The Malaysian Bar is deeply concerned by the recent news of a 15-year-old girl in Terengganu being charged under section 302 of the Penal Code with the murder of her newly born baby. It is understood that the girl is a rape victim.1 In any event, given her age, she is obviously the victim of statutory rape.
Firstly, the Malaysian Bar respectfully recommends that the prosecution reassess the charge levelled against the girl, taking into consideration the age of the child, and the clearly distressing and harrowing circumstances of this case. The girl is likely to have suffered from an appalling mental and emotional state as a result of her ordeal. She may not have fully recovered from the effect of giving birth. It is therefore of critical importance that the girl be given counselling and psychological treatment.
Secondly, it is worth considering whether this case ought to be taken through the criminal justice process. In certain circumstances, it may not be in the interest of justice to prosecute such cases. Children who come into conflict with the law may be better served by a process of “diversion” where, instead of being criminalised, they are rehabilitated through a non-criminal correctional and rehabilitative system. Child rights advocates in this country, including the Malaysian Bar, have made repeated suggestions to the Government to implement a system of diversion, so as not to enter children into the criminal justice system and consequently mark them as criminals for the rest of their lives.
Thirdly, we echo the statement issued by the Parliamentary Special Select Committee (“PSSC”) on Women and Children Affairs and Social Development that children in conflict with the law in Malaysia should be granted free legal representation.2 All children, irrespective of their status or economic background, should be provided legal assistance from the moment they are arrested to ensure that their rights are protected. This is in line with the United Nations’ Convention on the Rights of the Child (“UNCRC”), of which Malaysia is a signatory.
Article 3 of the UNCRC stipulates that in all actions concerning children, including in courts of law, the best interests of the child shall be a primary consideration. Children in conflict with the law are uniquely vulnerable due to their tender age and are likely to find the experience of legal proceedings baffling and a source of anxiety. There is a need for children to be able to participate in proceedings in a meaningful and safe manner, and they should be given access to justice and support when needed. Similarly, protections afforded to children under the Child Act 2001, including the treatment of children whilst under detention, should be strictly adhered to by the authorities. Law enforcement officials are expected at all times, to fulfil the duties imposed on them by law, with accountability and integrity, especially when dealing with children.
Fourthly, the fact is that the Yayasan Bantuan Guaman Kebangsaan (“YBGK”) (National Legal Aid Foundation) is already empowered to provide free legal aid to any child coming into conflict with the law. However, for the YBGK system to work, the police must continue to play their part in making access to legal representation known to the child and her/his parents or guardians from the moment of arrest or detention. Courts must refuse to proceed with any legal proceedings until the child has had the benefit of legal advice and representation. Only then can the words of UNCRC and the Child Act 2001 become truly purposeful.
Every child deserves the right to be heard and to have their best interests taken into consideration throughout their encounters with the law. The Malaysian Bar expresses our readiness to work with the Government and other institutions in our collective aspiration to ensure the protection of the rights of children and, where required, free legal representation for all children in conflict with the law, without any discrimination.
A G KALIDAS
17 February 2022
1 “[UPDATED] Court rejects bail for 15-year-old, puts her in police custody”, The Vibes.com, 16 February 2022.
2 “Press Statement | Parliamentary Special Select Committee on Women and Children Affairs and Social Development: All Children in Conflict with the Law in Malaysia Should be Accorded Free Legal Representation”, Dato’ Sri Azalina Othman Said (Twitter), 11 February 2022.