Abolishing Malaysia’s mandatory death penalty: A step towards global abolition or a pipe dream?

Malaysia recently moved to abolish the mandatory death penalty for a range of serious offences, including murder, drug trafficking, treason, and terrorism. Instead of having to impose the death penalty, courts now have the option of imposing prison sentences of up to 40 years instead. 

But while UN human rights experts welcomed Malaysia’s actions, claiming it bolsters the ‘global trend towards the universal abolition’ of the death penalty, critics argue that the reforms do not go far enough – the death penalty itself remains a sentencing option, just not a mandatory one. Even in previous instances where other sentencing options may have been available (for example, where the accused had a limited role in trafficking), the stats showed that Malaysian courts still chose to impose the death penalty. 

Is there truly a global trend moving toward the universal abolition of the death penalty? 

Perhaps – there have certainly been moves to formalise this position on a global level. In 2020, the United Nations General Assembly (UNGA) adopted a resolution that declared a moratorium on the use of the death penalty while affirming the sovereign right of all countries to determine their legal penalties in accordance with international law obligations. By the end of 2021, Amnesty International noted that 108 countries had completely abolished the death penalty, a step up from 106 countries in 2019. 

These numbers and developments may look convincing. Moreover, despite not having fully abolished the death penalty, some countries retain death penalty laws but have policies or formal commitments in place to not execute; and some may not have carried out executions for a lengthy period – e.g. ten years, which could indicate a practice of not executing.

What can regional analyses tell us?

A regional analysis may prove more useful in showcasing how and why death penalties are clustered in different parts of the world. This is supported by the existence of mixed reports which note the extreme secrecy of executions and a lack of complete data in some countries. Some countries may also make decisions to resume death penalties, such as Belarus in 2016. These factors complicate the process of drawing conclusions on the death penalty’s use on a global level, and how such conclusions can be studied to inform public policy on ancillary issues. For example, the right to life presents strong arguments in favour of abolishing the death penalty worldwide and is enshrined in various UN Declarations. 

A regional analysis of the death penalty’s use may be important for two reasons. Firstly, this approach can reveal inconsistencies in a region’s human rights and criminal justice landscape. Take the Southeast Asian region for example, which Malaysia is a part of. Out of the 10 nations of the Association of Southeast Asian Nations (ASEAN), only three countries – Cambodia, Malaysia, and the Philippines – voted to support the UNGA’s moratorium on the use of the death penalty. Singapore and Brunei voted against it, while the remaining five countries abstained. As a significant number of death penalties in ASEAN countries are linked to drug-related offending, one may question how the stance of some countries may align with their neighbours’ reforms – such as Thailand’s recent decriminalisation of cannabis. 

Secondly, a regional analysis of the death penalty’s use is more able to fully take into account the region’s historical backdrop while acknowledging the differences of each country. This can present a fuller account of why the death penalty continues to be used in certain types of countries and what measures can be taken to move towards abolition. In some ASEAN countries with more authoritarian-style regimes, the death penalty serves as a political promise – President Duterte of the Philippines has continuously called for the reinstatement of the death penalty for drug violations. In others, it serves as a form of repression – the Myanmar junta executed democracy activists in 2022, and this is believed to be Myanmar’s first use of capital punishment in decades. Singapore, despite being vastly different to Myanmar or the Philippines, has also pressed on with capital punishment and used restrictive public order laws against activists and media outlets. Such zero-tolerant approaches may be characteristic of the region’s historical approach to crime and punishment, which warrants further scrutiny. 

While Malaysia has taken the step of abolishing its mandatory death penalty, the potential impacts of this move at the regional or global level should not be overstated. At the same time, it is undeniable that the overall number of countries moving to limit the use of capital punishment in one form or another has grown. However, being able to properly quantify the number of these countries remains difficult and will continue to depend on how ‘use’ is interpreted.