PUTRAJAYA (June 9): Four people, three of them foreigners, are challenging the constitutionality of the death sentence at the Federal Court.

The foreigners — two South Africans and a Peruvian — have been sentenced to death after being convicted of drug trafficking, while the Malaysian is staring at the death sentence after being found guilty of murder.

Former Federal Court judge Datuk Seri Gopal Sri Ram appeared as counsel for the four persons before a nine-member bench of the apex court today.

He submitted that the court should move away from being a mere rubber stamp when it comes to forking out the death sentence.

It is an intrusion into the court’s jurisdiction when the legislature removes the court's discretion to mete out punishment for murder and drug trafficking cases, he said.

“In France, the courts are given discretion when imposing sentence in murder cases. In line with the Federal Court's decision in the Semenyih Jaya case, and further affirmed in the M Indira Gandhi and Alma Nudo's cases, it is an affirmation that the separation of powers doctrine is a basic feature of the Constitution.

“The judicial power to impose sentences involves an element of discretion. To remove that discretion is an interference with the judicial power, which is unconstitutional,” Sri Ram submitted.

Under the separation of powers doctrine, the executive (cabinet), legislature (parliament) and judiciary cannot encroach into each other's role.

The appellants are arguing that the legislature's passing of death sentence for murder (Section 302 of the Penal Code) and drug trafficking (Section 39B of the Dangerous Drugs Act 1952) is unconstitutional as it removes the court's discretion to mete sentences.

Sri Ram was submitting for Letitia Bossman and Benjamin William Hawkes from South Africa, Jorge Crespo Gomez from Peru, and P Pubalan.

Bossman, Gomez and Hawkes were also represented by counsel Abdul Rashid Ismail while Hisyam Teh Poh Teik also appeared for Pubalan.

The former Federal Court judge told the nine-member bench that if the process (separation of powers) is interfered, violated or diluted, it has a direct impact on their fundamental right to a fair trial.

“This is why this provision is unconstitutional,” Sri Ram added.

AG’s Chambers maintain death penalty is constitutional
Deputy Public Prosecutor (DPP) Nik Suhaimi Nik Sulaiman said it is the power of the legislature to fix the sentences for such offences.

Referring to the landmark decision in the Alma Nudo case, he said each of the three components or branches must exercise their power within its limit.

“Semenyih Jaya should be applied by its own facts and this should not apply for the death sentence,” he said, adding the law to provide the death penalty is constitutional.

Nik Suhaimi, who cited the Loh Kooi Choon case, said the question of whether the impugned act is harsh or unjust is a question of policy to be debated and decided by Parliament and therefore not meant for judicial determination.

“Based on the above, we strongly urge this court to apply the law as provided, because the mandatory sentence provided impugned provisions that have been enacted within the competence of Parliament as provided by the Federal Constitution.

“To change or modify the express provision of Section 39B of the Dangerous Drugs Act, Section 302 of the Penal Code would be a serious departure from the law and would result in a total uncertainty,” the DPP said.

The nine-member bench is led by Court of Appeal president Datuk Rohana Yusuf. The other members were Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim, and Federal Court judges Datuk P Nalini, Datuk Vernon Ong Lam Kiat, Datuk Abdul Rahman Sebli, Datuk Zaleha Yusof, Datuk Zabariah Mohd Yusof, and Datuk Hasnah Mohamed Hashim.

After submissions on the constitutionality of the death sentence, Rashid and Hisyam submitted the merits of their clients’ appeal against the drug trafficking and murder charges. They are seeking a reduced charge of drug possession or manslaughter.

Several DPPs submitted on maintaining the conviction and sentence.

The bench will deliver its verdict on both issues of the constitutionality of the death sentence and the four accused conviction and sentence on Aug 13.

The previous Pakatan Harapan government had announced plans to table a bill in Parliament to abolish the death penalty.