2007 07: Child Act to be amended in next sitting of Parliament

The Star Online. News. Nation. Friday July 27, 2007

KUALA LUMPUR: The Child Act 2001 will be amended in the next sitting of Parliament at the end of next month, Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil said yesterday.

She said Attorney-General Tan Sri Abdul Gani Patail would propose amendments not only to Section 97(2) of the Act but also on many other areas “that need to be beefed up”.

On amendments to Section 97(2), she said the ministry would wait for the outcome of the case of the boy who killed his tuition teacher’s daughter should the case be referred to the Federal Court.

In a landmark judgment, the Court of Appeal freed a 17-year-old convicted child killer after spending five years in prison.

The teenager was freed by the Court of Appeal as the Child Act 2001 did not give the courts the power to sentence a juvenile convicted of murder.

Speaking to reporters after opening the “Women Striking the Balance in Contemporary Malaysia” Forum, Shahrizat said her ministry has been closely following the developments of the case.

“I spoke to the AG this morning on the decision of the Court of Appeal on this case.

“It may take a little bit of time but we will make sure the lacuna in the law is addressed,” she said. – Bernama

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PM wants Child Act reviewed

NST Online. NewsBreak. 28/7/07


KUANTAN: Datuk Seri Abdullah Ahmad Badawi has called for a review of the Child Act 2001 to ensure fairness in imposing penalty on juvenile criminals.

Alluding to the Court of Appeal’s decision on Wednesday to free a teenager who was detained in prison at the pleasure of the King for the murder of his tuition teacher’s daughter five years ago, the Prime Minister said the Act should be amended to address any shortcomings.

“I read the news when I was overseas and I think the Act should be reviewed to ensure justice in the implementation of the law and the imposition of penalty,” he told reporters here today.

He was approached by reporters at a hotel here prior to attending the wedding of Mohamad Hitam, 27, a member of the Seri Perdana staff, and Nurul Hanisah Judi, 25, in Kampung Balok near here.

The freed teenager, who turns 18 next month, had to be set free as there was no law that prescribed a sentence for a child convicted of murder.

In 2003, the High Court found the boy guilty of murdering the 11-year-old girl at her house in Kuala Lumpur by stabbing her 20 times and slashing her four times with a sharp object on May 30, 2002.

The boy was 12 when he killed the girl. He spent five years at the Kajang Prison before his release.

The prosecution has filed an appeal in the Federal Court against the boy’s release.

Abdullah said he would ask the Attorney-General’s Department to look into the matter.

“We have to study the Act, bring it to parliament, and this will take a bit of time. It’s important to review the law and introduce the necessary changes,” he added.

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'Grey areas' of Child Act to be studied

The Star Online. News. Nation. Sunday July 29, 2007

POH: Grey areas in the Child Act 2001 will be studied in view of the recent court judgment that saw the release of a boy convicted of killing his tuition teacher's 11-year-old daughter.

Women, Family and Community Development Ministry parliamentary secretary Datin Paduka Chew Mei Fun said the ministry would be looking at the "grey areas."

Declining to elaborate on the "grey areas," Chew said the ministry was working closely with the Attorney-General's Chambers on the matter.

On July 12, the Court of Appeal judgment saw the release of the boy convicted of killing his tuition teacher's daughter at her house in Kuala Lumpur on May 30, 2002.

The boy, who was 12 at the time, turns 18 next month.

It had been reported that on July 12, Court of Appeal Justices Gopal Sri Ram, Zulkefli Ahmad Makinudin and Raus Sharif had declared unconstitutional Section 97 (2) of the Child Act 2001, which provides for a child convicted of murder to be detained at the pleasure of the Yang di-Pertuan Agong.

They had said that it 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.

Prime Minister Datuk Seri Abdullah Ahmad Badawi had also called for the Child Act 2001 to be reviewed urgently so that justice could be served.

Earlier when opening the 2007 Sports Day of Tadika Kinderjoy on Sunday, Chew said good early childcare and education could provide the best defence in the fight against juvenile crime.

For the last three years, she said, there were a total of 18,334 convictions of criminal offences involving children aged between 10 and 18.

