In a democracy, there are 3 branches of government - the Executive(PM and Cabinet), the Legislature(Parliament) and the Judiciary - each branch have their own functions besides serving as a 'check and balance' vis-a-vis the other 2 branches of government.
When Parliament(the Legislature) passes laws that provide for a MANDATORY sentence, it really encroaches into the functions and powers of the Judiciary. Parliament can set minimum sentences...or even maximum sentences - which still allows the Judiciary to determine an appropriate and just sentence depending on the facts and circumstances of a case. But when Parliament creates a MANDATORY sentence - judges will have no more choice when it comes to sentencing.
Before sentencing, the convicted person has a right to bring to the attention of the court MITIGATION FACTORS - factors that should lead to the imposition of a lower just sentence, whilst Prosecution usually raise 'AGGRAVATION' FACTORS - reasons why a harsher sentence should be imposed in a particular case. BUT, if the law provides just a MANDATORY sentence - there is no more use for this Mitigation stage - it matters not for Judges have no choice but to impose just the ONE sentence provided by the law. Guilty verdict, justly may not result in the same sentence in all cases...
In Malaysia, the constitution provides for JUSTICE and equal protection under the law - and as such, again the unavailability of the power to impose a just sentence - to negate the right to consider mitigation and/or aggravation factors before sentencing in cases that provide for ONE mandatory sentence is also unconstitutional...Well, the Barbados courts have just decided on this point...and Malaysia need to be guided by this wisdom..and abolish all MANDATORY sentences in law - especially the MANDATORY DEATH PENALTY...
“The CCJ held that section 11 of the Constitution, which gives the right to protection of the law, was enforceable. The CCJ found that the mandatory death penalty breached that right as it deprived a court of the opportunity to exercise the quintessential judicial function of tailoring the punishment to fit the crime.”
Malaysia, even the past UMNO-BN government had already indicated intention to abolish the mandatory death penalty. Many of the parties, and politicians, now part of the new Pakatan Harapan-led government had long taken the position for the abolition of the death penalty - and most definitely, the MANDATORY death penalty...
Hence, Malaysia need to immediately abolish the MANDATORY DEATH PENALTY ...and also the Death Penalty in Malaysia.
Barbados death penalty unlawful
By George Alleyne
Barbados Chief Justice, Sir Marston Gibson.
The Caribbean Court of Justice has ruled out the mandatory death
sentences on persons convicted of murder in Barbados because such a
practice is unconstitutional.
The Trinidad and Tobago based CCJ made this ruling while delivering
decisions Wednesday in the consolidated cases of two convicted persons,
Jabari Sensimania Nervais and Dwayne Omar Severin.
In their appeals, they challenged the murder convictions and the
constitutionality of the mandatory death sentence for murder in
Barbados.
The CCJ, the institution of final jurisdiction for Barbados stated,
“a section of the [Barbados] Offences Against the Person Act was
unconstitutional because it provided for a mandatory sentence of death.”
The CCJ indicated that both men however had their appeals against
their convictions dismissed and it “ordered that the appellants be
expeditiously brought before the [Barbados] Supreme Court for
resentencing.”
The CCJ stated that before examining the issues raised by the appeal,
it “considered the state of the mandatory death penalty in Barbados for
murder and found that it was indisputable that the nation, through its
actions, had acknowledged that it had an obligation to remove such
mandatory sentence under section two of the Offences against the Person
Act.
“Barbados had also given undertakings to the CCJ and the Inter
American Court of Human Rights to rectify the mandatory sentence which
was reflected in the Barbados Privy Council’s consistent commutation of
the mandatory death penalty.
“The CCJ held that section 11 of the Constitution, which gives the right to protection of the law, was enforceable.
The CCJ found that the mandatory death penalty breached that right as
it deprived a court of the opportunity to exercise the quintessential
judicial function of tailoring the punishment to fit the crime.”
According to CCJ information, on Feb. 21, 2012 the First Appellant,
Jabari Sensimania Nervais (“Nervais”), was convicted of the murder of
Jason Burton and sentenced to death in accordance with section two of
the Offences Against the Persons Act (“OAPA”), Cap 141.
The Court of Appeal, comprising Mason, Burgess and Goodridge JJA,
dismissed his appeal against conviction and sentence on May 17, 2017.
On May 28, 2014, the Second Appellant, Dwayne Omar Severin
(“Severin”) was convicted of the murder of Virgil Barton and sentenced
to death in accordance with section two of the OAPA.
The Court of Appeal, comprised of Sir Marston Gibson, Chief Justice,
Mason and Goodridge JJA, dismissed his appeal against conviction and
sentence on May 17, 2017.
The Caribbean Court of Justice stated that these are the last
judgments that Sir Dennis Byron will deliver as CCJ president as he will
leave office on July 4, 2018. - Caribbean Life, 29/6/2018
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