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The Unheard Voices of Child Offenders Time For Reform For The Youth Justice System in Malaysia - Nadzriah Ahmad
The Unheard Voices of Child Offenders Time For Reform For The Youth Justice System in Malaysia - Nadzriah Ahmad
A/RES/44/25, CRC was adopted by the General Assembly on 20 November 1989 <http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/547/84/IMG/NR054784.pdf?OpenElement> viewed on 8 August 2012
2
General Comment No. 10 (2007): Childrens Rights in Juvenile Justice, CRC/C/GC/10 available at
http://www2.ohchr.org/english/bodies/crc/comments.htm at para 4.
3
Ibid at para 10.
4
Ibid at para 5.
Section 2 of the Child Act and Section 82 of the Penal Code respectively.
respondents who took part in this survey consist of those whose aged is
between 13 -15 years old (5.5%) and the age of the remainder of the
respondents (37.6%) are between 16 to 18 years old. The majority
(87.7%) of these respondents who took part in this survey were conscious
they have committed wrongful act and realized the consequences of their
actions (71%) when they committed the offending behavior but more than
half of the respondents (59.5%) were not aware that they have committed
acts which are legally wrong.
The questionnaires were set in order to examine in greater detail the
impact of juvenile justice system process on child offenders who came
into contact with the system from the pre trial process, trial process and
at the disposal stage. However, for the purpose of this article, emphasis
would be given to the impact of the pre trial process on child offenders.
When the respondents were asked whether the arrest process left a
negative impact on them, a high number of them (69.7%) agreed that the
arrest process left a negative impact on them. In the subsequent
paragraphs, this article seeks to examine factors which may contribute to
the dissatisfied feelings of child offenders at the pre trial process.
Section 83 (1) of the Child Act provides that child offenders shall not
be arrested, detained or tried except in accordance with the Child Act. 6
However, this section does not stipulate specifically the mode of arrest
when dealing with child offenders. This section also does not explicitly
provide for the mode of investigation in the first twenty four hours after
arrest has taken place. The only provision in the Child Act which governs
the mode of arrest is embodied in Section 87 (1) (a) of the Child Act
which provides that following an arrest of a child offender, it is incumbent
on the police officer or other person to immediately inform a probation
officer and the childs parent or guardian of the arrest. However, it is
reported that weak enforcement of police officers in carrying out this duty
results in the delay to notify the child offenders parent or guardian upon
arrest. This problem may be aggravated in particular when this section
does not provide any time limit for the notification to take place between
the police officers and the child offenders parent or guardian.7
During the arrest process, almost two thirds of the respondents (70%)
reported that they were not treated with respect by the enforcement
officers. For example, slightly more than half of the respondents (53%)
reported that they were not brought to the court within twenty four hours
upon arrest. This situation is clearly contrary to Section 28 (3) of the
CPC and Article 5 (4) of the Federal Constitution which requires an
offender to be brought to the Court within twenty fours upon arrest. In
similar vein, quite a high number of the respondents (68.1%) reported
that they were not satisfied with the enforcement officers who inflicted
6
In the case of PP v N (A Child) [2004] 2 MLJ 299 at p.304, the Court of Appeal recognized that Section 83 of
the Child Act prohibits a child offender from being arrested, detained or tried except in accordance with the
Child Act.
7
Nadzriah Ahmad, Habibah Kiprawi A Critical Study of the Pre Trial process in the Juvenile Justice System in
Malaysia under the Child Act 2001 (2012) Law Reform Committee at p. 12
force against them when arrest took place. This particular situation is
contrary to Section 15 of the Criminal Procedure Code (hereinafter
referred to as the CPC) which provides that enforcement officers may only
use force if the offender shows resistance or attempts have been made to
evade the arrest. During the arrest process, more than half of the child
offenders also (55.9%) informed that they were handcuffed upon arrest by
the enforcement officers. In relation to handcuffs, there are currently no
laws governing the use of handcuffs by enforcement officers even though
its usage is subjected to the standing instructions on operating procedures
of the police.8 However, in relation to child offenders, the Royal Malaysian
Police has issued a Circular highlighting that handcuffs cannot be used
against child offenders upon arrest but acknowledged that it is
commonplace for enforcement officers to use handcuffs when arresting
child offenders.9
A particular important issue which raised concern at the pre trial process
is with regards to respondents (72%) lack of access to contact relatives,
friends or a legal practitioner before enforcement officers commence
investigation. Neither were the respondents (68.5%) informed that they
could have access to free legal assistance from the Legal Aid Centre and
the Legal Aid Department. This situation facing child offenders are clearly
contrary Section 28 A (2) of the CPC which requires that before
commencing any form of questioning or recording of any statement, a
police officer must inform the child offender that he may; (a)
communicate or attempt to communicate with a relative or friend to
inform of his whereabouts; (b) communicate or attempt to communicate
and consult with a legal practitioner of his choice. Hence, it is submitted
that failure to allow respondents to communicate with either a relative,
friend or a legal practitioner would undermined the legal rights of the
respondents which are vested them in particular at the pre trial process
because this would be their first point of contact with the enforcement
officers. In addition, Section 90 (2) of the Child Act only provides for a
defense counsel to render legal assistance to the child offender before the
Court for Children but is silent with regards to the assistance which could
be provided by the legal counsel at the pre trial process.10
In relation to the detention process at the pre trial process, more than half
of the respondents (68.4%) also affirmed that the detention process did
not leave any positive effect on them while a slightly lower percentage of
them (62.8%) reported that they were mistreated while being detained.
