2007 08: Ministry studying issue of children under remand

The Star Online. News. Nation. Sunday August 12, 2007

PETALING JAYA: The Ministry of Women, Family and Community Development is looking into the issue of children under remand.

Its Minister, Datuk Seri Shahrizat Abdul Jalil, who visited the Kajang Prison in May, said the issue was discussed at the National Advisory and Consultative Council for Children.

The council set up a committee consisting of representatives from the ministry, the police, Attorney-General’s chambers, the Prison Department, courts and several related NGOs.

After a series of meetings, the committee came up with several proposals to be submitted to the council.

Among the proposals are making bails more affordable for parents or guardians, fast-tracking children’s cases, ensuring that children get legal aid and ensuring that remand centres for children have child-friendly facilities.

Provisions such as education, recreational activities and health would also be included in these remand centres.

Shahrizat said the policy on children was that only those charged with serious offences could be remanded in prison.

“The non-serious offenders should be remanded under the Department of Social Welfare. We are also looking at moving these children to the centre under the department,” she said.

Shahrizat was referring to the case of Jeff Lee Kwong Yong, 19, who was jailed more than six months after pleading guilty to an identity card offence. The case had been postponed five times.

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Not the place for children

The Star Online. Opinion. Sunday August 12, 2007

There is an urgent need to set up special courts with magistrates assigned solely to cases involving children, and to expedite court hearings. The Child Act 2001 has to be enforced in spirit and not just in letter.

JEFF Lee Kwong Yong is now safely back home after being held in remand at Kajang prison for six months and seven days. With the welfare of one boy now taken care of, there are now in excess of 400 boys left to be dealt with – in Kajang prison alone.

In Malaysia, an accused is presumed to be innocent until proven guilty. Unfortunately, for these 400 boys, they appear to be receiving punishment even before they have been tried. This is all because – for one reason or another – bail has not been posted pending their respective trials.

Some of them, like Lee, end up spending terms that exceed the incarceration period for their offence as prescribed by law.

Lee, at 19, is not considered a child (under the Child Act 2001, a child is 18 years of age and below) but a young offender (below 21), hence his incarceration in this particular place of detention.

Notwithstanding Lee's age, a six-month incarceration may seem to be excessive punishment for a minor offence like not being able to produce an identity card, but according to the strict letter of the law, it is all by the book.

Under Section 84 of the Child Act 2001, a child must be brought before a magistrate in a Court For Children within 24 hours to determine bail.

The problem, however, arises in instances where the accused is not bailed. According to Section 86 (1) of the said Act, a child awaiting trial who has not been bailed shall be held in a “place of detention”. Kajang Prison has been gazetted as such.

The Malaysian Bar Council Criminal Law committee chairman Datuk V. Sithambaram, who was also legal counsel for Lee, says, “Most of them are being held for bailable offences but their families have not posted bail. Therefore, if they are not bailed, they inevitably end up spending time there.”

Lawyer Yapp Swee Hock, who works together with the Shelter Home for Children on certain cases, adds that many are detained on minor offences where the bail set is very low, sometimes as low as RM500. One child, for example, is still in Kajang Prison for stealing a motorcycle because his parents were not able to come up with RM1,000 for bail.

Why then are these cases not expedited so they do not spend extended time in prison? Says Sithambaram: “To be fair to the courts, there is a shortage of magistrates, interpreters and courts – all these have resulted in cases being adjourned for long periods. We have the same magistrates who sit in the Court for Children who are also handling traffic cases.”

Additionally, there are other mitigating circumstances that can lead to delays in the system.

In the case of Lee, says Sithambaram, he could not remember his IC number and refused to let his family know of his whereabouts, which contributed to his case being postponed up to six times because they were unable to verify his identity.

But he qualifies, “Everything is online, and they knew four months earlier that he was working in Kuala Lumpur, so it should not have taken six months to verify.”

Another issue is that some children who appear in the Court for Children for bail hearings do not have legal representation.

Yapp says that some are represented, but not all of them are.

“It all depends if the parents have appointed a lawyer or not. As for free Legal Aid, they would not necessarily know as the bail hearing is set soon after the charge. So if nobody knows they are being detained, nobody will take any action.”

Yapp also believes that some of the children's families cannot afford a lawyer. “If they cannot even afford the deposit for the lawyer, what more the bailable amount?”

James Nayagam, executive director of Shelter, is distressed that such situations can arise.

“They are supposed to have legal representation, but in most cases they do not. This worries me because they are just children and have to stand alone with no protection – so off they go to Kajang Prison.”

Nayagam says that sadly Kajang Prison is not the only place that has been gazetted as a “place of detention”, and there are more conducive environments where children can be held in remand, such as the Tunas Bakti boarding schools.

“Simply put, it appears the magistrates are not aware of, and not even provided with a list of options besides Kajang Prison, so they follow whatever is convenient.”

Sithambaram believes that there is a need for a revamp of the whole system. Special courts for children need to be set up that are different and separate from the normal courts, with dedicated magistrates assigned solely to take care of cases involving children, and not just deal with the problems when they crop up.

