Parliament empowered to enact laws on offences, punishments including death penalty - Federal Court

Chief Judge of Malaya, Tan Sri Azahar Mohamed who delivered the court's 8-1 majority decision said prescribing the measure of punishment was the prerogative of Parliament.

He said the discretion to determine the measure of punishment was not an integral part of judicial power.

“The court is only empowered to pass any sentence within the parameters of a prescribed sentence enacted by Parliament," he said.

A nine-member bench led by Court of Appeal president, Datuk Rohana Yusuf delivered their decision in the appeals brought by four individuals who raised the issue of constitutionality of the provisions in the Dangerous Drugs Act 1952 (DDA) and Section 302 of the Penal Code which impose the mandatory death sentence for drug trafficking and murder, respectively.

Except for Justice Nallini Pathmanathan who dissented, the other judges -- Rohana, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim, Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Abdul Rahman Sebli, Puan Sri Zaleha Yusof, Datuk Zabariah Md Yusof and Datuk Hasnah Mohammed Hashim -- were with the majority decision.

The decision was delivered by the court almost four hours in a modified courtroom, the banquet hall of the Palace of Justice to comply with the social distancing rule.

In his decision, Justice Azahar said the court, could not at its own pleasure, impose any sentence as it wished if the law did not permit it.

"The power of sentencing is statutory and the court cannot exceed or limit the power of sentencing in the name of exercising its judicial power.

“The provisions in Section 39B of the DDA and Section 302 of the Penal Code do not usurp the judicial power nor violate the doctrine of separation of powers.

"In my opinion, any controversial matter of policy involving differing views on moral and social issues is one circumstance where Parliament is better placed to assess the needs of society and to make difficult choices between competing considerations.

“In the context of Malaysian society, Parliament as the duly elected legislature is the appropriate body to decide on the appropriate measure of punishment for drug traffickers and murderers for what society regards as the most serious crime,” he said.

Justice Azahar said it was only right that the decision and initiative to change or to abolish the mandatory death penalty should come from Parliament.

In her dissenting decision, Justice Nallini said the legislative power of Parliament to prescribe punishment was subjected to judicial scrutiny to ensure that it did not transgress the supreme law of the land.

"It allows the judiciary to retain a check and balance on both the Executive and Legislature by striking down law that does not conform to the Federal Constitution," she said

“Section 39B of the DDA and Section 302 of the Penal Code are unconstitutional and therefore should be struck down.

"I have concluded that the imposition of the mandatory death penalty is unconstitutional for infringement of Article 5 (1) (liberty of person) and Article 8 (1) (right to equal protection of the law) of the Federal Constitution," she said.

The Federal Court also decided on the merits of the appeals of the four individuals -- South Africans Letitia Bosman and Benjamin William Hawkes, Peruvian Jorge Crespo Gomes and P. Pubalan, a Malaysian who owns a security company, who were appealing against their convictions and death sentences.

For Bosman and Hawkes, the court affirmed their convictions for drug trafficking and death sentences. The court convicted Gomes on a lesser charge for possession of 779 grammes of cocaine and he was sentenced to 10 years’ jail to run from June 27, 2016, the date of his arrest.

Meanwhile, the court set aside Pubalan's conviction for murder of his brother-in-law D. Murali and convicted him for culpable homicide not amounting to murder. He was sentenced to 15 years’ jail to run from the date of his arrest, Nov 7, 2013.

Lawyer Abdul Rashid Ismail represented Bosman, Hawkes and Gomes while lawyer Hisyam Teh Poh Teik represented Pubalan. Deputy public prosecutor Datuk Nik Suhaimi Nik Sulaiman appeared for the prosecution.