Two Years After the Abolition of Mandatory Death Penalty Act 2023 — Where Are We Now?

4 July 2025 marked two years since the Abolition of Mandatory Death Penalty Act 2023 (Act 846) came into force, repealing the mandatory death penalty for eleven offences and replacing the previous mandatory sentence with judicial discretion. The implementation period has produced the most significant criminal-justice reform in Malaysia in decades. This is where things stand at the two-year mark.

The Federal Court\’s review jurisdiction

The Federal Court\’s temporary review jurisdiction — established to re-sentence prisoners already on death row at the time of the abolition — concluded on 29 October 2024. By that date the Court had reviewed 936 cases. The outcome was substantial commutation: by 1 January 2025 the total death-row population had dropped to 140, an 87% decline from before the review.

The Court of Appeal commuted a further 116 death sentences in 2024 alone. Together, the Federal Court and Court of Appeal have commuted at least 1,016 death sentences since the Act came into force.

Drug trafficking — the discontinuity

One pattern in the review data is striking. None of the 43 death sentences upheld by the Federal Court following the review of 860 applications under the temporary jurisdiction were for drug-related offences. The Federal Court\’s settled view, post-Alma Nudo, treats drug trafficking sentences with greater discretion than the pre-Act 846 regime allowed.

However, an alarming 38% of newly imposed death sentences by the High Courts in 2024 were for drug-related offences. This means: while the Federal Court reduces drug-related death sentences on review, the High Courts continue to impose them at trial. Practitioners should expect the appellate path to be the most reliable route to avoid the death sentence in drug trafficking matters.

What sentencing now looks like under Act 846

• For previously-mandatory-death offences (including s.39B Dangerous Drugs Act 1952), the court can now impose: (a) the death sentence, or (b) imprisonment of 30 to 40 years plus 12 strokes of whipping

• Mitigation factors are explicitly relevant — age, role in the offence, cooperation under s.40 DDA, time on remand, prospect of rehabilitation

• The court must give reasons for choosing death over the alternative; this is appealable

Practitioner implications

For defence counsel in s.39B cases

Sentencing mitigation now matters at trial in a way it did not before 2023. Counsel should marshal: the accused\’s age and antecedents; the role-in-chain analysis (mule vs principal); medical and psychological evidence; cooperation history; impact on dependants; prospect of rehabilitation. Prepare a sentencing affidavit, not just a plea in mitigation.

For prosecution

The Public Prosecutor must now make a sentencing recommendation that is consistent with the Act 846 framework. Death sentence recommendations require articulated reasoning grounded in the gravity of the offence and the absence of mitigation. The “automatic death” practice no longer applies.

For families and accused

The most important practical reality: a death sentence imposed by the High Court is no longer the end. The Court of Appeal and Federal Court routinely commute. Counsel should plan the appellate strategy from day one of trial.

See also: Drug Trafficking Defence under the DDA 1952 | Yong Vui Kong / Alma Nudo case comment | Criminal Defence Lawyer in Malaysia

Frequently asked questions

Is the death penalty still mandatory for drug trafficking in Malaysia?

No. The Abolition of Mandatory Death Penalty Act 2023 made the death sentence discretionary for s.39B drug trafficking. The trial court can now impose either death or life imprisonment with whipping.

Who is most affected by mandatory death abolition?

Amnesty’s July 2024 review notes over 350 prisoners—including many foreign women—have petitions pending.

Does Malaysia still impose mandatory death for trafficking?

No. The Abolition of Mandatory Death Penalty Act 2023 removed the compulsory sentence and restored judicial discretion.

How long does a drug trafficking trial take?

Typically 18–36 months in the High Court, depending on the complexity of evidence (number of accused, chemist disputes, eyewitness identification, video evidence). Appeals add another 1–3 years.