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[PUTRA JAYA, 26 July 2007] - Malaysia's two top courts have called on Malaysia' Parliament to 'plug loopholes' in the 50-year-old Federal Constitution and Child Act 2001, allowing the death penalty for juvenile murderers. The Convention on the Rights of the Child, ratified by Malaysia, says the death penalty should not be imposed on any person who committed the crime in question when they were under the age of 18 (article 37). In two cases heard and disposed by the courts this week, judges said something must be done to modify the Federal Constitution and Child Act. In the morning proceedings at the Court of Appeal, a 17-year-old boy, who was convicted of murdering his tuition teacher's daughter four years ago, escaped a death sentence after a three-member panel, headed by Justice Datuk Gopal Sri Ram ordered him to be released. "We are accordingly of the view that it is not within our jurisdiction to pass a sentence of death on the appellant. What sentence can we then pass? It would appear that the answer is none," said Sri Ram in his oral decision. 'Unfortunate' Describing it as the most unfortunate case, Sri Ram made the order after the court agreed there was no provision in any law for the punishment of a murder offence committed by a juvenile. In accordance with the Convention on the Rights of the Child, under Section 97(1) of the Child Act, a sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he was a child. "There is no punishment (in this case). There is no other way out except for the Parliament to do the necessary. "Even if he (the boy) had served five years' imprisonment, there is no provision for the punishment," said the boy's counsel, Karpal Singh. To this point, Sri Ram interjected and suggested that Karpal move a Private Member Bill in Parliament. Last week, the Court of Appeal unanimously declared that the punishment of juveniles for murder under the Child Act 2001 was unconstitutional because it confers the power to the executive to determine the measure of punishment. Sri Ram held that the power to determine the measure of punishment under Section 97(2) of the Child Act vested in the hands of the judiciary and not the executive. Section 97(2) provides that, by reason of his age, a child convicted for an offence should not receive a capital punishment, instead the child be detained under the pleasure of the Yang di-Pertuan Agong. "(The) Deputy Public Prosecutor has urged upon us that by reason of our declaring Section 97(2) of the Child Act as unconstitutional, Section 97(1) also falls to the ground. "With respect we cannot agree. Section 97(1) stands independent of the other subsections housed in that provision," Sri Ram said. Constitutional He said it was entirely constitutional for Parliament to enact a law directing the judicial arm of government to impose or not to impose particular types of punishment. Citing the Dangerous Drugs Act 1952 as an example, he said initially the courts were given discretion in trafficking cases to impose either life imprisonment or death sentence. "By an amendment the discretion was removed and death sentence was made the mandatory punishment for trafficking drugs. Similarly, there are provisions in our written law which direct particular types of punishment cannot be administered on particular categories (of persons)," he said. In his oral decision, Sri Ram said it was entirely proper for Parliament to direct the judicial arm not to impose the death penalty on a child. In May last year, the Kuala Lumpur High Court found the boy guilty of stabbing the 11-year-old girl to death in July 2003 and ordered him to be under the Child Act 2001 because he was only 12 years and nine months' old when he committed the offence. He has since been detained in a separate cell at the Kajang prison. Approached by reporters outside the court, the boy said he was grateful to his counsel for his release. "After this I want to spend time with my family and continue my study. I want to be a lawyer," said the boy, who had passed his SPM examination and obtained A1 for his English paper. His parents declined to comment. Further information
pdf: http://www.dailyexpress.com.my/news.cfm?NewsID=51609