The imposition of mandatory death penalties is unconstitutional due to lack of proportionality and failure to consider mitigating circumstances, violating principles of fairness under the Federal Constitution.

Azahar Mohamed CJM (Majority):

Introduction

[1] There are four appeals before this court, which raise important constitutional issues and issues of paramount public interest pertaining to the mandatory death penalty. We sat in a quorum of nine to hear these appeals. The first appeal [No 05-76-04-2017(J)] is by Letitia Bosman. The second [No 05-179-08-2017(B)] is by Jorge Crespo Gomez. The third [No 05-214-09-2017(K)] is by Benjamin William Hawkes. The fourth [No 05(M)-118- 05-2018(B)] is by Pubalan Peremal. The Public Prosecutor is the respondent in all the four appeals.

[2] 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 ").

[3] 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 ("the Code").

[4] At all material times, the law makes it mandatory for courts to impose the death penalty for all offenders under s 39B of the DDA and s 302 of the Code ("the impugned provisions").

[5] All four appellants lost their appeals at the court of Appeal. The court of Appeal had affirmed the conviction and sentence of all the appellants.

[6] Before us, one of the grounds of appeal raised by all the four appellants concerns the constitutionality of the impugned provisions, with reference to art 5, 8 and 121 of the Federal Constitution ("FC"). Since all the four appeals were premised on this common ground, we proceeded to hear them together.

[7] This judgment will only deal with this common ground. The other grounds of appeal canvassed by the respective appellants are dealt with in separate judgments of my learned brother, Justice Vernon Ong and my learned sister, Justice Zabariah Mohd Yusof.

Decision Of The court Of Appeal

[8] It is material to point out that except for Letitia Bosman where the issue of the constitutionality of the mandatory death penalty was raised and decided by the court of Appeal, all the other appellants raised this issue for the first time before us.

[9] In that respect, the court of Appeal decided that s 39B(2) of the DDA that imposed the mandatory death sentence was constitutional for, amongst others, the following reasons. First, the FC does not have an express protection against cruel, inhumane or degrading treatment. Second, the decisions of the judicial committee of the Privy Council were no longer binding after it was abolished on 1 January 1978 in respect of criminal and constitutional matters. Third, the court of Appeal could not depart from the decisions of Ong Ah Chuan v. Public Prosecutor And Another Appeal , 1980 MarsdenLR 456 ("Ong Ah Chuan") and PP v. Lau Kee Hoo , 1983 MarsdenLR 53 ; [1983] CLJ 336 (" Lau Kee Hoo "). Fourth, the initiative to declare the mandatory death sentence as disproportionate, cruel, inhumane or degrading should come from Parliament.

[10] All the appellants appealed to the Federal court on conviction and sentence.

Brief Legislative History Of The Impugned Provisions

Section 39B (2) Of The DDA

[11] The original 1952 Malaysia drug legislation ("1952 Act") consolidated the existing drug law from the individual Malay States. The Dangerous Drugs (Amendment) Act of 1975 was the first of many amendments to the 1952 Act. The most important change was the addition of s 39B, providing that trafficking in dangerous drugs would be punishable by death, imprisonment, whipping, or some combination of those penalties. Thus, before 1983, s 39B(2) did not provide for the death penalty to be mandatory. The section reads:

Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, also be liable to whipping.

[Emphasis Added]

[12] Prior to its amendment in 1983, the