In a statement, the office of Suhakam’s children’s commissioner said the retention of indefinite detention for offences committed by children remains a matter of grave concern.
“We call on the government to urgently reform Section 97 of the Child Act by abolishing detention at the pleasure (of the ruler) for children found guilty of offences punishable by the death penalty.
“We urge the government to replace it with a sentencing and review framework that is determinate, transparent, reviewable, and fully consistent with constitutional guarantees and Malaysia’s obligations under the United Nation Committee on the Rights of the Child,” it said.
On Monday, the Federal Court dismissed the prisoners’ applications for review after finding that their cases did not meet the threshold of being “special and exceptional”.
Justice Collin Lawrence Sequerah, delivering the unanimous verdict of a five-member bench chaired by Chief Justice Wan Ahmad Farid Wan Salleh, said the applicants could still seek a commutation of their sentences via the pardon process.
The prisoners argued that their continued detention under Section 97(2) of the Child Act 2001 violated their rights to life and equal treatment by the law – Articles 5(1) and 8 of the Federal Constitution – due to the abolition of mandatory death sentences and natural life imprisonment.
However, Sequerah said their continued detention under the Act did not violate Article 5 of the Federal Constitution. He also said Article 8 was not breached as the Act applied to a special class of persons, namely children below the age of 18.
The judge also pointed out that the applicants, who are now adults, could still seek clemency. A review mechanism is also provided in Regulations 53 and 113 of the Prison Regulations 2000 and Section 97(4) of the Child Act.
Flaws in the existing mechanism
The office of Suhakam’s children’s commissioner said that Section 97(4) of the Child Act provides for a mandatory annual review by the Board of Visiting Justices, with potential recommendations for release.
“However, the mechanism does not provide sufficient transparency, consistency, or accountability.
“In the absence of clear statutory criteria, regularised disclosure, and judicially cognisable safeguards, the review process may operate inconsistently and may fail to provide an effective, rights-based pathway towards early release and reintegration,” it said.
It also said that anecdotal evidence from past detainees indicated that the period of detention could be exceedingly long, ranging from 15 to over 25 years, with some offenders – now over 40 years old – still in prison.
“Such a predicament underscores the human rights consequences of a sentencing framework that allows childhood offending to result in incarceration extending far into mature adulthood, without a determinate sentence imposed by the court at the outset,” it added.
It said such an outcome was fundamentally at odds with the philosophy of child justice, which must be directed towards rehabilitation and social reintegration rather than open-ended punitive incapacitation.