Abdul Rashid Ismail, submitting before a five-member Federal Court bench chaired by Chief Justice Wan Ahmad Farid Wan Salleh, said the apex court could provide remedies under Rule 137 of the Federal Court Rules 1995.
Rule 137 provides the Federal Court power to review its decisions to prevent injustice or abuse of court process.
Rashid said seven former child prisoners who had been detained “at the pleasure of the ruler” were worse off than the adult prisoners following amendments to death penalty laws.
“There are no effective and alternative remedies, and this has violated their constitutional rights,” said the lawyer who is seeking leave for a review of the sentences of the seven inmates.
Rashid pointed out that some condemned adult prisoners had returned to the apex court and had their death penalties substituted for definitive jail terms under a provisional law.
Chief Judge of Sabah and Sarawak Azizah Nawawi, Justices Rhodzariah Bujang, Ruzima Ghazali and Collin Lawrence Sequerah are also hearing their applications.
Rashid said only the court could address their constitutional right and not the pardons board or the Board of Visiting Justices, constituted under Section 97(4) of the Child Act.
The applications involve inmates who were convicted of serious offences as minors and sentenced to indefinite custody under Section 97(2) of the Child Act 2001.
Nguyen Doan Nhan, 26, a Malaysian of Vietnamese descent, has been incarcerated at the Kluang prison for nearly a decade since his arrest in February 2015 at age 17.
Nguyen was convicted of murder by the High Court in 2017.
Due to his age at the time of the offence, he was sentenced to be detained at the pleasure of the Yang di-Pertuan Agong instead of receiving the mandatory death penalty.
The other applicants are N Harichandran, R Nomalan and Hafizul Hafiq Masri (murder), Wong Soon Heng and Leong Soon Long (murder and kidnapping), and Aiman Al-Rashid Yaacob (drug trafficking). All six are aged between 30 and 35.
Their appeals to the Court of Appeal and the Federal Court were dismissed, leaving them in prison with no clear timeline for their release.
The prisoners contend that their continued indefinite incarceration violates their rights to life and equal treatment by the law due to the abolition of mandatory death sentences and natural life imprisonment under the Abolition of Mandatory Death Penalty Act 2023.
The prisoners are seeking leave for the Federal Court to review their sentences, with the possibility of receiving determinate prison terms instead of indefinite detention.
Under the 2023 amendments, mandatory death penalties were replaced with discretionary death sentences or imprisonment and the natural life sentence (indefinite detention) was also removed from the Malaysian statutes.
Deputy public prosecutor Saiful Edris Zainuddin submitted that there is a review mechanism provided under Regulations 53 and 113 of the Prison Regulations 2000 and Section 97 of the Child Act.
Saiful said the respective pardon boards are responsible to review a child’s case and decide whether to free them or let them remain in custody.
The bench will rule on March 5 whether to grant leave for the application to be heard.