DPRU Q&As: Edmund Bon, Lawyer, Malaysia

In the latest instalment of the DPRU's Q&A series with death penalty litigators working in the Global South, DPRU Project Manager Daniel Cullen speaks to Edmund Bon, a Malaysian human rights lawyer, about his commitment to working on human rights issues, his experiences of representing clients in capital cases, the recent abolition of the mandatory death penalty in Malaysia and the potential barriers to the full abolition of capital punishment. 

Please could you briefly introduce your work as a lawyer, and how your death penalty work fits within your current practice?

I was educated in the UK, and when I came back to Malaysia in 1997, it was a time of what I saw to be the start of political regime change, leading to the reformasi (‘reform’) period. When I began my pupillage, I had to do several months of legal aid work, which gave me really hands on experience of human rights and legal aid work, including cases involving the death penalty. I had studied human rights before, but going to court and watching senior lawyers was the first time I could really see those concepts in action.

I’ve now been in practice since 1998, and my practice has been around 40% pro bono human rights and criminal defence work. Working on death penalty cases is one part of this, together with other issues including freedom of expression and assembly, women’s rights and children’s rights. My current chambers was created through a merger in 2016, and today more of the criminal defence work is handled by my partner, but I still do selected criminal cases alongside my commercial work.  

Within your death penalty work, are there any cases you would highlight as particularly notable?

We did murder and drug trafficking cases in the past, which have often involved foreign national defendants from outside of Malaysia and the region. Seeing these cases up close, it became clear that those accused of drug trafficking in Malaysia were very often vulnerable and poor people, which was quite eye opening.

One of the most notable cases that we recently succeeded in resolving was a case involving a young man who was convicted of murder, having just turned 18 at the time of the offence in 2003. Until recently, Malaysia had the mandatory death penalty for murder (and various other offences including drug trafficking), and so he received the death sentence. He subsequently spent many years on death row and also filed a clemency petition. In 2023, when the law was changed to abolish mandatory death sentencing, he became eligible for re-sentencing. Just a few months ago, his application was heard, and his death sentence was replaced by a 35-year prison sentence (starting from 2003). After not meeting him for so long, I could see how glad and grateful he was to get off death row.

Are there any notable patterns among the capital cases you deal with, such as the socio-economic backgrounds or life experiences of the defendants?

I think the research that we’re seeing confirms the profiles of the clients that come to us. They come from socially and economically deprived backgrounds, lower income groups and/or rural areas, especially among foreign nationals.

In drug trafficking cases, it is clear that drug trafficking is quite lucrative, so the death penalty, whether mandatory or not, does not address the root causes of why it continues to happen. Furthermore, it doesn’t impact whoever is at the top trying to traffic those drugs and profit from them.

In murder cases where the death penalty is imposed, a lot of the time what we have seen is that, except for the very serious cases involving premeditation, the actions occurred as part of sudden fights or outbursts, where there was no real intention to kill, and I think it would be quite unfair to impose the death penalty. Our murder provisions in the Penal Code also need to be updated to narrow murder only to those cases where intention or premeditation can be shown.

Could you explain the recent changes in Malaysia with regard to the mandatory death penalty?

In 2018, there was a change in government in Malaysia, leading to a number of changes in the justice system and judiciary. In 2019, a Special Committee was created to review the mandatory death penalty. I sat on this committee along with several judges, including a former Chief Justice and Chief Judge, and we made a number of recommendations towards its removal. In 2023, the government brought forward Bills to this effect, and the mandatory death penalty has now been removed for all offences. The death penalty has also been completely removed for seven offences.

The death penalty still remains for selected offences, but judges have the discretion to impose a death sentence or imprisonment. The law also provided for re-sentencing of past cases, as discussed above. There were around 1,000 prisoners on death row at the time who are now having their cases heard. In the re-sentencing cases that have been heard so far, it has been very rare that the judges have reaffirmed the death penalty, so the majority of cases have been reduced to imprisonment.

What do you think are the main barriers to full abolition of the death penalty in Malaysia?

