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Episode 17: Abolish Death Penalty: Justice for All?

Updated: Oct 12, 2022

The Consti Team discusses the abolishment of death penalty in the April edition of the Law Series. This article will examine the Malaysia’s position through the analysis of the case, Letitia Bosmon v Public Prosecutor and other appeals (No 1). Furthermore, it also weights both sides of the arguments for the abolishment of death penalty as well as its alternatives. A lot of countries in the world have abolished death penalty for various reason especially on human rights ground. While Amnesty Malaysia constantly advocates for the same to be done, the citizens have mixed feeling about its impact.


Death penalty, also known as the death sentence or capital punishment, is the legal punishment of particular crimes by death.[1] In Malaysia, Section 277 of the Criminal Procedure Code provides that the execution of the death sentence is hanging by the neck till the person is dead.[2] According to Amnesty Malaysia, there have been 469 executions done by Malaysia since the independence of Peninsula Malaysia in 1957 up until 2019.[3] Furthermore, 1,281 people were under death row in which 89% (1,140) of them were men. Surprisingly, 44% (568) of them were foreigners; [4] Out of the remaining Malaysians, 25% of them were Indians, marking an over-representation on death row.[5] In Malaysia, 33 crimes attract death penalty in which 11 of them are mandatory.[6]

This means that the other 22 crimes only prescribe death as a choice of punishment that can be served to criminals. Out of the people who are on death rows, a staggering 73% of them are convicted of drug trafficking under Section 39B Dangerous Drugs Act 1952 (‘DDA’).[7] Out of the 199 countries around the globe, 144 of them – more than two-third – have abolished the death penalty in law or in practice. However, Malaysia is one of the 55 countries that retain death penalty for ordinary crimes.[8] Although the debate on death penalty has lingered around for decades, the case of Nagaenthran a/l K Dharmalingam in Singapore has once again re-ignited the debate in Malaysia.[9] Should Malaysia follow the footsteps of the world and abolish it once and for all?


2.1. Federal Constitution

Article 5(1) of the Federal Constitution (‘FC’) states that ‘No person shall be deprived of his life or personal liberty save in accordance with law’.[10] Article 5(1) clearly protects any person in Malaysia from the arbitrary deprivation of life. To argue that the mandatory death penalty is inherently arbitrary in Malaysia, however, would not be accepted by the Malaysian courts.

2.2. Letitia Bosman v Public Prosecutor and other appeals (No 1)

2.2.1. Facts of the case

The constitutionality of mandatory death sentence is discussed in the Federal Court case, Letitia Bosman v Public Prosecutor and other appeals (No 1).[11] There are four appellants in this case, in which three of them were convicted of trafficking dangerous drugs under S.39B DDA[12] prior to the 2017 amendment. Another appellant was convicted of murder under S.302 of Penal Code (‘PC’).[13] All appellants were sentenced to death as it was the sole punishment prescribed under their respective provisions. The appellants challenged the constitutionality of mandatory death sentence. Therefore, the issues before the court were, inter alia, whether the mandatory death sentence violated the appellants’ right to life under Article 5(1) of the FC[14] and principle of proportionality under Article 8(1) of the FC.[15]

2.2.2. Majority Decision

In Letitia Bosman (No 1), the Federal Court dealt with the contention of arbitrariness. Azahar Mohamed CJ (Malaya) opined that the mandatory death sentence could not be arbitrary as the Legislature had prescribed such a sentence with the purpose to prevent drug trafficking — which was regarded as a cause of social ills. The court derived this point from looking into the Hansard; although there had been opposition, the majority of Parliament remained with the policy that the death penalty should be carried into effect.[16]

Furthermore, it was held that it also satisfies the test of reasonable classification housed under Article 8 of the Federal Constitution, because ‘the enhanced death penalty for the offences of drugs trafficking and murder is an intelligible differentia that bears a rational relation to a valid social object.’ It could not be arbitrary as the death penalty clearly seeks to stomp out the harms that drug trafficking and murder cause.[17]

2.2.3. Dissenting Judgement

Nallini Pathmanathan FCJ delivered a dissenting judgement in which she held that the mandatory death sentence violated Article 5 and Article 8 of the FC. Thus, S.39B DDA and S.302 PC shall be interpreted to include an alternative sentence – life imprisonment.

