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Interrogation of Children

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By Aazina Mujahid Lee

Photo by Toronto History

Photo by Toronto History

The recent statement by the Inspector-General of Police, Tan Sri Khalid Abu Bakar that police do not need parents’ consent to question their children has brewed up a storm amongst the public and created fear in the eyes of parents.  This statement came after the incident where six pupils of SK Seri Pristana were interviewed by the Sungai Buloh Police. The Police claimed to have been given permission by the school headmaster to speak to the pupils. However, the parents were not informed by the police prior to the interview session, and have reported their children being traumatised after the incident.

Most of the feedback and outcry towards this statement by the public and even by the legal fraternity was the denial of such a right given to the police. How can it be possible that the police are allowed to interrogate or question mere children without the parents being present or without parental consent?

The sad reality is, IT IS VERY POSSIBLE. Contrary to popular belief, the police do NOT need consent from parents to question their children. Appalling as it may sound, the police can in all their powers, bring a child in for questioning, without informing the parents, and without the parents even being present while the child is being questioned/interrogated.

This is where the public will then question, where is the law protecting our children? What about children’s rights?

Malaysia enacted the Child Act 2001 which consolidated the Juvenile Courts Act 1947, the Women and Young Girls Protection Act 1973 and the Child Protection Act 1991. The Child Act 2001 was meant to give protection to the children and to fulfil Malaysia’s obligations under the United Nations Convention on the Rights of the Child (UNCRC).

Article 3 of the UNCRC states that the best interests of the individual child should be a primary consideration in all decisions and actions that affect the child (rather than the convenience or best interest of the adults). Unfortunately, the Child Act is silent on the child’s rights to having the presence of the parents or guardians during questioning or interrogation.

It is true that Section 88 of the Child’s Act 2001 requires the child’s parents or guardian to attend at the Court for Children before which the case is heard or determined during all the stages of the proceedings, if the child is charged with an offence. This only goes to show how the act wishes to protect the child. But yet the Child Act is completely silent as to what happens or transpires before the child goes to court or before the arrest.

The only relevant section in the Child’s Act is Section 83(1) of the Child’s Act 2001, which relates only to arrest, being detained or being tried in court.  It is in fact completely silent as to the period of time (24 hours) in which police have the powers to investigate even without an order for remand from the Court.

In fact, the Act does not even provide the maximum length a child can be remanded.

Section 84(2) of the Child Act states:-

“If it is not possible to bring a child before a Court for Children within the time specified in subsection (1), the child shall be brought before a Magistrate who may direct that the child be remanded in a place of detention until such time as the child can be brought before the Court for Children.”

This allows the court to make a remand order without prescribing the maximum length of remand. Now, this constitutes a worry. Does that mean that if a Court for Children is not convened for months, that the child be remanded for long periods of time pending being brought before a Magistrate?

Justice Abdul Aziz, in delivering the judgment of the Court of Appeal in PP v N (A Child) [2004] 2 MLJ 299 at para 23 and 24 at page 305 stated that:

“We have said that the wording and operation of s 84(2) are such that it does not require a direction of remand made under it to specify the period of remand. The judge, observing that the section, unlike s 117, does not prescribe the period of remand and obviously thinking that a direction of remand under s 84(2) has to specify the period of remand, said that s 54(2) of the Interpretation Acts 1948 and 1967 governs the determination of the period. Subsection (2) says’: Where no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion arises.

The provision is applicable in a situation where one is required to do something but the time within which it has to be done is not prescribed. It answers the question how much time is allowed to one within which to accomplish the thing that is to be done. And the answer is that the thing to be done must be accomplished ‘with all convenient speed’. It is not an appropriate provision to assist a detaining authority to decide for how long he may order a person to be detained, because the answer furnished by the provision, that he may detain the person or that the person may be detained ‘with all convenient speed’, is simply not a logical answer and will not assist him. It might be an appropriate answer to the question — which he does not and need not ask — how much time he is allowed within which to make the detention order, but it certainly does not answer the question for how long he may order the person to be detained.”

Therefore, without a stipulated time period, we can only rely on section 54(2) of the Interpretation Acts 1948 and 1967 which only states “with all convenient speed”. Who is to determine this “convenient speed”? The child? The police? Or the courts? With no concrete answer, it is terrifying isn’t it?

However, this relates to arrest. We are now discussing the children who were called in for questioning and not arrested. Since the Child Act is silent, thus, the police have fallen back to their powers under the Criminal Procedure Code (CPC). And therefore, the police now treat the child as if he/she was an adult.

In fact, the Court of Appeal in PP v N (A Child) [2004] 2 MLJ 299 held that detention of a child for the purposes of remand is governed by S.117 CPC and in essence, the Court of Appeal ruled that the remand of a child is akin to that of an adult.

However, that case may be distinguished from the present situation. That was a case in which the Court of Appeal was faced with the argument of remand concerning a child. The present situation concerns police questioning without any arrests made. In other words, the police were questioning the pupils and not placing them under arrest. This also means that the pupils were not suspected of having committed a crime.

Now, when the police are investigating a case, they may request any person to come down to the police station to give a statement, or what is commonly referred to as an s.112 (CPC) statement. This is usually by an informal request and one may actually refuse to oblige. However, the police can then issue a formal order in writing from a police officer of a certain rank (s.111(1) CPC), and in the case of persistent refusal, they may obtain a warrant from the court requiring the person to attend before the police (s.111(2) CPC).

The law provides that an adult has the right to legal representation, but that is commonly referred to upon arrest. Where a person is not arrested and is only required to come in for the purposes of questioning, could it be said that there is a right to legal representation? In any event, it is a norm that everyone has the right to remain silent and need not answer questions beyond identifying themselves and showing proof of identity.

As the police do not have any legal powers to compel a person to answer questions by threat or violence the most reasonable solution would be to educate our children of this inherent right to remain silent. They should be trained to insist for their parents to be informed and that they would only cooperate upon consulting with their parents.

Finally, having discussed the matter at length, it really does not matter WHAT the police can do. Rather, it is what they DID which matters. It was within their means to exercise compassion and allow the parents to be present with the child. In fact, having due regard to the tender age and fragile state of a child’s mind where they can be easily traumatised, logic and common sense would have prescribed that. But the police had clearly chosen to neglect this, whether deliberately or in ignorance. This is both sad and regrettable.

It is hoped that Parliament would see it fit to address the lacuna pointed out above and legislate the rights of the Child when questioned, interviewed or interrogated by the police and to require the parents to be present during such proceedings. In the interim, it is highly desirable for the authorities to apply logic and common sense when dealing with children.

 

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