[1] The respondent who was 12 years and 9 months old at the time of the commission of the offence was charged in the High Court for the offence of murder punishable under s 302 of the Penal Code. He was convicted and ordered to be detained during the pleasure of the Yang di-Pertuan Agong pursuant to s 97(2) of the Child Act 2001 (Act 611) (‘the Child Act’). He appealed to the Court of Appeal. The Court of Appeal upheld the conviction but set aside the sentence imposed on him and released him from custody on the sole ground that s 97(2) of the Child Act was unconstitutional. The Public Prosecutor appealed to this court.

[2] On what ground did the Court of Appeal hold s 97(2) of the Child Act to be unconstitutional?

[3] From the judgment of the Court of Appeal, it can be seen that that court had arrived at that conclusion on the following premises:

(i) the doctrine of separation of powers is an integral part of the

Constitution;

(ii) judicial power of the Federation vests in the courts;

(iii) by s 97(2) of the Child Act, Parliament had consigned the power to

determine the measure of the sentence that was to be served to the Yang

di-Pertuan Agong in the case of an offence committed in the Federal

Territories, or to the Ruler or the Yang di-Pertua Negeri, if the

offence is committed in the State.

(iv) by virtue of art 39 of the Federal Constitution (the Constitution’),

the executive authority of the Federation vests in the Yang di-Pertuan

Agong who, in accordance with art 40 of the Constitution, must act in

accordance with the advice given by the Cabinet or particular minister

of the Cabinet;

(v) therefore, s 97(2) of the Child Act contravenes the doctrine of

separation of powers housed in the Constitution by consigning to the

Executive the judicial power to determine the measure of the sentence

to be served by the appellant.

[*13]

[4] Before going any further I will first reproduce the relevant provisions of the Constitution and the Child Act. Article 121 of the Constitution provides:

121(1) There shall be two High Courts of co-ordinate jurisdiction

and status, namely —

(a) one in the States of Malaya… and;

(b) one in the States of Sabah and Sarawak… and the High Courts …

shall have such jurisdiction and powers as may be conferred by

or under federal law.

(Emphasis added.)

[5] Article 4(1) of the Constitution provides:

This Constitution is the supreme law of the Federation and any law

passed after Merdeka Day which is inconsistent with this Constitution

shall, to the extent of the inconsistency, be void.

[6] Section 97 of the Child Act provides:

(1) 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.

(2) In lieu of a sentence of death, the Court shall order a person

convicted of an offence to be detained in a prison during the

pleasure of —

(a) the Yang di-Pertuan Agong if the offence was committed in

the Federal Territory of Kuala Lumpur or the Federal

Territory of Labuan; or

(b) (the Ruler or the Yang di-Pertua Negeri, if the offence was

committed in the State.

(3) If the Court makes an order under subsection (2), that person

shall, notwithstanding anything in this Act –

(a) be liable to be detained in such prison and under such

conditions as the Yang di-Pertuan Agong or the Ruler or the

Yang di-Pertua Negeri may direct; and

(b) while so detained, be deemed to be in lawful custody.

(4) If a person is ordered to be detained at a prison under