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

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. Howeuer, in April 2023, after continued debate, Malaysia abolished mandatory death sentencing, with a moratorium on executions in place since 2018. Inuersely, Singapore continues to execute at a high rate, and its government stridently defends the policy. Through a comparative legal and historical analysis, this article inuestigates 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 punitiue policy developments to avoid being exploited as lenient. Their diuergence in the new millennium is explained by a shift in the preferences of Malaysia's elites caused by instability and changes in its poliical institutitons. In contrast. Sing>apor's resilience is due to its institutional stability and a rationalising ideology. MIalaysia anI Singapore share remarkable commonalities,. incluling colonial hist ory. lengt hy perios of dominant-part y governance anI an IEnglish common law legal herit age (Novak, 201 1:04-05). In 1)75 both sNaes responled to rising rates ofd'rug abuse by legislating the (deIh penally fIor (Irug tralTickers ((Chan. 2016: 185; IHarring. 11)1: :37:). In .April that yew. the Mhalaysian government amenledI its I)angerous IDrugs .Ac 1)52 ()).A) to mandtl e a lil sentence or capital punishmenI oir those convictedl of ldrug ralfficking. Singapore soon lollowedl in November with changes to ils M isuse of l)rugs .Acl 1)7: (NII).A). making t he lealh sentence mandtliory lir tiraffickers. This began a pattern ol both states looking across the causeway ai neighbouring developments to converge on a 'Strais \pproach' to ralfficking penalt ies. (Over the remaindIer ofI the 20th century,. hey woulI repealedly alopI markelly similar laws. wit h M\alaysia too making the d(eat h sentence mandat ory fIor IralTicking in 1)8: (Ilarring. 1))1: :375). As a resull. dlrug oiffenlers have come to make up a majority oflthose execuled1 in bot h countries. From 1)57 1 2001. 221) were hangedI in alalysia lfIr the offence. while flrom 1))1 to 2014 alone, :28 convicted traffickers were execuled1 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 Ioratoriun on executions. The pause renained in place in April 2023, when Mlalaysia 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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