“This concerns the rights of children. One should take serious notice because if you do not, the people will lose respect for the Rule of Law. In that context, children are a major issue. The Child Act has to be enforced in spirit and not just in letter,” he adds.

Fortunately, the outlook is not all doom and gloom, and Nayagam speaks of a task force – of which he is a member – set up in March this year, the brainchild of Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil.

The task force is headed by Datuk Shamsiah Abdul Rahman, with its members consisting of personnel from the Attorney-General's department, the Judiciary, the Police, the Social Welfare Department and the Legal Aid department.

“Our main task is to advise the minister on the well-being of children in detention and to present a fast track for court hearings. We have come up with a proposed flow chart on how to deal with such cases,” Nayagam says.

Among the issues proposed are to have parents and a social welfare officer – as a protector – present at the time of the police report, and a maximum detention period of one month or less if possible.

“Not only are we looking to reduce the number of cases, but also rehabilitation programmes at centres with proper facilities. We also need proper detention centres – it should be more like a hostel managed with the co-operation of the Prisons Department, and upon release, there should be a follow-up to the well-being of the child. We should no longer need the services of a prison.”

Nayagam adds: “I am very encouraged by the participation of the members and would like to thank them for speaking freely and being committed to dealing with the situation.”

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Something is very wrong with us

The Star Online. Opinion. Wednesday August 15, 2007

The 2,718 male children aged 14-20 being remanded in prisons to abuse of toddlers, some resulting in death, by young parents, are indeed worrying to say the least. Yet little seems to be done to reduce or to prevent this from happening altogether.

YOUNG people are in the news again, with the recent furore about them being remanded in prison. Although it may be too late for many of them, hopefully the concern expressed by NGOs, the public and the Government will mean that no more children and young ones will be subject to prison for the smallest of offences.

However, we have to wonder why there are already 2,718 male children aged 14-20 in prisons before someone finally made a fuss. Surely it was already an injustice for the very first child to have been held in prison. Why had nobody raised the issue earlier? Surely even prison wardens must have known this was not right.

Some of these children were arrested for not having their identity cards on them. As much as this is an offence under the law, surely it should not lead to prison especially for children. Do we follow the law in automatic fashion leaving no room for humanitarian considerations?

Having now realised that there are all these children in prisons, in what way will we compensate for their loss of childhood? Prison is hardly the most conducive place for children.

Who knows what sorts of things are now wired into the minds of these unfortunate young people setting the course for their futures.

Teenage years are a particularly sensitive time and not handling them correctly can lead to later misbehaviour. How do we prevent that from happening? Or do we simply blame them later without considering our own complicity?

It seems to be a particularly Malaysian thing to not spend much effort on prevention when often it is much easier to do than to sweep up the after-effects of lack of forethought later.

Our refusal to teach young people proper sex education means that unwed pregnancies are not prevented. Even if young people get married because there is a baby on the way, what do we do to prepare them for the many responsibilities of marriage including the stresses and strains that one can expect?

If there is one thing that seems to be common among the recent cases of child abuse is how young the parents are, barely out of childhood themselves. In the recent death of a 17-month-old toddler, the mother was 18 and the father was 22. The child was the elder of their two children.

In Penang, a 22-year-old man pleaded guilty to physically and emotionally abusing his girlfriend’s two-year-old daughter. Another 25-year-old man in Kota Kinabalu was accused of abusing his lover’s four-year-old son.

Perhaps when a baby ceases to be cute and becomes ever-more demanding, young parents become less patient. Perhaps they are no longer with their child’s other biological parent and feel less secure with their new boyfriend or girlfriend.

Nothing could be less attractive than a wailing child. Perhaps one day it just got too much.

We should realise that sometimes prevention has to start several steps before the very dangers we want to prevent. If we had good sex education in schools which talks about risks and responsibilities, we might avoid teenage pregnancies altogether.

If we counselled couples that did get pregnant and had to get married, we might be able to teach them better ways of handling conflict. As it is, many premarital courses are just another step on the way towards getting that marriage certificate.

As the Mufti of Perlis has pointed out, for all the premarital courses we’ve had, the divorce rates (among Muslims) hasn’t reduced. Perhaps if we taught young people parenting and relationship skills, and told them where they can get help, their young children may not become vulnerable to abuse.

Of course, it’s not just young parents who are the ones who abuse children but it does seem to be a common thread in recent cases that have not been remarked on.

Ultimately what will happen to these cases? The abusers will probably wind up in jail, which leaves the question of what will happen to their children.

Are they likely to abuse children who are not theirs, that they should be put away from society?

Or do we serve society better if we rehabilitate these parents, perhaps help to solve the problems that may have put unbearable pressures on them. That may include having to deal with adult abuse as well.

In order to really deal with the many social issues that we have, we need to approach things from a holistic perspective, with the understanding that they rarely occur in isolation. Factors in the environment create the dangerous scenario and then something triggers it off. We need to ascertain what those are.

Otherwise we’ll continue to shake our heads at more child tragedies.

By MARINA MAHATHIR