminologists, academics, representatives of the Malaysia Bar Council, SUHAKAM (Human Rights Commission of Malaysia) and civil society organisations. Its conclusions submitted in February 2020 recommended alternative punishments for 11 drug-related offences and 21 other types of crimes. The report has not been made public.

Executions¶

Executions are kept secret. Prisoners executed in 2016 were informed the day before their execution.

The execution of pregnant women is forbidden. The law provides for the commutation of the death penalty to life imprisonment once pregnancy has been proven. Twenty people were executed by hanging between 2012 and 2018. An official moratorium on executions has been in place since 2018.

Prisoners sentenced to death awaiting execution.¶

The number of prisoners sentenced to death in the country has nearly doubled in nine years: 696 people in 2011 and more than 1,314 in 2020. The rise in numbers can be linked to the tightening of policies to fight against drug-related crimes. Around 70% of people sentenced to death in 2019 were imprisoned for drug trafficking and 27% for murder.

The length of incarceration for prisoners sentenced to death is generally long, particularly due to delays in judicial procedures. In 2019, Amnesty International reported that 36% of prisoners sentenced to death were incarcerated for six to ten years, nearly 4% for 11 to 15 years, and 1% for more than 15 years. One prisoner sentenced to death has been imprisoned for 27 years.

Women represent 11% of people sentenced to death. This percentage is much higher compared to other countries, such as Sri Lanka (6.5%), Indonesia (2.2%) or the United States (2%). Nearly 95% of women have been sentenced to death for drug-related crimes.

Foreign nationals represent 44 % of people sentenced to death. The proportion of foreign women sentenced to death is much higher than men: 86 % of women and 39 % of men are of foreign nationality.

Pardons and commutations¶

The king at the federal level and the governors or sultans at the state level have the power to grant pardons, through a Pardon Board. Pardons were granted between 2007 and 2017 to 165 prisoners sentenced to death. Between 55 % and 63 % of all finalised death penalty cases were granted pardon between 1991 and 2016 ─ a relatively high clemency rate ─. The reasons given for granting pardon are based on good behaviour, religious piety, and expressed remorse over the course of their detention. On 30 June 2020, nearly 839 prisoners sentenced to death filed a petition for pardon.

The procedure for clemency is opaque and unknown. Family members revealed that they were not informed of this possibility. Prisoners sentenced to death reported that they were not given information on the progress of their request. People sometimes spend ten years in detention before knowing the outcome of their request for clemency. Some family members and lawyers state that people under death sentence hesitate to apply for clemency for fear that this will expedite their execution and worsen their mental health. This might also be taken as an admission of guilt.
Some prisoners explained that, once the legal appeals in a case are finalised, the prison guards encourage them to apply for pardon under Article 42 of the Federal Constitution.

Judicial procedures are long. All defendants spend between two and five years in detention while waiting for their trial. Appeal procedures generally take ten years. People sentenced to death often wait between 10 and 12 years for a response to their pardon request.

Several legal aid schemes are applicable. The courts provide legal representation to Malaysian nationals and foreigners during their trial and appeal. A second scheme, financed by the government but only applicable to Malaysian nationals, covers expenses during the pre-trial detention. Lawyers state that in reality, prisoners accused of capital crimes do not receive any legal assistance before charges are brought.

The quality of legal representation is judged inadequate. Families and lawyers of people sentenced to death have claimed that lawyers are sometimes incompetent, inexperienced and apathetic about their case.

The law does not allow lawyers to appear during the hearing of a pardon process. Lawyers criticise this provision. They consider it unjust that the prosecution is part of the commission in charge of approving pardons.

Lawyers confirm that meeting with their clients sentenced to death is not difficult. They must inform the prison of their visit two days before the meeting. In general, there is no time limit. The security measures in place depend on the prison. In some facilities, the prisoners are handcuffed, and the visit takes place in the presence of a guard.

The Code of Criminal Procedure guarantees the presence of an interpreter during hearings for those who do not understand the national language. The translation of documents including evidence presented during the trial is at the discretion of the court. Malaysian law does not include any provision for providing interpretation services outside the courtroom, such as during interrogation or when preparing one’s trial defence. Testimonies gathered by Amnesty International reveal that interpretation services for foreign nationals sentenced to death vary greatly depending on the resources made available by their embassy.

