FEBRUARY 10 — The Office of the Children’s Commissioner (OCC) did not mince words when it said that the recent detention of a 16-year-old girl under the Security Offences (Special Measures) Act 2012 (Sosma) was a clear violation of the Child Act 2001 (Act 611).
While it welcomed the girl’s release on January 23 after nearly 10 days in custody, the OCC stressed that her initial arrest and detention were not in compliance with Malaysian law.
The girl was detained on January 14 in connection with an anti-trafficking investigation.
Section 3 of the Child Act defines “child” as (a) a person under the age of eighteen years; and (b) in relation to criminal proceedings, a person who has attained the age of criminal responsibility as prescribed in Section 82 of the Penal Code (Act 574), which states that nothing is an offence which is done by a child under 10 years of age.
Now, Section 83(1) of the Child Act states that notwithstanding anything contained in any written law relating to the arrest, a child who is alleged to have committed an offence “shall not be arrested … except in accordance with this Act”.
In 2016, extensive amendments were made to the Child Act which included the insertion of a new section – that is, Section 83A on Arrest, which reads as follows:
(1) A child who is arrested shall not be handcuffed unless –
(a) the offence with which he is arrested for is a grave crime; or
(b) the child forcibly resists the endeavour to arrest him or attempts to evade the arrest.
(2) When a child is arrested, he shall be informed of his grounds of arrest, and a police officer shall, as soon as may be, before commencing any form of questioning or recording of any statement from the child, communicate to the parent or guardian, or relative of the child and a probation officer to inform –
(a) the child's whereabouts;
(b) the grounds of the child's arrest; and
(c) the right to consult with a counsel of the child's choice.
(3) A police officer may allow the probation officer and the parent or guardian of a child to be present at the place where the child is being detained after arrest to ensure the child's welfare.
(4) Nothing in this section shall be deemed to affect the powers of a police officer to deal with a child arrested in accordance with the Criminal Procedure Code. (Emphases added)
Section 3 defines “grave crime” to include as follows:
(a) the offences of murder, culpable homicide not amounting to murder or attempted murder;
(b) all offences under the Firearms (Increased Penalties) Act 1971 [Act 37];
(c) all offences under the Internal Security Act 1960 [Act 82] punishable with imprisonment for life or with death;
(d) all offences under the Dangerous Drugs Act 1952 [Act 234] punishable with imprisonment for more than five years or with death; and
(e) all offences under the Kidnapping Act 1961 [Act 365];
A simple reading of the above provisions is this: A child who is alleged to have committed an offence must not be arrested except in accordance with the Child Act, but the Act does affect the powers of a police officer to deal with the child in accordance with the Criminal Procedure Code (CPC).
So here is a simple plea: consider further amendments to the Child Act to exclude the application of the CPC – the general law on criminal processes and procedures – for the better protection of children arrested by investigation authorities.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