Those offences included theft, robbery, extortion, house-breaking, drug possession and trafficking, gambling, firearms, illicit sex, rape, illegal racing and prostitution, she said.

She added that of of last year there were 1,571 youths in remand and correctional institutions, involving children who were convicted in criminal cases and those who were deemed "uncontrollable."

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Nothing pleasurable about it

The Star Online. Opinion. Sunday July 29, 2007

What does it mean to be ‘detained at the pleasure of the King’ – a term that seems almost feudal – and how did this provision in law come about?

IT may sound archaic today, but the provision in law for someone to be detained at the pleasure of the King has its origins in ensuring that the welfare of a person was looked after.

Universiti Malaya law lecturer Norbani Mohamed Nazeri said the first time the term made its way into legislature was in England’s Criminal Lunatics Act 1800.

Norbani, who has written a paper on the history and origin of the term, said this was done as a direct result of an assassination attempt on King George III.

“It was decided then that someone deemed insane could be rehabilitated and this concept was borrowed and placed into legislature dealing with children.”

She added that the nature of the provision was the belief in welfare, and that the welfare of a child, especially in education and treatment, had to be considered.

“From the 1800 Act, the provision made its way into the Children’s Charter 1908 before appearing in the Children and Young Persons Act 1933 for England and Wales.”

It was from the 1933 Act that Malaysia’s Juvenile Courts Act 1947 borrowed the provision to detain a juvenile, found guilty of a capital crime and sentenced to death, at the pleasure of the King and there are currently 30 juvenile and adult males held in prison in this manner.

“This was then taken, extended and put into Section 97 (2) of the Child Act 2001 (which replaced the Juvenile Courts Act) but it seems that the people who drafted the act did not understand the nature of the provision.

“Malaysian law does not consider the welfare aspect especially with the indefinite duration being set for the detention of juveniles at the pleasure of the King,” said Norbani.

The only provision that possibly addresses the welfare of the child is Section 97 (4) of the Child Act that states a Board of Visiting Justices must review the cases of those convicted under Section 97 (2) annually and decide if the child should be detained or released.

“However, there are no procedures on how the board should carry out its duties,” Norbani said.

Bar Council criminal law committee chairman Datuk V. Sithambaram said there had to be uniform guidelines on how this board operated.

“The court should also be allowed to pass sentences of a definite duration under Section 97 (2) with the case to be reviewed every year thereafter,” he added.

Deputy Internal Security Minister Datuk Fu Ah Kiow said a time limit could not be set as detaining someone at the King's pleasure indefinitely was the substitute for a death sentence. “It is a serious matter. If they had been 18, they would have been hung.”

Fu also insisted that the Board of Visiting Justices did carry out annual reviews. They will compile a list of names of those reviewed and submit it to the Pardons Board.

“After some time, if they had behaved well and the Pardons Board feels that they have been rehabilitated, they will be released,” he said, adding that those reviewed would also be informed of the Pardons Board's decision.

Bar Council vice-president Ragunath Kesavan said the laws in Malaysia were inadequate to deal with such cases in a fair manner.

“There are better ways of doing things,” he said, citing the infamous case in Britain involving two 10-year-old boys found guilty of abducting, torturing and beating two-year-old James Bulger to death before dumping the toddler on a railway line in 1993.

Ragunath said the sentencing of the two boys, who were also held at Her Majesty's pleasure, was all about probation, control, counselling and revision.

In the Bulger case, the two boys were eventually released after serving the time that was determined by a tariff system that exists in Britain.

Interestingly, the tariff system, at that time, allowed for the period of detention for those held at Her Majesty's pleasure to be determined (with advice from the trial judge) by the Home Secretary, the Malaysian equivalent of the Home Affairs Minister.

After a lengthy court process, however, it was decided that the Home Secretary had no right to determine the sentencing, as it would mean the executive was meddling in the judiciary – the same argument that the Malaysian Court of Appeal used in its July 12 landmark decision, which led to the release of the teenager who had murdered his tuition teacher's daughter in 2002.

“Eventually, it was the judge who determined the sentence (the duration of time under the tariff system) and the Lord Chief Justice wrote a practice and procedure for similar cases,” Norbani said.

