OCTOBER 7 — Prime Minister’s Department (Law and Institutional Reform) Minister Datuk Seri Azalina Othman Said has reportedly said that the Anti-Bullying Tribunal Bill would be tabled in Parliament this December. 

She said a Cabinet paper on the drafting of the Bill would be presented to the Cabinet as early as November to inform ministers of the input and findings gathered from nationwide anti-bullying town hall sessions.  

“This December the Bill will be ready because the Madani government has promised to come out with this law for this session of Parliament,” she told reporters after the Anti-Bullying Town Hall Session: #GenerasiTanpaBuli with student representatives under the Ministry of Education, held in Putrajaya on Monday (Oct 6), which was also attended by Education Minister Fadhlina Sidek.

The above statement of the minister makes me wonder if the Bill is to fulfill a promise or if it is the best way to deal with bullying.

In my humble opinion, the call by the Human Rights Commission of Malaysia (Suhakam) on the government to implement a formal diversion policy for children in conflict with the law is what the government needs to respond to.

As I wrote in “Government must act on Suhakam’s call without delay”, the concept and practice of diversion are not a novel phenomenon.

For many years, diversion has been widely adopted as an important feature of various juvenile justice systems across jurisdictions. 

There are different forms of diversion programmes which have been designed and implemented with the aim to divert children from direct contact with formal criminal process. 

Various researches on diversion programmes have disclosed positive impacts on their effectiveness in handling children in conflict with the law. (See Aminuddin Mustaffa, “Diversion Under Malaysian Juvenile Justice System: a Case of Too Little Too Late?” Asian Criminology (2016) 11:135–153)

Almost 10 years ago in 2016, legal scholar Aminuddin Mustaffa wrote as follows:

“Currently, there is no alternative method in the form of informal adjudication provided under Malaysian juvenile justice. The main statute that is governing child matters, namely the Child Act 2001, is silent on the alternative non-adjudication methods in dealing with children in conflict with the law, such as diversion, mediation, group conference and others. Neither does the [Criminal Procedure Code] (CPC) provide any specific provision on those alternative methods.

“Though the provision of the CPC confers discretionary power to the police or prosecutor to dispose of minor cases without initiating formal criminal proceedings under exceptional circumstances, this provision is too general and vague. It does not adequately elaborate conditions as well as circumstances under which this discretionary power can be exercised.

“There is also no practice direction or specific guideline provided for the police or the prosecutor on this specific matter.

“Obviously, current Malaysian juvenile justice is lagging far behind other legal systems in terms of approach and practice in handling children in conflict with the law. It does not provide any special provision on informal and alternative measures to deal with children in conflict with the law. This position is unsatisfactory and contrary to the requirements of the international instruments which consistently emphasize the formal judicial process should only be used as a last resort against juveniles.

“Undoubtedly, the current position of the Malaysian juvenile justice system is in dire need of improvement. It is high time for the Malaysian government to consider the possibility of utilizing informal methods as an additional and alternative measure of dealing with children. In view of that, it is proposed that diversion is introduced into the Malaysian juvenile justice system as one of the alternative measures, especially in petty and minor criminal offences.”

With the greatest of respect, the Malaysian juvenile justice system remains in dire need of improvement.

What the country needs is a legal framework of diversion and not just anti-bullying tribunal legislation.

Read Aminuddin Mustaffa’s “Diversion Under Malaysian Juvenile Justice System: a Case of Too Little Too Late?” for proposed integration of diversion measures into the current law.

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.