La investigación educativa

Faculty of Law and International Relations, Universiti Sultan Zainal Abidin

Abstract

Pre-trial detention of any individual charged with crime is consistently viewed by many legal scholars as a controversial issue.This practice has been heavily criticized as it imposes legal punishment of a person not yet convicted of a crime . It deliberately amount to violation of a cardinalprinciple of criminal justice which maintain that a person in presumed innocent until proven guilty. In Malaysia, a growth in population of children detained at the pre-trial stage of criminal process hasbecome a matter of great concern. This article will comparativelyanalyse Malaysian current law and practice on this particular area with reference to the international standards. In addition, this paper also will attempt to highlight any imprecision or shortcoming of the current Malaysian legal framework and propose possible suggestions for its improvement.

Keywords: pre-trial detention, crimina l law, child, Malays ian law, international standards

Introduction

The issue of pre-trial detention of children in conflict with the law has remained controversial for decades. It refers to detention of children awaiting trial or finalisation of their trial. Excessive use of this practice has been widely criticized as it simply violates the fundamental doctrine of criminal justicethat a person is presumed innocence until proven guilty(Duff, 2013). This principle prohibits thepunishment of individuals before their guilt has been authoritatively demonstrated. Obviously, pre- trial detention of children before they are convicted by the courts constitutes legal punishment and thus infringes the doctrine of presumption of innocence until proven guilt y.Apart from that, pre –trial detention also has profound and harmful impacts on children. Researches disclosed that child detainees at pre-trial stage suffered from deprivation of social life, traumatized experience, stigmatization as delinquent and impairment of the ability to prepare their legal defences(McCarthy, 1987). In addition, other studies have disclosed that the treatment received by the detainee at the detention ce ntre or prison are no better, and often worse, than the treatment experienced by those who have already being convicted for criminal offence(Lippke, 2014). The issues of inadequate medical facilities and lack of professionally trained staffs were identified as the common reasons that hinder the effectiveness of child detention fac ilities(Winfield, 2008).Due to these reasons, the international instruments have consistently discouraged to the practice of pre- trial detention. This article hopes to add a scholarly dimension on the pre-trial

40 detention of children under Malaysian law and its compatibility with the international standards.

International standards on pre-trial detention of children

International instruments have consistently viewed the issue of pre-trial detention of children as a matter of great concern. Guidelines on the pre-trial detention can be found in various international instruments and regional instruments. However, as far as detention of children is concerned, there are specific provisions provided under the United Nation Convention on Right of C hildren(C RC)i,the United Nation Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) ii, and United Nation Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules)iii. Article 37 of the C RC lays down broad range of standards on deprivation of liberty of children. This provision has explicitly outlined at least four main principles pertaining to the detention of children at any stage in criminal process. F irstly, it imposes strict condition on deprivation of liberty in the sense that any detention of children shall not be resorted unless it fulfils specific tests on the a rbitrariness and lawfulness. This requirement implies that any detention must not only be exercised in compliance the legal provisions of law but must also free from element of injustice, unpredictability, unreasonableness capriciousness and proportionality (Schabas & Sax, 2006). Secondly, article 37 also requires that the detention of children shall only be used as a measure of last resort and for the shortest period of time. The requirement to the same effect is also provided in the Beijing Rulesiv and the Havana Rulesv.This requirement strictly demandsthat any sort of detention shall only be used in exceptional circumstances after careful consideration. Thirdly, in the circumstances where detention of children is justifiable and necessary, the CRC requires that rules and procedures during the detention to be strictly adhered. The CRC dictates that detained children also must be detained in a separate place from adults vi. S imilar requirement is also stipulated in the Beijing rules viiand the Havana Rules viii. The detained children must also be given right to maintain contact with their family as well as right to le gal assistance.In addition, the C RC upholds that legal principles of criminal law should be strictly adhered in dealing with childre n under detention. Children detained while awaiting trial are presumed innocent and must be treated as such. All relevant bodies, particularly the courts, the prosecutors and the investigators, are expected to give the highest priority of expediting judicial process to ensure the shortest possible period of detentionix.In this respect, the Committee on the Rights of the Child has recommended the state parties to ensure that cases involving children under detention before they are charged should not exceed 30 days at the latestx. F inally, the CRC specifically provides that any child detained shall be brought before promptly before a judge or before a court or other competent, independent and impartial authority authorised by law to exercise judicial power xi. This right is automatic and does not depend neither upon request of the detainee or discretion of the detaining authorityxii.The main reason for this requirement is to provide the child with an opportunity to challenge the validity of the detention.

Apart from therequirements provided by the CRC, additional guideline on pre- trial detention of children can be made to the provision of theBeijing Rules and the Havana Rules. Both the Beijing Rules and the Havana Rules stress that children detained at the pre- trial stage must be given opportunities to continue their education or training.

