International Women's Day: Foreign national women and the postcolonial death penalty

Most academic research on death sentencing and on death row in particular has focused on men. To some extent, this is inevitable, as women make up but a small proportion of those incarcerated under sentence of death. In the U.S., for example, there are only 52 women on death row and just 2% of executions in the modern death penalty era (since 1974) have been of women. Geographically spread across the country, research poses methodological as well as conceptual challenges. Nonetheless, some academics have recently focused their attention on this under-researched community. Academics at the Cornell Center on the Death Penalty Worldwide established The Alice Project to conduct research and advocacy on women on death row; Serene Singh at the Oxford Death Penalty Research Unit has conducted a four-year study of women on death row in the U.S.; and recently The New Yorker published a long report on efforts by nuns to support the women on death row in Texas. However, there has been little research outside of the U.S.

A report by the World Coalition Against the Death Penalty, published in 2023, estimates that there are a few women on death row in just over half of the retentionist and ‘abolitionist de facto’ countries, and of those jurisdictions with more than three people on death row, 71% have women on death row. Over the past decade, executions of women have been carried out in Afghanistan, China, Egypt, Gambia, Indonesia, Iraq, Iran, Jordan, Kuwait, North Korea, Saudi Arabia, Oman, Somalia, and the U.S. The data show that at the time, Malaysia had the highest number of women on death row, at 129 women (in 2021), while the second highest was found in Egypt which, in 2020, had 80 women on death row. In most countries, there were far fewer women under sentence of death: 15 in India, 11 in Indonesia, and 8 in Japan, for example.

It is fitting then, that on International Women’s Day, we turn our gaze to those women incarcerated on death row in Malaysia and in particular to the foreign nationals among them.

While capital punishment in Commonwealth jurisdictions is a colonial relic, the death penalty can take on a new penal logic in the postcolonial era. A disproportionate number of foreign national women were sentenced to death for drug trafficking in Malaysia under the postcolonial mandatory death sentence. During the colonial era, the death penalty in Malaysia was used as a form of ‘social control’ for crimes such as homicide and treason. The death penalty for drug trafficking in Malaysia is governed by the Dangerous Drugs Act 1952, legislation inherited from the British, but drug trafficking was not a capital offence under colonial rule, and it was only in 1983, after independence (in 1957), that it became a crime that was mandatorily punishable by death.

As part of my research, I reviewed all of the publicly available court judgments and media articles regarding cases of women who had been sentenced to death for drug trafficking from 1983-2019. I found 146 cases, 90% of which involved foreign national women, who were mainly from other countries in the Global South, including Thailand, Indonesia, the Philippines, China and Iran. This concurs with the latest (gender-disaggregated) statistics on the Malaysian death row, which indicate that in 2019 there were 1,281 people under sentence of death in this jurisdiction, including 141 women. A higher proportion of women were sentenced to death for drugs trafficking (95% as compared to 70% of the male death row) and a higher proportion of women on death row are foreign nationals (86% of the female death row population and only 39% of the male death row population).

These statistics are several years out of date, and encouragingly, in that time the Malaysian government has abolished the mandatory death sentence as well as imprisonment for natural life (as of April 2023). Following this, from November 2023, Malaysia undertook an ambitious sentencing review process for the 1,021 individuals on death row and/or serving natural life. By October 2024, the review process was complete and of the 936 applications filed to review death sentences, 860 applications were allowed and the death sentences were substituted with imprisonment with whipping. All of those cases where the death sentence was maintained involved particularly aggravated murders. In other words, none of the death sentences for drug trafficking were upheld.

Long terms in prison and whipping are of course unduly harsh sentences for non-violent drug offences, and courts continue to mete out death sentences, including for drug offences. We know of three such cases since the Abolition of the Mandatory Death Penalty Act 2023. For this reason, we should not take our attention off Malaysia’s treatment of women convicted for drug offences.

My research found that foreign national women are framed by the Malaysian judiciary as ‘suitable penal subjects’ who are deserving of the death penalty or long sentences of imprisonment. This occurs within the wider context of the ‘feminisation of migration’ in the region, with women travelling overseas for feminised and precarious employment who become embroiled in drug trafficking (wittingly and unwittingly), and indeed, I conceptualise drug courier work as an extension of this precarious labour. Concurrently, drug trafficking has been ‘securitized’ and framed as an external threat to the Malaysian nation, warranting the harshest of sentences, with the border becoming a focal point for the policing of drugs. I heard from interview participants that profiling for particular ‘suspect’ nationalities occurs at the airport, including: ‘there is a profile of a travel-savvy Chinese woman, of perhaps no known sources of income, who then is a professional drug mule, and she gets away with it because she is good looking; she is attractive; she dresses well; she looks professional.’

In this way, the colonial logic of the death penalty has been reappropriated in the postcolonial era: it has become a tool of domination deployed against economically precarious, predominantly foreign national populations (who are often gendered and racialised) and who have become the new ‘Other’ of the postcolonial order.

This blog post is based on Dr Harry's chapter in the edited collection: Decolonizing the Criminal Question (OUP 2023).

Dr Lucy Harry is a Research Associate of the Death Penalty Research Unit (DPRU). She was previously a post-doctoral researcher on the 'Mapping the Political Economy of Drugs and the Death Penalty in Southeast Asia' project, and completed her DPhil in Criminology at the Centre for Criminology, University of Oxford, under the supervision of Professor Carolyn Hoyle.