Look into the case, orders CJ

KUALA LUMPUR: The Chief Justice will direct the senior High Court judge to look into the case where a Sessions Court judge is planning to cane a youthful offender himself in the courtroom.

“I am asking the senior judge in the Kuala Lumpur High Court to look into it and take the appropriate action,” Tun Zaki Tun Azmi told The Star.

“We have to confirm what actually happened.”

Zaki said this when asked to comment on news reports yesterday of the “rotan” sentence imposed on Muhammad Syafiq Abd Wahab, 20, under Section 293(1)(c) of the Criminal Procedure Code (CPC).

On Friday, Sessions Court judge Zainal Abidin Kamaruddin had ruled that he would cane Muhammad Syafiq in the presence of his parents in court on July 15.

The former sales promoter, who had pleaded guilty, falls within the definition of a youthful offender since he was 19 when he, and a friend still at large, committed the robbery armed with a knife on Nov 16 last year.

While Section 293(1)(c) allows the court to order a youthful male offender “to be whipped with not more than 10 strokes of a light cane or rattan within the court premises and in the presence, if he desires to be present, of the parent or guardian of that offender,” it is silent as to who should carry out the caning.

It is understood, however, that a magistrate had imposed and carried out such a sentence some 20 years ago and that it had been done by magistrates sitting in juvenile courts a long time ago.

“These days, it’s rarely imposed, but magistrates used to carry out such caning in their chambers in the presence of the two juvenile court advisers, the prosecuting officer and a parent,” said a former member of the Judicial and Legal Services.

Bar Council chairman Ragunath Kesavan said the council would write to the senior High Court judge tomorrow for a revision of the “rotan” sentence to be meted against Muham- mad Syafiq by the judge himself.

“The CPC provides for such a sentence but it’s a fundamental principle of the role of a judge in the criminal justice system that he cannot be both judge and executioner.”

In agreement, DAP chairman Karpal Singh and former UN Special Rapporteur for the Independence of Judges and Lawyers Datuk Param Cumaraswamy urged the Chief Justice himself to intervene in this case.

“This also goes against international human rights laws,” said Param when contacted.

Karpal said that, although Section 288(4) of the CPC states that this type of “whipping” shall be inflicted by way of rattan, a judge implementing his own sentence would infringe the doctrine of separation of powers.

“A judge imposes a sentence. It is the executive which carries out that sentence.”

Karpal said a judge could not compromise his impartiality by “descending” to carry out a whipping sentence, adding it should instead be carried out by a court official designated for that purpose.

The Star Online