An area of concern surrounding the detention of child offenders at the pre
trial process is that the Child Act does not stipulate the period of detention
governing child offenders. The absence of this provisions in the Child Act
is evident when Section 84 (2) of the Child Act provides that in the
event an arrested child cannot be brought within twenty four hours before
the Court for Children, the child offender shall be brought before a
8
Fook, L.C, Kiprawi, H and Hassan, The Process of Criminal Justice: Part 1 Investigation and Pre Trial
Proceedings ( Lexis Nexis 2010) p 74.
9
See Note 2 at p. 27.
10
See Note 2 at p. 15.
Section 84 (1) of the Child Act provides that a child offender who is arrested is to be brought within twenty
four hours before the Court for Children and the child shall be released on a bond pending the hearing of a
charge to secure the attendance of the child as provided in Section 84 (3) of the Child Act. Section 84 (2) of
the Child Act stipulates that in the event an arrested child cannot be brought within the stipulated time, the child
offender shall be brought before a Magistrate who may direct a child be remanded in a place of detention until
the child can be brought before the Court for Children.
12
Section 84 (3) of the Child Act vested the power in the Court for Children to deny a child offender from
being released pending the hearing of a charge in the following circumstances; (a) the charge is one of murder or
other grave crime; (b) it is necessary in the best interests of the child arrested to remove him from association
with any desirable person; or (c) the Court for Children has reason to believe that the release of the child would
defeat the ends of justice.
13
Section 86 (1) o the Child Act provides that if a child having been arrested and while awaiting trial before a
Court For Children is not released under section 84, the Court For Children before whom the child is brought
shall cause him to be detained in a place of detention provided under this Act until he can be brought before the
Court having jurisdiction unless the Court For Children certifies that
(a) it is impracticable to do so; (b) he is of so unruly or depraved a character that he cannot
be safely so detained; or (c) by reason of his state of health or of his mental or bodily
condition it is inadvisable so to detain him.
(2) Under the circumstances referred to in paragraph (1)(a), (b) or (c), the Court For Children shall have the
power to order the child to be detained (a) in a police station, police cell or police lock-up, separate or apart
from adult offenders; or (b) in a mental hospital, as the case may require.
number of child offenders (75.9%) revealed that they were well treated by
the Court Officers an almost half of them felt that the presiding Magistrate
cares for them during the court proceedings.
The discussion in the preceding paragraphs demonstrates that the legal
framework governing the juvenile justice system in the Child Act is not
adequate in protecting child offenders at because the Child Act lacks
provisions in protecting the legal rights of the child offenders in particular
at the pre trial process. Consequently, the enforcement officers rely
heavily on the CPC when undertaking their duties in dealing with child
offenders because the same provisions in the CPC are also applicable to
adult offenders who come into contact with the criminal justice system.
Indeed, this would have defeated the purpose of having a separate
juvenile justice system governing child offenders who are below eighteen
years of age when the same set of laws are applicable to both child and
adult offenders when child offenders need to be treated differently from
adult offenders. Even though Section 3 of the CPC stipulates that in the
absence of any legal provisions governing the juvenile justice system, the
legal provisions in the CPC are applicable, it is submitted that specific
provisions governing the juvenile justice system should be incorporated in
the Child Act in order to ensure that child offenders are afforded with
adequate legal protection.17 For instance, explicit provisions governing the
pre trial process such as the mode of arrest, investigation, remand,
detention, access to relatives and legal representation, access to free
legal assistance must all be incorporated in the Child Act.
