The Abolition of the Mandatory Death Penalty in Malaysia: An Analysis from the Perspectives of Human Rights and Criminal Justice

Abstract

The abolition of the mandatory death penalty in Malaysia through the Abolition of Mandatory Death Penalty Act 2023 represents a significant development in the country’s criminal justice system. Prior to the amendment, several criminal offences under the Penal Code, the Dangerous Drugs Act 1952, and other statutes prescribed the mandatory death penalty without allowing the courts to consider mitigating factors, the degree of the accused’s involvement or the individual circumstances of the case when determining the appropriate sentence. This situation gave rise to considerable debate from the perspectives of human rights and criminal justice, particularly in relation to the right to life, substantive justice, the risk of wrongful conviction, and the limitations of judicial discretion. Accordingly, this study examines the relevant legal developments, the factors that prompted the policy shift and sentencing approaches following the implementation of the Abolition of Mandatory Death Penalty Act 2023.The study adopts a qualitative approach through doctrinal and socio-legal research designs. Data were obtained from primary sources including statutes, court cases, parliamentary Hansard, and semi-structured interviews with legal practitioners, as well as secondary sources comprising journal articles, academic books, and reports published by human rights organisations. The findings indicate that the abolition of the mandatory death penalty was influenced by developments in human rights principles, concerns over the risk of judicial error, the need to strengthen substantive justice, and the expansion of judicial discretion in sentencing. The case analysis further shows that, following the abolition, courts have begun to exercise judicial discretion more broadly by taking into account the extent of accused’s involvement, mitigating factors, and the circumstances of each case. Based on these findings, the study proposes the development of clearer and more consistent sentencing guidelines to promote uniformity in sentencing decisions. In addition, mechanisms for reviewing cases, as well as rehabilitation and social reintegration programmes for prisoners, should be strengthened to ensure that this new approach is implemented in a more orderly and balanced manner within Malaysia’s criminal justice system.
Keywords: Mandatory death penalty, human rights, criminal justice, judicial discretion, sentencing, legal reform