Children in conflict with the law: Is there a basis for a rights-based argument for diversion in Malaysia? Paul Linus Andrews Law School Lancaster University June 2018 DECLARATION This thesis is submitted to fulfil the requirements of the degree of Doctor of Philosophy. It is my own work and no part of it has been submitted in substantially the same form for the award of a higher degree elsewhere. Elements of Chapter 1 have been published in Andrews, P.L. (2018). The Malaysian Legal System in Trakic, A. et al Law for Business. Kuala Lumpur: Sweet and Maxwell Asia. Signed: Paul Linus Andrews Date: June 2018 i ACKNOWLEDGEMENTS This work could not have come to completion had it not been for the unwavering support, professional guidance, and scholarly engagement of my supervisors Dr Ian Paylor and Dr Luca Follis, Lancaster University. Thank you for making this journey less mythical than what others ordinarily endure. I am deeply indebted to Sunway University, Malaysia and Lancaster University for institutional scholarships that facilitated this study. I am profoundly grateful to my friends and colleagues at the Centre for Commercial Law and Justice, Sunway University for their support, encouragement and patience during my periods of residency in Lancaster. I would also like to thank the various individuals who shared their time to talk to me. To the boys in the Henry Gurney School, Puncak Borneo, Sarawak; I am humbled by your honesty and willingness to share your stories with me. I owe much gratitude to my family and loved ones who provided personal support and inspiration when it mattered most especially my mum, Mrs. Mary Andrews, my sister Elizabeth and my in-laws, Mr and Mrs C.S George and Alice. I would like to thank my wife Mary, for her love, encouragement and patience throughout this entire endeavour. Thank you for always believing. All glory and honour unto Almighty God for His enduring grace and mercy. This thesis is dedicated to the memory of my father, P.G. Andrews. ii ABSTRACT Critical discourse in juvenile justice particularly where a child is in conflict with the law is only just beginning to find its voice in Malaysia. This is in part due to the interwoven elements of politics, penal policies and socio-cultural norms. Hence, although Malaysia has taken steps to comply with aspects of the Convention on the Rights of the Child (CRC), there are gaps in the expectations of the CRC and the actual working of the criminal justice system as far as the child in conflict with the law is concerned. This is not surprising considering the fact that while there are general expressions of the CRC, State parties have a level of discretion to decide on the exact nature and content of the measures for dealing with children in conflict with the law. Further given Malaysia’s reservations to a number of the CRC Articles and given the punitive culture existent, the issue of a child rights-based approach to diversion that sets out to realise all children’s rights relevant to diversion (as set out in the CRC and other instruments) merits analysis. Thus, this research involves a qualitative analysis of the state of the law and policies governing children in conflict with the law with a particular focus on the rights of the child as far as diversion within the juvenile justice framework in Malaysia is concerned. This research involves an empirical analysis of a range of international conventions, standards, treaties, rules and decided cases and contextualising these with conversations with principal stakeholders and boys in the Henry Gurney School, which, taken together, seeks to establish whether there is a basis for a rights-based argument for diversion in Malaysia. iii LIST OF ABBREVIATIONS ALR Australian Law Review CLJ Current Law Journal CRC Convention on the Rights of the Child DPP Deputy Public Prosecutor EWHC High Court of England and Wales FMS Federated Malay States HMP Her Majesty’s Prisons ILKAP Judicial and Legal Training Institute LR Law Reports MLJ Malayan Law Journal NGO Non-governmental organisations NHS National Health Service PC Privy Council PEMANDU Performance Management & Delivery Unit, Malaysia PP Public Prosecutor SUHAKAM Human Rights Commission, Malaysia UKHL United Kingdom House of Lords UN United Nations UNAFEI United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders UNDP United Nations Development Programme UNICEF United Nations International Children’s Fund UNODC United Nations Office on Drugs and Crime WLR Weekly Law Reports iv LIST OF TABLES AND FIGURES Tables Table 1: Cases brought to the Court for Children 2011-2015 31 Table 2: Statutory provisions and definitions used 36 Table 3: Imprisonment rates, Malaysia, Singapore and Thailand 71 Table 4: Purposeful sampling of participants 138 Table 5: Summary of stakeholders interviewed 