LETITIA BOSMAN v.

PP & OTHER APPEALS

[2020] 5 MLRA 636

Federal Court, Putrajaya

Rohana Yusuf PCA, Azahar Mohamed CJM, Abang Iskandar CJSS, Nallini Pathmanathan; Vernon Ong,
Abdul Rahman Sebli, Zaleha Yusof, Zabariah Mohd Yusof, Hasnah Mohammed Hashim FCJJ

[Criminal Appeal Nos: 05-76-04-2017(J), 05-179-08-2017(B), 05-214-092017(K) & 05(M)-118-05-2018(B)]

13 August 2020

Constitutional Law: Constitutionality - Constitutionality of mandatory nature of death penalty under

Constitutional Law: Principle of separation of powers - Nature and exercise of judicial power - Whether
Parliament empowered only to make law - Whether it was within Parliament's prerogative to prescribe the
measure and range of punishment taking into consideration, inter alia, social policy - Whether judicial power
vested exclusively in courts - Whether s 39B DDA and s 302 PC violated doctrine of separation of powers, by
being impermissible Parliament intrusion into judicial powers - Whether power to determine measure of
punishment was judicial power - Article 121 FC

Constitutional Law: Legislation - Constitutionality - Mandatory death penalty - Section 39B DDA and s 302
PC - Whether infringed art 5(1) FC - Whether mandatory sentence violated right to life - Whether court
empowered to declare legislation void or invalid

Constitutional Law: Legislation - Constitutionality - Article 8 FC - Mandatory death penalty - Whether s 39B
DDA and s 302 PC allowed for, reasonable classification as it was founded on intelligible differentia having
rational relation with object of statute - Whether dissimilarity in circumstances justifying differentiation in
punishment purely arbitrary - Whether enhanced mandatory death penalty for offences of drugs trafficking and
murder was intelligible differentia that bore rational relation to a valid social object

Constitutional Law: Fair Trial - Whether mandatory death sentence violated right to fair trial under art 5(1)
FC - Whether there was denial of equal protection of law to offenders in mandatory death cases - Whether
there was denial of right to fair trial in case of an offender that was deprived of plea of mitigation before court
passed mandatory death sentence - Whether mandatory death sentence arbitrary - Whether right to fair trial
under art 5(1) FC subjected to qualifications

Constitutional Law: Whether mandatory death sentence was cruel and inhuman and was an inconformity with
international instruments

There were four appeals before this court, which raised constitutional issues pertaining to the mandatory death
penalty. The appellants, Letitia Bosman, Jorge Crespo Gomez and Benjamin William Hawkes were separately
charged, convicted and sentenced to death by the High Court for trafficking in dangerous drugs contrary to s
39B of the Dangerous Drugs Act 1952 ("DDA"). The appellant Pubalan Peremal was charged, convicted and
sentenced to death by the High Court for the offence of murder under s 302 of the Penal Code (PC). In gist, in
these four appeals, the principal issue that arose for consideration was the constitutional validity of s 39B of
the DDA (prior to its 2017 amendment) and s 302 of PC, in so far as these statutory provisions provided for the
mandatory punishment of death with no possibility of any alternative form of punishment. The questions
which arose for consideration were: (i) whether s 39B of the DDA (prior to its 2017 amendment) and s 302 of
the PC infringed the guarantee contained in art 5(1) of the Federal Constitution ('FC') which provided that "no
person shall be deprived of his life or personal liberty save in accordance with law"; (ii) whether the power to
determine the measure of punishment, namely, the mandatory sentence was inconsistent with the judicial
power enshrined in art 121 of the FC and violated the doctrine of separation of powers; (iii) whether the
mandatory death sentence violated the right to a fair trial enshrined under art 5; (iv) whether the mandatory
death sentence under s 39B of the DDA and s 302 of the PC violated the proportionality principle vested in art
8 of the FC; and (v) whether the court was under a duty to modify s 302 to bring it into accord with the FC
pursuant to cl (6) of art 162.

Held (dismissing the four appeals on constitutionality of the mandatory death penalty):

Per Azahar Mohamed CJM (delivering the Majority judgment of the court):

(1) While the court had a substantive constitutional role in reviewing the legislative act where deemed
necessary to ensure legality, the task was complex as it also involved the appropriate measure of judicial
deference the court should give the Legislature on matters involving delicate and contentious areas of social
policy. The courts, therefore, did not hold legislation unconstitutional in a light vein. They had to draw a fine
balance between the 'felt necessities of the time' and 'constitutional fundamentals'." (paras 26-30)

(2) The power to determine the measure of punishment or power to prescribe punishment was not part of
judicial power. In the context of criminal law, the courts had the judicial power to try offences. Judicial power
under art 121 of the FC in relation to sentencing was to pass or impose punishment or sentence according to
law at the conclusion of a criminal trial and upon conviction of an accused person. (paras 47-52)
(3) Parliament had the legislative power to prescribe the mandatory death penalty. The court was only
empowered to pass any sentence within the parameters of a prescribed sentence enacted by Parliament. 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 was statutory and the court could not exceed or limit the power of sentencing in the name of
exercising its judicial power. In the present appeals, Parliament by prescribing a mandatory death penalty did
not encroach into the power of the court as it was within their power to do so. The impugned provisions were
not inconsistent with art 121 of the FC and did not usurp judicial power nor violate the doctrine of separation
of powers. (paras 57-68)

