On 16 June 2023, the government of Malaysia published in the official gazette two laws to repeal the mandatory death penalty and establish a resentencing process for those under the sentence of death and imprisonment for natural life.
As the laws are about to come into force, Amnesty International Malaysia calls on the government to ensure the strictest observance of all fair trial guarantees and international safeguards in the forthcoming resentencing process, including by providing clarity on the process as a matter of urgency.
The Abolition of Mandatory Death Penalty Act 2023 and the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of The Federal Court) Act 2023 obtained royal assent on 9 June and were published in the Federal Gazette on 16 June. The laws will come into force at a date to be announced by the Minister of Law, at which point, a 90-day period will begin, to allow those sentenced to death or imprisonment for natural life with their sentences already confirmed by the Federal Court, to apply for resentencing. Those still undergoing trial and appeals will have a chance to request the commutation of their sentences as part of the ordinary court process.
“It is imperative that there is absolute clarity on the resentencing process and how judges will exercise discretion. The lack of information thus far exacerbates already high levels of anxiety for those on death row and their families who have been in limbo for many months already,”, Katrina Jorene Maliamauv, Executive Director of Amnesty International Malaysia, said.
Amnesty International Malaysia is concerned that the lack of a clearly defined process in the law, coupled with limited resources in the criminal justice system, could result in a resentencing process riddled with violations of the right to a fair trial, failing its purpose to deliver fair and meaningful reviews of death sentences.
“The resentencing process is a last chance to life for hundreds of people on death row. The Malaysian authorities must ensure that the resentencing is in line with international fair trial standards and other safeguards of due process. Failing to do so would result in a process that not only further penalizes those who have been already at greater risk of the death penalty – including because of their disadvantaged socio-economic backgrounds or as foreign nationals – but would also undermine the judicial process as a meaningful safeguard against the arbitrary deprivation of life”, Katrina Jorene Maliamauv added.
Among other concerns, Amnesty International Malaysia has been calling on the government to ensure that those applying for resentencing have adequate time, resources, facilities, and language support to prepare for their resentencing hearings. Additionally, they must be provided with timely access to effective legal representation and have the ability to promptly access existing and new documentation to provide evidence of mitigating factors relating to the circumstances of the offences or their backgrounds. The authorities must ensure the right to appeal the decision; the right to be promptly informed in advance of when the resentencing request will be considered as well as the outcome of the procedure.
Additionally, the organization encourages the authorities of Malaysia to request regular reporting to Parliament on the implementation of the measures, so that any systemic issues arising from the process can promptly be assessed and addressed, including through further legislative action.
Amnesty International Malaysia also urges that the moratorium on executions, which has been in place since 2018, be maintained until the death penalty is fully abolished and all death sentences are commuted; and for whipping, which constitutes cruel, inhuman and degrading treatment or punishment and as such is prohibited under international law, to be repealed.
“The removal of the mandatory death penalty has been an important achievement, but it should not be the last. Malaysia can and must swiftly work towards ending this cruel, inhumane, and degrading punishment once and for all.” Katrina Jorene Maliamauv added.
The Abolition of Mandatory Death Penalty Act 2023 and the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of The Federal Court) Act 2023– were adopted by the Dewan Rakyat (House of Representatives) on 3 April and by the Dewan Negara (Senate) on 11 April.
In addition to repealing the mandatory death penalty and introducing sentencing discretion for all offenses for which it was applicable, they abolish the death penalty in full for seven offences.
An official moratorium on executions has been in place since July 2018, but the courts in Malaysia have continued to sentence countless people to death.
Amnesty International opposes the death penalty in all cases without exception, regardless of the nature or circumstances of the crime, the guilt, innocence or other characteristics of the offender or the method used by the state to carry out the execution.