THE JUVENILE JUSTICE SYSTEM IN MALAYSIA
Muhammad Razmee Abd Razak＊

I. BACKGROUND
Every day, throughout the world, children come into conﬂict with law enforcement ofﬁcials because
they are alleged or accused of having committed a criminal offence. How these children are handled canhave a profound impact on their future prospects, and may be determinative of whether they grow up tobecome productive citizens or fall into a life of crime. For this reason, the Convention on the Rights of theChild (CRC) requires States parties to develop specialized responses for dealing with children in conﬂictwith the law that take into account their young age and are aimed at promoting their reintegration anddevelopment as productive citizens.
In December 2006, Malaysia submitted its ﬁrst periodic Country Report to the UN Committee on theRights of the Child outlining the progress made in implementing the CRC. In its Concluding Observation
regarding Malaysia’s report, the Committee acknowledged the positive measures that the country hastaken to promote children’s rights and to comply with international standards regarding juvenile justice.
However, it also highlighted some areas of concern with respect to the handling of children in conﬂictwith the law and strongly encouraged the Government of Malaysia to seek technical assistance from UNagencies, including UNICEF, to address these issues.
In response to the Committee’s recommendations, the Ministry of Women, Family and Community Development sought assistance from UNICEF to undertake a comprehensive study of the juvenile justicesystem. The objectives of the study are to: a) present an overview of the nature and extent of juvenile
offending in Malaysia; and b) take stock of current practices and identify opportunities to apply innovative
new approaches based on international best practices. The study includes an analysis of the legal andnormative framework for juvenile justice; the government structures, processes and procedures for responding to child offending; and the measures and services available to promote children’s rehabilitationand prevent reoffending.
In broad terms the study considered:⿟⿟ The nature and extent of and trends in youth offending in Malaysia;
⿟⿟ National laws, policies and standards pertaining to children in conﬂict with the law at all stages ofthe criminal justice process;⿟⿟ The structures, processes and procedures in place to put these laws into practice; and⿟⿟ Programmes and services to support children in conﬂict with the law, including institution-based
rehabilitation programmes, as well as community-based alternatives.

II. NATURE AND EXTENT OF JUVENILE OFFENDING
Malaysia has a fairly young population, with 60 percent of its population below 30 years of age. The
general perception amongst stakeholders is that child offending has increased in recent years and that thetypes of crimes that children are committing have become more serious. However, assessing patterns ofoffending is difﬁcult due to gaps in data collection and inconsistencies in statistics collected by the different
Principal, Tunas Bakti Approved School, Department of Social Welfare, Malaysia.

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agencies. It is also difﬁcult to measure the extent to which changes in child crime statistics reﬂect anactual change in rates of child offending, or merely changes in policing and data collection practices.
Picture 1: Number of Children’s Cases Registered with the Court (2003 - 2009)

Data from the Court reveals that the majority of children convicted by the court have committed petty
crimes such as theft, rather than crimes of violence. The percentage of children who have committed
violent crimes such as rape and causing harm is very low.
Picture 2: Percentage of Children Convicted by the Court, by Type of Offence (2003 – 2009)125

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III. THE JUVENILE JUSTICE SYSTEM: LAWS, STRUCTURES AND PROCESSESThe principal act governing the handling of children in conﬂict with the law is the Child Act 20017,
which came into force in August 2002. This Act consolidated three former Acts: the Juvenile Courts Act1947; the Child Protection Act 1999; and the Women and Girls’ Protection Act 1973. The current Child Act
governs four main categories of children: 1) children in need of care and protection; 2) children in need ofprotection and rehabilitation; 3) children “beyond control”; and 4) children in conﬂict with the law. This
study focuses mainly on the fourth category, i.e. children in conﬂict with the law, with some reference tochildren beyond control. The other categories of children are being addressed under a separate study ofthe child protection system being undertaken jointly by the Ministry of Women, Family and Community
Development and UNICEF.
Picture 3: General Process for Handling a Child in Conflict with the Law:

