Published: Friday November 26, 2010 MYT 4:33:00 PM
Religious teacher who raped underage girl fails to overturn conviction
By YUEN MEIKENG
PUTRAJAYA: A religious teacher, who raped an underage girl 15 years ago, failed to overturn his conviction at the Court of Appeal here. The court rejected 46-year-old Ishak Shaari's application to review an earlier decision by the same court that restored his conviction and sentence imposed by a Sessions Court.
A three-member panel, in a majority decision Friday, ruled that the court did not have the jurisdiction to hear the notice of motion. Judge Justice Low Hop Bing, who led the bench, said the Court of Appeal did not have any criminal appellate jurisdiction to hear and determine criminal appeals that had been disposed by the same court.
"I note that the accused's notice of motion made no mention whatsoever of 'review jurisdiction'. The accused cannot be assumed to have asked the Court of Appeal to invoke 'review jurisdiction.' "That being the case, the accused's reliance on 'review jurisdiction' is wholly without any foundation," he said.
Justice Zaharah Ibrahim also ruled that Court of Appeal had no jurisdiction to hear the application. In a dissenting judgment, Justice Mohd Hishamudin Mohd Yunus rejected a suggestion from the Deputy Public Prosecutor that certain law provisions did not confer any inherent powers on the Federal Court and Court of Appeal to review their previous decisions.
"Article 121 of the Federal Constitution confers the judicial power on the Courts, and the Courts in exercising that judicial power must of necessity have inherent powers so that justice can be meted out effectively and in a meaningful manner," he said. Ishak was represented by his counsels Karpal Singh and Lim Chi Chau while Deputy Public Prosecutors Awang Armadajaya Awang Mahmud and Murtazadi Amran acted for the prosecution.
Ishak was charged with raping the girl, who was then 14 years and five months old, at a school counselling room in Tampin, Negri Sembilan, on July 4, 1995. On Jan 27, 2000, a Sessions Court in Seremban convicted Ishak for the offence and sentenced him to 15 years' imprisonment and five strokes of whipping.
On Jan 26, 2005, the Seremban High Court allowed an appeal by Ishak and set aside his conviction and sentence. Upon an appeal by the prosecution, the Court of Appeal, on Oct 13, 2008, overturned the High Court's order and restored the conviction and punishment imposed by the Sessions Court. Ishak later applied to review the Court of Appeal's decision to restore his conviction via a notice of motion.
