A CRITICAL COMMENTARY ON LETITIA BOSMAN v. PUBLIC PROSECUTOR

On 16 June 2023, Malaysia took a historic step by gazetting the Abolition of Mandatory Death Penalty Act 2023, ushering in a new era in the nation’s criminal justice system. This landmark reform marked the culmination of decades-long debates and judicial challenges surrounding the mandatory death penalty, a sentencing framework that had long been criticized for its rigidity and disregard for individual circumstances. While the abolition represents significant progress, it also invites reflection on the judiciary’s role in shaping the trajectory of this reform.

For decades, the mandatory death penalty has faced judicial scrutiny, with numerous attempts to challenge its constitutionality brought before the courts. Cases such as Public Prosecutor v. Lau Kee Hoo [1983] 1 MLJ 157, PP v Yee Kim Seng [1983] 1 MLJ 252, The Attorney General, Malaysia v. Chiow Thiam Guan [1983] 1 MLJ 51, and Christin Nirmal v. Public Prosecutor [2018] 6 MLJ 21 consistently upheld the constitutionality of the mandatory death penalty and affirmed Parliament’s authority to prescribe such punishments. It was only in the last decade that there have been occasional shifts in constitutional interpretation, with some courts adopting a more constructive and prismatic approach that incorporates principles of proportionality and fairness. A notable example is Alma Nudo Atenza v. Public Prosecutor [2019] 3 MLJ 281, where the Federal Court critically examined the constitutionality of the double presumption in the Dangerous Drugs Act 1952. The Court derived the presumption of innocence from Article 5(1) and the principle of proportionality from Article 8(1), even though these principles are not explicitly stated in the Federal Constitution (“FC”).

However, while such shifts suggest a willingness to embrace more progressive constitutional interpretations, this trend remains inconsistent. In Letitia Bosman v. Public Prosecutor and Other Appeals (No 1) [2020] 5 MLJ 277, decided less than a year after Alma Nudo, the Federal Court disregarded any inclination toward progressive judicial reasoning and adopted a more conservative stance, maintaining a restrained interpretation of constitutional principles.

This case commentary will delve into the judicial reasoning in Letitia Bosman, critically analyzing the Federal Court’s approach and exploring its implications for Malaysia’s constitutional jurisprudence and legal development.

FACTS OF THE CASE

Four Malaysian citizens were individually charged, convicted, and sentenced to death by the High Court. Three were convicted for dangerous drugs trafficking under Section 39B of the Dangerous Drugs Act 1952 (“DDA”), while one was convicted for murder under Section 302 of the Penal Code. Under these provisions, the death penalty is mandatory upon conviction.

Even though the DDA was introduced in 1952, the mandatory death penalty  stipulation was only made in 1983, which is after the Malaysia’s Independence Day in 1957. Consequently Article 4 of the FC, which allows for invalidation of post-independence laws inconsistent with the Constitution is possibly applicable. On the other hand, Section 302 which mandates the death penalty for murder was introduced in 1872, which predates Malaysia’s Independence Day in 1957, making Article 162 of the FC become applicable.

All of them chose to initiate appeals to the Court of Appeal (“COA”), however, none of them were successful. Further appeals were subsequently brought before the Federal Court.

CONSTITUTIONAL LAW ISSUES INVOLVED

All four cases were jointly heard as they are all centered on one common constitutional issue, i.e. whether the mandatory death penalty stipulated in both Section 39 B of the DDA and Section 302 of the Penal Code (“the Impugned Provisions”) constitutes a violation to the FC, especially Article 5, Article 8, and Article 121. The resolution of this issue would determine the fate of the mandatory death penalty. If found unconstitutional, Article 4 of the FC would invalidate Section 39 B of the DDA, making mandatory death penalty for dangerous drugs trafficking unenforceable. Similarly, under Article 162 of the FC, Section 302 of the Penal Code would need to be amended in accordance with the FC, removing the mandatory death. Conversely, if no constitutional violation is found, mandatory death penalty would remain applicable to both offenses.

The constitutional issues raised by the appellants are threefold: -

a) Article 5(1) - Right to a Fair Trial

The mandatory death penalty was claimed to violate the right to a fair trial as guaranteed under Article 5(1), which protects the right to life and liberty. The appellants emphasized that a fair trial includes the opportunity for the accused to make a plea in mitigation which is a fundamental procedural safeguard that ensures individualized justice. The Impugned Provisions, by mandating a single, uniform penalty regardless of the circumstances, denied the accused this opportunity, rendering the trial process inherently unfair and procedurally flawed.

b) Article 8(1) - Equal Protection and Proportionality

The appellants contended that the mandatory death penalty was arbitrary and disproportionate, violating the "equal protection" clause under Article 8(1). By treating all offenders equally, irrespective of the varying degrees of culpability and the circumstances surrounding their crimes, the Impugned Provisions failed to account for proportionality—a principle intrinsic to equality. The appellants argued that this one-size-fits-all approach unjustly disregarded individual differences and levels of involvement in the crime, making the penalty inherently unequal and arbitrary.

c) Article 121 - Usurpation of Judicial Power

Sentencing is traditionally considered a judicial function that requires discretion to account for the unique circumstances of each case. The Impugned Provisions, however, removed this discretion entirely, relegating the judiciary to a mechanical role of imposing the legislated penalty. This, the appellants contended, undermined the doctrine of separation of powers by shifting sentencing authority from the judiciary to the Legislature.