The enforcement officers who are the main gatekeepers of the juvenile
justice system have to be made aware through intensive and specialized
training that a child offender has to be treated differently from the adult
offenders and they must be protected at every stage of the juvenile
justice system. However, greater care needs to be undertaken by the
enforcement officers when dealing with child offenders at the pre trial
stage because this is their first point of contact with the criminal justice
system. The enforcement officers in particular, not only need to be
informed about the provisions in the Child Act but they also need to be
made aware of the provisions in the CRC and other international norms
governing the juvenile justice system such as the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice 1985 (theBeijing
Rules),18 the United Nations Rules for the Protection of Juveniles Deprived
of their Liberty 1990 (the Havana Rules) 19 and the United Nations
Guidelines for the Prevention of Juvenile Delinquency 1990 (the Riyadh
Rules) 20.
17
Section 3 of the CPC provides that All offences under the Penal Code shall be inquired into and tried
according to the provisions hereinafter contained, and all offences under any other law shall be inquired into and
tried according to the same provisions: subject however to any written laws for the time being in force
regulating the manner of place of inquiring into or trying such offences.
18
A/RES /40/33
19
A/RES /45/113
20
A/RES /45/112
Introduction
The research also attempts to identify the main causes of child offenders
committing crime in Malaysia. However, before this paper investigates in
greater detail with regards to the causes of crime committed by child
offenders, the paper will first turn into the trends of delinquent behavior
committed by child offenders in Malaysia. It is reported that cases
involving juveniles delinquent in Malaysia is increasing from the year 1990
to 2000. The statistic shows that sexual offences increased by 151.3% (39
cases in 1990); offences against person increased by 65% (283 cases in
1990) and offences against property increased by 20.1% (2831 cases in
1990).21 In a more recent statistics provided by the Royal Malaysian Police,
the data provides that from the year 2000- 2011, the number of offences
committed by child offenders in relation to offences against property are
significantly higher than offences against persons committed by child
offenders.22 This position is supported by the statistics obtained from the
Department of Social Welfare Department which provides that from 2004
to 2012, child offenders who are detained in the institutions under the
Department of Social Welfare pursuant to the Courts order are those who
found guilty for committing property related offences followed by drugs
related offences and offences committed against person.23
At this juncture, it is also important to note that there is an increasing
trend of children placed in institutions all over Malaysia. This trend is in
consonant with more recent statistics provided by the Prison Department
of Malaysia which demonstrates that there is an increasing trend of child
offenders placed in prisons and in the Henry Gurney School located all
over Malaysia from 2004 to 2012. 24 Similarly, an increasing trend is also
recorded for children placed in probation hostels under the Department of
Social Welfare from 2004 to 2012. However, a slight decreased is recorded
for number of children placed in the approved school which also falls
21
Dato Meme Zainal Rashid Juvenile Justice In Malaysia: Role of the Department of Social Welfare Human
Rights and the Administration of Juvenile Justice (2008) Human Rights Commission of Malaysia, 2009, Kuala
Lumpur at p.34
22
Statistics obtained from the Crime Investigation Department (D4), Royal Malaysian Police on the 5 th
November 2012
23
Statistics obtained from the Department of Social Welfare on the 17th January 2013.
24
Statistics obtained from the Prison Department of Malaysia on the 31st January 2013 provides that as at 31st
December 2012, they were 324 child offenders placed in prison all over Malaysia and 805 child offenders were
detained in Henry Gurney School.
Statistics obtained from the Department of Social Welfare on the 17th January 2013.
Dr Mohammad Akram A Study of Some Recent Developments in the Rising rate of Delinquent Behavior in
Malaysia [2007] 7 MLJ xxxvii
27
See Note 21 at p. 34
28
Ibid at p. 34
29
Statistics obtained from the Department of Social Welfare on the 17th January 2013
30
See Note 21 at p.34
31
Ibid at p. 34
26
Ibid at p. 35
Ibid at p.35.
34
Dr Mohammad Akram A Study of Some Recent Developments in the Rising rate of Delinquent Behavior in
Malaysia [2007] 7 MLJ xxxvii
33
10
d.Individual Factors
Slightly less than half of the respondents reported that they committed
crime because of influenced from alcohol and drugs (49.6%). Other factors
such as feeling of hopelessness about life in general (49.6%) and feeling
that the future is bleak (31.8%) also contribute to them committing crime
(31.8%). Table 1 below illustrates the main factors which contribute to
child offenders committing crime.
