Written by Richard Wee, Fatin Ismail, Ng Chin Yang and Lim Zhi Ying

Introduction

In Malaysia’s journey towards reforming the policies of mandatory death penalty and life imprisonment, two Acts, namely, 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 gazetted on 16 June 2023.

Briefly, the Abolition of Mandatory Death Penalty Act 2023 revises the sentencing mechanism, abolishing: (a) mandatory death penalty; and (b) life imprisonment in the Penal Code, the Firearms (Increased Penalties) Act 1971, the Arms Act 1960, the Kidnapping Act 1961, the Dangerous Drugs Act 1952, the Strategic Trade Act 2010 and the Criminal Procedure Code.

Is the Death Penalty abolished in Malaysia? 

When it comes to abolition of the mandatory death penalty, we must take note that the amendment brought forward by the Acts has two effects:

  1.  death penalty is still available but turns discretionary; and 
  2.  death penalty is totally removed and no longer available.
Replacing Mandatory Death Penalty with Discretionary Death Penalty

There are certain offences which previously carried the punishment of mandatory death penalty now being amended to only carry the punishment of discretionary death penalty. The alternative punishment provided under the amendment is evident by the phrase

“… shall be punished with death or imprisonment for a term not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes

The said phrase is inserted into the following nine offences:

Penal Code

Section

Offence

121A

Offences against the person of the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri

130C(1)(a)

Committing terrorist acts

130I

Directing activities of terrorist groups

130N

Providing or collecting property for terrorist acts

130O(1)(aa)

Providing services for terrorist purposes

130QA(a)

Accepting gratification to facilitate or enable terrorist acts

130ZB

Accepting gratification to facilitate or enable organised criminal activity

374A

Hostage-taking

302

Punishment for murder

Total Removal of Death Penalty

Meanwhile, death penalty which was previously available is now totally removed for the following seven offences:

Penal Code

Section

Offence

307

Attempt to murder

364

Kidnapping or abducting in order to murder

Firearms (Increased Penalties) Act 1971

Section

Offence

3

Penalty for discharging a firearm in the commission of a scheduled offence 

3A

Penalty for accomplices in case of discharge of firearm 

7

Penalty for trafficking in firearms

Arms Act 1960

Section

Offence

14

Penalty for manufacturing without licence and for breach of conditions of licence

Kidnapping Act 1961

Section

Offence

3(1)

Abduction, wrongful restrain or wrongful confinement for ransom

Is Life Imprisonment Still Enforceable in Malaysia? 

The definition of “imprisonment for life” is deleted and terms of imprisonment is substituted for the following 23 offences:

Penal Code

Section

Offence

121

Waging or attempting to wage or abetting the waging of war against the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri

121B

Offences against the authority of the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri

122

Collecting arms, etc., with the intention of waging war against the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri

124K

Sabotage

124M

Espionage

125

Waging war against any power in alliance with the Yang di-Pertuan Agong

125A

Harbouring or attempting to harbour any person in Malaysia or person residing in a foreign State at war or in hostility against the Yang di-Pertuan Agong

128

Public servant voluntarily allowing prisoner of State or war in his custody to escape

130

Aiding escape of, rescuing, or harbouring such prisoner

130D

Providing devices to terrorist groups

130J

Directing activities of terrorist groups

130K

Harbouring persons committing terrorist acts

130KA

Member of a terrorist group

Firearms (Increased Penalties) Act 1971

Section

Offence

4

Penalty for exhibiting a firearm in the commission of a schedule offence

5

Penalty for having firearm in the commission of a scheduled offence

7

Penalty for trafficking in firearms

Arms Act 1960

Section

Offence

14

Penalty for manufacturing without a licence and for breach of conditions of license

32(1)

Penalty for use and possession of arms and imitation arms in certain cases

Kidnapping Act

Section

Offence

3(1)

Abduction, wrongful restraint or wrongful confinement for ransom

Strategic Trade Act 2010

Section

Offence

9

Export, transhipment and transit of strategic items and unlisted items

10(2)(a)

Provision of technical assistance

11(2)(a)(i)

Brokering of strategic items

12(4)(A)

Transactions involving unlisted items and restricted activities

The Second Chance: Review of Death and Life Imprisonment Sentences

The Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 provides for the temporary jurisdiction of the Federal Court to review the sentence of death and imprisonment for natural life imposed on a convicted person following the abolition of the mandatory death penalty and amendment to the relating laws. 

Pursuant to ss 3 and 5 of the 2023 Act, any person who is sentenced to death or serving a sentence of imprisonment for natural life may make an application in writing to the Federal Court within 90 days from the date of coming into operation of this Act accordingly. Upon receiving an application, the Federal Court shall review the sentence of death or imprisonment of natural life. 

It is worth noting that the Federal Court may extend the time specified — 90 days if it considers that there is a good reason for doing so. A person will only be allowed to apply once for review. 

Conclusion

In short, the Acts have marked a turning point in Malaysia’s legal landscape, where the punishment of mandatory death penalty and life imprisonment are abolished. With this amendment, the Federal Court is given temporary jurisdiction to review the sentence of death and imprisonment for natural life imposed on a convicted person upon application.

Published on 12 September 2023

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