According to the principle of proportionality, the penal provision must fit the crime.[18] Her Ladyship opined, as far as punishment was concerned, it was not reasonable to classify all offenders of drug trafficking and murder together. This was because the reasons leading the offenders to commit the crimes and their degree of culpability vary accordingly. For instance, when comparing drug mules and drug manufacturer in drug trafficking offence, the former only carry a relatively small amount of dangerous drug whereas the latter produces large quantities of dangerous drug for consumption of large segment of the public.[19] Therefore, the degree of culpability is substantially different. However, despite being the two extremes on the spectrum, their sole punishment was death sentence. Therefore, it lacked the rational basis to impose mandatory death sentences to all offenders who were convicted of murder or drug trafficking without allowing them the chance to plead for mitigation.

Another interesting observation made by her Ladyship was that the decision regarding constitutionality of death sentence in the case of Ong Ah Chuan v Public Prosecutor[20] is no longer good law.[21] This is because the case of Ong Ah Chuan was decided in the 1980s by the Privy Council but the jurisprudence on human rights had evolved over-time. Furthermore, Privy Council had in Reyes v The Queen[22] held that the narrow view on mandatory death sentence in Ong Ah Chuan is of little assistance as the international jurisprudence on human rights was rudimentary at that material time. Therefore, it follows that the departure from Public Prosecutor v Lau Kee Hoo, which adopted the reasoning of Ong Ah Chuan in toto, should be warranted.[23]

2.2.3. The Current Trend

Notwithstanding the dissent by Nallini Pathmanathan FCJ, it is a 6-1 decision. Therefore, considering the decision in Letitia Bosman (No 1), it is clear that the courts are currently reluctant to bring down the hammer of unconstitutionality upon the mandatory death penalty, at least until the Legislature does otherwise. The onus now lies upon the Legislative, as to whether they possess the political will to drive the change. Till then, it is very unlikely that the courts would go against such controversial matters of public policy.

In 2017, an amendment was made to S.39B(2) DDA to allow an alternative sentence for drug traffickers – life imprisonment and whipping of not less than fifteen stroke. Since then, there have been instances where the courts have decided in the alternative. Although not to the extent of ruling the mandatory death penalty unconstitutional, the Court of Appeal in Junaidi Berimang has imposed life imprisonment against a drug trafficker, compared to the death penalty.[24] The court also held that the word ‘may’ confers to the courts the discretion to impose the alternative sentence.

Lee Swee Seng JCA affirmed that this discretion is important as the courts must be given some room to apply the proportionality principle on sentencing — allowing the judiciary to differentiate between a mule and an actual drug trafficker. Quoting Lee Swee Seng JCA, ‘carriers and mules are at the lowest end of the nefarious hierarchy of drug trafficking business and yet they stand to receive the maximum irrevocable and final sentence in law, that of the death penalty whilst the real culprit and mastermind may not be known…’ This good development in law allows the court to serve justice better to the innocent carriers and mules.[25]


3.1. Deprivation of Right to Life

The first argument against the death penalty is the deprival of the accused’s right to life. It is contended that human life is sacred and should not be used as a tool of punishment. The theory of retribution – namely an eye for an eye – does not sit well with this principle. Losing the right to exist is simply not proportionate to any crime committed. Amnesty International opines the penalty to breach the fundamentals of right to life and right to live free from torture or cruel, inhuman or degrading treatment or punishment.[26] As such, the question of proportionality between the cost of human life and the gain of punishment should not be answered in the affirmative.

