THREE individuals on death row failed in their legal bids to set aside the death sentence imposed on them for murder and drug trafficking on grounds that the mandatory death penalty was unlawful. 

The five-man panel led by Court of Appeal president Rohana Yusuf, in a unanimous decision, dismissed the trio’s application who sought leave to review the Federal Court’s earlier decisions in 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 with death violated any right to be heard on sentence, violating 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 is 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 Chun Huat’s death sentence for trafficking in 6,104.4g of methamphetamine was upheld by the Federal Court on September 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 a death sentence for the person convicted for the offences. 

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

“The mandatory death penalty against them is a correct sentence prescribed by law. The sentence was imposed after a full trial where conviction and sentence by the High Court judge was affirmed by the Court of Appeal and by the Federal Court. – Bernama, September 22, 2022.