140 Table 6: Boys interviewed at the Henry Gurney School 141 Table 7: Classification of children in the Integrity School System 203 Figures Figure 1: The Malaysian Juvenile Justice System 33 Figure 2: Number of children arrested for a criminal offence by age (2003-2008) 44 Figure 3: Legal research styles 120 Figure 4: Matrix of interviewees 139 Figure 5: A map of Malaysia indicating the geographical locations of Kuala Lumpur and Kuching 150 Figure 6: Entrance to the Puncak Borneo Prison, Kuching, Sarawak 150 Figure 7: Themes and sub-themes 172 v Figure 8: Four teenagers (two aged 16 and 17 respectively) charged with murder being taken to the Magistrates Court in Penang 189 Figure 9: The waiting room for child witnesses at the special court 198 Figure 10: Inside the Magistrates Court, Petaling Jaya where Gus serves as a Court Adviser 199 Figure 11: Current structure of post-trial detention of children in conflict with the law 200 Figure 12: A word cloud representation of interview transcripts 236 vi CONTENTS Declaration i. Acknowledgements ii. Abstract iii. List of abbreviations iv. List of tables and figures v. Chapter 1: Introduction 1. Introduction 12 2. Fundamental research questions 14 3. The context of this study and the approach taken 14 4. A review of relevant prior research 15 5. Reflections 19 Chapter 2: The Malaysian context of juvenile justice 1. Introduction 22 2. A brief overview of the Malaysian legal system 22 3. The development of legislation concerning juveniles 25 4. Ratification of the Convention on the Rights of the Child 26 5. The Child Act 2001 29 6. The Malaysian Juvenile Justice System 30 6.1 Definition of ‘child’ and ‘children in conflict’ 36 6.2 The age of criminal responsibility in Malaysia 38 6.3 Official statistics 41 6.4 Sentencing policies 45 7 7. The move towards reform 50 8. The current legislative regime 52 9. Reflections 54 Chapter 3: The underlying norms in Malaysia 1. Introduction 56 2. The context of culture 58 3. Penal policies and the culture of politics 62 3.1 Judicial attitudes and the child in conflict with the law 67 3.2 Incarceration in Malaysia 71 3.3 Corporal punishment 76 4. Measuring punitiveness 79 5. The definition of ‘child’ in Malaysia 82 6. Evolving capacities and arbitrary lower age based restrictions 83 7. Islam and criminal responsibility 87 8. The concept of rights 91 9. A child rights-based approach? 96 10. The Malaysian position on rights 98 11. The Convention and the notion of rights in Malaysia 100 12. Islam and child rights in Malaysia 106 13. Diversion in the youth justice system 108 14. Reflections 115 Chapter 4: Research Design 1. Introduction 117 2. Understanding legal research 118 3. Socio-legal research 122 4. The qualitative approach in this study 124 5. Research design 127 6. Collection of data 129 6.1 Documents as a resource for research 130 8 6.2 Interviews 133 6.3 Interviewing children 142 6.4 Credibility and validity 144 7. Ethical considerations 145 8. The Henry Gurney School, Puncak Borneo, Sarawak experience 149 8.1 Gaining access 151 8.2 Informed consent, confidentiality and anonymity 156 8.3 Conversations with the boys in the Henry Gurney School 159 9. Analysis of data 165 10. Reflections 167 Chapter 5: Conversations -Themes and Patterns 1. Introduction 170 2. Penal policies and cultural embeddedness 172 2.1 Corporal punishment 173 2.2 Prison culture 176 2.3 The age of criminal responsibility 179 3. Children on remand, in custody and in courts 181 3.1 The Police and children 181 3.2 Children in court 188 4. Detention and incarceration 200 4.1 The impact of detention and incarceration 201 4.2 Cognitive, emotional and psychological assessments 209 4.3 Detention as a last resort? 213 5. Views on child rights in Malaysia 216 5.1 Awareness of child rights 216 5.2 Advocating child rights: Cultural norms versus Western hegemony 220 9 6. Diversion 226 6.1 Development and implementation 227 6.2 Challenges in implementation 232 7. Reflections 235 Chapter 6: Conclusion 1. Introduction 238 2. Translating treaty obligations into effective action in Malaysia 239 3. The culture of childhood in Malaysia 242 4. Cultural relativism versus universalism and the rights discourse in Malaysia 247 5. Implementing diversion in Malaysia 254 6. Whither the rights-based argument for diversion in Malaysia? 259 7. Conclusion 263 8. Postscript 267 Bibliography 269 Appendices 328 10 Chapter 1 Introduction ‘Ralph wept for the end of innocence, the darkness of man’s heart, and the fall through the air of the true, wise friend called Piggy.’ Golding (1954:216) 11 1. Introduction On May 30, 2002, in Kuala Lumpur, Malaysia, a boy stabbed a girl twenty times with a sharp object, after being taunted by the victim, who repeatedly called him “fatty.” The boy was aged 12 and the victim, Mei Fong, was aged 11.