2.Boredom
26
22
87
77
30
26.4
83
73.4
35
30.9
78
69
40
35.1
74
64.9
11
44
38.9
69
61.1
45
39.5
69
60.5
is 45
40.5
66
59.4
52
45.6
62
54.4
55
48.7
58
51.3
57
50.4
56
49.6
58
51.4
55
48.7
65
57.1
49
43
14.Relationship
with
family 73
members are not closed
15.Feeling the future is bleak
77
64
41
39.5
68.2
36
31.8
78
69
35
30.9
84
73.6
29
25.4
85
74.6
29
25.3
85
75.9
27
24.1
88
77.2
26
22.8
89
78
25
22
96
84.2
18
15.8
e.Family Factors
In addition to the factors which contributed to the respondents committing
crime as highlighted above, this research also shed light on the
importance of having good family support in order to prevent child
offenders from committing crime. The respondents expressed the view
that they have no one to share problems with (43%), relationship with
family members are not close (39.5%), parents are always busy and not at
home (30.9%), parents are always fighting with each other (25.4%), family
members are not caring and concerned (25.3%) and parents always
exhibit force against one another (22.8%). The respondents who took part
in this survey also affirmed that factors which contributed to them
committing crime are influenced from family members who have
committed crime before (24.1%) and influenced from family members to
12
Dr Mohammad Akram A Study of Some Recent Developments in the Rising rate of Delinquent Behavior in
Malaysia [2007] 7 MLJ xxxvii
13
The survey also demonstrates that fear for not being accepted by the
society as a consequence for committing crime play a crucial role in
preventing respondents from committing further crime (80.5%). Similarly,
fear of encountering with enforcement officers contribute to the
prevention of respondents from committing crime (78.3%). Lastly, the
respondents also cited that support and constructive advice from peers
contribute the least to preventing them from committing crime, as
opposed to having good relationship with family members who play the
most crucial role and principal factor which contribute to the prevention of
respondents from committing crime (76.3%). Table 2 below illustrates the
main factors which contribute to child offenders committing crime.
Table 2 Factors Which Will Prevent Child Offenders from Committing Crime
7.9
110
92.1
9
10
8.8
104
91.2
10
102
91.1
100
90
11
12
9.9
10.5
102
89.5
12
10.6
102
89.5
12
10.7
101
89.4
12
10.8
100
89.3
13
11.4
100
88.5
20
17.7
93
82.3
22
19.5
91
80.5
24
27
21.6
23.6
87
87
78.3
76.3
14
Data obtained from the Head of Assistant Director, Division of Sexual Crime Investigation/Children (D11),
Royal Malaysian Police, Kuala Lumpur on the 27th February 2013 which provides the number of prevention
programs conducted by the RMP from 2011-2012.
37
Data obtained from the Head of Assistant Director, Division of Sexual Crime Investigation/Children, Royal
Malaysian Police, Kuala Lumpur on the 27th February 2013 which provides the number of prevention programs
conducted by the RMP from 2011-2012.
15
Data obtained from the Head of Assistant Director, Division of Sexual Crime Investigation/Children, Royal
Malaysian Police, Kuala Lumpur on the 27th February 2013 which provides the number of prevention programs
conducted by the RMP from 2011-2012.
39
Ibid.
40
Data obtained from Division of Sexual Crime Investigation/Children, Royal Malaysian Police, Kuala Lumpur
on the 4th March 2013
16
Data obtained from the Royal Malaysian Police on the 5th November 2012 and data obtained from the
Department of Social Welfare on the 20th December 2012 indicating the numbers of crime committed from 2000
to 2011and the numbers of child offenders placed in the Probation Hostel and Approved School respectively.
42
Data obtained from Division of Sexual Crime Investigation/Children, Royal Malaysian Police, Kuala Lumpur
on the 4th March 2013
43
The Minister has the power to prescribe the constitution and duties of the Child Welfare Committee pursuant
to Section 128 (1) and (2) d of the Child Act 2001.
44
Data obtained from the Children Division, Social Welfare Department on the 4th March 2013.
45
Ibid
46
Ibid.
17
In light of the above discussion, it can be seen that some effort have been
made by the RMP in trying to reduce crime rate by conducting prevention
programs for children below eighteen (18) years old. However, while these
efforts are commendable, the following intensified effort must be
undertaken by the RMP in order to ensure that crime prevention programs
are effective in reducing the crime rate in Malaysia:
1. To increase the numbers of prevention programs targeted for
younger children whose age are between seven (7) to twelve (12)
who are studying in primary school.
2. To intensify programs for children who are thirteen (13) to
seventeen (17) years old in particular because statistic
demonstrates that children in this age category has the highest rate
of crime involvement in Malaysia.