(4) The mandatory death penalty satisfied the test of reasonable classification, and hence was not
unconstitutional vis-a-vis cl (1) of art 8 of the FC. The enhanced mandatory death penalty for the offences of
drugs trafficking and murder was an intelligible differentia that bore a rational relation to a valid social object.
There was no discrimination against the appellants as the impugned provisions applied to the class of persons
who offended the provisions that related to drug trafficking under the DDA and murder under the Code. In
matters relating to equal protection, the basis of approach was the identification of legislative purpose and a
reasonable classification was one that included all persons who were similarly placed with respect to the
purpose of the law. It must be presumed that the Legislature understood and correctly appreciated the need of
its own people and that its law was directed to problems made manifest by experience and that its
discriminations were based on adequate grounds provided. (paras 75-120)

(5) The mandatory death sentence did not violate the right to a fair trial under cl (1) of art 5 of the FC. Where
the Legislature had by proper exercise of its powers prescribed that for drug trafficking and murder offences,
the offenders should be punished with a mandatory death penalty, the duty of the court was to impose the
legislatively prescribed punishment on offenders. The fact that the court had no alternative but to pass that
sentence did not make the mandatory sentence unconstitutional. There was no denial of the right to a fair trial
in a case of an offender that was deprived of a plea of mitigation before the court passed the mandatory death
sentence. (paras 122-136)

(6) There was nothing unusual and arbitrary in a death sentence being mandatory. The Legislature in
prescribing a mandatory death sentence to be inflicted upon the offenders found guilty of the specific offence,
no doubt had in mind the object and purpose to be realised by such a mandatory provision and it could not for
that reason be arbitrary in any sense of the word. (paras 137-144)

(7) As for the question of whether the mandatory death sentence was cruel and inhuman, it was pertinent to
note that Malaysia did not have similar provision as existed in the foreign jurisdictions as in the FC. It was trite
that the function of the court was to apply the law and if at all the present law was disproportionate, cruel,
inhuman, or degrading the initiative to change should come from the Legislature. The FC must primarily be
interpreted within its own walls and not in the light of analogies drawn from other jurisdictions where the
provisions of their Constitution were different than Malaysia's FC. The principle that an international
instrument was only applicable in Malaysia if it was incorporated into our domestic law was followed. A rule
of international law could only become part of municipal law if and when it was transformed into municipal
law by the passing of local legislation. (paras 145-156)

(8) There was no inconsistency between s 302 of the PC which prescribed the mandatory death sentence and
arts 5, 8 and 121 of the FC. Hence, there was no necessity to undertake constitutional modification of s 302
under cl (6) of art 162 to bring it into accord with arts 121, 5 and 8 respectively. The preconditions for the
exercise of modification power did not exist. The court had no power to modify s 302 of the PC pursuant to cl
(6) of art 162 because such a power arose only when a law was inconsistent with the FC. The power to modify
was not a power to modify every existing law. (para 161)

Per Nalini Pathmanathan (dissenting):

(9) The FC was the supreme law of the land and was in a class of its own (sui generis). To that extent, it could
not be interpreted according to the ordinary canons of statutory construction, but was construed and governed
by its own principles of interpretation. Constitutional provisions were construed broadly and generously, not
narrowly nor rigidly. A prismatic approach was to be adopted when interpreting the fundamental rights
provisions under Part II of the FC. A vitally important function of the court was to interpret constitutional
provisions with the fullness needed to ensure that citizens had the benefit which these constitutional guarantees
were intended to afford. (paras 173-177)

(10) Proviso to art 5(1) FC, namely "save in accordance with law" meant that all statutes or 'law' were subject
to art 4 FC. This meant that all enacted law must comply with the FC. The term 'law' in the proviso 'save in
accordance with law' must refer to law that was constitutionally valid and not simply any regularly
promulgated/enacted law. Applying these principles to the 'law' in question, it followed that the deprivation of
'life' so prescribed in s 39B of the DDA and s 302 of PC must be both substantively and procedurally fair. If
such deprivation of life as was prescribed by law, ie s 39B of the DDA or s 302 of the PC, were not
substantively or procedurally fair or infringed the tests set out in the provisions of the FC protecting
fundamental or human rights in Part II, then it would follow that they did not fall within the ambit of 'law' as
envisaged in art 5(1) FC and ought to be struck down. (paras 183-205)

