Hierarchical Citizenship and Racialised Discretion: Police and Consular Officers’ Handling of Capital Cases in Malaysia

ABSTRACT

This article examines the death penalty in Malaysia, where foreign nationals have historically been sentenced to death at a disproportionately high rate. The international community has recognised that foreign defendants are disadvantaged in alien criminal justice systems and made efforts to address this through the United Nation’s Vienna Convention on Consular Relations 1963, to which Malaysia is a signatory and has incorporated its obligations into domestic legislation. However, data from our 49 interviews with criminal justice professionals and officials at consulates in Kuala Lumpur and our review of 77 court judgments found that foreign nationals are not equally disadvantaged. Some consulates are notified in a timely fashion of the arrest of a national for a capital offence; others are not, and the level of assistance provided by consulates varies considerably. We utilise border criminological theorising on ‘hierarchical citizenship’ and ‘racialised discretion’ to understand these discriminatory differences.