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©The
Sunday Star (Used by permission)
by Shaila Koshy
For Malaysia's Human Rights Day this year, Suhakam is examining whether our
juvenile justice system meets the needs of both child victims and child
offenders.
IMAGINE being raped by your father as a child and having to deal with the trauma
on your own.
Imagine a magistrate, despite objections from the welfare case officer, sending
you off to an approved school for three years, just because your parents cannot
manage you.
Imagine you are 11 years old and you have to appear as a witness in a trial
where the defence counsel is allowed to rip your testimony to shreds because you
don’t understand the questions and can’t answer them.
Imagine going to prison for stealing a chicken.
Actually there is no need to imagine. That is how the juvenile justice system is
in Malaysia.
Suhakam’s Human Rights Day Conference on Tuesday hopes to change that.
The public forum themed “Human Rights and Administration of Juvenile Justice”
will discuss the rights of child offenders and child victims, whether the
current mechanisms in the juvenile justice system are adequate and whether they
meet international human rights standards.
“We will study the issues raised and come out with a report in which we will
make recommendations to the Government,” said commissioner Datuk Dr Chiam Heng
Keng in an interview.
When told of anomalies with regard to how convicted children and those
classified as “beyond control” under the Child Act 2001 were treated, she said:
“Unless problems like this are highlighted we won't be aware of them.”
At the Fourth International University of Malaya Law Conference on July 31, a
Welfare Department official disclosed that magistrates were ordering children
beyond control to serve the maximum three years in a home when granting
applications from parents.
She said that in most cases, magistrates didn’t consider the welfare officer’s
report recommending counselling as a better solution.
“The parents say they don’t want their child and the magistrate acquiesces.
“It’s an injustice that a child who hasn’t broken any law is punished for three
years but one who is serving three years in prison may get out earlier because
they are subject to review boards.”
Why does this happen when Article 40(2)(vii)(b) of the Convention on the Rights
of the Child (CRC) states that children should not be subject of any judicial
proceedings where possible?
Dr Chiam said most magistrates were not conversant with the CRC.
“Suhakam is very apprehensive of fresh law graduates sitting as magistrates. It
is quite dangerous in that there could be a miscarriage of justice.”
She said knowing the law alone was not enough.
“We must have an understanding of children. A juvenile justice system that is
child-friendly does not mean imposing light sentences but one that recognises –
in accordance with Article 3 of the CRC – that the best interests of the child
is the primary consideration.”
“If the family is the problem, how does sending a child beyond control to such a
place resolve the problem?”
Nation’s responsibility
The preamble in the Child Act, which defines a child as one below the age of 18,
says Malaysia recognises a child as not only a crucial component to society but
also the key to its survival, development and prosperity.
But we are not a healthy society. Citing prison statistics for inmates below 21
years, Dr Chiam said that most of the 283 convicted and 299 under remand were
aged between 15 and 16 years and come from dysfunctional families.
If every child has the right to protection, development, survival and
participation, we should make the family, school and community places to nurture
Malaysia’s young so they don’t end up in a juvenile justice system that begs a
revamp.
Dr Chiam cited the following as concerns in the juvenile justice system’s
dealings with child offenders:
> DECISIONS rarely take the best interests of the child into consideration;
> THE system does not identify cases suitable for extra-judicial resolutions;
> THE need to have a competent decision-making authority. (One magistrate
sentenced a child to Kajang Prison for stealing a chicken!)
> MAGISTRATES sending children beyond control to orphanages or shelters for
abandoned children;
> DELAYS in trial; and
> IMPLEMENTING a child’s right to education. (Currently, only Kajang Prison has
an Integrity School where the Education Ministry sends graduate teachers to
teach.)
She added that although Section 94 of the Child Act provides for a yearly review
of children in prisons by the Board of Visiting Justices, the boy who is serving
time for murdering his tuition teacher’s daughter has had only one since his
conviction in 2003.
Concerns for child victims
Delay in trials and the lack of a child-friendly legal system are the main
issues, said Dr Chiam.
“The incident may have happened when the victim was a child and she or he may be
15 or 19 years before the trial even starts.”
In that time, the child could face greater trauma, as was in the case as related
by a prosecutor in the early 1990s to this writer who saw a teenaged girl
sitting all alone outside a courtroom in Jalan Raja, Kuala Lumpur.
Her father raped her when she was 11 years old. She told her mother who took her
to lodge a police report. The father was arrested and was in remand for four
years. By the time of the trial, the mother had turned on her daughter.
She testified that the girl didn’t get along with her father and had always made
up stories about him.
At 11, the person supposed to protect her violated her and, in her teens, her
mother betrayed her. But the justice system, which only needed her as a witness,
did not even offer her counselling to help her go on with her life.
But then again, are our tax ringgit enough for court-ordered sessions with a
psychologist or counsellor?
“We must spend money on this. If the issue is unresolved for the child, what
type of mother/father or wife/husband will she or he become later on in life?”
asked Dr Chiam.
Witness service
In 2003, plans were afoot for children to testify via video recording with an
operating witness service. However, both died quiet deaths. It was embarrassing,
considering that British specialists conducted the training for police and
welfare officers and that the British Government paid for the two-year project.
Dr Chiam said a witness service had since been revived. There is now a basement
room in Jalan Duta, Kuala Lumpur, with a separate entrance for children.
“However, it is only given upon request. Some can afford lawyers to look after
their child's interests but those really needing the service may not even be
aware of it,” she added.
Hopefully, the Evidence of Child Witness Act 2007, when enforced, will address
some of those issues, as it provides for children under 16 years old to testify
without being seen by the accused either behind a screen, by live link or by a
video recording.
But as Dr Chiam noted, there is certainly much work to be done first.
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