THE JUDICIAL RESOLUTION OF THE ISSUES

The Federal Court, in an 8-1 majority decision, upheld the constitutionality of the mandatory death penalty prescribed under the Impugned Provisions.

Majority Opinion

The majority emphasized that Parliament has the authority to enact laws prescribing mandatory penalties, including the death penalty. The mandatory nature of the penalties was seen as a policy decision within Parliament’s purview and not an interference with judicial independence, as courts still retain the power to determine guilt or innocence. The Court rejected the notion that judicial discretion is inherently guaranteed under Article 121, reasoning that judges are bound to apply penalties mandated by Parliament. Therefore, the mandatory death penalty does not violate Article 121.

Regarding proportionality under Article 8, the majority deferred to Parliament’s judgment, emphasizing that whether the mandatory death penalty is necessary or proportionate to combat crime is a matter of social policy, best addressed through democratic processes. The Court also held that social policy issues fall within Parliament’s expertise, while courts are limited to interpreting and applying laws within their judicial mandate.

As for Article 5, the majority acknowledged the right to life but noted that it could be lawfully restricted if such restrictions are enacted “in accordance with law.” The Court found the mandatory death penalty consistent with this provision, reasoning that mitigation could be excluded as part of a valid legislative framework.

Finally, the majority dismissed arguments regarding arbitrariness and cruelty. They reasoned that the mandatory death penalty is a result of deliberate legislative judgment and not arbitrary. They also noted that Malaysia has neither ratified nor acceded to international conventions such as the United Nations Convention Against Torture (UNCAT), and the Federal Constitution lacks explicit provisions prohibiting inhuman or degrading punishment.

Minority Opinion (Nallini Pathmanathan FCJ)

Justice Nallini Pathmanathan, in her dissent, argued that while Parliament has the authority to prescribe mandatory penalties, this does not immunize legislation from judicial scrutiny. She contended that the judiciary must exercise its power of judicial review to ensure that laws align with constitutional safeguards. A law enacted through due process is presumed constitutional but may still be invalidated if it contravenes fundamental rights under the Federal Constitution.

Justice Nallini emphasized that the mandatory death penalty violates Article 8’s principles of equality and proportionality. She pointed out the disproportionate impact of the penalties, as they treat vastly different offenses and circumstances alike. For example, assisting in suicide out of compassion is treated the same as premeditated mass murder, and low-level drug couriers face the same punishment as large-scale traffickers. This one-size-fits-all approach was deemed irrational and disproportionate.

On Article 5, the minority opinion highlighted that the mandatory death penalty deprives the accused of the opportunity to present mitigating factors, violating the right to a fair trial. Justice Nallini also argued that constitutional provisions must be interpreted holistically, with Article 5’s right to life encompassing procedural and substantive fairness. Thus, the mandatory death penalty fails to meet constitutional standards.

CRITICAL ANALYSIS AND COMMENTARY

The decision has left an enduring mark on Malaysia’s constitutional framework, reinforcing a conservative judicial interpretation of constitutional rights. While the Abolition of Mandatory Death Penalty Act 2023 has nullified the direct application of its context, the case continues to support judicial deference to legislative authority, often limiting courts’ ability to robustly protect fundamental rights. This influence has faced significant critique for encouraging judicial passivity in the face of legislative dominance.

The Court did technically acknowledged proportionality as a constitutional principle, however, it reframed the doctrine of proportionality as a matter of legislative policy, focusing solely on whether Parliament had enacted the Impugned Provisions in the proper form. This procedural framing has been criticized for stripping proportionality of its substantive force and relegating the judiciary to a mere clerical role in ensuring legislative compliance. Scholars have argued that judicial deference risks perpetuating systemic injustices by insulating legislative decisions from meaningful review[1]. By sidestepping a detailed engagement with the proportionality of the mandatory death penalty, the Court weakened its capacity to protect fundamental rights and failed to address the appellants’ argument that the penalty was irrational and disproportionate to the varying degrees of culpability among offenders.

Justice Nallini’s dissent provides a compelling critique of the majority’s handling of proportionality. Her Ladyship emphasized that treating all offenders identically under a one-size-fits-all sentencing framework disregards the unique circumstances of each case, resulting in outcomes that are both arbitrary and unjust. The dissent highlights the judiciary’s responsibility to scrutinize legislative measures that disproportionately impact individual rights and to ensure that they align with the Constitution’s spirit and purpose. Nallini FCJ’s dissent reflects an alternative vision of the judiciary as a substantive guardian of constitutional rights, one that prioritizes fairness and proportionality over rigid formalism.

