When will Parliament act over concerns regarding arrest and remand of children? — Hafiz Hassan

Malay Mail

4 days ago

AUGUST 2 — To arrest a person is to deprive him of his liberty by some lawful authority. (Osborn's Concise Law Dictionary)
It is one of the initial steps taken in the criminal process which may lead to eventual prosecution of the arrested person.
The main statute governing criminal process in Malaysia is the Criminal Procedure Code (CPC), which is also the general statute on criminal procedure and processes.
Now, when an arrested person is a child, the child is governed by the Child Act 2001(CA). The CA is a specific statute governing matters relating to children, including criminal procedure applicable to children.
Under Section 2(1) of CA, a child is a person under the age of 18 years. In relation to criminal proceedings, a child is a person who has attained the age of criminal responsibility as prescribed in Section 82 of the Penal Code.
In the absence of a specific provision in the CA concerning any criminal procedure, the provisions of the CPC apply.
Part X of CA contains provisions on criminal procedure in the Court for Children. It starts with Section 83 which stipulates that a child shall not be arrested and detained except in compliance with the CA. Part X now includes provisions on arrest following amendments in 2016. These are contained in the new Section 83A which states as follows:
(1) A child who is arrested shall not be handcuffed unless -
(a) the offence with which he is arrested for is a grave crime; or
(b) the child forcibly resists the endeavour to arrest him or attempts to evade the arrest.
(2) When a child is arrested, he shall be informed of his grounds of arrest, and a police officer shall, as soon as may be, before commencing any form of questioning or recording of any statement from the child, communicate to the parent or guardian, or relative of the child and a probation officer to inform -
(a) the child's whereabouts;
(b) the grounds of the child's arrest; and
(c) the right to consult with a counsel of the child's choice.
(3) A police officer may allow the probation officer and the parent or guardian of a child to be present at the place where the child is being detained after arrest to ensure the child's welfare.
(4) Nothing in this section shall be deemed to affect the powers of a police officer to deal with a child arrested in accordance with the Criminal Procedure Code.
The writer argues it's time for Parliament to act on a 20-year-old legal gap: Malaysia's Child Act still lacks clear provisions on the arrest and remand of minors, leaving vulnerable children subject to general criminal procedures. — Reuters pic
But apart from the above, there are no other provisions in the CA relating to the arrest of children. One may say that the CA is not comprehensive on a matter that deprives a child of his liberty.
Arguably, the arrest of children should be guided by special criteria and procedures, considering who and how vulnerable they are. They have the right to be treated in a manner consistent with the promotion of their best interest and their sense of dignity and worth.
Critical as well, the CA makes no provisions on remand of an arrested child for the purpose of investigation. As the Court of Appeal (COA) in the case of PP v N (A Child) said, the CA '[does] not provide for the detention of a child for the purpose of investigations'. Accordingly, Section 117 of CPC applies.
The COA further said that 'if Parliament had intended to categorically prohibit a child from being detained for investigations for more than 24 hours, it would have said so precisely.'
The consequence is an arrested child is subject to the general law on criminal procedure and processes.
The case was decided in 2004. It's been more than 20 years now.
Aminuddin Mustaffa and Norshamimi Mohd Mazlan of Universiti Sultan Zainal Abidin (UniSZA) have argued that the law in the country '[does] not comply with international standards because it does not provide separate principles governing arrest and detention of children. The absence of clear and specific procedure of arrest of children appears to be inconsistent with the international standards set by the international instruments which require' that arrest of a child must be 'a measure of last resort and for the least reasonable period of time, in order for an arrest to be legally justifiable.'
The writers have recommended that the law on arrest and remand of children be reviewed and reformed. [See Mustaffa, A., & Mazlan, N. (2022). 'Investigation process of children under Malaysian juvenile justice: To arrest or not to arrest?' Journal of Legal, Ethical and Regulatory Issues, 25(S2), 1-8]
When will Parliament act?
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.