An Iranian prisoner sentenced to death provided testimony on the lack of legal safeguards available to foreigners: “We were arrested at the Malaysian’s airport and the next day a Pakistani translator came […]. The translator they sent us was Pakistani and didn’t know Persian very well. The [Iranian] embassy didn’t do anything about it either. At the time, we were asked to pay 20 to 30 million Tomans… to get a lawyer which we didn’t have. Therefore, we got a public defender and were sentenced to death. […] he handled the case carelessly […].”

Women¶

Women sentenced to death do not have access to health care services that can provide for their specific needs. They do not have access to a gynaecologist nor do they receive enough hygiene and sanitary products. They are therefore forced to buy more to cover their needs, which is a financial burden because they are not allowed to work.

Foreigners¶

The situation of foreigners sentenced to death is particularly worrying. In their 2019 report, ECPM stated that the majority of foreigners sentenced to death do not speak Bahasa Malaysian and do not have access to an interpreter. They cannot communicate with the guards and medical personnel or participate in group sessions with religious counsellors. Some prisons allow them to speak privately with counsellors if they can understand each other. This type of exchange remains an exception.

For foreign nationals, family visits are rare. A prisoner sentenced to death whose family lives in China explained that her mother has visited her twice in five years. Foreigners under death sentence can buy telephone cards to phone their loved ones. They say that they feel lonely and hopeless.

The books that prisoners sentenced to death are allowed to have in their cell must be approved by the prison administration. Books in foreign languages that personnel cannot understand are not allowed.

Malaysian law provides foreigners the right to inform their embassy or consulate when they are arrested or detained so that they can be assisted in their legal proceedings. Prisoners sentenced to death report having difficulty contacting their consulate. Mistakes in their identification and attribution of their nationality partly explain this situation.

Prisoners sentenced to death are considered high risk prisoners and treated like a homogenous group regardless of their behaviour, age or mental health.

Prisoners under death sentence are housed in 26 prisons with the rest of the prison population. They are accommodated in individual cells in separated units. The majority of these facilities are located on the peninsula. More than 240 prisoners sentenced to death are incarcerated in Kajang prison for men.
Women are detained in nine institutions.

Prison conditions in Malaysia are considered inadequate. In 2019, the authorities introduced a reform to improve the prison situation across the country and reduce overcrowding. Its aim is to improve living conditions regarding food and access to health care. The reform does not include any specific provisions for those sentenced to death.

Accommodation. The cells of prisoners sentenced to death have poor access to light and ventilation. SUHAKAM noted that 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”. A prisoner said that he sometimes had to undress in his cell because of the heat.
Prisoners buy their bed linen in the prison commissary.
According to the prison regulations “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.”

Hygiene. Toilets are located inside individual cells and are visible from the outside. This makes it impossible for the prisoners to have any privacy. This set-up, including the lack of ventilation, causes bad odours. Prisoners buy their hygiene products (soap, shampoo, toothpaste and toothbrush) from the prison commissary. Those sentenced to death say that they are only given a single large cup for drinking, cleaning and toilet use.

Food. Prisoners sentenced to death report that the food provided by the prison administration is of poor quality, insufficient and sometimes prepared in conditions that do not meet hygienic regulations. Farm products grown by prisoners in agricultural programmes are sometimes added to the meals. An NGO reported that the amount allocated per day to each prisoner for food is €3.02. Prisoners in Kajang and Pokok Sena prisons are not allowed to receive food from the outside. They can, however, buy products sold by the prison administration.

Activities and work. People sentenced to death spend 23 hours a day in their cells and are most of the time alone, unlike other prisoners. They are not allowed to work and have limited access to visits and activities.
However, they are allowed to have books, an MP3 player and/or prayer material inside their cells, a privilege not granted to other prisoners.
They do not have access to education or reintegration programmes. A religious counsellor expressed doubts about the purpose of these detentions. He 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 ten years.”

Disciplinary measures Prisoners sentenced to death explain that disciplinary measures are taken when a prisoner causes problems. They are then transferred to special cells called Bilik Gelap (“the dark room”). As its name suggests, there is no access to daylight and food is limited. Outdoor exercise is only allowed with the prison doctor’s approval. This sanction must not exceed 21 days in a row and must be limited to an aggregate of 90 days a year.

Prisoners under death sentence are allowed visits from family members, religious counsellors and lawyers.

Religion¶

Religious counsellors can access the prison each week, or every two weeks, to lead group sessions of 20 to 30 prisoners. They teach them about religious concepts and give them photocopies of religious texts. Religious counsellors report that during these sessions, prisoners sentenced to death would talk about their life in prison and their emotional distress. They also ask for advice on how to reach their families, how to get a lawyer and how to write a request for clemency. The sessions take place under the supervision of prison staff.

