Death Penalty

FEON WONG | LEGAL JARGON WRITER Recently, four people were sentenced to death: three for drug trafficking and one for murder. This has revived the long-unsettled question – should a mandatory death penalty exist in Malaysia Law? Legal counsel for the 4 accused apparently thinks otherwise by raising four points before the court. Firstly, it was said that through making death sentence mandatory, legislative power overrides judicial power as the discretion in determining sentences falling within the judiciary’s ambit. This leads to the violation of separation of powers. Secondly, counsel argues that appellants were deprived the right to a fair trial under Clause (1) of Article 5 of the Federal Constitution (FC). Thirdly, the nature of mandatory death penalty violates proportionality principle established in the equal protection clause in Clause (1) of Article 8 of the FC. Lastly, the appellant insists that the Dangerous Drug Act (DDA) is a pre-Merdeka statute, so the court is under a duty to modify section 302 to bring it into accord with the FC pursuant to Clause (6) of Article 162. In addressing the first point, the court viewed that the doctrine of separation of powers remains intact as the court’s power is to pass or impose punishment or sentence, giving effect to law that legislative power enacted. Accepting counsel’s argument would also have a far-reaching consequence as modification would be needed for every law that imposes a fixed or mandatory penalty. To examine the right to a fair trial, the court cautioned that fundamental liberty is not absolute and can be taken away in accordance to law pursuant to the phrase “save in accordance with law” in Clause (1) of Article 5 of FC. The court opined that mitigation plays no role in the case because of the automatic nature of the mandatory death penalty prescribed, leaving no room for the court to make the mandatory principle discretionary. It is also confirmed that there is no statutory requirement for mitigating factors to be considered by the court before it passes sentence under Chapter XX of the Criminal Procedure Code. In the event that there is any inhumane or degrading treatment, the court ruled that any changes should come from legislature, though the FC has no provision preventing “torture or inhuman or degrading punishment or treatment” nor is Malaysia a party to international conventions that oblige it to follow international principles. Proportionality principle is deemed to be “equal punitive treatment for similar legal guilt instead of equal punitive treatment for equal moral blameworthiness". The court compared similar cases in the past and reached a conclusion that the judgment is consistent to the proportionality principle. The court upheld that legislature, due to its democratic nature and comprehensive legislative procedures, has taken proportionality into consideration. It is, therefore, unsuitable for the court’s judgment to preside over legislature’s wisdom. Both assenting and dissenting judgment, through different interpretations, rejected the fourth ground. The minority interpreted that DDA was a pre-Merdeka Code but section 39B that advanced death penalty is not as it was added to the existing DDA in 1975. The majority reasoned that inconsistency is the prerequisite to modify the Act; thus, the code requires no modification as it is consistent with the FC. One of the nine judges took a different stance by arguing that the court should serve its check and balance function by scrutinising punishment set by legislature. In this case, it was said that mandatory death penalty disregards the huge disparities in circumstances, thereby failing to serve the purpose of the Act and is against rational classification. Nonetheless, in an eight to one split, the court ruled against the appellants. FEON WONG LLB student at The London School of Economics | Communication Officer at Japan Society at LSE 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at or simply just comment below!

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