3.2. Deprivation of Right to Life

Arguably the strongest contention against the punishment is that of possible innocence. There have been instances of unreliable evidence being submitted to convict an innocent human being. For example, only with the help of modern technology and science was Suzanne Johnson granted clemency, after being wrongfully convicted of killing an infant who accidentally fell to his death. Furthermore, displays of a faulty justice system have also produced judicial failures. For instance, only after 11 years was Kimberly Long released from prison. The police did not believe her story that she discovered her boyfriend bludgeoned to death in the living room when she got home. The first jury was hung, with nine jurors favouring acquittal. However, the second returned with a guilty verdict after allowed a break from deliberations to celebrate Christmas.[27]

Similarly, the infamous Central Park Five case in which five young men were wrongly accused to have attacked and sexually assaulted a woman whilst jogging likewise shows the danger of the death penalty.[28] The assault of the woman was widely reported on the news, creating a huge media pressure on the police. Flowing from that, the police arrested five innocent young men by relying on a witness’ statement. The accused were threatened into confessing due to the immense pressure and fear. These miscarriages of justice are not uncommon in Malaysia. For instance, a man was wrongly convicted and sentenced to 53 years imprisonment as the real perpetrators had used the man’s identity to commit consumer crimes. He was only released after spending two years serving his sentence.[29]

It is certainly unfortunate for these people to have to suffer the blunders of the system designed to protect them. However, these blunders do not cost them their very existence in the world. The death penalty does. In the event of a mistake – whichever from the above or otherwise – a soul is taken away, never to return again. A dead man could never have the chance to reverse his conviction.

3.3. Imposition on the Poor

Some crimes are committed by desperate individuals, in great need of financial aid. Thus, it is them who suffer the most from the penalty. Dr Adeeba Kamarulzaman, who was involved in the World Health Organisation Science Council stated, ‘It is always those who are desperate and at the bottom end of the chain that pays the price’.[30]

Those financially ill-fated are also the ones struggling in finding adept legal representation. The Tawau High Court imposed capital punishment onto an individual when customs officers found him with a bag of methamphetamine. On appeal, after pointing out the myriad times when the defence counsel had been ‘flagrantly incompetent’, the Court then held the Yemeni was therefore not given a fair trial.[31] The Chief Justice, before even stating the facts of the case, mentioned in her Federal Court judgement, ‘This appeal is an apt example of the crucial role played by defence counsel in a criminal trial and how their flagrant incompetence might jeopardise the accused’s right to a fair trial…’. Thus, the apex court then proceeded to acquit the appellant.[32] The right to have competent lawyers may seem like a rightful entitlement. However, those without money may not be able to afford a capable lawyer, leading to similar fallacious sentences.

3.4. Ineffective Deterrence Tool

Advocates of death penalty justify it with the point of deterrence, believing the cold-bloodedness to prevent further societal savagery. However, statistics illustrate the contrary, the murder rates in 10 countries declined following the abolishment of the punishment. Similarly, several states in the United States also indicate that the presence of the death penalty does not have any impact on the murder rates, rendering those advocates’ contention unfounded.[33] Logically, such an argument may not apply to drug mules or the distressed individuals. For instance, a single mother of nine surely would put aside her fears of the penalty for the sake of her children.[34]


4.1. Retribution

Despite polarizing views on the death penalty, many opined that it is necessary in today’s society. Proponents of the death penalty bring up the purpose of the sentence itself. One such purpose, as with all punishments, is retribution, which is based on the notion that all guilty people deserve to suffer and have punishment meted out to them in proportion to the severity of their crimes.[35] Retributive justice is cited as necessitating the death penalty, whereby for crimes as heinous as murder, there is no punishment befitting enough other than death.

4.2. Deterrence and Incapacitation

Furthermore, the death penalty has been argued to prevent serious crimes. From a general standpoint, the imposition of a death penalty on what society deems to be the most serious of crimes, sends out the clear message to society against committing said crimes, lest they risk being sentenced to death upon conviction.[36] The role of the death penalty as a specific deterrent is founded on the argument that sentencing dangerous offenders to death strips them of the ability of re-offending, or committing further violence, therefore incapacitating them in the interest of society.[37] However, opponents to the death penalty have been vocal about their disagreement on the morality and efficacy of the death penalty in regard to these functions when calling for abolition.