She added that this meant the term “at Her Majesty's pleasure” was merely cosmetic and that by having a tariff system, it would give a child some hope of being released.

Since there are no proper procedures here, Sithambaram said the clear guidelines present in England on deciding such cases were needed.

As for those convicted as juveniles and are now over 18, the Pardons Board that reviews an individual’s case every four years is the only avenue for freedom.

But one would need a lot of help in applying for the pardon. In the case of Kok Foo Seng who was imprisoned at the age of 14 and was only released 13 years later after being pardoned by the Sultan of Pahang, it was his uncle who won his freedom.

The uncle, a former teacher who declined to be named, said it took almost 10 years of writing letters and waiting for responses.

“A lot of good people helped me, especially with writing a letter to the Sultan asking for the Pardons Board to meet to review Foo Seng's case,” he said.

Asked if other convicted juveniles could receive a pardon if there was no one helping on the outside, he said it would be impossible. Infamous case: In Britain, these two 10-year-old boys were found guilty of abducting, torturing and beating two-year-old James Bulger to death before dumping the toddler on a railway line in 1993.Sithambaram: ‘The court should be allowed to pass sentences of a definite duration’

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Not just blind justice

The Star Online. Opinion. Sunday July 29, 2007

Landmark judgments can change your life, or not. While judges can even make law in a groundbreaking decision the Executive, Legislature, civil society and the media are responsible for what happens after.

IN the last three weeks, several superior court judgments have taken centrestage, relegating even reports on the high profile Altantuya murder trial further back in the newspapers.

Three of them called for further action, either on the part of the Legislature or the Federal Court, and two stressed the importance of conforming with the Federal Constitution, the supreme law of the land.

The Federal Court decision in re Latifah Mat Zin on Thursday was of especial importance: Justices Abdul Hamid Mohamed, Arifin Zakaria and Augustine Paul held that all law flows from the Constitution.

While they clarified some of the conflict in jurisdiction between the civil and syariah courts, they noted there were matters that might be outside the jurisdiction of both, resulting in no available remedy in either court.

Asking Parliament to step in, Justice Abdul Hamid said Article 121(1A) of the Constitution was not introduced for the purpose of ousting the jurisdiction of the civil courts. (Article 121 (1A) states that civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.)

He asked: “Are such laws constitutional in the first place?”

While Bar Council chairman Ambiga Sreenevasan said the matter had to be addressed either by the courts or Parliament, de facto law minister Datuk Seri Nazri Aziz responded by saying the Prime Minister would have to consult with the Barisan Nasional component parties on the matter.

On July 12, Court of Appeal Justices Gopal Sri Ram, Zulkefli Ahmad Makinudin and Raus Sharif declared unconstitutional Section 97 (2) of the Child Act 2001, which provides for a child convicted of murder to be detained at the pleasure of the Yang di-Pertuan Agong.

They said it 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.
On grounds there was no other prescribed law to punish such an offender, the court released the boy who had been convicted of killing his tuition teacher’s 11-year-old daughter.

There are parallels with the case of Robert Thompson and Jon Venables, the 10-year-old killers of toddler James Bulger, in England from where the “unconstitutional” provision in the Juvenile Courts Act (repealed by the Child Act) was imported.

There, children aged 10 or over who have been convicted of murder must be sentenced to indefinite detention. The minimum period (tariff) to be served is set by the Home Secretary, who receives advice from the trial judge and the Lord Chief Justice, but he does not have to follow it.

In their case, the Home Secretary went on to raise the judge’s minimum mandatory sentence of eight years to 15.

The two boys challenged it in the European Court of Human Rights.

In the 1999 decision, the European Court said detention “at Her Majesty’s pleasure” was legal under English law. But following a decision of the House of Lords Judicial Committee that the setting of tariffs for juveniles was a sentencing exercise, it held the Home Secretary was not independent of the Executive.

It ruled it was a violation of their right not to have the legality of the detention assessed by a judicial body.

The second Court of Appeal decision to grab public attention was when Justices Sri Ram, Md Raus Sharif and Hasan Lah allowed on July 13 an appeal by two brothers who had lost their land to forgers.

