Press Statement by Karpal Singh in Kuala Lumpur on Saturday, 27 ^thJune 2009:

Justice in court is no "school discipline"

Sessions Court judge Zainal Abidin Kamarudin’s move to personally execute the punishment of caning on July 15^th on youthful offender Mohammad Syafiq Abd Wahab, 20 after he pleaded guilty to committing gang robbery does not have judicial authority.

No doubt, section 293(1)(c) of the Criminal Procedure Code gives the Court jurisdiction to order a youthful 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 so desires to be present, of the parent or guardian of such offender. However, the mode of executing such sentence is provided for in section 288(4) of the Code pursuant to which whipping shall be inflicted by way of school discipline with a light rattan.

Judge Zainal Abidin cannot and should not act as both judge and executioner of the sentence he has imposed. Although section 288(4) of the Code generally adverts to infliction of whipping in the way of school discipline, it does not provide for the personality who is required to carry out the whipping. That it is incongruous for a judicial authority to also act as executioner of the sentence it imposes goes without saying. The public should not be given the impression that a judge has the power to punish those whom he finds guilty as this will clearly infringe the doctrine of separation of powers. A judge imposes a sentence. It is the executive which carries out that sentence. The impartiality expected of a judge cannot be compromised by his descending to carry out a sentence of whipping he has imposed within the Court premises. That cannot lie in his hands. This administrative act should be carried out by some court official designated for that purpose.

Judge Zainal Abidin should not interpret the phrase “by way of school discipline” appearing in section 288(4) to mean that his position is analogous to that of a disciplinary school teacher. His occupation of the seat of justice in a court of law transcends beyond the role of ensuring school discipline. It is imperative that a judge remains completely independent of the execution of sentences he imposes, That role and duty must of necessity be reposed in the hands of an authority which is not judicial.

A very dangerous precedent will be set if Judge Zainal Abidin insists on carrying out the sentence of whipping on Muhammad Syafiq on July 15^th. In view of the impact this will have on the public, I call upon the Chief Justice to intercede and issue a circular to the effect that a sentence of whipping on a youthful offender in court should not be in the hands of the judge who imposes it.

* Karpal Singh, DAP National Chairman & MP for Bukit Gelugor