‘Introduce restorative justice in Child Act’ call
Published on: Thursday, March 14, 2019
By: David Thien
KOTA KINABALU: Call to incorporate restorative justice in Malaysia’s Child Act 2001 by an amendment in Parliament to the law on Malaysia’s juvenile minor justice system is appropriate, as in the past, various inappropriate treatment of child offenders and abuse of remand procedures were noted, besides other inhumane transgressions.
Dr Ramy Bulan (pic), Head, Centre for Legal Pluralism and Indigenous Law, Faculty of Law, University Malaya presented a paper ‘A Restorative System for dealing with Child Offenders in Malaysia?’ at the recent Council for Restorative Justice Sabah forum at Grandis Hotel.
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The event’s theme was aptly entitled: ‘‘Restorative Justice – an Alternative to Imprisonment’.
She revealed that minors in the past had experienced being traumatised in the lock up or remand in prison with allegations of abuse and ill treatment which include instances of bullying and sexual abuse at the institutions. There was no separation of child offenders from adults in lock ups.
Dr Ramy Bulan recommended the following proposed steps towards restorative justice – by amending the Child Act and Criminal Procedure Code to include restorative justice provisions, definitions, implementation, and procedure, or pass new laws to incorporate restorative principles.
She said international use of restorative justice as guidelines has gained international recognition with the international guidelines show that children in conflict with the law should first be dealt with through alternative measures which divert from the formal justice system.
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“Deprivation of their liberty through incarceration or institutions should be a last resort measure.”
She suggested that shifting from a punitive system to one that aims at healing and reintegration would ensure that a child’s best interest and the community’s is protected.
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“Locking children in prison and in detention centres for minor crime would only harden their hearts and perpetuates the vicious cycle of crime.
“The best alternative may be to adopt a system of restorative justice designed to embody reparative and rehabilitation – strategies in the form that suits the circumstances of the case.”
Restorative justice offers second chance to offenders to make amends as injuries produced by a crime must be repaired by those who caused the injury, which creates an obligation to make things right. Restorative justice views crime as a harm to individuals, the community and even the offender(s) who should be reintegrated into society as a useful citizen.
Malaysia enacted the Child Act 2001 (Act 611) to fulfil its obligation under the Convention on the Rights of the Child (CRC) which stipulates how juvenile minors under the age of 21 are to be treated when arrested for any crime.
Convention on the Rights of the Child 1989 (CRC) under CRC Article 40 (3) (b) provides that State parties shall wherever appropriate and desirable, deal with children without resorting to judicial proceedings.
CRC Article 40 (4) provides for alternatives to deal with children in conflict with the law – from guidance and supervision orders, probation, foster care, counselling, education, or vocational training.
CRC Article 37 (a) provides that no child shall be subjected to life imprisonment without possibility of release.
CRC Article 37 (b) provides that no child shall be deprived of his or her liberty unlawfully or arbitrarily.
The arrest, detention or imprisonment of a child shall also be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate time.
Act 611 or the Child Act 2001 repealed the Juvenile Act 1947 Act 90), the Women and Girls Protection Act 1973 (Act 106) and the Child Protection Act 1991 (Act 468), and established Court for Children below 21 years, outlining the main structure, procedures and processes for dealing with children.
The Child Act Part X provides for special procedures for arrest, bail, remand, trial and sentencing of children and defines roles of the police, probation officers etc. as a child arrested, detained and tried for any offence must be dealt within the provision of the Child Act.
According to Dr Ramy Bulan, only if it is not provided for by the Child Act, then the Criminal Procedure Code will apply.
On domestic hurdles to implement restorative justice, she opined that traditional, moral and religious laws and mind sets that deems all wrongs deserve to be punished based on traditional retributive justice, coupled with mechanical implementation of policies and standard operating procedures without any humane consideration or heartless treatment by officialdom.
On the incorporation of restorative justice for the benefit of children or minors, Dr Ramy Bulan suggested that stakeholders work to establish an agency whose function is to co-ordinate and work with the Children’s Division of the Department of Social Welfare and other Children Service Organisations.
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