PETALING JAYA: It is unconstitutional to detain prisoners found guilty of murder at the “pleasure of the ruler” following the landmark federal court ruling that declared that judicial power remained with the court, a retired judge said.
Gopal Sri Ram said such prisoners could only be held at the discretion of the court of law.
“Any law that prescribes detention of such prisoners at the discretion of the executive (Yang di-Pertuan Agong, rulers, or governors) is unconstitutional.”
He said such prisoners should be produced before the court periodically to review whether detention should continue.
He added it was for the court to first determine conviction and then proceed to impose punishment.
Sri Ram said this in response to a 30-year-old prisoner who recently graduated with a degree in business administration but hoped to be freed one day.
He was convicted of murder in 2005 for the crime he committed as a 14 year old in 2001.
He is being held at the pleasure of the Sultan of Selangor at the Kajang prison.
On April 20, Justice Zainun Ali 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, who delivered the unanimous ruling of the five-man bench, said the judiciary was thus entrusted with keeping every organ and institution of the state within its legal boundary.
“Concomitantly, the concept of the independence of the judiciary is the foundation of the principles of the separation of powers.”
She said the courts, which formed the third branch of the government, had a duty “to ensure there was a check and balance mechanism in the system, including the crucial duty to dispense justice according to law”.
The legal fraternity is of the view that the ruling has departed from a majority apex court decision in 2008 which had given a narrow interpretation of Article 121 (1) that the superior court derived its powers as conferred by Parliament.
The debate on the doctrine of separation of powers and independence of the judiciary gained nationwide attention in 2007 when the Court of Appeal, in a landmark decision, held that section 92 (2) of the Child Act 2000 was unconstitutional as it gave the power to the executive to sentence a child convicted of murder.
In that celebrated 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 bench ruled that once an accused is found guilty, it was for the court to proceed and determine the measure of punishment.
The Court of Appeal agreed with the submission of the late Karpal Singh that the Child Act, which conferred powers to the executive to make a judicial decision, is unconstitutional.
However, the Federal Court, in a majority ruling overturned the Court of Appeal ruling, saying that the court had no power to declare unconstitutional a law under which the executive could encroach on the power of the judiciary.
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.
Sri Ram said those who were held at the pleasure of the ruler should benefit from the findings of the Federal Court since Zainun had declared that judicial power remained with the judiciary.
“Therefore, they should be entitled to file a review of the court decision, ordering them to be held at the pleasure of the king, ruler or the governor.
“It is a miscarriage of justice to allow them to suffer imprisonment when the order to detain them is unconstitutional,” he added.
Meanwhile, lawyer M Manoharan said adults who were guilty of murder but proven to be of unsound mind were also held at the pleasure of the ruler, as provided under the Criminal Procedure Code.
“Zainun’s judgment is very refreshing as it opens the door to look into the welfare of forgotten prisoners who are kept in mental hospitals.”
He said it was unsure if such prisoners were considered rehabilitated to return to society’s fold.