Report finds concerns with access to fair trials in Malaysia death penalty cases

Key findings:

  • Monash University’s research shows that the death penalty in Malaysia has been imposed following proceedings that did not meet fair trial standards either in accordance with international, domestic, or cognate common law standards.
  • There are 1,280 people awaiting the death penalty in Malaysia, who have not experienced fair trial standards either in accordance with international, domestic, or cognate common law standards.
  • In certain drug trafficking trials, the presumption of innocence is undermined as a result of the double presumptions an accused is presumed to be guilty.
  • Many of those accused face socio- economic, nationality and language barriers that prohibit their access to the requisite level of legal assistance.

The report, titled ‘Ensuring a Fair Trial: Fair Trial Guarantees & the Death Penalty in Malaysia’, was launched today by Malaysia’s former Chief Justice, Judge Tan Sri Richard Malanjum.  Written by Monash University and the Anti-Death Penalty Asia Network (ADPAN) with support from Harm Reduction International, the report also makes a number of recommendations, including that the Malaysian Government ratify the International Covenant on Civil and Political Rights and the Second Optional Protocol.

According to Dr Thaatchayini Kananatu from the School of Business and one of the co-authors of the report, this project has highlighted the impact of Malaysia's drug trafficking laws and the death penalty on particularly vulnerable groups such as foreign nationals and women such as female migrant workers people from the lower socioeconomic groups who also tend to be less educated (e.g. the bottom 40), and marginalised minorities. “The legal recognition of vulnerability is particularly important in relation to 'drug mules/carriers,” she added.

“Our case analysis in the Report revealed that the death penalty in Malaysia has been imposed following proceedings that did not meet fair trial standards either in accordance with international, domestic or cognate common law standards,” said co-author Dr Natalia Antolak-Saper, from the Monash University Faculty of Law.

“Evident throughout this report is that a significant population of those sentenced to death in Malaysia is comprised of individuals convicted of drug offending, many of whom face socio- economic, nationality and language barriers that prohibit their access to the requisite level of legal assistance needed to properly test the prosecution case,” said co-author Ms Sara Kowal, Monash University Capital Punishment Impact Initiative Manager (Partnerships & Clinics).

As of December 2019, 1,280 people were on death row in Malaysia, 89 per cent of these people were male and more than two-thirds of all persons on death row had been convicted of drug trafficking offences, according to figures from Amnesty International.

“Our research draws on interviews with lawyers who identify some common fair trial challenges including the lack of sufficient funding for legal representation at all stages of the death penalty trial, appeals and clemency stages,” Dr Antolak-Saper said.

“Our analysis of the Malaysian drug trafficking legislation identifies four key challenges to fair trial rights, one of which is that the presumption of innocence is undermined because as a result of the double presumptions an accused is presumed to be guilty.” Ms Kowal said they found the clemency process to appear at times arbitrary. “The lack of a legal framework means the process lacks transparency and review, both essential to fair trial rights. Given the stakes are so high in death penalty matters this is particularly problematic,” she said.

According to research by Harm Reduction International, Malaysia is one of 35 countries in the world that imposes the death penalty for drug offences and in 2019, was one of 13 countries to actually sentence the accused to death for drug trafficking. Amnesty International’s Global Report Death Penalty and Executions 2019 estimates that in 2019, 657 prisoners were executed worldwide (excluding China); 2,307 prisoners were sentenced to death and there were at least approximately 26,600 people on death row.

Ms Giada Girelli, Human Rights Analyst at Harm Reduction International (HRI), said the report made it clear that there are systemic issues in the application of the death penalty in Malaysia. “As such, it makes the case that piecemeal reforms will not be enough. The only just way forward for Malaysia is abolition,” she said. “Malaysia has already come a long way by announcing a moratorium on executions and starting a comprehensive review process and there is no reason to stop now.”

Key recommendations in the report include:

  • The Malaysian Government ratify the International Covenant on Civil and Political Rights and the Second Optional Protocol.
  • The Malaysian Government consider the international jurisprudence emerging from the right to life and the right to fair trial and join the global trend to abolish the death penalty for all offences.
  • In the interim, the official moratorium on all executions should continue.
  • In the interim, in accordance with the March 2019 UN Chief Executive Board for Coordination recommendations, the Malaysian Government should abolish the death penalty in relation to all forms of drug offending involving the possession, trafficking or importation of drugs.

The report’s co-authors were Dr Natalia Antolak-Saper and Ms Sara Kowal from Monash University’s Faculty of Law, Dr Thaatchayini Kananatu from Monash University Malaysia's Department of Business Law and Taxation, Ms Samira Lindsey, Research Assistant and Ms Chow Ying Ngeow from ADPAN.

Read more of Dr Antolak-Saper’s commentary on law and justice at Monash Lens. Watch Ms Sara Kowal’s commentary on the question of retaliation in disputes on Monash University’s original documentary series A Different Lens.