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25 Austl. J. Asian L. 1 (2024-2025)

handle is hein.journals/ajal25 and id is 1 raw text is: 


Australian  Journal of Asian Law,  2024, Vol 25 No  1, Article 01: 1-22


The Straits Approach: Convergence and Divergence in
the Death Penalty for Drug Trafficking

Luke Metherell*



In 1975, Malaysia and Singapore adopted the death penalty for drug trafficking. Throughout the 20th century, both states would
repeatedly converge toward a shared 'Straits Approach' of markedly similar iterations of the policy. Traffickers soon made up a
majority of those hanged in each country, with executions peaking in the 1990s. However, in April 2023, after continued debate,
Malaysia abolished mandatory death sentencing, with a moratorium on executions in place since 2018. Inversely, Singapore
continues to execute at a high rate, and its government stridently defends the policy. Through a comparative legal and historical
analysis, this article investigates why these states have converged and then diverged in their use of the death penalty for
trafficking. It reveals that their strong convergence was caused by reciprocal legal transplants, existing institutional
commonalities, and a legal arms race - with each mimicking the other's more punitive policy developments to avoid being
exploited as lenient. Their divergence in the new millennium is explained by a shift in the preferences of Malaysia's elites caused
by instability and changes in its political institutions. In contrast, Singapore's resilience is due to its institutional stability and
a rationalising ideology.

Malaysia  and Singapore  share remarkable commonalities,  including colonial history, lengthy periods
of (1minant-party  governance  and1 an English common  law  legal heritage (Novak, 201:304-05).  In
1)75  both sNaes  respondled to rising rates ofd'rug abuse by legislaing the (deIh penally fior (Irug
tralTickers (('han. 2016: 185; IHarring. 11)1: :37:). In .April that ye,w. the Mlalaysian government
amendled  its I)angerous IDrugs Acl 19)52 ()D).A) t(o mandtle a lilf sentlence or capital punishmenI oir
those convicted ofdlrug ralfficking. Singapore soon lfollowedl in November with changes to ils Mlisuse
ofl)rugs .\ct 19)7: (AIIA)). making t he lealh sentence mandtioryfoir i rafickers. This began a pattern
ol both states looking across the causeway  ai neighbouring dlevelopments  to converge on a 'Strails
\pproach'  to  ralfficking penallies. (Over the remaindler oI the 20th cenlury. lhey wouldI repeatledly
alopI markedlly similar laws. wit h Mlalaysia too making the dleat h sentence mandat oryfior IralTicking
in 1)8: (Ilarring. 19)9)1: :375). As a resull. dlrug oiffenlers have come to make up a majority oflthose
execuledl in bot h countries. From 1)57 1t 2001. 221) were hangedI in Malalysia lfir the offence. while
flrom 1)9)1 to 2014 alone, :28 conviced t raffickers were execuledl in Singapore (Singh el al. 2023: ::
Chan.  2016: 180).1 However,  in July 2018. aller years of lomestie (debat e over the policy, Malaysia
imposed  a moraIorium   on executions. The pause  remainedl in plaice in April 202:1, when abilaysia
further diverged from  the two states' common  approach  by abolishing its mandatory death  penalty
(ABC,  2023). By contrast, in Singapore, the government's position remains entrenched, with 16 killed
from 2022  to 2023 (HRW, 2024). The ruling People's Action Party (PAP) vigorously defends the policy,
recently tightening appeal  rights in capital cases and harassing abolitionist activists (Al Jazeera,
2022; CIVICUS,   2023).
    Applying  a historical comparative law approach,  this article investigates the convergence and
divergence  of Malaysia  and  Singapore's policy of using the  death  sentence for drug  trafficking
offences. Both are sovereign and independent  nations yet share borders, interwoven history, similar
forms  of governance, and a common   legal heritage. Both also implemented  capital punishment  for
traffickers within months  of each other, with nearly identical subsequent  policy trajectories until
2018. This pattern  suggests a ripe ground  for comparative analysis, yet there are few accounts of
legal convergence in criminal law and  none addressing this case. Little has also been written about
the  landmark   2023 Malaysian   reforms. This  article seeks to contribute  to both the  literature


     JD Student at La Trobe University. I thank Professor Lorne Neudorf for his support.
1    Both governments have historically been secretive regarding execution numbers, with estimates generally assembled by
     non-governmental organisations (Johnson and Zimring, 2009: 305-08). Statistics provided in this article come with this
     caveat.

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