Thaatchaayini Kananatu | 26 September 2022

The story of death penalty politics in Malaysia revolves around the political framing of drug crimes. From the 1970s to the 1990s, persons accused of trafficking drugs into Malaysia were branded by retentionist state as a dangerous “threat” to the nation’s security. However, since the 2000s, those accused were framed by abolitionists within Malaysia as “vulnerable” and “innocent” carriers or drug couriers. The shift in framing is part of the politico-legal mobilisation of abolitionists consisting of the legal complex (cause-lawyers and the Malaysian Bar Council), civil society organisations (local, transnational and international) and the families of death row prisoners.

Malaysia is a retentionist state, but as of June 2022, it has promised to abolish the mandatory death penalty. How did this shift take place? In my article on ‘Framing death penalty politics in Malaysia’ , I used Snow and Benfords’ framing processes to explain the shift based on the rhetoric of both abolitionists and retentionists from the 1970s to 2022.

In the 1970s, Malaysia as a newly developing country, focused its attention on national development and national sovereignty. The 1971 New Economic Policy and the 1971 National Cultural Policy were pivotal in positing Malaysia as an upcoming socioeconomically progressive nation. This legitimised the government’s strict approach to addressing social concerns and clamping down on political dissent. The proliferation of drug addiction among youth was a key concern and subsequently framed as an impediment to national productivity and growth. Following its neighbour, Singapore’s strict policy on drugs, Malaysia rolled out a massive ‘war on drugs’ campaign.

Malaysian drug laws were amended to reflect the severity of the crime. The Dangerous Drugs Act 1952 was amended, and the Dangerous Drugs (Amendment) Act 1975 included a section on the presumption of trafficking. Known as the controversial ‘double presumption’, any person in custody or control of a dangerous drug is deemed to be in possession of such a drug. Essentially, the accused is presumed to be guilty when deemed to be in possession. A further amendment imposed the mandatory death penalty for drug-trafficking offences (section 39(b) of the Dangerous Drugs (Amendment) Act 1983).

Cause lawyers and activists framed the Malaysian death penalty as a travesty against human rights principles and international fair trial standards. They argued that the death penalty is in breach of the right to life, embodied in article 5 of the 1957 Federal Constitution of Malaysia. However, human rights-based arguments were defeated as a Western liberal notion, which did not align with ‘Asian’ cultural ideals of collectivism     .

In the 1980s, many of the high profile death penalty cases concerned Western foreign nationals such as Kevin Barlow (a British/Australian),      Brian Chambers (an Australian), and Kerry Lane Wiley (an American). The Times reported that the high profile      Barlow and Chambers case created a strain between Malaysia and Australia. It created a tension between the two prime ministers Bob Hawke (terming Malaysia’s drug laws ‘barbaric’) and Mahathir Mohamad (calling the drug traffickers ‘murderers’). While Western liberal nations framed the drug laws as an act of murder by the state, the Malaysian government reframed it as protecting national security. The former prime minister Mahathir Mohamad made this statement: ‘we think [drug dealers] are killers, because so many of these young boys who have taken these drugs are dying or dead. It’s murder’.

The draconian drug laws—tied in with the mandatory death sentence—was framed as being an effectivedeterrent to drug offences. Ghafar Baba, the then deputy prime minister at a special United Nations General Assembly remarked that: ‘our laws on drugs are purposefully tough … We believe that this is the correct way to deal with the problem … We need not be apologetic’.

Cause-lawyers continued to critique the draconian drug laws and lack of fair trial standards. Karpal Singh, then senior member of the opposition party and defence lawyer for Barlow, Chambers and Wiley commented:

‘[M]y God, if the judge says, “I don’t accept your word,” you’re gone … there are no proper checks and balances in our system … you hang somebody and you can’t say later, “look here, we made a mistake”.’

The Malaysian state’s rhetoric in the 1980s shows a framing of drug traffickers as ‘murderers’ and drugs as a ‘threat’ to the nation. The framing of the issue as ‘injustice’ and a violation of human rights standards by cause-lawyers and human rights activists did not gain the support of the Malaysian public at large until the 2000s. A change was set in motion when the Malaysian Bar Council in collaboration with the Death Penalty Project sought famed criminologist Roger Hood’s assistance in studying the Malaysian public attitudes towards the death penalty. Hood’s study in 2012 found that there was minimal opposition to the abolition of the death penalty, especially for drug crimes. Another key strategy was the transnational litigation and advocacy by a network of Commonwealth lawyers and anti-death penalty organisations.

A key alliance was Singapore’s anti-death penalty movement and cause-lawyers who were handling drug cases involving Malaysian nationals. The cases of Vignes Mourthi and Yong Vui Kong, brought about public campaigning based on the reframing of the accused as young and from lower-socioeconomic backgrounds i.e. ‘vulnerable’ and ‘innocent’ carriers or drug mules. A 2019 Amnesty International report, advocating the abolition of the death penalty in Malaysia, stated that ‘a large proportion of those on death row are people with less advantaged socio-economic backgrounds’.

The change in the government in 2018 brought about the manifesto/promise to abolish the death sentence(especially for drug crimes). The new Pakatan Harapan government had previously been an ardent supporter of human rights organisations and civil society. Interestingly, the case for the abolition of the death penalty has now become non-partisan. In June 2022, the present government announced that it would ban the mandatory death sentence and revamp the Malaysian criminal justice system. The political statements by both previous and incumbent governments indicate a promising development towards moving away from the death penalty in Malaysia.

Thaatchaayini Kananatu is a Senior Lecturer in Global Studies at the School of Arts and Social Sciences, Monash University Malaysia.

This blog summarises the key findings in the author’s article ‘Framing death penalty politics in Malaysia’. The article was published as part of a special issue on ‘Death Penalty Politics: the fragility of abolition in Asia and the Pacific’ (eds. Mark Finnane, Mai Sato and Susan Trevaskes) published in the International Journal of Crime, Justice and Social Democracy.

Note: Thumbnail image by CEphoto, Uwe Aranas.