Malaysia must start to fulfil its promise to abolish the death penalty in forthcoming legislation by ending its use for drug-related offences and eliminating the mandatory death sentence, Amnesty International said today, as it launches a new report to mark the World Day Against the Death Penalty.

The report, Fatally flawed: Why Malaysia must abolish the death penalty, reveals the use of torture and other ill-treatment to obtain “confessions”, inadequate access to legal assistance, an opaque pardons process and other serious violations of the right to a fair trial that have put people at risk of execution.

The report also highlights how 73% of those on death row – 930 people – have been sentenced to death for drug-related offences in contravention of international human rights law. More than half of them (478) are foreign nationals.

"Malaysia has a golden chance to break with decades of cruelty and injustice, disproportionately inflicted on some of the most marginalized," said Shamini Darshni Kaliemuthu, Executive Director of Amnesty International Malaysia.

"Our research found a pattern of unfair trials and secretive hangings that itself spoke volumes. From allegations of torture and other ill-treatment to an opaque pardons process, it's clear the death penalty is a stain on Malaysia's criminal justice system."

The death penalty is currently retained as the punishment for 33 offences in Malaysia and is mandatory for 12 of these. In recent years, it has mostly been used for murder and drug trafficking convictions.

A year ago, the newly-elected Malaysian government announced it would repeal the death penalty for all crimes, having already established a moratorium on executions in July 2018. But in a new parliamentary session starting this month, the government is expected to table legislation that will remove the mandatory death penalty only, and for just 11 offences – way short of full abolition.

Amnesty International is calling on the authorities to continue to observe the moratorium on executions until the death penalty is fully abolished and use the anticipated legislation to repeal the mandatory death penalty for all crimes – including drug trafficking.

Death row for the most marginalized

Of the 1,281 people reported to be on death row in Malaysia as of February 2019, 568 (44%) are foreign nationals, who face serious obstacles to access adequate consular assistance and interpretation.

Amnesty International has also found that some of Malaysia's ethnic minorities are over-represented on death row, and data seen by the organization points to a large proportion of people from disadvantaged backgrounds.

Amnesty International found that most people (73%) on death row were convicted of drug trafficking, more than half of them foreigners. Many of them claimed they were coerced or manipulated into bringing small amounts of drugs into the country and had not used any violence. Under international law, countries that have not yet abolished the death penalty must limit its use to the “most serious crimes,” such as murder.

The cases of many women on death row show the devastating impact of Malaysia’s draconian anti-drugs law combined with the mandatory death penalty. Nearly nine out of 10 women facing the gallows are foreigners convicted of drug trafficking. In some cases, women said they were in financial trouble or were coerced into carrying the drugs. However, the mandatory death penalty means judges have no opportunity to give any consideration to these circumstances.

Unfair trials

Lawyers and relatives told Amnesty International that it was common for defendants who could not afford a lawyer to go without any legal assistance until charges were brought before a court. They also described a critically under-resourced legal aid system that left many defendants without legal assistance for long periods, often until the very start of their trial.

Suspects in death penalty cases can be detained up to 14 days, and interviewees told Amnesty International that it was common for defendants to “get beaten up” to extract “confessions”. The practice continues to this day, despite ongoing outcry from Malaysian NGOs. A UN working group’s 2011 investigation already found that “virtually all detainees” had suffered torture or other ill-treatment during their interrogations.

Despite the very high rate of foreigners sentenced to death, as well as the numerous languages spoken inside the country, Malaysian law does not provide for any interpretation services to support defendants who do not speak Malay other than in courtroom proceedings. Amnesty International heard cases of people being asked to sign documents in Malay despite not understanding the language.

Hoo Yew Wah, a Malaysian national of Chinese ethnicity, was arrested aged 20 in 2005 with methamphetamine and convicted based on a statement he made in Mandarin, his mother tongue, but which police recorded in Malay. He says the statement they made him sign is inaccurate, that police broke his finger during the interrogation, and further threatened to beat his girlfriend if he refused to sign it. He did not have the assistance of a lawyer during the period in question. Hoo Yew Wah has been on death row since 2011.

An opaque and secretive system – and a chance for change

Malaysian law does not define the pardon process in any detail, nor does it set out the criteria for a pardon or how prisoners or their families are notified of a decision.

Defendants are not guaranteed a lawyer when they apply for a pardon, and many go without. Others fail to apply for a pardon altogether, either out of despair or because they do not want to admit guilt for a crime they say they did not commit.

While some pro-bono initiatives exist, access to these services is controlled by prison officials, and there is no transparency over how access is granted or not. While the criteria used are not known, they appear to affect foreign nationals: half of them have not filed a pardon application.

“A system this secretive denies Malaysians the full picture,” said Shamini Darshni.

“Amnesty International’s research shows why this government must now honour its pledge to abolish this ultimate cruel and inhumane punishment without delay.”

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