Correct interpretation and application of
the law has always been a tricky issue. But none perhaps as arduous as
the conundrum over the recent merging of three Acts relating to children
and young persons, causing greater ambiguity than ever.
Ambiguities in Malaysia's Child Act
It was a monumental task. Marrying three
comprehensive Acts — the Juvenile Courts Act 1947, Women and Young
Girls Protection Act 1973 and Child Protection Act 1991 — and
replacing them with the Child Act was no child's play. So arduous was the job that its tabling in
Parliament was delayed by three years. It was surely a delicate yet
tricky job. The job was eventually completed and the final
result put before the Members of Parliament in 2001 and gazetted eight
months ago.
In the preamble of the Act, it was stated that
children should be accorded special care and their welfare given
paramount importance. However, since its gazetting, several ambiguities
have arisen. Claims were made that some provisions in the Act
blatantly contravened sections in the Convention on the Rights of the
Child (CRC) (see F2), to which Malaysia is a signatory.
Lawyer Karpal Singh says although the Act stipulates
that a child cannot be sentenced to death, this could still happen if
he is charged under the Essential (Security Cases) Regulations (Escar)
1975 (and tried under the Internal Security Act) that supersedes all
other laws in the country. "A lot of things in the Act are odd," says Karpal,
who is now representing a 13-year-old boy accused of murdering his
tuition teacher's 11-year-old daughter.
The Child Act also allows for whipping of children
found guilty of an offence — another provision that contravenes
provisions in the CRC. To this, National Unity and Social Development
Minister Datuk Dr Siti Zaharah Sulaiman says Malaysia maintains
reservation to certain articles in the CRC. "We are allowed to whip but we have precautions such
as a light cane and average force is used so the child's skin is not
cut," she says.
For the record, Malaysia maintains reservation on
Articles 1, 2, 7, 13, 14, 15, 28(1)(a) and 37 of the CRC, which has 54
articles.
Lawyer Chew Swee Yoke says a major feature noted in
the revision is the removal of protection for female persons of 18
years and above from situations of moral danger. The offence of soliciting in a public place for
purpose of prostitution, which was an offence under section 22 of the
repealed Women and Young Girls Protection Act, has been removed and
this she says, makes one wonder whether Parliament has deliberately
legalised this. "Although compelling women or children into
prostitution continues to be offences under the Penal Code, it is
strange why it has been left out of the Child Act," she says.
Karpal says there is also no provision in the Act to
allow a child to remain silent if ordered by the court to enter his
defence. Section 90(9)(b) states that the child could either
give evidence from the dock or in a statement. "Why has the option to remain silent been omitted
when it is a substantive right?" he asks. This, he says, is discriminatory because any person
tried under the Criminal Procedure Code for murder is accorded this
right.
Another serious anomaly, Chew says, is not
foreseeing a situation where there is potential conflict between the
decision of the social welfare officer or protector exercising his
powers under the Law Reform (Marriage and Divorce) Act 1976 and
Guardianship of Infants Act 1961. Under the Child Act, the protector has the right to
take away a child from the home or a spouse if he has reason to
believe that this was in the best interest of the child. The protector can also order a change of custody or
control of a child.
"So what happens when one parent starts custody
proceedings in the High Court under the Guardianship of Infants Act
and the other noncustodial parent complains of abuse and makes a
report to the protector who then commences proceedings under the Child
Act and the matter is brought before the magistrate in the Children
Court?" she asks. This situation of potential conflict of jurisdiction
should be avoided by a provision in the Child Act to make it clear
which court should take precedence.
To avoid this conflict, Chew suggests that sections
34 and 117 be amended to state clearly that as long as the custody
care and control of the child is the subject of a pending proceeding
in the High Court, the protector should not be allowed to intervene.
Karpal says it is also strange why the Child Act
does not provide for two advisers to assist the High Court judge but
allows it if the case is being heard in a magistrate's court. There have been suggestions from juvenile court
advisers and lawyers that magistrates should not be allowed to hear
juvenile cases as many of them are young and do not have children of
their own. Karpal suggests that the task be given to retired
judges who have had years of experience.