4.3. Malaysia Is Not the Only Retentionist

Although a lot of countries have abolished the death penalty in their criminal justice system, Malaysia, along with numerous other countries such as China, Saudi Arabia and the United States, still retain the sentence.[38] Under international law, efforts have been made towards abolishing the death penalty globally by way of the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). However, Malaysia is not a party to this Second Optional Protocol or the ICCPR and as such, these treaties have no legal effect in our domestic law.[39]

4.4. Right to Life is Not Absolute and Applicability of Treaty

Another issue that arises is whether the guarantee of the right to life prohibits the implementation of the death penalty. To illustrate, Article 3 of the Universal Declaration of Human Rights (UDHR) provides for the right to life of all,[40] while Article 6(1) of the ICCPR mentions that a person cannot be arbitrarily deprived of such right.[41]

The effect of international provisions was discussed in the Singaporean Court of Appeal case of Nagaenthran a/l K Dharmalingam v Attorney-General and another matter, which saw the appellant sentenced to death for smuggling 42.72g of heroin.[42] Counsel for the appellant sought judicial review against his execution on the ground that he was suffering from an abnormality of mind under s 33B(3)(b) of the Misuse of Drugs Act 1973. It was submitted that international law prohibits cruel and unusual punishments on the intellectually disabled, and that customary international law prohibits imposition of the death penalty upon mentally disabled persons.[43] The court held that the reliance of the appellant on international instruments in his arguments did not have any legal effect in Singaporean law as such principles and provisions had not been adopted into domestic legislature. Like Malaysia, Singapore practices the Westminster system of government. As such the Executive branch of government, while it has the authority to sign international treaties, must obtain the approval of the Legislative before international provisions can be adopted into local law as international treaty obligations are not self-executing under our legal systems.[44]


5.1. Revision of Double Presumption in the Dangerous Drugs Act 1952

The Dangerous Drugs Act 1952 (DDA) allows for double presumptions under Section 37(d) and Section 37(da).[45] S. 37(d) states that, ‘any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug’ while S. 37(da) provides a list of drugs with their specific weight to prove trafficking. Thus, double presumptions can be easily established as the prosecution merely needs to prove custody of the drugs by the accused alongside the weight of the drug. The burden of proof is shifted to the accused to disprove the presumptions of possession and knowledge as well as its trafficking under s. 37(d) and s. 37(da).[46] There are past court cases in Malaysia that have applied this doctrine.

However, it is criticised that invoking a presumption upon a presumption is harsh, as ruled in the Federal Court case of Muhammed bin Hassan v Public Prosecutor.[47] Thus, it also held that such double presumption could not stand. Regrettably, such interpretation of DDA was merely momentarily, as the Parliament passed the Dangerous Drugs (Amendment) Act 2014 to maintain the application of such double presumption.[48] The provision reads, ‘Notwithstanding anything under any written law or rule of law, a presumption may be applied under this Part in addition to or in conjunction with any other presumption provided under this Part or any other written law’.[49] With the amendment coming into effect, double presumption was allowed in subsequent cases, resulting in the accused being convicted of drug trafficking easily. Such position was successfully challenged in Alma Nudo Atenza[50] in which the Federal Court held that the double presumption had violated Article 5(1) and 8(1) of the FC, rendering it unconstitutional. Therefore, revision on double presumption must be made to ensure the adherence to FC and the UDHR on the principle of innocent until proven guilty.[51]

5.2. Limiting the Application of the Death Penalty

Countries which retain death penalty have attempted to restrict the types of crimes that attract death sentence due to the worldwide dynamic that calls for its abolition.[52] This includes restricting the categories of people that is eligible for the sentence, making the death penalty discretionary and creating safeguards to protect the accused from wrongful convictions. As the United Nations Human Rights Committee in 1982 said, ‘death penalty should be a quite exceptional measure’.[53]

The Commission on Human Rights has urged retentionists to not impose the death penalty for non-violent financial crimes, non-violent religious practices or expressions on conscience. The list continues further as the Human Rights Committees also included offences such as suicide, apostasy, drug-related offences, and other related acts.[54]

In 2001, the Human Rights Committee reported that North Korea intended to reduce crimes which attracts capital punishment from 33 to only 5. Similarly, Vietnam has also signalled its intentions to reduce the number of capital crimes from 44 to 29. Furthermore, China indicated that it would reduce offences for capital punishments too.[55]

