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 The offence of soliciting in a public place for purpose of prostitution, which was an offence under section 22 of the repealed Women and Young Girls Protection Act, has been removed and this she says, makes one wonder whether Parliament has deliberately legalised this.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