The rights of the child who comes into conflict with the law : a legal analysis

Abstract

This research attempts to evaluate the laws in Malaysia regarding to the adequacy of laws towards the protection of child in the criminal litigation process. Children are vulnerable in nature that need special care, attention and protection as to be treated according to the law in line with the principle accorded in the United Nations Convention on the Right of Child 1989 (UNCRC). Article 3 of the Convention depicts that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative or authorities or legislative bodies, the best interests of the child shall be a primary consideration. Malaysia started its child protection and welfare when it ratified the Convention in 1995. With the acceding of the Convention, Malaysia has a duty to comply with the Articles of the Convention that it has acceded. This was the major step for the country, in particular the Government’s attempts to comply with the Convention especially through the enactment of the Child Act in 2001 which came into force on 1 August 2002. This Act consolidated three former Acts, namely, the Juvenile Courts 1947, Women and Young Girls Protection Act 1973 and Child Protection Act 1991. In the preamble of Child Act 2001, it stated that children should be accorded special care and their welfare given paramount importance. This Act affords protection for children and tackles the problems of juvenile delinquency, child prostitutions and children out of control. It imposes severe punishments for child trafficking, abuse, molestation, neglect and abandonment and also mandates the formation of children’s courts. This Child Act 2001 provides comprehensive trial procedure in respect to children. It is submitted that by conforming to both the letter and spirit of these provisions would be adequate in safeguarding the interests in court. However, other statutes namely the Criminal Procedure Code, The Security Offence (Special Measures) Act 2012, Dangerous Drugs (Special Preventive Measures) Act 1985, and the Prevention of Crime Act 1959 also applicable to children in the event of any lacuna in the Child Act 2001 in which this tarnished the principle of best interests of the child accorded in the Convention because the application of these statues to child is incompatible since the child offenders and the adults offenders are to be treated the same under these laws. This research is focusing on the shortcomings in existing approaches towards the child offenders and those of crime victims. Even though the child offenders are guilty of committing the offence, they still need the protection as the intention of Parliament is clear to treat a child differently form an adult by establishing the Court of Children and providing special procedures under the Child Act 2001. The reference of this study will be much on the statutes, case laws, text books, articles and also view from the experts. On another note, this research is concluded with recommendations and suggestions and law reforms where it deemed necessary to guarantee the rights of the child are protected and at the same time to move towards internationally recognised practices such as restorative justice and diversion particularly for children committing minor offence.