Federal Court dismisses trio's bid for leave to review death sentences

Three individuals on death row have failed in their legal bids to set aside the death sentences imposed on them for murder and drug trafficking offences on grounds that the mandatory death penalty provided under the law is unlawful.

A five-man Federal Court panel led by Court of Appeal president Rohana Yusuf, in a unanimous decision, dismissed the application of the trio who sought leave to review the Federal Court's earlier decisions affirming their death sentences.

The other judges were Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and Federal Court judges Zabariah Mohd Yusof, Mary Lim Thiam Suan and Harmindar Singh Dhaliwal.

Lawyer Gopal Sri Ram, representing G Theenesh, M Thurkeswaran and Ooi Chun Huat, submitted that the mandatory death sentence imposed on his clients was unconstitutional and unlawful as it violated their right to life or personal liberty under Article 5 (1) of the Federal Constitution.

He said the mandatory punishment by death violated any right to be heard on sentence, breaching an accused's right to a fair trial.
 
Sri Ram said the power to determine guilt or innocence and the power to sentence including the power to determine the measure of punishment was a judicial power, adding that it must be exercised by the judiciary and not by Parliament.

He said the mandatory death sentence under those two sections was not in accordance with the fundamental rights enshrined under the Federal Constitution. 

On May 19 last year, the Federal Court affirmed the death sentence imposed on Theenesh and Thurkeswaran for the murder of an unemployed man, B Muniandy, while Ooi's death sentence for trafficking in 6104.4g of methamphetamine was upheld by the Federal Court on Sept 1, 2016.

A murder offence under Section 302 of the Penal Code and a drug trafficking offence under Section 39B of the Dangerous Drug Act 1952 mandate the death sentence for those convicted.

Deputy public prosecutor How May Ling argued that the cases before the court were not fit and proper cases to be given leave to review as they involved the interpretation of the law which is a matter of opinion and does not fall under the limited and strict requirement of Rule 137 of the Federal Court Rules 1995.

"The mandatory death penalty against them is the correct sentence prescribed by law. The sentence was imposed after a full trial where the conviction and sentence by the High Court judge were affirmed by the Court of Appeal and by the Federal Court."