Question 2 (a)

The special was established in 1993. It was established under part XV of the Federal
Constitution. Part XV was added to the Federal Constitution by the Constitution
(Amendment) Act 1993 (Act A848) which was enacted to remove the immunity of the Malay
Rulers from legal proceedings in their personal capacity. The establishment of the Special
Court was a compromise reached between the Malay Rulers and the government following
the allegad assault of a hockey coach, Douglas Gomez, by the Sultan of Johor on 30
November 1992.
Article 182 provides for a court comprising the Chief Justice of the Federal Court (the
Chairman), the Chief Judges of the High Courts, and two other persons who hold or have
held officeof the Fedral Court or a High Court appointed by the Conference of Rulers. The
Special Court has its registry in Kuala Lumpur. The decision of the Special Court is by a
majority of its members. Such decision is final and conclusive and cannot be challenged in
any court on any ground.
The Special Court has only original jurisdiction. It has exclusive jurisdiction over all
proceedings by or against the Yang di-Pertuan Agong or the Ruler of a state in his personal
capacity. Therefore, offences committed in the federation by the Yang di-Pertuan Agong or
the Ruler of a state or call civil cases by or against the same no matter where the cause of
action arosecan only be tried by the Special Court. Such proceedings cannot be instituted
without the consent of the Attorney General personally. This is to ensure there is a prime facie
case against the Yang d-Pertuan Agong or Ruler in question. Only citizens of Malaysia have
the right to institute such proceedings.
Where the Yang di-Pertuan Agong or Ruler of a state is charged with an offence under any
law in the Special Court, he will cease to exercise the functions of the Yang di-Pertuan Agong
or Ruler as the case may be. Where a Ruler is convicted of an offence and sentenced to
imprisonment for more than one day, he will cease to be the Ruler of the state unless he
receives a free pardon from the Conference of Rulers.

Question 2 (b)
Court For Children (CFC) were established by the Child Act 2001 (Act 611)(CA 2001). The
CFC replaced juvenile Courts set up under the Juvenile Court Act 1947 (Act 90), one of the
statutes repealed by the CA 2001. CFC were set up with the paramount aim of protecting the
interests of the children who appear before them. Thus, the CA 2001 provides measures that
are intended to take children away from the adult criminal justice system and to protect them
from publicity.
A child means a person under eighteen years and in relation to criminal proceedings , means
a person who has attained the age of criminal responsibility as prescribed in the in the Panel
Code , ie ten years. A CFC comprises a magistrate who must be assisted by two advisers, one
of whom must be a woman. The advisers are appointed by the responsible Minister from a
panel of persons resident in the state or terrority concerned. The presence of the two advisers
is crucial. The absence of either one or both renders the proceedings unlawful. The advisers
have to advise the court concerning any consideration affecting the order to be made upon a
finding of guilt or other related treatment of the child offender and, if necessary, to advise the
parent of guardian of such child.
A CFC has the jurisdiction to try all offences by child offenders, except those punishable with
death. Except as modified or extended by the CA 2001, the Criminal Procedur Code applies
to CFC as if such courts were Magistrates Courts. The CA 2001 prohibits the words
conviction and sentence from being used in relation to a child offender found guilty. A
finding of guilt and order made upon a finding of guilt are used in their stead. Where an
offence has been provided, the CFC must consider a probation report, and seek the opinion of
each of the advisers before deciding on the order to be imposed. The probation report is
prepared by a probation officer. It must contain information concerning the childs general
conduct, home surroundings, school record, and medical history to enable the court to act in
the childs best interests. The opinion of both advisers must be recorded and considered. The
court is not bound to accept the opinion of either or both but must record its reason for
dissenting.
There are several orders the court may impose upon a finding of guilt. The more severe of
these include sending the child to an approved institution such as the Henry Gurney School;
whipping with not more than ten strokes of a light cane (but only if the offender is male);
and any term of imprisonment which could be awarded by a Sessions Court if the offender is
aged fourteen years and above and the offence is punishable with imprisonment.
Under section 97(1) CA 2001, the CFC may not pronounce or record a sentence of death
against a child found guilty of an offence. In lieu of a sentence of death, subsection (2) of the
same provision requires the court to sentence the child to be detained in prison during the
pleasure of the Yang di-Pertuan Agong or Ruler or Yang di-Pertuan Negeri, as the case may
be, depending on the venue of the offence.
Section 97 (1) CA 2001 reflects the ban on the death penalty for children imposed by Articles
37 of the United Nations Convention on the Rights of Children 1989, which Malaysia has
acceded to. Unexpectedly, section 97(2) was declared unconstitutional by the Court of Appeal
in Kok Wah Kuan v Public Prosecutor (2007) 4 CLJ 454. That case concerns the murder of a
tuition teachers daughter. Aged eleven, by one of the teachers pupils. The offender was
almost thirteen years old when he committed the murder in 2002. Upon being found guilty by
the High Court in 2003, he was ordered to be detained during the pleasure of the Yang di-
Pertuan Agong under section 97(2) CA 2001.
The Court of Appeal upheld the finding of guilt by the High Court but set aside the order of
imprisonment on the grounds that section 97(2) CA 2001 was unconstitutional.