THE charging of two juveniles with the murder of Cradle Fund CEO Nazrin Hassan has highlighted how Malaysia falls short of international standards in the treatment of children charged with capital offences.

Lawyer Edmund Bon said legal reforms are needed and changes to handling trials and implementing the law to shift away from being “adult-focused”.

“The problem and challenge in Malaysia is that the trials or the law is handled in such a way that it’s very adult-focused because we don’t have many cases where children are brought for capital cases.

“Legal reform needs to take place, in terms of improving the Child Act and complying with a lot of the international obligations under the United Nations Convention on the Rights of the Child (UNCRC).”

Malaysia is party to the UNCRC but many standards have not been implemented, he said.

This was seen in the how the authorities allowed the two teenagers in Nazrin’s murder case to appear in court in their school uniforms on the day they were charged. They had just been arrested earlier the same morning at their home.

“That was wrong… When minors are charged, there need to be safeguards in place,” Bon said.

The boys were charged on March 4 along with Nazrin’s widow, Samirah Muzaffar, and an Indonesian Eka Wahyu Lestari, who was charged in absentia. Samirah and the teens have since claimed trial. 

While the judge ordered a complete blackout on the identity of the two minors, images and footage of the teens with their faces covered were published or aired by several media outlets. 

Lawyer Hisyam Teh Poh Teik, representing the teens, said yesterday one of the boys had been sexually and physically assaulted by other inmates and asked the Shah Alam High Court to transfer his client from the detention centre in Sentul to Puncak Alam. 

While Malaysia has the Child Act 2001, it was found to provide “limited guidance with respect to issues such as alternatives to arrest, restrictions on use of force or restraints, duration and conditions in police custody, and the presence of parents, probation officers, or lawyers during investigative procedures”.

This is according to a United Nations International Children’s Emergency Fund (Unicef) report published last September.

“Recent cases clearly highlight the urgent need for a more holistic reform of the country’s juvenile justice system. A comprehensive, specialised response to children in conflict with the law is required to protect their rights and dignity,” the report said. 

Recommendations to strengthen the juvenile justice system in Malaysia were made in a report commissioned by the Ministry of Women, Family and Community, it added.

They include amending the Child Act to include more detailed provisions on arrest, investigation, bail and remand, police conduct; developing detailed police standing orders or a code of practice for handling children in conflict with the law; strictly enforcing the privacy provisions of the Child Act, and sanctioning media outlets that violate children’s rights.

Other minors charged with murder

Although not common, Malaysia has its share of cases involving minors being charged with murder. Here are at least four prominent ones:

* The fatal bullying of T. Nhaveen

T. Nhaveen, 17, was bullied and tortured by a group of teenagers near his home in Bukit Gelugor, Penang, on June 9, 2017.

The bullying was allegedly over his effeminate behaviour.

Nhaveen was declared brain dead upon his arrival at hospital and remained comatose for six days before dying on June 15.

J. Ragesuthen and S. Gokulan, both 18, along with two others, one aged 17 and another who turned 18 in July 2017, were charged with Nhaveen’s murder.

All were jointly charged under Section 302 of the Penal Code, which carries the mandatory death sentence upon conviction.

The four also faced another charge at the Sessions Court with allegedly causing grievous hurt to T. Previin, who was Nhaveen’s friend, at the same time and place.

The trial has yet to commence. 

* Keramat tahfiz school fire

Two teenagers, then aged 16 in September 2017, stand accused of 23 counts of murder for setting fire to the Darul Quran Ittifaqiyah tahfiz (religious school) school in Kg Datuk Keramat, Wangsa Maju, and causing the deaths of 21 pupils and two teachers.

The fire that broke out in the pre-dawn hours on September 14 was at first thought to be the result of a short circuit.

But police investigators later found that it was an alleged act of revenge between boys from the tahfiz school and other youths in the area.

The two accused, now aged 18, face the mandatory death sentence upon conviction. The trial is currently ongoing and will resume on April 3. 

* Teen convicted of murdering senior citizen in robbery attempt

A 15-year-old boy was found guilty and sentenced in April 2016 for the murder of Jariah Abu Bakar, 62, at her home in Block 9, Felda Lok Heng Barat in Kota Tinggi, Johor.

He committed the offence in July 2014 in a botched robbery at Jariah’s house, battering her to death with a piece of wood.

The boy was part of a group and have entered the victim’s house through the ceiling before letting the others in through the front door. They stole two mobile phones and a gold chain.

The teen was sentenced to be detained at the pleasure of the sultan of Johor under Section 97(2) of the Child Act 2001. 

He appealed against the conviction but the Court of Appeal in February 2017 ruled that the appeal had no merit.

* Teen charged with murder of tuition teacher’s daughter

In May 2002, a 13-year-old killed his tuition teacher’s 11-year-old daughter by stabbing and slashing her more than 20 times. 

The teacher came home to find the daughter sprawled in a pool of blood on the bathroom floor of their house in Setapak.  

The boy was said to be the last person to have been with the girl. He arrived at the tuition teacher’s house about an hour early, when the latter had yet to return from a school meeting. The woman told her daughter to let the boy into the house.

The girl had taunted him and repeatedly called him “fatty”, the trial heard.

The boy reportedly told the teacher after the murder, “Teacher, sorry, sorry. Teacher, sorry ... I don’t know why I did it.”

The Court of Appeal freed the teen after justices Gopal Sri Ram, Zulkefli Ahmad Makinudin and Raus Sharif held that the boy, who was turning 18, had to be set free as there was no law that prescribed a sentence for a child convicted of murder. 

Three months later, the Federal Court overturned the Court of Appeal’s decision and sent the teenager back to jail, to be held at the pleasure of the Yang di-Pertuan Agong.

When minors are charged with murder

Juveniles who are charged alone with a criminal offence first appear in the special court for children, Bon told The Malaysian Insight.

The exception to this is when the minors are charged together with adults, such as in the case of Nazrin’s murder, where the teens were charged in a magistrates’ court. 

During the course of the trial, a legal companion or legal child advocate can appear for the child, through the Legal Aid Bureau or through a lawyer acting for the child.

The role of the legal companion, Bon said, is to support the child throughout the court proceedings. 

“Not to defend (the child) against the charge, but to advise and help the child if, for example, the proceedings are taking too long, or if they want a break, or they don’t understand what’s going on.”

Judges have a lot of discretion in cases that involve minors, he said.

“The judge has the discretion to black out names and other forms of identity, ask that the accused is not handcuffed, ensure that the children are segregated from adults.”

The “big issue” is usually whether bail is given, he said.

“Bail is normally given in exceptional circumstances such as, if the accused person is infirm, is a child, or a pregnant woman. 

“Before bail is given, the judge should ask for a probation report. The Welfare Department will then be asked to interview the child and the family, and then come up with a probation report for the judge to decide whether or not it is in the best interest of the child to allow bail.” 

If convicted, they will be detained at a juvenile detention centre at the pleasure of the Agong and can apply for a pardon. – March 13, 2019.