Youth to be detained at pleasure of the Agong (Update)

PUTRAJAYA: The Federal Court has upheld a previous ruling to detain a youth at the pleasure of the Yang di-Pertuan Agong for killing his tuition teacher’s underaged daughter in 2002.

A three-man panel comprising Chief Judge of Malaya Justice Arifin Zakaria and Federal Court judges Justices S. Augustine Paul and Mohd Ghazali Mohd Yusoff, unanimously dismissed an application by the teenager to review a ruling by an apex court.

On Thursday, they reinstated the High Court’s order that the now 20-year-old be detained at the pleasure of the Agong.

Justice Arifin said the application did not fall within the parameter of Rule 137 of the Rules of Federal Court 1995 to invoke its inherent powers to review its previous ruling.

“The matter raised in this application has been considered and decided by the same court (by a different panel of the Federal Court),” he said.

The Bench did not accept submissions by the youth’s lead counsel Karpal Singh that it was a rare and exceptional case which warranted the apex court’s review of the decision made by a different panel of the Federal Court.

The accused, who was handcuffed, appeared grim upon hearing the court’s decision. He immediately turned around to look at his parents and sister who were seated at the public gallery before being taken away by the prison warden.

Earlier, the prison warden told court officials that the youth was being placed at the Integrity School at Kajang prison and was being taught by teachers from the Education Ministry.

The boy’s case was the first where a juvenile was ordered to be held at the pleasure of the Agong under the Child Act 2001.

In her submissions earlier, DPP Noorin Badaruddin argued that there were no circumstances in which the court had to exercise its inherent jurisdiction in this case.

“There is no procedural misdirection which has caused any injustice,” she submitted.

DPP Noorin said there was no issue of the infringement of the doctrine of the separation of powers and the matter had been deliberated during the appeal process.

She argued that any interference by this panel would only amount to a matter of a difference in opinion.

“This matter must end ... in this court,” she added.

Karpal argued that the Federal Court ought to invoke its jurisdiction and power of review in view of the response of Minister in the Prime Minister’s Department Datuk Seri Mohamad Nazri Abdul Aziz in Parliament on June 23, 2009 over the existence of the doctrine of separation of powers in the country.

Speaking to reporters later, Karpal said the Federal Court upheld its previous ruling that the doctrine of separation of powers did not exist in the Federal Constitution.

On July 24, 2003, the then teenager who was found guilty of killing the girl by stabbing her 20 times and slashing her four times with a sharp object, was ordered to be detained in a prison at the pleasure of the Agong.

High Court Justice Ahmad Maarop made the order under Section 97(2) of the Child Act 2001 and directed for him to be kept isolated from adult inmates at the prison.

The then Form One student was charged on June 7, 2002, with murdering the 11-year-old girl at her house here between 3:30pm and 4:30pm on May 30, 2002.

The boy, then aged 12, was convicted of the crime on July 1.

He challenged his detention and the consequential provisions under the Child Act 2001 as being unconstitutional and void.

The Court of Appeal had on July 12, 2007 set aside the lower court sentence after allowing his appeal. It 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.

The Court of Appeal in a landmark decision on July 25, 2007, ordered the boy to be set free, saying that there was no law that prescribed a sentence for a child convicted of murder.

In his oral judgment, Court of Appeal judge Justice Gopal Sri Ram said that the Bench had no choice in the matter except to maintain the conviction and order the release of the appellant (boy).

Justice Sri Ram said this was a “most unfortunate case” and that the boy had committed “a most heinous crime” which, if it had been committed by an adult, would have resulted in the death penalty.

The Public Prosecutor filed an appeal two days later.

The Federal Court, in a five-man panel chaired by Chief Justice Ahmad Fairuz Sheikh Abdul Halim, on Oct 23, 2007 overturned the Court of Appeal’s decision.

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