The teenager who was freed three months ago for murdering his tuition teacher’s daughter in 2002, went back behind bars after the Federal Court overturned the Court of Appeal’s decision.
Chief Justice Ahmad Fairuz Sheikh Abdul Halim, Court of Appeal president Justice Abdul Hamid Mohamad, Chief Judge of Malaya Justice Alauddin Mohd Sheriff, Chief Judge of Sabah and Sarawak Justice Richard Malanjum and Federal Court judge Justice Zaki Tun Azmi unanimously allowed the prosecution’s appeal and reinstated the High Court’s order that the 18-year-old be detained at the pleasure of the Yang di-Pertuan Agong.
After the proceedings ended, the boy’s family approached the teenager, who was seated in the dock and took turns hugging him before he was handcuffed and sent back to Kajang prison.
The boy, who wore a blue long-sleeved sweatshirt and jeans, remained stoic and quietly followed the police out of the courtroom.
In 2003, the High Court found the boy, then aged 12, guilty of murdering the 11-year-old girl at her house in Sentul, Kuala Lumpur, by stabbing her 20 times and slashing her four times with a sharp object on May 30, 2002, and ordered him to be detained in prison at the pleasure of the King.
On July 25 this year, the Court of Appeal upheld the conviction but ruled that the sentencing was “unconstitutional” as Section 97(2) of the Child Act 2001, which provided for this sentence, violated the doctrine of separation of powers by consigning to the Executive the judicial power to set the term to be served by a juvenile offender.
In his 17-page written judgment yesterday, Justice Abdul Hamid said the Court of Appeal, despite declaring the sentencing unconstitutional failed to show which provision of the Federal Constitution it was inconsistent with.
“Instead the court held that the section violated the doctrine of the separation of powers, which, in its view was an integral part of the Constitution,” he said.
Justice Abdul Hamid said Malaysia’s Federal Constitution had the features of the doctrine of separation of powers but at the same time it also contained features that do not strictly comply with the doctrine as it depended on the provisions of the Constitution.
“No provision of the law may be struck out as unconstitutional if it is inconsistent with the Constitution, even though it may be inconsistent with the doctrine,” he said.
The Court of Appeal president also held that the doctrine of separation of powers was not definite and absolute.
“The extent of its application varies from country to country, depending on how much it is accepted and in what manner it is provided for by the Constitution of a country,” he said.
Justice Abdul Hamid said that even if the Federal Court held that judicial power is vested in the courts, in law, the nature and extent of the power depended on what the Constitution provided and “not what some political thinkers think”.
Outside the court, Attorney-General Tan Sri Abdul Gani Patail said the Federal Court’s decision has endorsed the fact that the draftsman had drafted the correct position of the law.
He said this was despite the comments from the Court of Appeal that the drafters had not taken into consideration case laws.
Asked about the boy, Gani said the teenager would be detained under the pleasure of the King and he would be subjected to a yearly review by the Board of Visiting Justices.
He added that his officers and colleagues involved in the drafting division had been vindicated.
The boy’s counsel Karpal Singh said he would be filing for leave to review the Federal Court’s decision soon as there were factors that needed to be explored.
He also said there were currently 15 other children convicted of murder that were being detained under the pleasure of the Yang di-Pertuan Agong, Ruler or the Yang di-Pertua Negri.
Is our judiciary system sinking to new lows or are our laws archaic?
Param: We need to amend the constitution
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