Contributed by Sarah–Ann Yong Jenlee, member of the Child Rights Committee; photos by Florence Laway, Senior Administrative Assistant, Bar Council
The Bar Council Child Rights Committee (“CRC”) is one of the most recently formed Bar Council committees. Its primary focus is to study and propose legislative reforms for better protection of the welfare and rights of children, as well as to train lawyers across the nation on ethical legal representation of children facing conflict with the law.
The Kuala Lumpur instalment of the Elementary Course on the Representation of Children in Malaysia was held on 26 Oct 2016 at the Raja Aziz Addruse Auditorium, Bar Council, and attended by 35 eager and enthusiastic lawyers.
The full–day course kickstarted with a series of three troubling “Nursery Crime” videos, which were an eye–opener to most participants. The videos set the tone for the remainder of the course, on the importance of the role of adults to educate children on, among others, the differences between a “safe touch” and an “unsafe touch” by an adult family member and/or friend.
Ajeet Kaur, Co–Chairperson of CRC, rolled out many thought–provoking questions to test participants’ background knowledge and understanding on the rights of children. Interestingly, most participants were divided on whether legal professional privilege applies to child clients!
Module 1 — “Introduction and Approaches to Child Representation” — was facilitated by Srividhya Ganapathy, also Co–Chairperson of CRC. The Malaysian Government acceded to the United Nations Convention on the Rights of the Child (“Convention”) on 17 Feb 1995, as part of its commitment to the well–being and protection of children. Having done so, the Government is obliged to take all available measures to ensure that children are protected, and their rights are respected and upheld. While the accession marked a major milestone, the Government has made several noticeable reservations to the provisions of the Convention, namely Article 2 (principle of non–discrimination) and Article 37 (pertaining to torture and deprivation of liberty towards children). Shockingly, Malaysia’s first and only report to date on the progress of implementation was submitted to the Committee on the Rights of the Child in late 2006.
Srividhya pointed out that a child’s counsel can play several distinct roles when representing a child in conflict with the law. An Instructional Advocate must consult with the child to determine his/her interests, views and preferences while a Best Interests Advocate’s role is appropriate when the child may not have the capacity to instruct his/her counsel. On the other hand, a counsel in an amicus curiae role will have to focus on ensuring that the wishes of the child, if expressed, are introduced into evidence, while a watching brief counsel’s primary duty is to ensure the best interests of the child are advocated for in the Court, and protected.
Participants were next divided into several groups and were given the task of analysing several scenarios concerning juvenile offenders and children in conflict. Group interaction was necessary to ensure a fluid and productive discussion and the exchange of ideas to benefit each participant. In addition to the discussion, Ajeet and Srividhya conducted a valuable role–play session on how a counsel should or should not deal with a child client during an interview. Hence, participants learned the importance of creating a safe space, and to practise active and intentional listening when the child is telling his/her story.
After a hearty lunch, Kasthuri Krishnan led Module 2 — “Representing a Child in Conflict with the Law” — which touched on several important subtopics such as the age of criminal responsibility, the right to legal representation for children and the use of international instruments in the representation of children. It is important to note that the Child Act 2001 provides for a separate and distinct juvenile justice system that requires children in conflict with the law to be subject to special procedures in accordance with the Child Act 2001 rather than with the Criminal Procedure Code. Participants also learned the importance in using the appropriate terminology when referring to children or juvenile offenders. For example, the terms “conviction” and “sentence” are replaced with “finding of guilt” and “order made upon finding of guilt”. A child should also never be referred to as “an accused person”. Instead, he/she should be referred to as “the child”.
Module 3 — “Representing A Child in Family Custody and Access Proceedings” — was led by Premala Navaratnam. The principal statutes that govern family matters in the civil High Court in Malaysia are the Law Reform (Marriage and Divorce) Act 1976, the Guardianship of Infants Act 1961, and the Child Act 2001. In determining the custody of the child, the paramount consideration for the courts is the child’s welfare.
At the end of the course, a quick pop quiz was conducted to help participants to recall the key points taught throughout the course. A key takeaway was the importance of counsel taking instructions from their child client as they would from an adult, and meeting their ethical and professional obligations to maintain solicitor–client privilege and confidentiality in respect of their child client.
The intensive and enriching course ended at 5:30 pm, having provided the participants with increased knowledge on the basic tools for child representation in the context of the Malaysian justice system.
The writer would like to express her gratitude to the organisers and speakers, who were generous in their exchange of knowledge and experience in this area of law.