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The Child Act outlines the main structure, processes and procedures for responding to children who
commit criminal offences. Part X of the Act stipulates special procedures for arrest, bail or remand, trial,and sentencing of children, as well as deﬁnes the roles and responsibilities of police, probation ofﬁcers, theCourt for Children, and various institutions handling child offenders. Pursuant to section 83(1) of the Act, achild who is arrested, detained and tried for any offence (subject to certain speciﬁed limitations) must be
handled in accordance with the provisions of the Child Act, rather than the normal procedures applicable
to adults. The special procedures under the Child Act modify and take precedent over any written laws
relating to procedures for arrest, detention and trial. However, where the Child Act does not address aspeciﬁc issue, then reference may be made to the standard procedures under the Criminal Procedure
Code. The above chart (Picture 3) presents the general process for handling a child in conﬂict with thelaw. Each stage of the process is discussed in more detail in the section below.

IV. MALAYSIAN LAWS AND POLICIESThe deﬁnition section of the Child Act 2001 states that a “child” means a person under the age ofeighteen years and, in relation to criminal proceedings, means a person who has attained the age ofcriminal responsibility as prescribed in section 82 of the Penal Code. The Penal Code states that children
under the age of 10 years are not criminally responsible for their actions. It also includes a doli incapax
provision, which states that any act of a child who is above 10 and less than 12 years of age is not an
offence if the child has insufﬁcient maturity to understand and judge the nature and consequences of his/her conduct. Where the Court for Children is in doubt as to the age of the child, an opinion should besought from a medical ofﬁcer.
In general, the special protections for child offenders under the Child Act apply to all child offenders
under the age of 18, with some exceptions:⿟⿟ Children who turn 18 while the proceedings are ongoing: If a child turns 18 while the proceedings
are ongoing, the Court for Children must continue to hear the case. However, it is up to the discretion of the Court whether it applies the special sentencing provisions available for children
under the Child Act or imposes an adult term of imprisonment.
⿟⿟ Children who are only formally charged after they turn 18: If a child commits an offence while
under 18 but turn 18 before being formally charged, then the trial is heard by the regular adultcriminal courts. The court may choose to apply the special sentencing provisions available forchildren under the Child Act or impose an adult term of imprisonment.
⿟⿟ Children charged with adults: If a child commits a crime together with an adult, the trial will beheard in the adult criminal court, rather than the Court for Children. However, the Court must“exercise in respect of the child all the powers which may be exercised under this Act by a
Court for Children” and must consider a probation report before sentencing the child.
⿟⿟ Children charged with very serious crimes: The Court for Children does not have jurisdiction
over children charged with an offence punishable with death (murder, certain terrorism offences,
hostage taking, waging war, mutiny, kidnapping in order to murder, gang robbery with murder,
drug trafﬁcking). However, while the Child Act does not state so explicitly, the special protection
for children relating to procedures for arrest, detention, trial, and sentencing should still apply
equally, regardless of whether the case is before the High Court rather than the Court forChildren.
The Child Act also includes provisions for certain status offences, including being “beyond control” andbeing subject to, or at risk of, sexual exploitation (“moral danger”). Although not classiﬁed as offenders,these children are nonetheless subject to similar treatment as children who commit crimes, including
temporary detention and the possibility of being deprived of their liberty in a social welfare institution for
up to three years. For child victims of sexual exploitation, the law states that the maximum duration achild may be sent to an institution is three years and allows for a reduction in the period of detention by
the Board of Visitors. However, the period for detaining “beyond control” children in an Approved School
is not speciﬁed, nor is it clear whether they may be entitled to early release by the Board of Visitors. As127RESOURCE MATERIAL SERIES No. 101
such, there is no clear statutory direction with respect to how long children classiﬁed as beyond control
can be detained in an Approved School and whether they are entitled to the same process of periodic
review and early release as child offenders.

V. CONCLUSIONMany Malaysian academics and policy-makers have begun to highlight the need to move towards internationally recognised practices such as restorative justice and diversion, particularly for children committing minor offences. Stakeholders from all agencies who participated in the study were generally quite
frank and concerned about of the shortcomings in existing approaches and eager to learn from international models and best practices. Support for reform was high across all relevant agencies, including
amongst the police, magistrates, probation ofﬁcers, lawyers, and institutional staff.

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