Federal Court to decide if child can be held at Ruler’s pleasure

Apex court allows filing of additional grounds to revisit a 2008 ruling on child found guilty of murder.

PUTRAJAYA: A youth who was convicted of murder when he was a child will raise several constitutional issues when the Federal Court hears his appeal in August.

Lawyer Yagoo Subramaniam, who obtained an adjournment from the five-man bench to file additional grounds of appeal, said his client’s case would also enable the apex court to revisit a controversial decision in 2008.

The appeal has now been rescheduled for Aug 30.

In a majority ruling, the Federal Court had then held that the court had no power to declare unconstitutional a law under which the executive could encroach on the powers of the judiciary.

“Our argument will be planked on the April 20 five-man bench Federal Court judgment which was delivered by Justice Zainun Ali,” Yagoo told FMT.

Yagoo’s client, who was 15 years and 11 months old in 2013, was ordered by a Penang High Court judge to be kept at the pleasure of the state governor after he was found guilty of the crime.

Last year, the Court of Appeal affirmed the conviction and sentence.

The boy committed the offence on R Surendran at an apartment in Taman Sri Relau in Bayan Lepas on Aug 11, 2010.

Yagoo said retired Federal Court judge Gopal Sri Ram, who is practising law, would argue the case for the boy.

“Basically, our argument is that section 97(2) of the Child Act 2001 is ultra vires the Federal Constitution as it violates the doctrine of separation of powers.”

Justice Zainun had declared that Parliament did not have the power to amend the constitution in 1988 to the effect of undermining the doctrine of separation of powers and the independence of the judiciary.

She said the judicial power of the court resided in the judiciary and no other, as was made explicit in Article 121 (1) of the constitution.

Zainun said the judiciary was entrusted with keeping every organ and institution of the state within its legal boundary and to dispense justice according to law.

In a previous case, a 12-year-old boy was charged with committing murder by stabbing his tuition teacher’s 11-year-old daughter 24 times at her house in Kuala Lumpur on May 30, 2002.

The Court of Appeal in 2007 ruled that once an accused is found guilty, it was for the court to proceed and determine the measure of punishment.

However, the Federal Court, in a 2-1 majority ruling overturned the Court of Appeal ruling.

That ruling reinstated the findings of the High Court in 2003 that the boy was to be detained at the pleasure of the Yang di-Pertuan Agong, as provided under the Child Act. -FMT