Sunday, July 5, 2009

One can't be judge and executioner at the same time

ON June 26, Kuala Lumpur Sessions Court judge Zainal Abidin Kamarudin made an unusual order to personally cane 20-year-old Muhammad Syafiq Abd Wahab 10 times in the presence of his parents in the court premises on July 15 for committing gang robbery.

The judge was also reported to have told Syafiq's father, Abdul Wahab Jonit, 65, who was present in court, that this sentence was rarely passed by court but urged him to accept it.

"I know it is not a nice feeling for a father to watch his son being caned but it has to be done by a judge," he said.

If the report is accurate, then the learned judge is obviously wrong to say that the caning had to be done by a judge.

The order, purportedly made under Section 293(1)(c) of the Criminal Procedure Code (CPC) is, however, silent as to who should mete out the punishment.

The section provides that when any youthful offender is convicted before any criminal court of any offence punishable by fine or imprisonment, the court may, in lieu of imposing any term of imprisonment, order the male offender to be whipped with not more than 10 strokes of a light cane or rotan within the court premises and in the presence of his parent or guardian who desires to be present.

The CPC defines a youthful offender as a person convicted of an offence punishable by fine or imprisonment who is of or above 18 but below 21 years of age.

The law also states that whipping for the youthful offender must not exceed 10 strokes. Whipping shall only be inflicted on such part of the person as the home affairs minister may from time to time generally direct, which is often on the naked buttocks of the offender.

Section 288 of CPC then provides that whipping shall be inflicted in the way of school discipline with a light rotan, and the rotan used shall not be more than half an inch in diameter.

In fact, some 20 years ago, it was a common practice for magistrates to personally carry out such caning in their chambers in the presence of some juvenile court advisers, the prosecuting officer and the parents. But such practice has already ceased after the High Court decided to revise a case involving a magistrate who personally caned a juvenile offender eight times when exercising his powers under Section 293 of CPC.

Even though this case of Re A Juvenile 1990 involved a juvenile and not a youth offender, what was said by the late High Court judge Mustapha Hussain is most germane to the case in question.

Mustapha ruled that a judge can never be a judge and executioner at the same time in a case.

This is in line with the doctrine of the separation of powers where powers should not be absolutely vested in one person.

In this case, if judicial and executive powers are exercised by the same person, this will be against the rule of law as the probability of an acquittal of an innocent man will depend on the whims and fancies, caprice and prejudice of the judge.

It is, therefore, apposite to reproduce the succinct words of Mustapha on why a judge should never be the executioner at the same time:

"Even in cases where a youthful offender is convicted before a criminal court and if the magistrate is to carry out the order of caning himself, then he would have a stake in the outcome of the case.

"He would then have an interest in the case. If he has this interest in the outcome of the case, inevitably and invariably there will be a finding of guilt. Invariably and inevitably, there will follow the punishment of caning.

"He therefore cannot be said to be impartial. His findings and judgments in all cases involving juveniles will be obsessed by getting the offence proved at all costs and the sentence will always be caning and he himself carrying it out even in spite of the recommendation of the probation officer, as happened in the instant case which is the subject of this revision."

If so, what troubles me is whether the judge in question was aware of Mustapha's judgment made some two decades ago.

Surely, the junior judges would have been briefed and trained from time to time on the dos and don'ts and guidelines on sentencing, but this has obviously called into question the judicial training and courses available or required for sitting subordinate court judges to improve and update themselves with the changes in law when administering justice. This is serious because the vast bulk of criminal cases are dealt with by the subordinate courts.

The senior High Court judge should now immediately call up the case for revision, and set the record straight that a judge must never be an executioner and judge at the same time, and neither should he behave like a school headmaster handling a school disciplinary matter when exercising his powers under section 293(1)(c) of CPC.

Published in the New Sunday Times, 05 July 2009

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