41 Special form of confinement centres which focus on orientation of juvenile welfare is preferred rather than a usual prison on cell. The detained children must be treated with care and all necessary assistance such social, educational, vocational, psycholog ical, and medical that they may need in view of their age, sex and personalityxiii. The Havana Rules further promotes that the establishment of open detention facilities with no or minimal measures in order to ensure that the restriction of liberty is minimised to the least possible degree.

Despite the guidelines provided by the international instruments on the detention of children, its compliance still meets persistent defiant by many legal systems. There are various proofs that certain legal systems still permit children under detention to associate with adults at the detention centres. For example, the United Nation Committee on the Rights of the C hild xiv, the Council of Europe Commissioner for Human Rights xv, the European Committee for the P revention of Torture and Inhuman and Degrading Treatmentxvi, and the European Committee of Social Rights xviihave issued vehement criticism over the practiceunder Ireland legal system which permits children to mix adults in the same place of detention(Goldson&K ilkelly, 2013).S imilarly, there are various other legal systems, such as Austria, F inland, Ireland, Germany, Portugal, S witzerland and United Kingdomwhich continue to detain children with adults despite an explicit prohibition by the international instruments (Goldson& Muncie, 2012).Apart from that, disclosure ofvarious reports on improper treatment of children at the detention centres(Appleman, 2012),lack of professionally trained staffs at the detention centres(Gorlin, 2009; Winfield, 2008), and denial of family access to child detaineesxviii clearly indicate the failure of various legal systems to meas ure up with the requirements of international standards on pre-trial detention.

In short, the international instruments have set out special requirements on the pre- trial detention of children. These requirements serve as a benchmark on this matter for each juvenile justice system across the world. Unfortunately, failure on the part of certain countries to comply and implement the requirements of the international standards has resulted with thousands of juveniles languishing in detention centres awaiting c ompletion of trial. This matter need to be addressed as a matter of urgency. Obviously, it is pertinent for each country to streamline its legal framework in accordance to the requirements of the international standards.

Pre-trail detention under Malaysian law

The Malaysian modern juvenile justice system is based on the English Common law (Hamzah &RamyBulan, 2007). Historically, the British occupation in Malaysia from the eighteenth century until the country gained independence in 1957 has led to the introduction and the reception of the English law in various legal aspects, including juvenile justice(Aun, 2005). The enactment of the Juvenile Court Act 1947, which was drafted based on the English legislation, marked the beginning of the modern legal framework of juve nile justice in Malaysia. This Act was enacted based on the recommendation of the Juvenile Delinquency and Juvenile Welfare Committee(Rahim,

2012). The Act governed all criminal matters which involve juveniles. The ratification of the CRC by Malaysian government in 1995 triggered a new phase of progressive

42 development of the Malaysian law and policy pertaining to children(Mustaffa & Kamaliah,

2010).Among a remarkable development in the Malaysian juvenile justice system after the ratification of the CRC was the introduction of the C hild Act 2001. The Act, which repealed 3 previous Acts, namely the Juvenile Courts Act 1947, the Women and Young Girls Protection Act 1973 and the Child Protection Act 1991,was enacted by the Malaysian legislative with the aim to align its juvenile justice system with the requirements of the CRC and international standards and practice.

Issue of pre-trail detention

Detention of children at pre –trial stage has many negative and harmful impacts, such as deprivation of social life, traumatized experience, stigmatization as delinquent and impairment of the ability to prepare their legal defences(Conklin, 2012). Various studies have disclosed that the treatment received by the detainee at the detention centre or prison are no better, and often worse, than the treatment experienced by those who have already being convicted for criminal offence(Appleman, 2012; Lippke, 2014; Miller & Guggenheim, 1990). There were also reports which revealed the issues inadequate medical facilities and lack of professionally trained staffs faced by juvenile detention facilities(Winfield, 2008; Dale, 1997). In Malaysia, pre-trial detention of children still remains as a controversial issue. According to the UNIC EF report, 10% of children with cases waiting for trial before the court in 2009 were held on detention xix. This figure is quite alarming as it means that 80% out of total number of children held at the detention centres were on pre-trial detention. The UNIC EF report further revealed that at the time of the study, 7% of children had been detained for between 12 and 24 months pending trial of their cases. This position is far from satisfactory and requires urgent attention.T he United Nation Committee on the CRC has specifically expressed its concerned over the issue of long pre-trial detention children and delay in dealing with the case involving children in Malaysiaxx. The committee has demanded the government of Malaysia to seriously consider this prob lem and take necessary prompt action to tackle it.

