Friday July 13, 2007

Appeals Court: Juveniles cannot be held at King's pleasure

By M. MAGESWARI

PUTRAJAYA: The Court of Appeal has ruled as “unconstitutional” the sentencing of a teenager who is being held at the pleasure of the King after he was convicted of murdering his tuition teacher's daughter five years ago.

In a landmark decision yesterday read out by Justice Gopal Sri Ram, the court ruled that Section 97 (2), which allows a juvenile to be held at the pleasure of the King, was unconstitutional.

The two other judges on the Bench, which heard the boy's appeal against conviction and sentence, were Justice Zulkefli Ahmad Makinudin and Justice Raus Sharif.

The Bench was unanimous in ruling that the power to determine the punishment against a child convicted of murder, in lieu of a death punishment, was vested in the hands of the judiciary and not the executive.

Justice Sri Ram, in his 18-page judgment, said Section 97 (2) of the Child Act violated the doctrine of separation of powers, by consigning to the executive the judicial power to determine the measure of the sentence to be served by a juvenile offender.

He said the doctrine of separation of powers was an integral part of the Federal Constitution and since Article 4 (1) of the Federal Constitution declared the Constitution to be the supreme law, any state action violating the doctrine of separation of powers must be struck down as unconstitutional.

Justice Sri Ram: ‘In our judgment, the conviction is entirely safe’

Following the court's decision, there is now no provision to punish a juvenile convicted for murder.

Justice Sri Ram said this was an instance where “Parliament has provided for the entry of a conviction and passing of sentence but has made no valid law for the measure of sentence.”

The judge quoted a similar situation in Soon Kim Seng v PP (1978), where the accused was fined RM1,500 on each of the three copyright charges. He then appealed on the ground that the legislation had not provided for any fine or punishment for the possession of a duplicating contrivance.

“(Former Federal Court judge Tan Sri) Chang Min Tat in allowing the appeal held, with regret, that Parliament had failed to provide a punishment for the offence in question. He accordingly upheld the conviction but set aside the sentence.

“We must, with like regret, follow suit. Here, Parliament has said that the appellant shall not, by reason of his age, receive the capital punishment but has made no valid law conferring power upon the courts to impose some other sentence,” said Justice Sri Ram.

He said the court would have been inclined to impose a life imprisonment in this case but unfortunately there was no written law prescribing it.

He added that it was unfortunate that those charged with the drafting of the Child Act did not pay proper attention to decided cases.

“If they had done so, the incongruent and unfortunate circumstances now before this court may well have been avoided. But as judges, we have to apply the law as it exists. We simply have no choice whatever in the matter,” he said.

“We will now hear arguments on the consequential orders that we should make on this appeal,” said Justice Sri Ram, who instructed both parties to make submissions on Thursday. He also ordered the boy, who is now 17, to be remanded under an order of the appellate court pending the submissions.

The Court of Appeal, however, upheld the conviction of the teenager, who was only 12 when he stabbed the 11-year-old girl 20 times with a sharp object.

“We must say at once that this was a gruesome murder and that there is abundant material on record to support the conviction of the appellant.

“In our judgment, the conviction is entirely safe,” Justice Sri Ram said.

The boy is being detained at Kajang Prison.

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