Report: Malaysia’s Death Formula
New HAYAT Report Reveals Malaysia’s Drug Laws Propagate “Double Injustice”: Punishing Trafficking Victims While Transnational Syndicates Evade Accountability
Access to Report: CLICK HERE!
PETALING JAYA, MALAYSIA — Malaysia has been at the forefront of the global abolitionist movement in the past decade. From a retentionist state with regular executions, Malaysia experienced a monumental shift with its death penalty policy, adopting a moratorium for drug trafficking offences in 2014, a total moratorium in 2018, followed by the abolition of the mandatory death penalty in April 2023.
The progress was remarkable as Malaysia bucked regional trends. Its journey towards abolition came while its closest neighbour, Singapore, continued to champion the death penalty as an effective tool for deterrence, and the Philippines sought to reintroduce the death penalty for drug offences.
However, with the successful abolition of the mandatory death penalty, the extensive resentencing process — which concluded in December 2024 — unveiled a flawed reliance on capital punishment and the sheer scale of vulnerable individuals entangled in the justice system. A detailed review of these cases shows that sophisticated transnational organised crime groups recruit and deceive vulnerable individuals to serve as drug couriers, often utilising tactics linked to, or drawn directly from, human trafficking.
To validate and verify these critical claims, HAYAT’s newly launched report, "Malaysia's Death Formula: Exploited by Drug Syndicates, Punished by the State," analysed quantitative data alongside a qualitative review of individual cases. Through this process, HAYAT uncovered numerous instances where convicted drug couriers possessed significant information regarding their exploitation, only to face systemic legal gaps and the refusal of law enforcement to further investigate the actual syndicates.
Alarmingly, the report discovered that Malaysia’s reliance on capital punishment has fundamentally misguided its anti-drug trafficking measures. Malaysia disproportionately targets and punishes low-level couriers, with no regard for their culpability, allowing transnational drug syndicates to operate unhindered. Testimonies of recruitment, deception, and exploitation are routinely dismissed during trials due to a perceived lack of reliable evidence, despite the truth behind their words often being easily verified by brief investigations in their home countries.
Critical Failures in the Justice System
The Weaponisation of “Wilful Blindness”: Following the landmark Herlina case, courts rely heavily on the doctrine of “wilful blindness” to reject the innocent carrier defence. This replication has created a rigid standard that makes it almost impossible for accused persons to prove their innocence, treating reckless individuals the same as smugglers with actual knowledge. In HAYAT’s study, a staggering 78% of accused persons failed to successfully raise the innocent carrier defence.
A Blind Spot to Forced Criminality: Despite the existence of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM) and the Palermo Protocol, the non-punishment principle is frequently ignored in drug cases. Individuals who exhibit indicators of exploitation are prosecuted as perpetrators, creating a “double injustice”: victims face the harshest penalties while the criminal networks that dabble in both human and drug trafficking evade accountability.
The Blurring of Possession and Trafficking: Section 2 of the Dangerous Drugs Act 1952 covers a wide array of physical acts, eliminating the need to prove an “overt act” or commercial intent to distribute. This broad definition forecloses the argument that an accused was a mere courier, holding mules who have no knowledge of the broader conspiracy to the same level of culpability as the mastermind.
The Path Forward
The lessons learned from these cases show a clear path forward. There is an urgent need to review and realign how Malaysia approaches drug trafficking domestically and regionally to protect victims of forced criminality.
HAYAT strongly recommends:
Implementing Intersectional Guidelines: Developing internal policies and screening practices to identify victims of forced criminality among drug couriers, operating directly within the framework of ATIPSOM and other anti-human trafficking mechanisms.
Targeting the Criminal Enterprise: Refocusing policies to treat drug trafficking as a by-product of organised crime, rather than an individual offence. Malaysia must explore holistic legislation akin to the US Racketeer Influenced and Corrupt Organisations (RICO) Act to hold entire illicit enterprises accountable for their pattern of racketeering activity.
Reforming Culpability and Sentencing Guidelines: Establishing a formal sentencing council to develop guidelines that ensure consistency and thoroughly weigh mitigating circumstances, such as coercion and manipulation. We must address the problematic intersection of statutory presumptions and wilful blindness to ensure the burden of proving a negative does not become virtually impossible to discharge.
The death penalty was envisioned as a tool of deterrence against kingpins, but it has failed its original strategic intent. We must shift our judicial focus from the act itself to the actor’s circumstances. We must move beyond the narrow search for a “mastermind” and acknowledge that in the modern drug trade, the network is the mastermind.