After the successful movement to get rid of the mandatory death penalty, civil society groups are now trying to re-strategise and develop new arguments towards full abolition. One major hurdle to abolition that we face is that Malaysia has not signed up to the International Covenant on Civil and Political Rights (ICCPR).

There is also not enough discussion in Malaysia on the use of corporal punishment (whipping) – which constitutes cruel, inhuman and degrading treatment – as an alternative to the death penalty. For all the offences for which the mandatory death penalty was removed last year, the offences now have longer prison sentences as well as higher number of whipping strokes. While the government has abolished the death penalty altogether for seven offences, which is a really positive sign, those offences have also been replaced by a combination of prison sentence and whipping. 

The challenge therefore for civil society is a strategic one towards full abolition, pushing the movement forward and looking at new research, but also considering the new regime of sentencing which could be used effectively to replace the death penalty. If longer prison sentences can be proven to be an effective deterrent or tool for dealing with offences that currently attract the death penalty, maybe for some of these we can progressively move towards full abolition. We may face residual barriers however for very serious offences leading to the loss of life, such as terrorism, for which there is still an (understandably) emotive approach to punishment in Malaysian culture and society.

How did you come to be working on capital cases? Was this something that you envisaged when you were starting your legal training?

In my case, it really came about experientially. Apart from the criminal practice work in legal aid, we started doing court assigned cases for those who did not have legal representation but were facing the death penalty. I then kept doing these cases. Eventually, in 2011, together with a group of other lawyers I founded an NGO called the Malaysian Centre for Constitutionalism and Human Rights (MCCHR). We fund strategic litigation to implement human rights treaties and standards, and we have funded death penalty cases in the past.

So from my beginning as a lawyer, I began over time to engage in more issues of public advocacy, and ultimately became involved in strategic litigation through MCCHR as a tool to implement human rights. Between 2006-2008, I returned to my studies, completing the MSt in International Human Rights Law at Oxford, which helped me to continue to develop my academic thinking about these issues.

What motivates you, or who inspires you, to keep working on death penalty cases?

I take my inspiration from the other advocates and groups that I connect with through different NGOs and networks of anti-death penalty advocates and activists, which creates the solidarity that we continue to see around us.

What are the biggest challenges you face in your legal practice when you're working on capital cases in Malaysia?

The main challenge that we have faced in death penalty cases from the beginning has been about getting information from the authorities, whether it’s from prison, whether it’s from the police, whether it’s from immigration, and to get evidence to corroborate the client’s story and take it to court as defence material.

We also face challenges in arranging expert evidence to test the veracity of medical and chemical reports, for example psychiatric examinations, as private experts will find it difficult to evaluate our client who is detained in prison. This means that a lot of the time we are forced to rely only on the cross-examination of government medical experts to uncover evidence that will be favourable to our client. We are unable to provide our client’s own evidence to challenge the experts.

What advice would you give to aspiring lawyers who would like to work on capital cases?

Gaining practical experience is important for young lawyers. At MCCHR, we run strategic litigation camps, covering human rights and including death penalty cases. When I was a young lawyer, there were few training opportunities, so we had to learn through our practice in courts, but now there are many more opportunities of this kind. Young lawyers can also learn a lot through shadowing, so at our firm we take in juniors to shadow our senior lawyers here on their cases.

I would also advise young lawyers not to look at these human rights issues from purely a legal perspective, but also from public policy, advocacy and sociological perspectives. As lawyers, we’re often really keen and focused on what the law is: the black letter law. But I think that in terms of human rights, it’s not just about that, it’s much more than just the law, it’s also about the human element.

Edmund Bon is a Malaysia-based lawyer practising at AmerBON Advocates. He is a co-founder and director of the Malaysian Centre for Constitutionalism & Human Rights (MCCHR). He read law at University College London and was called to the English Bar (Lincoln's Inn) in 1997. He was admitted as an Advocate and Solicitor of the High Court of Malaya in 1998 and has been in active practice since then. He holds an MSt in International Human Rights Law from the University of Oxford. He is currently Malaysia’s Representative to the ASEAN Intergovernmental Commission on Human Rights (AICHR).