The issue on the constitutionality of death penalty had previously been argued before the Privy Council in the case of Ong Kee Chuan v. Public Prosecutor  1 MLJ 64 PC. In actual fact this was a case of appeal from Singapore under the Misuse of Drugs Act 1973 to the Privy Council. However, the Privy Council in their judgment ruled that the death penalty was constitutional. Now, cases are no more heard before the Privy Council in the United Kingdom and therefore the highest court where litigants could be heard now in all legal matters are before the Federal Court only.
By Voon Lee Shan in the Federal Court
In the Federal Court sitting at Kuching on 1st October, 2012 the issue on the constitutionality of the death penalty was again raised before five judges in the Federal Court Criminal Appeal Case No: 05-234-09/2011(Q) in Chung Ngee Hong v. Public Prosecutor in a dangerous drugs case under section 39B(2) of the Dangerous Drugs Act 1952 which carries the mandatory sentence of death upon conviction.
Death Penalty Arbitrary, Unfair or Unjust
It was argued before the Federal Court that the death penalty under the Dangerous Drugs Act 1952 is arbitrary, unfair or unjust and unreasonable because a person’s life is guaranteed under Article 5(1) of the Federal Constitution and shall not be deprived “save in accordance with the law”. This pre-supposes that, the law must itself be substantively fair, just and reasonable and therefore Article 5(1) grants protection against the arbitrary extinction of the right to life. Meaning that, Article 5(1) of the Federal Constitution in that sense, provides that every human being has the inherent right to life. That right should be protected by law and therefore no one shall be arbitrarily deprived of his right to life. However, a person’s life could under the Dangerous Drugs Act 1952 be arbitrarily deprived because the law, by imposing capital punishment also runs contrary to the humanistic values engrained in the Federal Constitution.
It was argued that whatever is protected by the Federal Constitution, the court cannot take it away unless there is a provision to do so “in accordance with the law”. This is a protection mentioned under Article 5 of the Federal Constitution itself. It was also argued that with death penalty, a person’s life is extinguished and with it other rights and humanistic values protected by the Federal Constitution were all similarly extinguished but there is no provision under the Federal Constitution to extinguish or take away these rights and humanistic values when a death penalty is imposed.
Federal Constitution is Engrained with Humanistic Values
These humanistic values include, among others, prohibition against slavery and forced labour, protection against retrospective criminal trials and repeated trials, prohibition against banishment and freedom of movement, freedom of speech, assembly and association, freedom of religion, right to education and property. Therefore the taking away of life by death penalty, the death penalty has taken away these humanistic values or rights and therefore laws taking away a person’s life should be declared unconstitutional unless substantive and procedural law in taking away a person’s life are fair, reasonable, not fanciful, arbitrary or oppressive and that due process or procedure must and be strictly followed. By putting a person to death upon conviction, the convict lost all humanistic values and other rights that follow with it as provided under the Federal Constitution. It was also argued before the Federal Court that the law at present does not provided the deprivation of these humanistic rights upon sentence of death and therefore the imposition of the death penalty is unconstitutional.
Charges for Trafficking Dangerous Drugs Are Easy to Convict
In cases of trafficking dangerous drugs under section 39B of the Dangerous Drugs Act 1952, the burden of the prosecution becomes lighter because the law shifts the burden of proof to the accused person. This is against the universal accepted norm that it is for the prosecution to prove the guilt of the accused person and such standard of proof must be proof beyond reasonable doubt. The taking away of a person’s life under the Dangerous Drugs Act 1952 therefore is not in accordance with due process of law and international norm and therefore should be declared as unconstitutional.
Malaysia Should Respect International Law
It was also argued before the 5-man strong panel of the Federal Court that Malaysia being a member of the United Nations should abide to the rules and covenants which had been passed by the United Nations and therefore, Malaysia, should respect the International Covenant on Civil and Political Rights in which Article 6 states that, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life” while Article 7 states that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” In this instance, it was also argued before the Federal Court that Articles 6 and 7 of the International Covenants on Civil and Political Rights should be read in and/or be given effect for interpreting and enforcing fundamental rights, in particular Article 5 of the Federal Constitution.
Violation of Procedural Safeguard In Criminal Justice System
It was also argued that the Dangerous Drugs Act 1952 violates Article 5(1) of the Federal Constitution, because it denies procedural safeguards, amongst others, right of pre-sentence hearing on the question of sentence to be passed. Further argument was that the imposition of standardised or mandatory death penalty betrays the well-established principle that sentencing must be individualised, and ought to depend on the circumstances of the offence as well as the offender. The death penalty also deprived the recording of reasons by the Court. The imposition the only sentence available under the law, it completely took away the exercise of judicial discretion on well-recognised principles, which is the highest safeguard for the accused, and is at the core of administration of criminal justice, is impaired. It was also submitted before the Federal Court that in all cases, considering the tenor of Section 39B(2) of the Dangerous Drugs Act 1952, the remedy of the accused to ask for judicial review of the death penalty before any superior Court is completely denied and this therefore is a breach of safeguards guaranteed to the accused by way of pre-hearing before sentencing and right to judicial review renders capital punishment under section 39B(2) of the Dangerous Drugs Act 1952 unfair, unjust, unreasonable and arbitrary.
Trial of Chung Ngee Hong, a case of Judicial Error
It was also argued before the Federal Court that there could be possibilities that innocent persons been sentenced to death by the court. The acquittal of the appellant, Chung Ngee Hong, by the 5-man panel of the Federal Court is therefore enough proof that his conviction by the high court and as unanimously affirmed by the Court of Appeal was a case of wrong conviction of an innocent person.
Chung Ngee Hong, due to judicial error had been made to suffer in the death row for about nine years before being set free man by the honourable Federal Court. It could not be denied that the pain and mental agony Chung Ngee Hong went through were unbearable in which no word could have described it. What would happen if Chung Ngee Hong had been hanged to death, but, the judicial error could only be detected thereafter? On hearing the arguments, the Federal Court then decided that it was not safe to affirm the convictions and sentences passed against Chung Ngee Hong in both charges against him. Chung Ngee Hong was then acquitted and discharged of the charges against him.
Chung Ngee Hong is now a Christian and when he was baptized, the Pastor soon after he came out from the water tank, embraced him, but, the Pastor’s shirt was not wet! The Pastor said, “It was a miracle!” Alleluya! Praise the Lord!