They did so by ruling the 2001 Federal Court decision in re Adorna Properties – in favour of a bona fide purchaser of land which ownership had been forged – was wrongly decided.

However, while Justices Md Raus and Hasan called on the apex court to review its own decision, saying they were tied by the doctrine of binding precedent, Justice Sri Ram chose not to follow the Federal Court on grounds it had ignored the definitions of proprietor and purchaser in the National Land Code and had disregarded an earlier Supreme Court decision in M&J Frozen Foods.

Since then, the Government has agreed to study a Bar Council proposal for a review of the law and Chief Justice Ahmad Fairuz Sheikh Abdul Halim has rapped Justice Sri Ram on the knuckles for ignoring a superior court ruling.

The surprising thing, however, is that another Court of Appeal – comprising Justices Sri Ram, Ahmad Fairuz and Denis Ong – made the same decision in 2004 in re Subramaniam NS Dhurai (3 CLJ 2005).

Justice Sri Ram made similar observations about Adorna and Justice Ahmad Fairuz said that while he agreed with them, lower courts had to follow a superior court decision because of the doctrine of binding precedent.

The only difference is that that decision was not reported in the media.

Looking past the personalities, difficult as that may be for some, senior lawyer Datuk N. Chandran is of the opinion the law need not be amended here, unlike the case involving the juvenile.

He says the Federal Court should review its own decision, quoting the House of Lords decision in Horton v Sadler (1 AC, 2007) which held that although it would “rarely exercise its power to depart from its previous decisions”, it would do so if “too rigid an adherence to precedent might lead to individual injustice”, especially if the earlier decision was unsound and compelled appellate courts to “draw fine distinctions which reflected no credit on the law”.

There have been several groundbreaking decisions, some good, some not, impacting the rights of co-operatives, women, employees, orang asli and tenant farmers, to name a few.

A judge’s duty ends after the judgment is delivered. Only in an appeal can the decision be set aside. Or, the state can amend a law to negate a decision, as it did after the Supreme Court held in 1990 in re Wong Pot Heng that employees of the beleaguered Central Co-operative Bank ranked pari passu (equal) with depositors in priority in the payment of claims.

One area of law in which several landmark decisions abound is in industrial relations.

In two Court of Appeal decisions – Tan Tek Seng and Hong Leong Equipment – labour lawyer B. Lobo says the panels “elevated” the right not to be dismissed without procedural safeguards and just grounds to constitutional rights.

“While Justice Sri Ram had interpreted the right to life in the latter to include the right to seek and be engaged in lawful and gainful employment, he interpreted it in the former to include the right to live in a reasonably healthy and pollution free environment.”

How are landmark judgments “born”? Is it up to the lawyers to argue a novel point or for judges to take a liberal approach?

International Islamic University law professor Dr Abdul Aziz Bari says: “Most of the time our judges have taken the literal approach; this has been the major trend since 1957. The exceptions are few.”

What would “pre-dispose” a judge to swing liberal and breathe life into dry constitutional provisions? Do a judge’s upbringing, law school and years of experience play a role?

These might be factors to consider with a judge sitting alone, but hardly so in a panel of three.

No judge worth his salt is going to sit back and ride on another’s judgment if he disagrees strongly with a legal interpretation. This is certainly clear from the 2004 and recent Court of Appeal judgments in how they dealt with the Adorna decision.

It is probably more important that the court was unanimous in upholding the doctrine of separation of powers in the juvenile’s appeal and reclaimed the judiciary’s power to sentence.

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Court urged not to let underaged criminals off lightly

The Star Online. News. Nation. Tuesday July 31, 2007

IPOH: The court would be sending a wrong message that it is all right to commit crime if it allows underage offenders to go off lightly, a Sessions Court was told.

In urging the court to impose custodial sentences on two boys who robbed and assaulted a lab assistant, Deputy Public Prosecutor Ahmad Ishrakh Saad said age should not be the only factor considered by the court.

“Age is always used by young accused persons as a mitigating factor. As such, the court must consider the case in its entirety.

“The court must take into consideration that the crime had been pre-planned.