Maintaining family ties¶

Generally, family visits take place without difficulty. Family members of prisoners sentenced to death must show a pocket-sized logbook every time they visit. Prisoners sentenced to death are allowed each week to have one family visit not exceeding 45 minutes. Sometimes relatives cannot enter the facility when there are too many visitors at the same time. As an alternative, they can write a letter instead.
Most prisoners sentenced to death do not receive visits. For most of them, their family live far from the prisons and do not have the means to pay for travel expenses.
The duration of criminal proceedings and the long periods of detention of prisoners sentenced to death incur huge financial burdens on their families. Some of them borrow money, sometimes illegally, to pay for the lawyer fees. They also lose a source of income due to the detention of a family member. The father of one of the prisoners explained: ”I only had my son, as the sole source of income of the family. I was so devasted when he was arrested at 19. Now, I go back and forth to the prison, and I survive without him.”

Visits lead to extra costs for family members who must pay for the trip to and from the prison.
The detention of their relatives also has a social impact on their family. A lot of people avoid befriending someone who has a family member sentenced to death. These persons are sometimes stigmatised. The wife of one prisoner sentenced to death shared her experience: ”Some people treat us as we are not from a good family. I know that my children are struggling in school after their father has been behind bars.” Some family members of prisoners sentenced to death do not visit them. The sister of a prisoner sentenced to death said that it took her two years to visit her brother for the first time and that her husband and son refuse to talk about him.

Visits take place under the surveillance of prison staff. Prisoners sentenced to death and their relatives are separated by a glass window and communicate by telephone.
The brother of a prisoner explained: “Since there are officers who hear the conversation, we only talk about what is necessary. We do not talk about politics or anything outside.”

Executions take place in secret. Several families disclosed that they received incomplete or incorrect information about the execution date of a family member. In 2017, after being told that the execution would take place on a Friday, the family of two convicted brothers were informed less than 24 hours before that it would be held on Tuesday that week. The family of another prisoner executed in 2016 was informed that the execution would be carried out “soon” without a specific date. It took place two days later.

The majority of facilities have clinics, according to SUHAKAM. A doctor and one or more medical assistants are present. Prisoners sentenced to death have unrestricted access to these clinics, but they have an insufficient budget and limited resources in terms of medicine, staff and medical supplies. Prisoners sentenced to death report that they only receive paracetamol regardless of the illness.

One religious counsellor testified: “Once, a prisoner approached me. He told me that 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.”
Prisoners, their families, and institutions reveal that prisoners sentenced to death awaiting the result of their pardon petition generally suffer from anxiety.

• Carole Berrih and Ngeow Chow Ying ECPM report Isolation and desolation: conditions of detention of people sentenced to death in Malaysia, 2020.

• Natalia Antolak-Saper, Sara Kowal, Samira Lindsey, Ngeow Chow Ying and Thaatchaayini Kananatu, Drug Offences and the Death Penalty in Malaysia: Fair Trial Rights and Ramifications, Monash University, Anti-Death Penalty Asia Network and Harm Reduction International, report 2020.

• Amnesty International, Fatally Flawed, Why Malaysia must abolish the death penalty, 2019.

• ECPM, Malaysia: a model path towards abolition, 2019.

• ECPM, Words of abolitionists – Kasthuri Patto, 2019.

• ECPM, Death Penalty in Malaysia - Joint Stakeholders Report for the 31st Session of the Working Group on the Universal Periodic Review, 2018.

• CNA, Malaysia: abuse, collusion and obstruction: Malaysia’s prison problems, 2019.

• CNA, Malaysia to keep death penalty, but no longer mandatory, 2019.

• Malaysiakini, Letter - Lawyer incompetence can result in death, 2021.

• Malaysiakini, Death sentence – committee submits report on alternatives, 2020.

• Amerbon, Task force to study alternative to death penalty; ex-CJ to lead, 2019.

• Le Figaro, Peine de mort : la Malaisie accusée de faire volte-face sur l’abolition promise, 2019. (in French)

• The Washington Post, A country with a growing death row reconsiders its future with capital punishment, 2019.

• Le Monde, La Malaisie annonce la fin prochaine de la peine de mort, 2018. (in French)

• The Death Penalty Project, The Death Penalty in Malaysia. Public opinion on the mandatory death penalty for drug trafficking, murder and firearms offences, 2013.