Court/Judicial body: High Court
Date: 12 January 2004 CRC
Provisions: Article 6: Survival and development Article 37: Torture and deprivation of liberty Article 40: Administration of juvenile justice
Domestic provisions: Penal Code, section 302 (death penalty for the offence of murder) Child Act 2001, sections 2 (definition of the child) and 97 (no capital punishment shall be imposed if the person was a child at the time the offence was committed)
Case summary
Background: The applicant was convicted of murder under section 302 of the Penal Code at the age of 12 years old. Although the death penalty was mandatory under section 302, the court invoked section 97 of the Child Act, which prohibits the imposition of a death sentence if the person was a child at the time the offence was committed and gives the Yang di-Pertuan Agong (Malaysian Head of State / constitutional monarch) the power to determine the applicant’s punishment. The applicant sought review of the competence of Parliament under the Constitution to pass a sentence in accordance with section 97. The applicant’s appeal was premised on procedural and constitutional points of Malaysian law which were ultimately dismissed. The Court however examined the status of the CRC within Malaysian law and the general application of the CRC in the Malaysian courts.
Issue and resolution: Juvenile justice; applicability of the CRC. Regarding the status of the CRC in Malaysian law, the Malaysian courts can only apply provisions of the CRC that have been incorporated into the municipal laws of Malaysia. It is not available or permissible for the High Court to imply provisions of the CRC that have not been incorporated. The Court dismissed the appeal.
Court reasoning: Although the Child Act generally seeks to implement the CRC into Malaysian law, the High Court noted that certain provisions of the CRC (such as Article 40) have not been incorporated into the municipal laws of Malaysia. The full regime of the CRC still remains within the purview of the executive government in the area of treaties and external affairs. It is therefore not open to the High Court to imply provisions which have not been incorporated into the municipal laws of Malaysia as this would not constitute judicial interpretation.
Excerpt citing CRC and other relevant human rights [56] On 13 February 1995, Malaysia deposited an instrument of accession to the United Nations Convention on the Rights of the Child (New York, 20 December 1989; TS 44 (1992); Cm 1976), a document which was annexed to the UN General Assembly Document A/RES/44/25. The resolution of the General Assembly which was dated 20 November 1989 had annexed to it the text of the Convention which Malaysia has now acceded to with certain reservations which are not pertinent for the present matter before me. The Convention, under art 1, prescribes that for the purposes of the Convention, a child means every human being below the age of 18 years unless under the law applicable to the child majority is attained earlier. The following provisions are also noted: ‘ Article 6: (1) States parties recognize that every child has the inherent right to life. (2) States parties shall ensure to the maximum extent possible the survival and development of the child … Article 37: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances, (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.’ [57] The Child Act 2001 provides in s 2 as follows: ‘ “Child”– (a) means a person under the age of eighteen years; and (b) in relation to criminal proceedings, means a person who has attained the age of criminal responsibility as prescribed in section 82 of the Penal Code (Act 574) …’ … [59] Section 97 of the Child Act 2001 shows that the Government of Malaysia has introduced legislation which is in consonance with its international obligation under the Convention on the Rights of the Child since the Convention has prescribed that no capital punishment shall be imposed on persons below the age of 18. [60] Section 97 does not prescribe life imprisonment but detention, in the case of an offence committed in the Federal Territory of Kuala Lumpur or Labuan, during the pleasure of the Yang Di-Pertuan Agong. Under s 97(3) once a child is so detained he shall be deemed to be in lawful custody. However, upon further examination of s 97, it is clear that the detention of a child under that section shall be subject to a review at least once a year and a recommendation may be made on the early release or further detention of the child.
This actually becomes the crux of the matter for although the Board of Visiting Justices may make a recommendation for early release the Yang di-Pertuan Agong may order the child to be further detained. … [93] The provisions of the Convention on the Rights of a Child have not been incorporated into the municipal laws of Malaysia. The full regime of the Convention on the Rights of a Child still remain within the purview of the executive in the area of treaties and external affairs. It is not open therefore for the High Court to imply [ Article 40] for that will not be interpretation. It may amount to judicial vandalism or judicial trespass.
Follow up: This decision was overturned by the Court of Appeal in July 2007 on the grounds that section 97(2) violated the Constitution of Malaysia’s doctrine of separation of powers, therefore the applicant’s sentence was set aside. However, on appeal by the Public Prosecutor, the Court of Appeal’s decision was overturned by the Federal Court of Malaysia, which ruled that section 97(2) was consistent with the Constitution. Neither of these subsequent judgments referred to the CRC.
CRIN comments: CRIN believes this decision is not consistent with the CRC. Under Article 40(2)(v), the State must ensure that a child who is considered to have infringed the penal law must have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law. Section 97(2) violates this Article by allowing a child to be deprived of their liberty at the pleasure of the Yang di-Pertuan Agong, who is effectively a member of the Executive. The Committee on the Rights of the Child in its 2007 Concluding Observations on Malaysia expressed its concern with this provision, which “results in an undetermined length of deprivation, causing problems in terms of the development of the child, including her/his recovery and social reintegration.”
Citation: [2004] 4 LRC 395
Link to Full Judgment: Available on request.