Also, why aren't there special entry and exit points
in Children's Courts as provided in the Act? Some children are forced
to sit with adult offenders in the magistrate's court while waiting
for it to be "converted" into a Children's Court. "There's no point putting in the provisions if you
can't comply," says Karpal. He adds that such hearings should be conducted at
welfare homes, on Sundays or at night to ensure the identity of the
child is protected.
Chew says although section 17 of the Act stipulates
that a child should be given adequate protection, it does not include
offences such as access to pornography over the Internet. The Internet, she says, has become a powerful means
of communication for people, especially paedophiles, to exploit and
abuse children through pornography. "Pornography can also be
personally delivered to the computer screen of our children of any age
in seconds from any part of the world and this constitutes abuse on
the mind of minors." She adds that sections 17 (2)(b) and (c) of the Child
Act also suggest that the child must be physically present at the
scene of the activity when this cannot apply when the child is
observing or participating in sexual activity on the Internet. The Computer Crimes Act 1997 and the Communications
and Multimedia Act 1998 are also silent on this aspect of child abuse
over the Internet.
Perhaps Malaysia could follow the British model —
the Obscene Publications Act 1994 — where action can be taken against
those who provide material that has the effect of "depraving and
corrupting" the minds of others, including transmitting electronically
stored data. "There seems to be loopholes everywhere. It looks
like the Act was formulated in a hurry and without much thought," says
Chew.
Another issue that needs to be reviewed is why
children who commit robberies with adults are tried as adults when the
Child Act has jurisdiction to hear such cases for the children? "If
the authorities have the interests of the children at heart, shouldn't
they be charged and tried separately?" asks a retired journalist who
covered court proceedings close to three decades.
Then we have section 32 that prohibits begging or
hawking by children. But a colleague who was approached by a student
wearing a St John Ambulance uniform to raise funds for Flag Day says:
"The student practically begged me to donate some money. To me, that
is tantamount to begging." Theoretically, Chew says, action could be
taken against students and those who make them solicit for donations
if the method was similar to begging.
Questions have also been raised why a child in a
murder trial was handcuffed in the dock when brought to court on the
first day of hearing. Was it ignorance or plain tidak apa attitude? "How
come this is allowed to happen? There should always be a presumption
of innocence until proven guilty," says Karpal. Aren't the social welfare officers who are entrusted
with the child be made responsible for this?
And what about latchkey
children? Under section 33 of the Act, it is stipulated that parents
who leave their children home without reasonable supervision are
committing an offence. Many working parents commit this offence as they
cannot afford to hire a maid, live too far away from the child care
centres, have no cars to send their young ones to these centres or are
not eligible to apply for a maid simply because they cannot meet
Immigration eligibility requirements. To hire an Indonesian maid, the applicant's
household income should be RM3,000 or more per month. To this, Siti Zaharah says under the Second National
Plan of Action 2001-2020 (NPA2020), a framework for programmes and
activities to ensure the development and wellbeing of children in
Malaysia is being drawn up. "It will, among others, ensure accessibility of the
low income groups to quality alternative child care that includes the
establishment of community-based centres or taska komuniti," she says. The plan is expected to be presented to the Cabinet
soon.
The sentencing by a magistrate's court in Seremban
last November of a 15-year-old boy to three months' jail for abetting
in the killing of 11 ostriches and an emu raised eye-brows. (However, the boy walked out of the court free as he
was arrested in September and the sentence took effect from the date
of arrest.) Although section 91 (1)(h) says that a child above the age
of 14 years can be imprisoned, was this offence serious enough for the
child to be sent to jail? Wasn't sending him to the Henry Gurney
School a better option? Siti Zaharah says admission to the Henry
Gurney School is, among others, for offences punishable with
imprisonment or if the child was habitually in the company of persons
of bad character.
The authorities may have acted in good faith when
they decided to marry the three Acts but these ambiguities must be
corrected to ensure the objectives of the one Act are realised. Those who drafted the Act should realise that it is
pointless to draw a circle around a gunshot mark and then claim to be
sharp shooters.
As the saying goes, no one is perfect.
By Sarban Singh and K.T. Chelvi, 13 April 2003
http://www.mmail.com.my/Current_News/NST/Sunday/Features/20030413100742/Article/
