PUTRAJAYA, 23 July 2009: A teenager who was convicted of killing his tuition teacher's daughter in 2002 has exhausted all avenues to declare his punishment unconstitutional, and will remain behind bars at the pleasure of the king.
The youth, now 20 years old, had asked the Federal Court to restore the Court of Appeal decision that ordered his release on 25 July 2007, after declaring that Section 97 (2) of the Child Act, which provides the power to detain a minor convicted of murder at the pleasure of the ruler, was unconstitutional.
The Federal Court today heard the boy's application to review its 23 Oct 2007 decision, which overturned the Court of Appeal order.
Chief Judge of Malaya Tan Sri Arifin Zakaria and Federal Court judges Datuk Seri S Augustine Paul and Datuk Wira Mohd Ghazali Mohd Yusoff unanimously ruled that this was not a rare and exceptional case that warranted the apex court to invoke its inherent power to review its previous ruling under Rule 137 of the Rules of the Federal Court 1995.
Justice Arifin said the arguments put foward by the boy's counsel, Karpal Singh, on the doctrine of separation of powers had already been raised and considered by an earlier panel of the Federal Court.
In 2003, the High Court ordered the boy to be detained at the pleasure of the Yang di-Pertuan Agong after convicting him of stabbing his tuition teacher's 11-year-old daughter 24 times at her house in Taman Sri Rampai, Wangsa Maju, between 3:30pm and 4:30pm on 30 May 2002.
He was 12 years old when he committed the offence.
The case caused an uproar in 2007 when the then Court of Appeal judge, Datuk Gopal Sri Ram (now Federal Court judge), in a landmark decision, ruled that Section 92 (2) of the Child Act was unconstitutional as it gave the power to the executive to sentence a child convicted of murder.
He said it went against the doctrine of separation of powers as enshrined in the Federal Constitution.
Sri Ram had held that the courts must have the exclusive authority to find a person guilty of murder and then impose a penalty, and it could not merely convict a person but leave the responsibility of sentencing to the king, the rulers or governors who acted on the advice of the executive.
Sri Ram upheld the conviction, saying that there was "abundant" evidence against the boy, but set him free after holding that there was no law that prescribed a sentence for a child convicted of murder.
In his submission today, Karpal Singh said the Federal Court ought to invoke its jurisdiction to review the case because there were differing opinions by the government and the judiciary on the doctrine of separation of powers.
He said the Federal Court had ruled that the doctrine of separation of powers was not a provision of the country's constitution.
However, he added, Minister in the Prime Minister's Department Datuk Seri Mohamed Nazri Abdul Aziz said in the Dewan Rakyat on 23 June that the executive was of the view that the doctrine of separation existed in the country.
"Doesn't it make a rare case for the Federal Court to review? The Federal Court is obliged to do so," Karpal said.
Deputy public prosecutor Noorin Badaruddin urged the court to reject the review application as she contended that there was no procedural misdirection or injustice in this case that warranted the apex court to exercise its inherent jurisdiction to review the case.
She said there was no issue on infringement of doctrine of separation of powers as the matter had been deliberated on by the Federal Court previously, and any inteference by today's panel would only amount to a matter of different opinion.
There must be a finality to this case, she said. — Bernama
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