Malaysia Needs Sentencing Guidelines in the Post-Death Penalty Era. Here’s Why.

Since the abolition of the mandatory death penalty in April 2023, Federal Court resentencing hearings have seen death row prisoners who were convicted of drug offences being resentenced to 30 years’ imprisonment. 

Despite such positive developments, the Malaysian jurisprudence on mitigation for capital offences has yet to be well-developed — a symptom of retaining the mandatory death penalty for over four decades. Accused persons have had to rely on limited defences and arguing for charges to be lowered for lighter sentences.

This leaves inconsistencies in current sentencing practices. Since the law came into effect, dozens people in capital drug cases who are having their death sentences reviewed have been re-sentenced to thirty years' imprisonment. However, this is not necessarily the case for capital drug cases which are currently going through the avenues of trial and/or appeal; there are cases where the death penalty was rendered or upheld for drug trafficking despite the new laws. 

Therefore, there is a need for sentencing guidelines to be developed in ensuring that future imposition of the discretionary death penalty for drug trafficking is consistent, principled and complies with international standards for ‘the most serious crime’.

Why Sentencing Guidelines?

Historically, sentencing councils were established due to concerns about inconsistencies in sentencing and rising prison populations, and they provide sentencing guidelines for a spectrum of offences. The guidelines provided usually vary in approaches, ranging from highly prescriptive ones to advisory models. 

In the Malaysian context, a sentencing council would provide guidelines for judges to apply punishments, including the discretionary death penalty. Its primary function would be to develop guidelines that promote consistency, take into account the impact on victims, and consider the cost and effectiveness of different sentences.

In places with a Sentencing Council, judges are required to follow sentencing guidelines but also have room for discretion*. Judges start with assessing the seriousness of the offence by considering the culpability of the offender and the harm caused to reach a provisional sentence. Then, judges would further deliberate upon the sentence by considering aggravating and mitigating circumstances. Lastly, they will arrive at a final sentence, taking into account factors like previous convictions or guilty pleas.

*Note: Sentencing guidelines provide ranges and starting points for sentences, but judges are not restricted to these ranges if they believe it is necessary to go beyond them.

To imagine what this would look like in Malaysia, a nationwide survey was recently conducted to assess Malaysians’ sentencing appetite for drug trafficking in a model that mimics a set of Sentencing Guidelines. 

Stay tuned.