The Forgotten Child - Indefinite Detention of Juvenile Offenders

Our Federal Court shall be reviewing the indefinite detention of several juvenile offenders under Section 97(2) of the Child Act 2001, potentially opening a way to rectify a mistake, or more accurately, a gap in the law created when the government abolished the mandatory death penalty in 2023. 

Contrary to common belief, we do have alternative sentencing for juvenile offenders caught up in grievous crimes that carry the death penalty. We do not sentence juveniles to death, as that in itself is illogical and immoral. We operate on a system of semi-discretion where juvenile offenders who are retained with grievous crimes are kept detained until a recommendation is submitted to the King or governor for consideration of their release. 

The rationale was that children ought to be given a second chance. They must be punished for the crime they committed, but once there is some degree of certainty on their rehabilitation, it is time for them to go back to society. This should ideally happen when they reach the age of majority. Unfortunately, the reality of juvenile offenders in these situations is far from ideal. Almost all of them have spent more than 10 years in prison, with two reported to have spent more than 20 years in prison.

The Flawed Process

In 2018, Suara Rakyat Malaysia (SUARAM), on the behest of a juvenile offender and his family, raised the concern of indefinite detention with the government, calling for action and intervention into his case. Without a clear commitment from the government, a complaint was later lodged with the UN Working Group on Arbitrary Detention for its opinion. 

It was through this complaint that SUARAM was able to ascertain and confirm that the government had failed in its obligations. Under Section 97(4)(a) of the Child Act 2001, any juvenile offender detained is granted an annual review determining their conditions and making recommendations for their release if appropriate. In this case, the government failed to do so and only three reviews were granted in a 19-year period. 

Without further response from the government, a legal challenge was filed by his lawyers, though this failed before it even appeared before the courts. A clemency petition was later filed on this person’s behalf, and he was granted clemency by the Yang di-Pertuan Agung and released. At his release, he spent upwards of 22 years in prison, effectively having lived more than half his life in custody.

The law itself is problematic as it leaves many operational components of managing juvenile offenders vague and uncertain. Is the King or the Governor responsible for ensuring the timely release of these juvenile offenders? Or is the Board of Visiting Justices responsible for reviewing and making recommendations? Or does the responsibility lie with the courts that meted out the sentence? The only known legal challenge to Section 97(2) was made by the late Karpal Singh around 2004 to 2007, where Section 97(2) was struck down briefly as unconstitutional before the Federal Court overturned the decision. 

The vague status quo creates an environment where the court sentences a juvenile offender to detention on the premise of an annual review. The annual review and recommendations fail to materialise, creating the circumstances where indefinite detention is possible and likely. 

The 2023 Amendment and Gap

The abolition of the mandatory death penalty was a progressive step forward, albeit one with flaws. The abolition failed to accommodate associated laws that were designed around the death penalty, such as Section 97 of the Child Act. As the death penalty is no longer mandatory, Section 97 is dysfunctional and problematic. What used to be a provision of ‘mercy’, where a juvenile offender would not be sentenced to death, has become a forgotten mechanism that traps juvenile offenders indefinitely and introduces significant inequality in the law. 

Today, we can have a person convicted of drug trafficking sentenced to a 30-year prison sentence, while a juvenile offender convicted of the same can be detained indefinitely. We have had prisoners convicted of murder being rehabilitated and released after serving their 30-year prison sentence, while juveniles convicted of the same remain imprisoned without a release date. 

The government cannot plead ignorance, as the gap created by the abolition of the mandatory death penalty was brought to their attention during the Parliamentary debate on 3 April 2023 by the Member of Parliament for Pasir Mas, Tuan Haji Ahmad Fadhli bin Shaari. 

The Solution

In the long term, the Child Act 2001 must be reviewed urgently to bring it in line with contemporary laws, and the government’s future direction on criminal justice reform.

However, for the juvenile offenders imprisoned right now, the only redress for them is for the government to exercise its responsibilities as prescribed under Section 97(4) of the Child Act 2001. Ensure that the Board of Visiting Justices are qualified and conducts its necessary review on an annual basis, and ensure that appropriate recommendations are made to the King or Governor promptly.

Our collective failure has already robbed many of these juvenile offenders of a good future, and we owe it to them to ensure that whatever lives ahead of them are freedom and a second chance.