Suffian LP:

Lau Kee Hoo ("the respondent") was charged with having under his control in a security area without lawful excuse or authority ammunition contrary to s. 57(1)of the Internal Security Act 1960 ('ISA'), which carries a mandatory death sentence.

At the commencement of the trial, his Counsel Mr. Karpal Singh raised a preliminary point, contending that the mandatory death penalty was unconstitutional.

The learned Deputy Public Prosecutor was taken by surprise and on his application the case was adjourned to the following morning to enable him to "consult his seniors".

On the following morning the learned Attorney-General himself appeared with the learned Deputy. The Attorney-General suggested that this matter be referred to the Federal Court and that was how the Public Prosecutor came to be designated in these proceedings as the "applicant". The learned trial Judge agreeing stayed the proceedings, and acting under s. 48(1) of the Courts of Judicature Act No. 7 of 1964, referred the following question for our decision:

Whether or not the mandatory death sentence provided under s. 57(1) of theInternal Security Act 1960 is ultra vires and violates Article 5(1), 8(1) and 121(1) of the Federal Constitution.

That day, after considering the rival arguments, we answered the question in the negative, that is to say we ruled that the mandatory death sentence under the section is not ultra vires and does not violate the Articles referred to. We now give our reasons.

Before doing so we would like to remark that the same question was considered by Hashim A. Sani J as he then was, on 12 August 1982 in Kuala Lumpur Civil Suit No. A12 of 1982 and by Ajaib Singh J on 16 September 1982 in a ruling on a preliminary issue in Ipoh Criminal Trial No. 12 of 1982.

The matter came before Hashim Sani J by way of a civil suit because the prisoner there had exhausted all the criminal remedies available to him including an appeal to this Court and another to the Pardons Board which were all unsuccessful. In the suit he sought a declaration that the mandatory death penalty under the section was unconstitutional, it being argued that the penalty contravened Article 5(1) and 8. As it happened, on application of the learned Attorney-General the statement of claim was struck out on the ground that it disclosed no cause of action, the learned Judge holding that the two Articles have not been contravened.

Before Ajaib Singh J the accused was charged with being in possession of a hand grenade in a security area without lawful excuse and without lawful authority under the section and his Counsel argued in a preliminary objection that the mandatory death penalty under the section was unconstitutional as it infringed Article 5(1), 8(1), 121(1) and 149(1). Ajaib Singh J too ruled that the Constitution had not been contravened.

Article 5(1)

First, we considered the argument based on Article 5(1) which provides:

No person shall be deprived of his life ... save in accordance with law.

Thus it will be seen that the Constitution itself envisages the possibility of Parliament providing for the death penalty, so it is not necessarily unconstitutional. That this is so is fortified by reference to Article 42 which deals with the power of the Yang Dipertuan Agong, a Ruler and Governor to grant pardons, reprieves and respites. There is a campaign inspired from some Western countries to abolish the death penalty on the ground that it is cruel, but there is no provision in our Constitution corresponding to Article VIII of the American Constitution prohibiting "cruel and unusual punishment", nor similar to the provision contained in s. 2(b) of the Constitution of Trinidad and Tobago which was considered by the Privy Council in Michael de Freitas v. Benny [1976] AC 239. Nor does our Constitution contain any provision prohibiting "torture or inhuman or degrading punishment" like s. 60 of the Constitution of Rhodesia and Nyasaland which was considered by the Privy Cou