WE all agree that a child is not an adult but sometimes we forget this when we mete out punishment. We often treat the child as an adult by sending the former to prison. Obviously, prison does not a school make.
Malaysian law, like the English law it has inherited, treats a child below the age of 10 as not capable of committing a crime. Lawyers, learned in Latin, say they are doli incapax, and this presumption cannot be rebutted. In the language of Section 82 of the Penal Code: nothing is an offence which is done by a child under 10.
As for the child who is between 10 and 12, it depends on whether he has “attained sufficient maturity of understanding” (Section 83). The Child Act 2001, however, allows only a child of 14 years and above to be imprisoned. But, are we protecting the interest of someone so young if we send him to prison? We do not think so.
The US Supreme Court in J.D.B. v. North Carolina put it well. Children should not be viewed as miniature adults. We unreservedly agree. Being just to juveniles means we have to look elsewhere for a solution.
Scientists and psychologists have marshalled reams of evidence indicating that adolescents are less capable of making rational decisions because they tend to give in to peer pressure easily.
Young children who exhibit anti-social behaviour often come from broken homes. Lack of love at home drives them to cluster with young adults who have not known love growing up. They live an invented life, often under the influence of drugs.
The religious school fire, which claimed 23 lives, was allegedly started by young adults from such broken homes. Broken hearts require mending, not punishment. Besides, punishment seems to have the exact opposite effect of what is intended.
Studies show that criminalising juveniles begets crimes. In other words, juveniles who are punished turn out to become repeat offenders. Instead, they must be shown love that has been absent for so long. And, they must be taught how to love again. Rehabilitation does this, and very well, too.
Rehabilitation gives a troubled soul a second chance. The Henry Gurney School is exemplary in this regard. We have the word of Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi on this, who said of the school thus: “Most who come out of these places have negligible recidivism rate.”
Rehabilitation, as opposed to punishment, can take many forms. Henry Gurney may not necessarily be the only answer. Some have suggested “diversion”, and by that they mean the juveniles are taken away from the environment of institutions such as courts and counselled back to mainstream living, if you will. This is sensible, but it must form a part of the step-up rehabilitation process, the first being diversion.
While we focus on the juveniles, we must not forget the parents who are charged with bringing up a well-disciplined child in the first place. Some parents, it seems, need to be taught how to love.