5.2.1. Alternative Approach to Capital Punishment Through the Islamic System of Diya

Diya is a form of compensation in the form of “blood money” to a victim or a victim’s family for death or injury caused by a serious offense rather than requiring punishment. Scholars have opined that Diya was a form of pardon and is in compliance with international law. In addition, the victims’ family is empowered to pardon, rather than the state.[56]

Currently, Diya is practiced by Saudi Arabia, Pakistan and Iran among other Middle Eastern neighbours who are retentionists. The victim’s family is still the right-holder to allow Diya, with the occasional reinforcement of the State. The Diya amount is set by the Shariah courts, with differing judicial authority over the price and different considerations among the practicing countries. For instance, in Saudi Arabia, the Diya for a male Muslim in 2011 is $106, 666 while in the UAE is $54, 450.[57]

Diya contains many similarities with the definition of clemency in Article 6(4) of the ICCPR.[58] Both are alternatives to state sanctioned death sentences through extra-judicial discretionary responses and adhere to the principles of mercy and forgiveness.[59] Indeed, it is considered as a more humane approach when compared with the taking of one’s life by the state. Perhaps Diya could be implemented locally as a possible alternative to death penalty subjected to local circumstances.


In conclusion, there are always two sides to a coin. It is up to the public to determine whether abolishing the death penalty is a boon or a bane. However, abolishment of death penalty is generally favored in current evolutionary international jurisprudence in human rights. Alternatively, the death penalty could be gradually restricted to allow the state and public to adapt and dissect the need to abolish death penalty further. In fact, Malaysia had implemented a moratorium on all execution since 2018 with a commitment to abolish the death penalty.[60] The cabinet is currently reviewing the recommendations provided in the report by the special committee to review alternative sentences to the mandatory death penalty.[61] We hope to see the abolishment of death penalty in Malaysia as stated by the late Minister in the Prime Minister's Department (Law and Parliamentary Affairs), ‘Death penalty will be abolished. Full stop.’[62]


[1] Cambridge University Press. (n.d.) The death penalty. Cambridge Dictionary. Retrieved from <>. Site accessed on 21 April 2022.

[2] Criminal Procedure Code (Act 593) (Malaysia) s 277.

[3] Amnesty International. (2019). Fatally Flawed Why Malaysia Must Abolish Death Penalty. Amnesty International Ltd. Retrieved from <>. Site accessed on 21 April 2022.

[4] See footnote 3 above, 19.

[5] See footnote 3 above, 22.

[6] Dato Seri Dr Haji Wan Junaidi Tuanku Jaafar. (2022, Jan 27). Pembentangan Laporan Kajian Hukuman Gantian Terhadap Hukuman Mati Mandatori Kepada Jemaah Menteri. Prime Minister’s Department Legal Affairs Division. Retrieved from <>. Site accessed on 21 April 2022.

[7] Dangerous Drugs Act 1952 (Act 234 Rev. 1980) (Malaysia) s 39B.

[8] See footnote 3 above, 58.

[9] Yuen, M. (2021, Nov 28). Death sentences on a decline in Malaysia. The Star. Retrieved from <>. Site accessed on 21 April 2022.

[10] Federal Constitution (Malaysia) art 5(1).

[11] [2020] 5 MLJ 277

[12] See footnote 7 above.

[13] Penal Code (Act 574) (Malaysia) s 302.

[14] See footnote 10 above.

[15] Federal Constitution (Malaysia) art 8(1).

[16] See footnote 11 above.

[17]Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ 277.

[18] See footnote 17 above, 363.

[19] See footnote 17 above, 366.

[20] [1981] AC 648

[21] See footnote 17 above, 379.

[22] [2002] 2 AC 235

[23] See footnote 17 above, 380.

[24]Junaidi Berimang v Public Prosecutor and another appeal [2022] MLJU 453.

[25] See footnote 24 above.

[26] Amnesty International. (n.d.). Death Penalty. Amnesty International. Retrieved from <,by%20the%20UN%20in%201948>. Site accessed on 13 April 2022.

[27] Armstrong, K. (2021, April 8). The Five Worst Wrongful Conviction Cases in U.S. History. Law Offices of Kerry L. Armstrong APLC Criminal Defense. Retrieved from <>. Site accessed on 13 April 2022.

