Death row inmates have last chance with Pardons Board, says Federal Court

Chief Judge of Malaya Azhar Mohamed says death sentences have been commuted to life imprisonment and even to lesser terms of imprisonment.

PETALING JAYA: Convicts given the mandatory death penalty by judges can still make a final appeal to the Pardons Board, a majority ruling in a recent Federal Court said.

Chief Judge of Malaya Azhar Mohamed said in suitable cases, death sentences were commuted to life imprisonment and even to lesser terms of imprisonment.

“It will not be out of place to mention here that in order to mitigate the mandatory death sentence, there is provision for review by the Pardons Board,” Azahar said in his 135-page judgment posted in the judiciary’s website.

The power of pardon provided for under Article 42 of the Federal Constitution is, however, a prerogative of mercy exclusively vested in the Yang di-Pertuan Agong or ruler of any state in Malaysia.

Last week, four appellants – P Pubalan, Peruvian national Jorge Crespo Gomes and South Africans Letitia Bosman and Benjamin William Hawkes – failed in their challenge on the constitutionality of the mandatory death penalty.

Their lawyers had argued that judges should be given the discretion whether to impose the death sentence or jail term based on the facts and circumstances of each case.

Their counsel said their clients were denied a fair trial because the effect of the mandatory death sentence is that the appellants were deprived of the right to mitigation.

Others in the majority were Court of Appeal president Rohana Yusuf, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and judges Vernon Ong, Abdul Rahman Sebli, Zaleha Yusof, Zabariah Md Yusof and Hasnah Mohammed Hashim.

Nallini Pathmanathan, who dissented, said the mandatory death penalty imposed for drug trafficking and murder was unconstitutional because the right to life and to equal protection in law was violated.

Azahar said Parliament has the legislative power to prescribe the punishment for an offence, including prescribing the mandatory death penalty.

“On the other hand, the judiciary, having determined the criminal liability of an accused based on the law, has the duty to pass sentence according to law enacted by the legislature,” he said.

He said the judiciary cherished the doctrine of separation of powers as all three branches of the government must respect each other’s jurisdiction.

“Judiciary must respect the prerogatives of Parliament. Judicial decisions which undermine parliament’s lawful authority would turn the rule of law on its head.

“The courts have the duty to uphold the constitution. Judges must restrain themselves and should resist the temptation to encroach into the areas reserved for the other separate branches,” he added.

On the merit of the appeal, the majority upheld the death sentence of Bosman and Hawkes for drug trafficking on the grounds that the trial judge did not err in law and facts.

Nallini, however, ordered that the case of the two should be sent back to the High Court to decide the capital punishment or jail term.

Meanwhile, Gomes escaped the gallows but was sentenced to 10 years’ jail for possessing 779gm of cocaine at KLIA in 2013.

Pubalan, a security company proprietor, was also spared the death penalty and instead was jailed 15 years for culpable homicide not amounting to murder.

In 2016, the High Court found him guilty for the murder of his brother-in-law, D Murali. - FMT