PUTRAJAYA, Feb 3 — The Federal Court nine-member bench wants the Attorney-General’s Chambers (AGC) to put in further submissions on several issues in the appeals by four individuals who have raised the issue on the constitutionality of the mandatory death sentence.
Court of Appeal President Datuk Rohana Yusuf who led the bench said the court took note that the appeals concern constitutional questions of great importance and despite the AGC’s stand, the court needs a further argument, particularly from the AGC, on constitutional issues.
She said the issues included whether sentencing was purely a judicial power, on Article 5 of the Federal Constitution pertaining to a fair trial, Article 8 of the Federal Constitution on proportionality and Article 162 of the Federal Constitution on implication and modification of pre-Merdeka law.
Justice Rohana said it would be of great assistance and benefit to this court if the Attorney-General Tommy Thomas himself could appear on the next hearing date to assist the court.
She subsequently fixed tomorrow for case management to set new hearing date.
The other judges presiding were Chief Judge of Malaya Tan Sri Azahar Mohamed and Federal Court judges Datuk Abang Iskandar Abang Hashim, Datuk Vernon Ong Lam Kiat, Datuk Abdul Rahman Sebli, Datuk Zaleha Yusof, Datuk Zabariah Md Yusof and Datuk Hasnah Mohammed Hashim.
Earlier, head of the appellate and trial division Datuk Nik Suhaimi Nik Sulaiman said it was the AGC’s stand to support the Federal Court judgment in the Semenyih Jaya vs Pentadbir Tanah Daerah Hulu Langat which stated that it is solely the court to decide on sentencing.
On whether the death penalty was cruel and inhuman and constitutional, he said the AGC’s stand was that it was constitutional and not cruel and inhuman.
Lawyer Datuk Seri Gopal Sri Ram representing the four individuals said it was their case that the amendment to the Dangerous Drugs Act 1983 to impose the mandatory death sentence for drug trafficking offences was unconstitutional as it removed the court’s discretion to impose either life imprisonment or death sentence for the offence.
He said the removal of the court’s discretion amounts to an interference of the judicial function.
On mandatory death penalty passed for murder offences, Sri Ram said Section 302 of the Penal Code is a pre-Merdeka law and thus the court was under a duty to bring it into accord with the Federal Constitution.
Peruvian Jorge Crespo Gomes and South Africans Letitia Bosman and Benjamin William Hawkes were separately convicted and sentenced to death by the High Court between 2015 and 2016 for trafficking in drugs they were accused of committing in 2013. All three lost their appeals at the Court of Appeal.
P. Pubalan was convicted for murder and was sentenced to death by the High Court in 2016. He also lost his appeal which was dismissed by the Court of Appeal in 2018. — Bernama