Children in conflict with the law : is there a basis for a rights-based argument for diversion in Malaysia?

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.