Diversion of child offenders from the criminal justice system in Malaysia and reforms of the Child Act 2001 : lessons from New Zealand

Abstract

The juvenile justice system in Malaysia is governed by Part X of the Child Act 2001 (Act 611) that outlines the trial procedures in the Court for Children. According to this Act, a child is defined as a person under the age of eighteen (18) years and in relation to criminal proceedings, a child means a person who has attained the age of criminal responsibility, set at ten (10) years of age. Thus, a child whose age is below ten (10) years old cannot be made criminally responsible. Currently, there are inadequate provisions that govern the juvenile justice system in Malaysia, particularly, at the pre-trial process. Hence, although Part X of the Child Act governs the laws pertaining to criminal procedures in the Court for Children, reliance on the Criminal Procedure Code (Act 593) has to be made in the absence of any specific provisions relating to offences tried under the Penal Code (Act 574). The present situation also recognised the lacuna in the laws because there are no provisions in the Child Act that statutorily recognize the implementation of diversionary measures when dealing with child offenders who come into contact with the criminal justice system in Malaysia. As a consequence, most child offenders came into contact with the system and suffer from its adverse effects, beginning from the pre-trial process up to the trial process, and continuing until the post-trial process. Hence, in order to prevent these detrimental effects such as labeling and stigmatization on child offenders, diversion can be seen as a viable alternative to the current juvenile justice system in Malaysia. In addressing the research questions in this study, mixed methods were adopted as a form of research methodology in order to examine in greater detail the views of the child offenders and the stakeholders. The findings of the quantitative study addressed the research questions and provided cogent evidence for the reforms of the Child Act in order to better protect the legal rights of the child offenders. Further, the findings also indicate the inadequacy of the Child Act in protecting child offenders who come into contact with the formal justice system in Malaysia. These findings are affirmed by the views expressed by the stakeholders in the qualitative study who had expressed support for the implementation of the diversionary measures as a viable alternative from the formal justice system and called for the reforms of the Child Act, to strengthen the legal protection afforded to the child offenders. This thesis concluded with the recommendations to improve every stage of the juvenile justice system beginning from the arrest process and continuing until the child offenders are serving sentence in the institutions. To prevent the child offenders from the detrimental effects of the criminal justice system and to channel them away from this formal system, a new diversion model is proposed that takes into account the current national legal framework and local settings and advanced proposals to reform the laws. The thesis concludes with an assertion that every child offender deserves a second chance, and implementing diversionary measures serves as a first step in providing an alternative system that gives children the opportunity to become responsible and accountable members of the society.