After an upset election in 2018 that ended the ruling coalition’s six-decade run, Prime Minister Mahathir Mohamad’s government issued an immediate moratorium on executions. It also promised to abolish capital punishment, a legacy of British rule and a mandatory penalty for almost a dozen offenses. The subject has been intensely debated ever since.
Any change would have significance beyond Malaysia’s borders. Nearly half of the prisoners on death row here are foreign nationals, and more than 100 are women, Amnesty International reported this past fall.
The report found that 73 percent of death row inmates had been sentenced for drug trafficking, with most convicted of transporting small amounts of drugs. It also documented the use of torture for “confessions,” restricted access to legal counsel and a pattern of unfair trials.
The circumstances that entangled Mainthan, a father of four who worked as a scrap metal trader in the capital, represent “the most preposterous case,” the executive director of Amnesty International Malaysia told a public forum in November. “Mainthan was sentenced to death for a murder,” Shamini Darshni Kaliemuthu recounted. “There was indeed a body. But the person who he supposedly killed is still alive.”
He and three other men were arrested in August 2004, a few days after police found charred body parts in a Kuala Lumpur neighborhood. They were charged with the murder of a man who had eloped with the sister-in-law of a friend of Mainthan’s. During the trial, Mainthan said he had only helped find the couple, who were brought to his house before the friend took them away.
The prosecution largely built its case on the evidence of two witnesses who claimed they saw a bloodied person on Mainthan’s workshop floor the night before the body parts were discovered. But the four suspects said that person was an occasional worker for Mainthan — known as Devadass — who they believed had stolen from a neighbor. They had admitted to beating him up, but nothing more, and testified that he went to a hospital for treatment.
The problem was, defense lawyers could not locate Devadass to appear as a court witness. The judge publicly doubted his existence, dismissing him as a fictional “afterthought.” All the suspects were found guilty, but three had their convictions overturned on appeal. Only Mainthan’s was upheld.
So Gunalakshmi was astonished to spot Devadass at her mother-in-law’s funeral in March 2017. Devadass was almost equally surprised: He had no idea her husband was on death row. He promptly signed a statement explaining that he was the only man assaulted at the purported crime scene on that night nearly 13 years earlier. Gunalakshmi soon filed an application to reopen Mainthan’s case. The family expected it to be the turning point that would win his release.
“I thought Mainthan would be out soon,” she reflected recently, sitting in the makeshift house where she has raised the children on her salary as a school cleaner. While she doesn’t dwell on the family’s hardships during the past 15 years, exposed electrical wiring and threadbare furniture betray their ongoing struggle.
Criminal defense attorney Amer Hamzah, who began representing Mainthan in 2014, said he rarely takes on cases after the appeal process ends but was struck by the “many unanswered questions” this one raised. He spotted a jarring anomaly in the evidence: The identity of the victim named on the charge sheet did not match the identity of the dismembered body, as revealed by fingerprints. Then Mainthan’s family told him about Devadass suddenly reappearing.
“Based on the inadequacies in the evidence, Mainthan should not have been found guilty,” Amer said. Testing Devadass’s testimony would be “the best way to assure justice is done. Not only to Mainthan, but also to the deceased.”
The country’s highest court disagreed, an outcome that wasn’t a shock; judges are very conservative about reviewing decisions, said lawyer Khaizan Sharizad Razak, who co-directed a documentary about Mainthan’s case that shot it to prominence. “But if the court has such a high threshold for reopening a case, we’re all stuck.”
Malaysia’s death row inmates live years in limbo. The last known executions were in 2017, when the World Coalition Against the Death Penalty says the country executed four people by hanging. Amnesty International counts 30 executions there from 1998 to 2018, based on what the organization describes as reports “from credible sources.”
Yet the government’s proposed changes could set prisoners on a new course. The call for abolition was lauded as a critical reform in a part of the world where most countries retain capital punishment, although some rarely apply it. At the same time, it angered families who have lost loved ones to violent crime. They were supported by opposition politicians and other proponents of the law.
The government has since backtracked and now is focused on repealing only the mandatory death penalty as it applies to 11 offenses, including murder and hostage-taking. (The death penalty remains optional for nearly two dozen other offenses.) Disappointed but undeterred, reform advocates still view the proposal as an opportunity to start righting a decades-old wrong — and as a first step toward abolition.
Public opinion is also more nuanced than presumed, according to Ngeow Chow Ying, a lawyer who has campaigned against capital punishment and who convened the November forum. Recent surveys that went beyond a simple for or against question, “to present specific scenarios” in which the death penalty could apply, suggested there would be little public opposition to abolishing the mandatory death penalty, she said.
A bill to do so is expected to be introduced in Parliament by March. The law minister has also raised the issue of resentencing inmates already on death row. How this should happen is under discussion.
Mainthan is closely following the debate through his family and their visits to the prison. Now 48 and much thinner, his hair streaked gray, he has been held in solitary confinement for nearly a decade. He continues to hope for a favorable decision on his request for a pardon from the state leader — in his case, the sultan of Selangor. Such action is his last resort. Neither the sultan nor Mahathir has commented on the case.
At home, Mainthan’s clothes remain ready for his return, folded neatly in the small bedroom where everyone sleeps. His youngest child, just 16 months old when he was arrested, only remembers seeing him through the glass window that separates prison visitors from inmates.
Gunalakshmi looks tired, but her voice is unflinching. “He has hope. I have hope,” she said. “We will fight again and again to get him back.”