Child Act 2001
Encyclopedia
The Child Act 2001 is a Malaysian law which served to consolidate the Juvenile Courts Act 1947, the Women and Young Girls Protection Act 1973, and the Child Protection Act 1991. It was enacted partially in order to fulfill Malaysia's obligations under the United Nations Convention on the Rights of the Child. However, it retains the option of corporal punishment
for child offenders. In December 2004, members of the legal community suggested that the law needed review, despite its newness, in order to clarify its criminal procedures. One example of the Act's unclarity was brought to light in a 2007 case involving a 13-year old convicted of murder. Under Section 97(1) of the Act, capital punishment
may not be applied to children; Sections 97(2), 97(3), and 97(4) make provisions for alternative punishments for offences which would result in the death penalty if committed by adults, namely detention at the pleasure of the Yang di-Pertuan Agong
. However, Section 97(2) was overturned by the Court of Appeal in July 2007 on the grounds that it violated the Constitution of Malaysia
's doctrine of separation of powers
, leading to the situation that no punishment at all could be rendered.
The Act was meant to give further protection to a child offender. There are however a number of shortcomings missing from the Act. Besides the uncertainty of detention period under Section 97, another omission is the maximum length of the remand
order. For an adult offender, Section 117 of the Criminal Procedure Code provides for a maximum of 14 days remand. Section 84(2) of the Child Act simply allows the court to make a remand order without prescribing the maximum length of remand. This problem was subsequently remedied in a 2003 case which held that the Criminal Procedure Code would govern the remand period of a child.
With regards to the trial
procedure, an adult accused has the option to give a sworn evidence, unsworn evidence, or remain silent. The Child Act does not provide for any right to remain silent. Section 90(9) merely allows the child to give sworn or unsworn evidence.
It also contains provisions to protect the child from associating with adult offenders in prison or elsewhere.
Corporal punishment
Corporal punishment is a form of physical punishment that involves the deliberate infliction of pain as retribution for an offence, or for the purpose of disciplining or reforming a wrongdoer, or to deter attitudes or behaviour deemed unacceptable...
for child offenders. In December 2004, members of the legal community suggested that the law needed review, despite its newness, in order to clarify its criminal procedures. One example of the Act's unclarity was brought to light in a 2007 case involving a 13-year old convicted of murder. Under Section 97(1) of the Act, capital punishment
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
may not be applied to children; Sections 97(2), 97(3), and 97(4) make provisions for alternative punishments for offences which would result in the death penalty if committed by adults, namely detention at the pleasure of the Yang di-Pertuan Agong
Yang di-Pertuan Agong
The Yang di-Pertuan Agong is the head of state of Malaysia. The office was established in 1957 when the Federation of Malaya gained independence....
. However, Section 97(2) was overturned by the Court of Appeal in July 2007 on the grounds that it violated the Constitution of Malaysia
Constitution of Malaysia
The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation...
's doctrine of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, leading to the situation that no punishment at all could be rendered.
The Act was meant to give further protection to a child offender. There are however a number of shortcomings missing from the Act. Besides the uncertainty of detention period under Section 97, another omission is the maximum length of the remand
Detention of suspects
The detention of suspects is the process of keeping a person who has been arrested in a police-cell, remand prison or other detention centre before trial or sentencing. One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to...
order. For an adult offender, Section 117 of the Criminal Procedure Code provides for a maximum of 14 days remand. Section 84(2) of the Child Act simply allows the court to make a remand order without prescribing the maximum length of remand. This problem was subsequently remedied in a 2003 case which held that the Criminal Procedure Code would govern the remand period of a child.
With regards to the trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
procedure, an adult accused has the option to give a sworn evidence, unsworn evidence, or remain silent. The Child Act does not provide for any right to remain silent. Section 90(9) merely allows the child to give sworn or unsworn evidence.
Additional protection
The Act has provided extra protection for a child offender especially with regards to the privacy of the child. The trial for the Court for Children shall be in closed court (in camera). Only certain specified persons are allowed to attend the trial. There now a legal duty for the parents of the child to attend the trial.It also contains provisions to protect the child from associating with adult offenders in prison or elsewhere.