“Although underage, they had seemingly matured criminal minds and capable of committing crimes like adults,” he said.

The two boys, aged 16 and 17, had pleaded guilty to assaulting and robbing their victim of RM30, her gold pendant, chain and bracelet, and a mobile phone and charger worth RM1,000 at her home in Tronoh on May 14.

They committed the offences with another 16-year-old boy, who has since escaped from the welfare department hostel in Silibin here while awaiting sentencing, and one Syahrulnizam Jamali Ali.

Syahrulnizam, 23, who claimed trial to the offence, was also charged with raping the 24-year-old lab assistant.

According to the facts of the case, the four planned the robbery and had staked out at the house for five hours before breaking in through a window.

The lab assistant was tied up while her house was being ransacked and suffered injuries to her arm, neck, chest, leg and hip.

Sessions judge Hamzah Hashim ordered the two boys to be sent to the Henry Gurney School in Malacca for three years from Tuesday.

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The child act: Section 97(2) is still valid

NST Online. Letters. 8/08/07


THE Malaysian government accepted the United Nations Convention on the Right of the Child (UNCRC) on Dec 28, 1994. The government then made an in-depth study of existing laws to conform to the UNCRC.

As a result, the Child Act 2001 was passed. The act took into consideration the right of the child as advocated by the UNCRC and is in fact a consolidation of the Child Protection Act 1991, the Juvenile Courts Act 1947 (as revised in 1972), and the Women and Girls Protection Act 1973.

On July 12 this year, the Court of Appeal declared unconstitutional Section 97 (2) of the Child Act 2001 which provides for a child convicted of murder to be ordered by the court to be detained at the pleasure of the Yang di-Pertuan Agong. The child concerned, who was 13 years old was upon conviction in July 2003, ordered to be detained at the pleasure of the Yang di-Pertuan Agong under Section 97(2) of the Child Act 2001.

The Court of Appeal stated that Section 97(2) of the Child Act 2001 contravenes 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 the child offender.

The Court of Appeal chose not to apply the death penalty as provided for under the Penal Code and therefore the child, despite being convicted of murder, cannot be punished and must be set free.

I find it difficult to believe that such a situation can arise.

There have been an exchange of views in the media on this issue and the prime minister responded by saying that the law should be reviewed. With the greatest respect to the Court of Appeal judges, I wish to express the view that Section 97(2) of the Child Act 2001 is valid and the course of action to be taken is for the prosecution to appeal against the Court of Appeal’s decision to the Federal Court.

There is no need to decide on the review of the law until the decision of the Federal Court.

My argument is that Section 97(2) of the Child Act 2001 does not contravene any provision of the Federal Constitution and is therefore valid.

Any provision of any act of parliament can be declared invalid only if it is ultra-vires the Federal Constitution. The doctrine of separation of powers is by itself not law. It is a legal principle which has been taken into consideration in formulating the Federal Constitution. The applicable law is the content of the Constitution.

We should note that the doctrine of the separation of powers in its application to modern government does not mean that a rigid threefold of legislature, executive and judiciary classification of their functions is possible.

There is for instance no separation of powers in the strict sense between the executive and the legislature. The practical necessities of parliamentary government demand a large measure of delegation to the executive of powers to legislate by rules, regulations and orders.

The independence of the judiciary has been strictly preserved, but many justiciable issues are referred not to the ordinary courts, but to the administrative authorities.

In any case, Section 97(2) of the Child Act 2001 has not ignored the doctrine of separation of powers. Under that section, the court orders and not the executive for the convicted child to be detained at the pleasure of the Yang di-Pertuan Agong, who under Article 42 of the Federal Constitution is given the power to grant pardons, reprieves and respites in respect of all offences committed in the federal territory. The issue of the doctrine of separation of powers does not arise at all.

It should be noted that section 97 is the old section 16 of the Juvenile Courts Act 1947 (Revised 1972). Section 97(4) is an additional provision which gives the power to the board of Visiting Judges to review the case every once a year and the board can make recommendation to the Yang di-Pertuan Agong accordingly.

This Section 97(4) is a provision protecting the right of the child and does not contravene any provision of the Federal Constitution.