(11) Section 39B DDA was a 'law' which was arbitrary and oppressive for the reason that the section
prescribed only one punishment, namely the mandatory death penalty for 'trafficking', which was accorded
with an extremely broad definition encompassing a wide variety of activities, which were classified together as
justifying one single punishment. This was because there was no intelligible criteria for classifying them
together for the purposes of imposing the same punishment of mandatory death, save for the purposes of
establishing culpability for the offence of trafficking. As such, it could not be said that the classification was
reasonable in so far as punishment or sentencing was concerned. The imposition of the death penalty as the
sole punishment for trafficking, being unreasonable, unjust, unfair and devoid of any rational classification,
infringed art 8(1) FC. (paras 243-253)

(12) Section 39B DDA was similarly violative of art 5(1) FC, namely the right not to be deprived of life save
in accordance with law. The law being arbitrary, capricious and therefore neither fair nor proportionate, did not
qualify as 'law' contemplated under art 5(1) FC. Any deprivation of life pursuant to such law was therefore
unconstitutional. (paras 254-255)

(13) As for s 302 of the PC, the circumstances within which the offence of murder might arise varied greatly. It
might range from a situation where a person was provoked and responded violently so as to cause death, to a
carefully planned and strategised commission of the offence with a clear and perceptible intention to kill, on
the one hand to a situation where a loved one in pain was allowed to pass on by the provision of drugs. In so
far as punishment was concerned, it was difficult to ascertain intelligible differentia with a rational nexus to the
object of the statutory provision, in the imposition of the mandatory death penalty. The other circumstances
giving rise to the commission of the offence, were so varied that they defied classification into any form of
intelligible differentia. As such, the mandatory death penalty specified in s 302 PC infringed art 8(1) FC and
accordingly art 5(1) FC for not being fair, just and reasonable. (paras 256-264)

(14) The imposition of the mandatory death penalty as the sole punishment for the offences concerned did not
allow for the imposition of a penalty commensurate with the circumstances of commission of the offence. It
did not accord an opportunity to be heard for the accused as to why the death penalty was not warranted in the
particular circumstances of their case. To that extent, the statutory provisions could not be said to satisfy the
constitutional safeguards in art 5(1) or 8(1) FC. As such, the consequences of the application of a law that was
inherently not fair or proportionate, afforded further basis for striking down these provisions imposing the
mandatory death penalty for a contravention of those articles. (paras 265-278)

(15) The provision by Parliament of a mandatory penalty for an offence did not offend the separation of
powers doctrine, as there was no usurpation of judicial power. The fact that the court was not able to exercise a
judicial discretion in respect of a particular offence, because the punishment had been stipulated in a
mandatory form, did not in itself amount to a transgression of judicial powers. In short, neither the enactment
of s 39B of the DDA nor s 302 of the PC by the Legislature, in itself, amounted to a usurpation of judicial
powers. (paras 294-295)

(16) While a mandatory penalty may be imposed, such punishment is open to judicial scrutiny in relation to
whether it is consonant with or falls within the purview of the FC, when a challenge is made to the effect that it
is unconstitutional. Whether a statutory provision conforms to the provisions prescribed in the FC remains the
function of the Judiciary. And nowhere is this more clearly articulated than in art 4 FC, which houses the
doctrines of the separation of powers and the rule of law. It allows the Judiciary to retain a check and balance
on both the Executive and the Legislature by striking down law that does not conform to the FC. If the
statutory provision is found to infringe the FC, then the court, exercising its powers under art 4(1) FC is free to
strike down such provision as being incompatible with the FC. (paras 297-299)

(17) The imposition of the single, irrevocable and final penalty of death on all manner of persons found to be
'trafficking' in dangerous drugs as defined under s 2 of the DDA is contrary to the doctrine of proportionality
as stipulated in art 8(1) of the FC. Section 39B of the DDA is therefore unconstitutional and ought to be struck
down. The consequence is that the pre-1983 provision, which confers upon the court the discretion to mete out
either life imprisonment or alternatively the death penalty, ought to be restored. Further, the Dangerous Drugs
(Amendment) Act 2017 also lends force to the contention that the mandatory death penalty is unconstitutional.
Likewise, there is no rational basis for classifying, in one category, the vastly varying circumstances giving rise
to the offence of murder under s 302 of the Code. It offends art 8(1) of the FC and is therefore,
unconstitutional. (paras 316-325)

(18) While the DDA was a law enacted before Merdeka Day known then as the Dangerous Drugs Ordinance
1952, s 39B was only inserted in 1975 vide the Dangerous Drugs (Amendment) Act 1975. Therefore, s 39B of
the DDA could not be said to be a pre-Merdeka law. And it is solely that section that the appellants sought to
strike down as being unconstitutional under art 4 of the FC. (para 326)

(19) As regard to s 302 of the PC, since the enactment, the punishment for murder had been, and continues to
date to be, the mandatory death sentence. As a pre-Merdeka law, s 302 could not be declared void or invalid as
opposed to post-Merdeka law, which is subject to being struck down for inconsistency with the Code under art
4. In the face of any such inconsistency in a pre-Merdeka law, art 162(6) of the FC ought to be invoked to
remove that inconsistency. (paras 327-330)