[28]People v Wise 194 Misc. 2d 481, 752 N.Y.S.2d 837 (Sup. Ct. 2002)

[29] Xiang, Y. W. (2021, May 7). M'sian Who Was Wrongfully Sentenced To 53 Years' Jail Has Been Proven Innocent And Freed. Says. Retrieved from <>. Site accessed on 22 April 2022.

[30] (2021, Oct 17). Harrowing cries of single mother handed death sentence captured in viral video. MalaysiaKini. Retrieved from <>. Site accessed on 20 April 2022.

[31]Yahya Hussein Mohsen Abdulrab v Public Prosecutor [2020] MLJU 1372, 52.

[32]Yahya Hussein Mohsen Abdulrab v Public Prosecutor [2021] 5 MLJ 811, 1.

[33] (2019, Jan 3). Study: International Data Shows Declining Murder Rates After Abolition of Death Penalty. Death Penalty Information Center. Retrieved from <>. Site accessed on 21 April 2022.

[34] See footnote 30 above.

[35] BBC. (n.d.). Arguments in favour of capital punishment. BBC: Ethics guide. Retrieved from <>. Site accessed on 15 April 2022.

[36] Stimson, C. (2019, December 20). The Death Penalty Is Appropriate. The Heritage Foundation. Retrieved from <>. Site accessed on 15 April 2022.

[37] See footnote 36 above.

[38] BBC News. (2020, December 11). Death penalty: How many countries still have it? BBC News. Retrieved from <>. Site accessed on 15 April 2022.

[39] Tee, K. (2021, November 10). Saifuddin: Putrajaya not looking to ratify UN’s International Covenant on Civil and Political Rights yet. Malay Mail. Retrieved from <>. Site accessed 15 April 2022.

[40] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess 183rd plen mtg, UN Doc A/810 (10 December 1948) art 3. Retrieved from < >. Site accessed on 12 Dec 2021.

[41] Universal Covenant on Civil and Political Rights. GA Res 2200A (XXI), UN GAOR, 21st sess 1496th plen mtg, Agenda Item 62, UN Doc A/RES/21/2200 (16 December 1966) art 3. Retrieved from <>. Site accessed on 21 April 2022.

[42]Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] SGCA 26.

[43] See footnote 42 above.

[44] See footnote 42 above.

[45] Dangerous Drugs Act (Act 234) (Malaysia) s. 37.

[46] Kho, B. J. Y. (2019). Double Trouble No More: The Striking Down of Double Presumptions for Drug Trafficking by the Federal Court. University of Malaya Law Review. Retrieved from Site accessed on 15th April 2022.

[47] [1998] 2 MLJ 273

[48] Dangerous Drug (Amendment) Act 2014 (Act A1457) (Malaysia).

[49] See footnote 48 above, s 4.

[50]PP v Alma Nudo Atenza [2019] MLJU 280.

[51] See footnote 44 above.

[52] Hood, R., & Hoyle, C. (2009). Abolishing the Death Penalty Worldwide: The Impact of a “New Dynamic”. Crime and Justice. The University of Chicago Press. 38(1). 1, 1. Retrieved from Site accessed on 17 April 2022.

[53] See footnote 52 above.

[54] See footnote 52 above.

[55] See footnote 52 above.

[56] Pascoe, D. (2015). Is Diya a Form of Clemency? Boston University International Law Journal. 34(1), 150, 150. Retrieved from Site accessed on 16 April 2022.

[57] See footnote 56 above.

[58] UN Human Rights Committee. (1982). CCPR General Comment No. 6: Article 6 (Right to Life). UN Human Rights Committee. Retrieved from Site accessed on 15th April 2022.

[59] Pascoe, D. (2015). Is Diya a Form of Clemency? Boston University International Law Journal. 34(1), 150, 167. Retrieved from Site accessed on 16th April 2022.

[60] (2018, Oct 11). Report: Gov't will abolish the death penalty, assures minister. MalaysiaKini. Retrieved from <>. Site accessed on 21 April 2022.

[61] Yuen, M. (2022, Jan 2). After a year, death penalty report to be looked into. The Star. Retrieved from <>. Site accessed 21 April 2022.

[62] See footnote 60 above.

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