7 held at ruler’s pleasure fail in bid for sentence review

Federal Court says the matter is beyond its jurisdiction but the applicants can still pursue a pardon in their bid for a commutation of sentence.

Justice Collin Lawrence Sequerah, delivering the unanimous verdict of a five-member bench chaired by Chief Justice Wan Ahmad Farid Wan Salleh, said the applicants could still seek a commutation of their sentences via the pardon process.

Others on the bench hearing their application were Chief Judge of Sabah and Sarawak Azizah Nawawi, and Justices Rhodzariah Bujang and Ruzima Ghazali.

The prisoners contended that their continued detention under Section 97(2) of the Child Act 2001 violates their rights to life and equal treatment by the law – Articles 5(1) and 8 of the Federal Constitution – due to the abolition of mandatory death sentences and natural life imprisonment.

Sequerah today said their continued detention under the Act did not violate Article 5 of the Federal Constitution.

“This Act went through due process of the law and was passed by a competent Parliament,” he said.

Sequerah also said Article 8 was not breached as the Act applied to a special class persons: children below the age of 18.

“Equal protection and treatment do not mean it must be applied across the board. One also has to understand the objective of the legislation based on the Parliamentary Hansard,” he said, adding that the law was not arbitrary.

The judge noted that adult prisoners were previously subjected to the mandatory death penalty if convicted of murder, drug trafficking, and kidnapping.

However, these sentences did not apply to children, who were instead detained at the pleasure of the rulers. Accordingly the applicants, who are now adults, may still seek clemency, said Sequerah.

“They can apply for pardon to the heads of state as provided under Article 42 of the constitution.”

The judge said the review mechanism is provided in Regulations 53 and 113 of the Prison Regulations 2000 and Section 97 (4) of the Child Act.

Sequerah also said the Federal Court cannot act beyond its jurisdiction as the scheme of the constitution is based on the separation of powers vested in the three branches of government: the executive, legislature, and judiciary.

One of the applicants, Nguyen Doan Nhan, 26, of Vietnamese descent, has been incarcerated at Kluang prison for nearly a decade since his arrest in February 2015 at the age of 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.

His appeals to the Court of Appeal and Federal Court were dismissed, leaving him in prison with no clear timeline for release.

The remaining applicants – 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) – are aged between 30 and 35.

In their applications, filed under Rule 137 of the Federal Court Rules 1995, the prisoners argued that their indefinite detention had become unconstitutional following significant legislative changes made via the Abolition of Mandatory Death Penalty Act 2023.

Lawyers Abdul Rashid Ismail, Khaizan Sharizad Ab Razak, and Jacqueline Albert appeared for the applicants.

Deputy public prosecutors Saiful Edris Zainuddin, Afazainizam Abdul Aziz, Noor Farhana Adham, and Arif Aizuddin Masron represented the public prosecutor.