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THE ATTORNEY GENERAL, MALAYSIA v CHIOW THIAM GUAN
[1983] 1 MLJ 51

FACT:
An application made by the attorney general to have the plaintiff's Statement of Claim struck out under 0.18 r. 19, Rules of High Court 1980 on the ground that the Statement of Claim disclosed no cause of action. The plaintiff sought for a declaration that the mandatory sentence of death under section 57(1) of the Internal Security Act was unconstitutional as being unreasonable, oppressive and infringing the equality provision of the Constitution.

ISSUE:
Whether the mandatory sentence of death under section 57(1) of the Internal Security Act was unreasonable, oppressive and infringing the equality provision of the Federal Constitution?

JUDGMENT:
1. If Parliament deems it necessary that the death penalty should be mandatory it is not within the province of the court to adjudicate upon the wisdom of such a law.

2. The law may be harsh but the role of the court is only to administer the law as it stands.

3. Although the mandatory death sentence may appear cruel it is not unequal in its application in that every person convicted of the offence would be subject to the same punishment.

4. The plaintiff had gone through all the stages of the judicial process and his case had also been placed before the Yang di-Pertuan Agong in the Pardons Board. Therefore the subject sought for declaration is not a proper one.

5. The application of the Attorney General is granted and the Statement of Claim of the plaintiff is struck out.

COMMENTARY:
According to positivist view such as John Mitchell Finnis, law is rule which made by effective authority to regulate society and support by punishment or sanction. Besides that, based on John Austin, law is command given by sovereign or king or parliament or council and no law can exist except made by human being. In addition, according to him, law without sanction is not a law and the law must binding over the society....
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