Research and advocacy of progressive and pragmatic policy ideas.
The recent case of Hairun Jalmani has reignited public debate about the death penalty in Malaysia. We ask questions on long overdue sentencing reform in the country.
By Jia Vern Tham27 October 2021
The death penalty came under the spotlight again very recently with the viral video of Hairun Jalmani. The 55-year-old single mother of nine was sentenced to death under Section 39(B) of the Dangerous Drugs Act last week, following her conviction in 2018. Hairun, who has maintained her innocence, was found by the police in the same room as 113.9g of methamphetamine — an amount equivalent to just under half a cup.
The widely shared footage of Hairun’s cries on receiving her sentence have sparked renewed calls to abolish the death penalty in Malaysia. But cases like Hairun’s are sadly nothing new. More than 1,300 people are on death row in Malaysia as of September 2021. About 75% of them were convicted under Section 39(b) of the Dangerous Drugs Act for drug trafficking, many of them addicts, drug mules or small-time operators rather than drug kingpins.
For perspective, it takes as little as possessing or being near 50g of methamphetamine, better known as syabu, to be tried as a serious drug trafficker and liable to the death penalty.
Much has been written on the questionable effectiveness of Malaysia’s heavy drug laws and its disproportionate effect on vulnerable people. Therefore, the calls for the abolishment of the death penalty is understandable. But it is also polarising. Following Hairun’s sentencing, calls for death penalty abolishment by prominent figures such as Prof Datuk Dr Adeeba Kamarulzaman and Muar MP Syed Saddiq Syed Abdul Rahman was met with vocal opposition from various segments, from netizens to leaders.
The divide over death penalty abolishment is not surprising. Past online media polls show relatively high support for retaining the death penalty; even our organisation’s 2019 representative sample study (Peninsular) found that a small majority of Malaysians, 60%, felt the death penalty is necessary, mostly believing that it has a deterrent effect.
That same study, however, also showed that appetite or support for the death penalty drops sharply depending on the type of offence as well as the presence of mitigating factors. For a low-level drug trafficking offence, defined as local small-scale distribution, only 38% of our representative respondent pool supported the death penalty.
Support for the death penalty drops even more, to only 15% of respondents, when there is lack of intent or knowledge by the perpetrator. Support for the death penalty is similarly low when there are mitigating circumstances, such as age or gender – only 14% of our study respondents supported the death penalty for the case of a teenager found with 600g of cannabis.
Bottomline, total abolition of the death penalty is a tough proposition. It is highly polarising, as evidenced each time the issue surfaces. However, our study of Malaysian attitudes towards the death penalty tells us that sentencing reform would yield greater impact. There is appetite, at least, for abolishing the mandatory death penalty among Malaysians: in fact, of the 60% of our respondents who think the death penalty is necessary in society, only 1% supported the mandatory death penalty for all specific case scenarios that were posed to them.
Even if there’s sentencing reform though, there will still be issues. For one, there is still a lack of limitations on using the death penalty in Malaysia on vulnerable groups. As it stands, only offenders who are (i) under the age of 18, (ii) pregnant, or (iii) have young children are excluded from the application of the death penalty. There has yet to be any explicit prohibition on meting out the death penalty against those who either suffer from mental health issues or are elderly in Malaysia — contrary to recommendations by the UN.
Malaysia’s strict drug laws also lack consideration for mitigating factors such as knowledge of the crime and socioeconomic realities of accused persons. Despite a 2017 amendment to the Dangerous Drugs Act that provides for judicial discretion for the death penalty (under certain conditions), unknowing carriers and vulnerable persons are likely held to the same level of accountability as those who sell drugs with criminal intent. A study by Monash University and the Anti-Death Penalty Asia Network (ADPAN) earlier this year showed that only 4 out of 38 people convicted of drug trafficking in Malaysia between March 2018 and October 2020 were not sentenced to death due to application of this amendment.
Meanwhile, the focus on ‘small fish’ continues. Bukit Aman’s Narcotics Crime Investigation Department (NCID) recently proposed to lower the weight threshold for the drug trafficking offence. The proposal has received support from Alliance for Safe Community chairman Tan Sri Lee Lam Thye, who called for it to be tabled in the Dewan Rakyat as soon as possible. If passed, the move could allow the death penalty to be applied more widely than before, unless there is sentencing reform.
Nevertheless, both Pakatan Harapan and Perikatan Nasional administrations have expressed intentions to replace the death penalty with minimum jail terms for drug trafficking cases in Malaysia. Home Minister Dato’ Seri Hamzah Zainudin also recently announced that the government is looking into the legalisation of medical marijuana, possibly driven by public outcry from the ‘Dr Ganja’ case and others like it.
Despite conflicting messages, on the whole it feels like the ground amongst lawmakers is ready for reform. But the question is, how many more like Hairun will have to wait until these long overdue changes are carried out?