3. To conduct specific programs which fulfil the needs of older children
in particular whose age are between thirteen (13) to seventeen (17)
years old who are involved in substance abuse such as drugs and
sexual crime.
4. To give high commitment in conducting joint specific programs with
both primary and secondary schools in order to identify and monitor
school children which are involved in anti social groups.
5. To forge closer links with the Department of Social Welfare in order
to identify and monitor school children who comes from
dysfunctional, broken and troubled families.
6. To engage in close cooperation with outside agencies such as
UNICEF in order to implement programs which address children
specific needs.
7. To ensure that there are sufficient human capital and financial
support to enable programs to run continuously in each state
because a one-off program would not be adequate in addressing
the causes of crime among children.
8. To undertake research in order to determine the effectiveness and
impact of the prevention programs on children in both primary and
secondary schools. Currently, no research has been documented in
order to examine the effectiveness of these programs on children. In
the absence of research evaluating these programs, conducting
crime prevention programs would be wasteful of resources because
a huge sum of money and human capital would be wasted in
conducting programs which are not effective in preventing children
from getting involved with crime.
18
19
value to the children and would eventually make them realise the
adverse consequences of getting involved with crime.
The discussion in the preceding paragraphs demonstrate that the
stakeholders, in particular the RMP and the Department of Social Welfare
had conducted many programs for children in their effort to prevent
children from committing crime. While these efforts are praiseworthy,
recommendations have been made above in order to ensure that the
programs undertaken are effective, continuous and are able to address
the root causes of crime committed by children by engaging the
cooperation of family and schools. The need for continuous crime
prevention programs is essential because it will help to make children
realise that their offending acts are not only morally wrong but are also
legally wrong. As highlighted in Section 2.0 above, the majority of child
offenders who committed crime and placed in institutions did not realise
that their offending acts have legal consequences and they will be
brought into contact with the criminal justice system. This is supported by
the findings described in Section 3.0 above which demonstrates that the
first and foremost factor which contributes to child offenders committing
crime is the excitement of committing such offending acts. As such,
schools would have to provide constructive and beneficial activities at
school which could include sporting activities, clubs and societies and
community work which will engage children in healthy activities.
Subsequently, all effort must be made to minimise childrens contact with
the juvenile justice system because as discussed in Section 2.0 above,
their legal rights were not adequately protected and some were subjected
to many forms of abuse at every stage of the juvenile justice process.
6.0 CONCLUSION
The crime rate in Malaysia has not witnessed any decreasing trend in
recent years and the numbers of children placed in institutions all over
Malaysia are still high. The first part of the article demonstrates that the
majority of the respondents were not adequately protected by the legal
framework governing the juvenile justice system in particular at the pre
trial process. It has been recommended above that specific provisions
governing the pre trial process need to be incorporated in the Child Act
and these provisions must also comply with the requirements of
international standards. In order to prevent children from being in contact
with the criminal justice system, effective crime prevention programs are
integral to ensure that children are deterred from committing offending
acts. The high number of children placed in institutions raises the question
as to the effectiveness of the crime prevention programs which are
undertaken by the stakeholders in Malaysia in order to prevent children
from committing criminal offences.
In order to reduce the crime rate in Malaysia, the work of one institution
will not be enough because it needs the concerted effort from all
stakeholders. The family institutions would have to be strengthened first
20
because this is cited in the discussion above as first and foremost reason
which will prevent children from committing crime. Weak family
institutions would have to be supported by the Department of Social
Welfare in order to ensure that they receive appropriate form of
assistance. In addition, close cooperation between the family institutions
and the schools will ultimately benefit the children because this will help
to decrease the numbers of school dropouts and minimise their contacts
with anti social groups. This would also ensure that children would
continuously be engaged in the process of learning. Stakeholders which
play an integral part in preventing crime from happening such as the RMP
and the Department of Social Welfare have to ensure that continuous
programs are conducted in every state in Malaysia. Consequently, failure
to do so would not result in the reduction of crime rate committed by
children because a one off program would most likely have a very
minimal impact on children.
The discussion in the preceding paragraphs demonstrates that the
numbers of child offenders placed in institutions are increasing and
perhaps this may be contributed by the existing crime prevention
programs which are not adequate in preventing children from committing
crime. Detaining child offenders in institutions would also not benefit them
because they are not made accountable for their offending actions.
Hence, genuine and concerted effort by all stakeholders including the
family institutions in combating crime by addressing the root causes of
crime would perhaps be the most effective way in reducing crime and
minimise the contact of children with the criminal justice system.
21