Understanding the rights of a child offender

The United Nations Convention on the Rights of the Child (CRC) is an international human rights, which sets out the civil, political, economic, social, health and cultural rights of children all over the world.

To date, 193 countries are party to the CRC. Malaysia ratified the CRC in 1995, and subsequently enacted the Child Act 2001 to bring our laws closer to the CRC. 

The Child Act consolidated and replaced several prior legislations relating to children such as the Juvenile Courts Act 1947, the Women and Young Girls Protection Act 1973, and the Child Protection Act 1991.

A child is defined in the Child Act as a person below the age of 18 years.

One important aspect of the Child Act relates to child offenders. According to the Act, a child who is alleged to have committed an offence shall not be arrested, detained or tried except in accordance with this Act.

It provides for additional protections for minors who are investigated or charged for criminal offences.

If a child is arrested, the Act makes it mandatory for the police officer making the arrest to immediately inform the parent or guardian of the child of the arrest.

The police officer must also inform a ‘probation officer’, an officer who is a Social Welfare Officer appointed by the relevant Ministry as such, of the arrest.

This notifies the child’s parent or guardian and also notifies the relevant government department that an arrest of a child has been made.

A child who is arrested must also be kept separate from adults in police stations, as well as when they are conveyed to or from any Court and when they are waiting before or after attendance in Court.

The Child Act prohibits the media when reporting about criminal investigations or prosecution of a child or in relation to a child witness from publishing the photograph or reporting the name, address, educational institution, or include any particulars that can lead to the identification the child. Failure to adhere to this prohibition is an offence in itself. 

When a child is charged in Court, the child will generally be charged and tried in a Court for Children. If the child is jointly charged with adults, the case may be heard by a Court other than a Court for Children, but that Court is to exercise all powers relating to the child as a Court for Children.

A Court for Children consists of a Magistrate who is assisted by two advisers appointed by the Minister, one of whom must be a woman.

The role of the advisers are to inform and advise the Court For Children with respect to the child and if necessary, to also advise the parent or guardian of the child. It has the jurisdiction to try all offences except offences punishable by death. 

The parents or guardian of the child must attend Court at all stage of the criminal proceedings in Court unless it was unreasonable to do so.

If the parents or guardian fail to do so, they would have committed an offence under the Act.

Once trial has proceeded and the Court for Children finds the child offender guilty of the charge, the Court for Children before deciding how to deal with the child offender must deal with the probation report to be prepared by a probation officer.

The probation report shall contain such information as to the child’s general conduct, home surroundings, school record and medical history to enable the Court For Children to deal with the case in the best interests of the child. The probation report will also make recommendations for the best manner to deal with the child.

After considering the probation report, the Court for Children must decide what orders to impose upon the child offender. The Act provides for several types of methods, which are exclusive to child offenders.

They include admonishment of the child; make a probation order or other the child to be sent to an ‘approved school’ or a Henry Gurney school. Other orders which may be made by a Court for Children include imprisonment if a child is 14 years and above, imposing a fine and even whipping with a light cane. The imprisonment and whipping orders must comply with certain requirements laid out in the Child Act itself.

Civil society and child rights activists say that the Child Act is not enough to protect the rights of a child and to give effect to the CRC. Quite apart from weaknesses in the law, the implementation of the Act suffers from inconsistencies; many officers of the State are still unaware or disregard the provision of the Child Act. For example, there are still many instances in which a child is arrested and his or her parent or guardian has not been notified.

There are also reports of a child being handcuffed or a child’s particulars reported in the media and a child being placed together with adults in detention.

In any society, members have a responsibility to protect the weakest among the ranks. Children would most certainly fall within that category. As such, it is imperative that we make ourselves familiar with the protections accorded to child offenders in the Child Act.

> The views expressed are entirely the writer’s own. 

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