The Court’s reluctance to engage with proportionality analysis in Letitia Bosman also marked a significant departure from Alma Nudo, where the Federal Court championed proportionality as a cornerstone of constitutional rights review. In Alma Nudo, the Court articulated a framework for balancing legislative objectives against individual rights, which demonstrates a willingness to interpret the FC as a living document, which ought to be adapted to societal needs and evolving global human rights standards. However, despite acknowledging the entrenched principles of constitutional interpretation propounded by Richard Malanjum CJ, Letitia Bosman failed to apply them meaningfully. This inconsistency in judicial interpretation has sparked discourse on how it undermines the predictability and coherence of Malaysia’s constitutional jurisprudence[2].

The majority in Letitia Bosman relied heavily on the presumption of constitutionality, asserting that sentencing policy is an inherently legislative function and that the mandatory death penalty represented a “controversial matter of policy” best resolved by Parliament. This reasoning underscores the Court’s deference to legislative sovereignty, which, while aligned with Malaysia’s democratic framework, raises concerns about the judiciary’s capacity to provide meaningful checks on laws that impinge on fundamental rights. By deferring to Parliament without critically assessing the proportionality and fairness of the Impugned Provisions, the Court abdicated its constitutional mandate to protect individual rights. Judicial deference should not absolve courts of their duty to ensure that legislative measures comply with constitutional safeguards, as widely recognized in discussions on judicial roles and responsibilities[3].

The implications of this decision extend beyond the proportionality doctrine to broader questions about the judiciary’s role in Malaysia’s constitutional framework. The FC positions the judiciary as a crucial counterbalance to legislative authority, ensuring that laws respect constitutional guarantees. However, the restrained approach adopted in Letitia Bosman casts doubt on the judiciary’s willingness to assert this role. By emphasizing procedural compliance over substantive justice, the majority reduced constitutional rights to formal guarantees, leaving substantive protections vulnerable to legislative discretion. This approach risks eroding public confidence in the judiciary’s ability to act as a safeguard of fundamental rights, particularly in cases involving life and liberty.

Adding to these concerns is the Court’s exclusion of international human rights norms. The appellants tried to invoke principles derived from the United Nations Convention Against Torture (UNCAT) and similar global standards to argue against the mandatory death penalty. However, the Federal Court dismissed these references on the basis that Malaysia had not ratified UNCAT or incorporated its provisions into domestic law. While this reasoning is technically sound, it reflects an insular approach that limits the judiciary’s ability to draw upon persuasive international principles to enhance constitutional interpretation. There have been many instances where Courts in other jurisdictions have used international norms as interpretative aids to strengthen domestic jurisprudence, even without formal ratification[4]. Malaysia’s refusal to engage with global standards reinforces a narrow, domestic lens that restricts the potential for progressive constitutional development.

Moving forward, Malaysia’s judiciary must navigate the delicate balance between respecting legislative sovereignty and fulfilling its constitutional duty to protect individual rights. While the legislature’s eventual abolition of the mandatory death penalty demonstrates that meaningful reform is possible through democratic channels, it also highlights the risks of judicial passivity. Had the legislature not acted, the rigid framework upheld in Letitia Bosman might have persisted, perpetuating injustices in the criminal justice system. The judiciary must reclaim its role as a substantive guardian of constitutional principles, ensuring that legislative measures are subject to rigorous scrutiny and that individual rights are not sacrificed to formalistic interpretations.

CONCLUSION

In conclusion, the Letitia Bosman decision serves as a stark reminder of the judiciary’s pivotal yet constrained role in Malaysia’s constitutional framework. While the case upheld the constitutionality of the mandatory death penalty at the time, it also revealed the judiciary’s hesitance to fully engage with doctrines like proportionality and fairness. This reluctance to actively scrutinize legislative measures raises important questions about the balance of power between Parliament and the courts and the broader implications for safeguarding fundamental rights.

As Malaysia moves forward with the abolition of the mandatory death penalty, the lessons from Letitia Bosman remain pertinent. The judiciary has an opportunity to evolve its approach, embracing a more dynamic role in constitutional adjudication. By fostering a robust engagement with constitutional principles and ensuring meaningful rights protection, the courts can better navigate the delicate tension between respecting legislative sovereignty and upholding constitutional supremacy. This evolution is crucial for strengthening Malaysia’s legal system and ensuring justice in an increasingly complex and rights-conscious world.

Reference

[1] Wu, J. K. M. (2021). Challenges to the constitutionality of the mandatory death penalty in Malaysia. In D. Sumalatha (Ed.), Social science, language & literature: A cross-section of articles for discussion and evaluation (pp. 74–80). Notion Press.

[2] Mahmud, F. M. (2023). A review of the Malaysian jurisprudence of constitutional interpretation. IIUM Law Journal, 31(1), 203–234.

[3] Ong, B. J. (2024). How can Malaysian courts consistently perform meaningful constitutional rights review? Lessons from past cases and the way forward. Asian Journal of Comparative Law, 19(1), 1–39.

[4] Mahmud, F. M. (2023). A review of the Malaysian jurisprudence of constitutional interpretation. IIUM Law Journal, 31(1), 203–234

Prepared by,

Noraini Roslie

9 January 2026