LETTERS: The death sentence is meted out for heinous and dreadful offences such as murder, drug trafficking and unlawful possession or control of firearm.
Article 5(1) of the Constitution provides that no person shall be deprived of his life or personal liberty save in accordance with the law.
Such punishment is contained in several penal statutes enforced in the country.
The recent announcement by the government to remove the mandatory death sentence is, in fact, reverting to the old practice of giving judges the discretion to decide on punishments.
For example, for the conviction of a drug-trafficking case, the law empowers a trial judge to determine between life imprisonment and death penalty.
In determining the sentence, the court will strike a balance with regard to the proportion of the offence, the punishment provided by law, the mitigating and aggravating factors and extenuating circumstances that may exist and are in favour of the accused.
While the decision of the government to restore discretion with the judges is desired, what matters is that there are 1,341 inmates on death row and the sentence cannot be reviewed by the court in view of Article 7(2) of the Constitution.
This article provides that a person who has been acquitted or convicted of an offence shall not be tried again for the same offence, except where the conviction or acquittal has been quashed and a retrial was ordered by a court superior by which he was acquitted or convicted.
The only option left for the inmates on death row is to apply for clemency.
The Criminal Procedure Code provides that the Yang di-Pertuan Agong, the ruler or Yang di-Pertua Negeri, in accordance with Article 42 of the Constitution, may commute the death penalty to a lighter sentence.
Article 42 empowers the Yang di-Pertuan Agong to grant pardons, reprieves and respites in respect of all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
Likewise, the ruler or Yang di-Pertua Negeri has the power to grant pardons, reprieves and respites in respect of all other offences committed in his state.
The power of pardon under this article is a prerogative of the executive, and its exercise is not susceptible or amenable to judicial review.
As aptly noted by (then public prosecutor) Suffian L.P. in Public Prosecutor v Lim Hiang Seoh [1979]: "When considering whether to confirm, commute, remit or pardon, His Majesty does not sit as a court, is entitled to take into consideration matters which courts bound by the law of evidence cannot take into account and decides each case on grounds of public policy; such decisions are a matter solely for the executive.
"We cannot confirm or vary them; we have no jurisdiction to do so. The royal prerogative of mercy, as is recognised by its inclusion in Chapter 3 of Part IV of the Constitution, is an executive power."
PROFESSOR DATUK SERI DR ASHGAR ALI ALI MOHAMED
International Islamic University Malaysia
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times