9-member bench to hear if judges can decide on death sentence vs jail term

PUTRAJAYA: A nine-member bench will reconvene tomorrow to hear whether courts have the exclusive power to determine the measure of punishment for those found guilty of offences carrying the death penalty.

In arguing their cases, lawyers for the four appellants as well as the Attorney-General’s Chambers (AGC) are expected to raise constitutional issues and fundamental principles.

The appellants are P Pubalan, Peruvian national Jorge Crespo Gomes, and South Africans Letitia Bosman and Benjamin William Hawkes.

On March 6 last year, a bench chaired by then-chief justice Richard Malanjum heard submissions. However, a ruling could not be delivered as most of the judges retired in rapid succession.

A 1983 amendment to the Dangerous Drugs Act made it mandatory for courts to impose the death penalty for all drug traffickers.

Prior to that, however, judges were given the discretion to mete out either the death sentence or life imprisonment for those found guilty of the offence.

The government amended the law in 2017 to give courts the option of imposing either penalty albeit subject to certain conditions set out by the public prosecutor.

The new law came into effect on March 15, 2018.

Pubalan was convicted of murder and sentenced to death in 2016.

Gomes, Bosman and Hawkes meanwhile were convicted and sentenced by the High Court between 2015 and 2016 for drug trafficking in 2013.

They are not beneficiaries of the new law as it does not take retrospective effect.

In Pubalan’s case, he is arguing that Section 302 of the Penal Code, a pre-independence law, is not in line with established principles in the Federal Constitution.

Gopal Sri Ram

Lawyer Gopal Sri Ram, who will be making oral submissions, said the constitution only allows a court to take a life in accordance with the law.

The retired Federal Court judge also said the outcome of the cases would have far-reaching consequences for criminal and constitutional laws.

“The Federal Court has four times in a row since 2017 declared that the 1988 amendment to the constitution to remove judicial power from the courts has ceased to exist,” he added.

In the case of Semenyih Jaya Sdn Bhd vs Hulu Langat District Land Administrator, then-Federal Court judge Zainun Ali ruled that the 1988 amendment to check the powers of the judiciary was contrary to the basic structure of the supreme law of the land.

FMT understands that the AGC wants the bench to depart from Zainun’s judgment and rule that the existing penalty for murder and trafficking is in accordance with the law and government policy.

Sri Ram also said the power to pass sentences and determine the measure of punishment for an offence are under judicial authority.

“That function must be exercised by the judiciary, not Parliament,” he said, adding that the amendment had converted the court’s power to “a mere rubber-stamping exercise”.

Lawyer Abdul Rashid Ismail, who will be appearing together with Sri Ram, said denying a person the right to mitigate after he or she is found guilty of an offence carrying the capital punishment goes against the concept of fair trial.

“It is also disproportionate with the intention of Article 8 which states that all persons must be given the chance to mitigate for lower sentences after they are convicted,” he said.

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