MALAYSIA: DEATH PENALTY IS CONSTITUTIONAL, FEDERAL COURT TOLD

June 10, 2020:

The Federal Court was told on 9 June 2020 that amendments to make the death penalty mandatory for cases involving drug trafficking and murder were constitutional as the legislature was empowered to do so.
Deputy public prosecutor Nik Suhaimi Nik Sulaiman said the Dewan Rakyat could pass amendments, such as that to make the death penalty mandatory, if legislators thought the punishment suited the gravity of the offence.
“As the law stands, legislatures enact or amend laws that they think is appropriate for an offence, while the courts carry out the process of sentencing after finding an accused person guilty.”
“In fact, when the then deputy prime minister (Musa Hitam) tabled the amendments to drug trafficking sentences (in 1983), he pointed out that there was no uniformity in sentencing by the courts previously for traffickers, and also that there was an increase in trafficking cases in Malaysia,” Suhaimi told the nine-judge panel. Suhaimi was responding to the death penalty challenge filed by four accused persons who were convicted under Section 39B of the Dangerous Drugs Act and murder under Section 302 of the Penal Code.
South Africans Letitia Bosman and Benjamin William Hawkes along with Peruvian Jorge Crespo Gomez had been convicted of trafficking in drugs while Pubalan Peremal had been found guilty of murdering his brother-in-law.
Suhaimi said the contention of the four that they were denied a fair trial, as the offences they were convicted under only provided the death sentence and that they could not mitigate, was without any substance.
“The mandatory death penalty does not run foul of the Federal Constitution. In fact our Article 5(1) says that the right to life and personal liberty is not absolute and can be taken away,” he said.
The prosecution noted that the four had exhausted their appeals in the higher courts.
Meanwhile, lawyer for the four Gopal Sri Ram told the court the removal of court discretion from 1983 in passing down sentences amounted to an interference of judicial function.
“The death penalty is not a commensurate punishment for all drug cases. The then legislature’s response to the problem was obviously disproportionate,” he argued.
Court of Appeal president Rohana Yusof set 13 August to deliver decision on the challenge by the four. The other judges on the panel are Chief Judge of Malaya Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and Federal Court judges P Nallini, Vernon Ong, Abdul Rahman Sebli, Zaleha Yusof, Zabariah Mohd Yusof, and Hasnah Mohammed Hashim.
Besides Sri Ram, lawyers Abdul Rashid Ismail and Hisyam Teh also appeared for the four accused persons.
Malaysia imposes the death penalty on those guilty of murder, drug trafficking, kidnapping, firearms offences and waging war against the country.
The previous Pakatan Harapan government had said it wanted to table amendments to abolish the mandatory death sentence, and a special task force had conducted holistic and independent discussions on the law and held consultation sessions with stakeholders to gather their views.