Current Malaysia juvenile justice system permits various circumstances under which detention of children at pre-trial stage is legally permissible. Briefly, these circumstances are as follows;

Remand

Remand detention refers to detention of a suspect of crime for the purpose of criminal investigation. The Criminal Procedure Code provides the police may arrest and detain any child suspect up to 24 hours for the purpose of investigationxxi. If the investigation cannot be completed within 24 hours, the police authority has to apply for a remand order from the court for further detentionxxii.As regard to period of remand, it depends on the maximum punishment for offences being investigated. If t he childsuspect is investigated for the offence which is punishable with imprisonment of less than 14 years, the detention shall not be more than four days on the first application and shall not be more than three days on the second application. O n the other hand, if the offence under which the investigation is made punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application the detention shall not be more than seven days on the second applicationxxi The current Malaysian law on remand clearly allows children to be

43 detained for the purpose of investigation. There is no condition or special requirement imposed by the law that may restrict detention of the child suspect for investigation. In other words, there is no distinction made between treatment of achild suspect and a n adult suspect as far as this matter is concerned. The position of law on this matter is unsatisfactory as it does not measure up with the requirement of the international standards. The internationa l instruments explicitly impose restriction to the circumstances under which children in conflict with the law may be detained. Unlike adults, the internationa l instruments emphasize that the detention of children should not only be lawful and arbitrary but also as a measure of last resort. S imilarly, in term of procedure, there is no special procedure governing the remand process of children. The C hild Act 2001 is silence on the procedure relating to remand application of children. It simply means that the procedure governing remand process provided under the Criminal P rocedure Code shall be equally applicable to children. In the case of

PP v N (A Child) [2004]xxiv, the issue arose as to whether procedure for remand of children under section 117 of the CPC is applicable to the child. The Court of Appeal held that section 117 of the CPC is equally applicable to the child since there was no specific procedure for rema nd application provided under the Child Act 2001. The absence of special procedure governing remand process runs contrary to international standards which demand the formulation of separate rules and procedure in dealing with children in conflict with the law.

Detention Pending Trail

This type of detention refers to children who have been detained pending completion of trial. It means that the child has been formally charged before the court but the trial of cases has yet completed. These children are mainly placed under detention pending final disposal of cases due to failure to furnish bail. The provision of the C hild Act

2001 on bail is vague and inadequate. It generally provides that the court shall allow the child to be released on bail, unless the case involved is of murder or other grave crime, it is necessary in the best interests of the child arrested to remove him from association with any undesirable or the Court For Children has reason to believe that the release of the child would defeat the ends of justice. If the court decides to release the child on bail bond, the court may determine the reasonable amount of bail which shall be executed by the parents, guardian or other responsible personxxv. Unlike adults who may be released on their own recognisance, the Child Act 2001 unnecessarily requires the bail of children to be executed solely by parents or guardians. While the original rationale for this requirement is to indirectly impose legal obligation and responsibility on parents on the act of their children, it may work unfairly towards the children. The problem may arise in the event the parents or guardians are either unable or refuse to furnish bail amount set by the court. In such circumstances, children shall be automatically detained pending trial of cases as the provision strictly prevent people other parents or guardians to stand as bailors for them.For example, there was an instance where a child had being detained for over nine months pending trial of a charge of stealing RM20 because his mother was unwilling to pay for bailxxvi.Apart from that, it should be noted there are certain offences under Malaysian law which are classified as unbailable offence under the law. Therefore, any person, including a child, who is charged with these types of offence, shall not be granted bail at all until the case is finally adjudicated by the court. Among the specific statutes which provide s for unbailable offences are Essential (Security Cases) Regulations 1975(ESCAR) xxvii, F

44 irearms (Increased Penalties) Act 1971(F IPA) xxviii and Dangerous Drug Act 1952(DDA)xxix.Consequently, any child who is charged with unbailable offence under these specific statutes shall be automatically detained until final disposal of case by the court. Obviously, the issue of detention of children pending trial of cases in Malaysia is alarming. The report revealed not only the high volume of pre-trial cases was recorded but the period of detention also was quite long. For example, the statistic recorded that 11% of children detained pending trial at the time of the study had been there for between 6 and 12 monthsxxx. In addition, 7% of children had been detained for between 12 and 24 months pending trial of their cases. These facts clearly indicate that the practice under Malaysian juvenile justice is still below the standard set by the international standards, which emphasize that the detention of children should not only be the measure of last resort but also for the shortest period of time. Due to this unsatisfactory position, the Committee on the CRC has specifically expressed its concerned over the issue of long pre-trial detention children and delay in dealing with the case involving children in Malaysia xxxi.

Preventive Detention

Preventive detention is the detention of a person without trial as opposed to punitive detention where a person is detained after a trial in a court of law in which he is proved to have committed an offence punishable under certain provisions of the penal lawxxxii. There are several statutes which exclusively confer discretionary powers to the minister to issue preventive order for detention without trial on the ground of prevention of crime. Among these statutes are theSecurity Offences (Special Measures) Act 2012 and the Dangerous Drug Act (Special P reventive Measures) 1985

xxxiii

and the Prevention of Crime Act 2013 (Amendment and Extension). It should be