An urgent review is need of the criminal procedures contained in the Child Act 2001, a seminar on the consolidating legislation governing the juvenile justice system was told Friday.

A major provision that needs a re-look is a missing right - the right to remain silent, accorded to an accused under prevailing criminal laws.

The lines to be drawn by the media in reporting on children, the duration for remand and discretion for continued detention, and bail procedures have also been proposed for reviews.

"We want the law revision division in the Prime Minister's Department to set up a committee to oversee the amendments to the CA," said Bar Council criminal law committee member Baljit Singh Sidhu.

For example, he said, the CA has omitted the right to remain silent which he believes would have serious implications.

Section 90(9) only allows a child to give sworn evidence or make any statement in his or her defence.

As the law stands, he said, anyone tried under the Criminal Procedure Code (CPC) could either give sworn evidence from the witness stand, testify without taking an oath or remain silent.

"The option to remain silent is not stated in the CA, making it discriminatory to a certain extent against the child," he told about 30 participants at the seminar organised by the committee in Kuala Lumpur.

"This right should be clearly stipulated in the CA. In fact, the right to remain silent has now been expressly included in the CPC amendments expected to be tabled in Parliament next year," he said.

He added that although the CA could confer the right to a child by referring to Section 5 of the CPC, it was still an arguable point.

Baljit has also written an overview of the CA which came into force almost a year-and-a-half after being published in the Government Gazette in March 2001. The bill took three years to be tabled in Parliament.

Other speakers were Welfare Department legal/advocacy assistant director Teoh Kim Lian, Attorney-General's Chambers sexual and general crimes unit head Kamaruzaman Ab Jalil, police Criminal Investigations Department legal and prosecution division officer Jude Pereira, Prisons Department security division legal officer M Subramaniam and lawyer Yasmeen Mohd Shariff.

Balancing act

On the CA's restrictions in Section 15 governing media reporting, Baljit, who chaired the seminar, said it was more of a balancing act between the interest of a child and resolving a problem through media exposure.

Section 15(1) specifically prohibits the revelation of details that could reveal the child's identity, including name, address and school regardless of whether the child is an accused or a witness.

The media also cannot publish any photograph of a child or related persons for the same reasons.

"This is in keeping with the strict principles of secrecy in the child's interest," he said.

"Only the Court for Children can order otherwise where it is satisfied that publishing the details would be in the interest of justice," he added.

Baljit said the Social Welfare Department can also apply for certain details to be published if it is absolutely necessary to do so.

"Although a strict interpretation would hamper the media's efforts to assist in finding a missing child or the relatives of an abandoned one, what does the media do when an abandoned child is too young to know the parents' names or their whereabouts?" he asked.

He cited the case of a Singaporean toddler found stranded near the Johor police headquarters in August 2002 with his birth certificate and RM2,000 in cash.

Major newspapers immediately published details of the three-year-old boy including his name and photographs, and his parents' names with damaging reports on their criminal background.

Court order

"The media clearly contravened the CA. The relevant agencies should have tried to protect the child from being stigmatised by his parents' background which could affect the child and his future.

"While the welfare department should have obtained a court permission for publishing the photographs, the media should have checked with the welfare department before splashing the boy's photos all over their front pages," he said.

Baljit said a social worker or political party that decides to announce through a press conference a case of child abuse, for example, would need to obtain a court order under Section 15.

"Besides considering the child's interest, the court can also determine the details that are suitable for publication," he said, adding that a police officer can only reveal facts minus identification details.

"Publication need not be full disclosure but maybe in part or by blurring the photographs," he added.

Exorbitant bail

He also raised the issue of prosecuting officers who request for a high bail sum, which is often granted by magistrates who are "still very much a child themselves".

"Many magistrates are in their mid-20s and barely out of university. Experienced magistrates would generally do a better job, especially in matters involving children."

Baljit said another area for review would be to introduce conditional bail for offences carrying the death penalty, similar to an adult where exceptions are made if the accused is sickly, suffers from heart disease or has diabetes.

Another important area for review is the remand period of detention governed by Section 84.

"It is open-ended and dangerous as the CA does not specify the time-frame. At the moment, there is only a case study which gives the court the liberty to decide based on the facts. The court can also extend the detention period if it deems it fit," he explained.

"In light of the maximum 15 days remand period stated in the CPC, this case ruling may be too wide and lack any statutory basis. This is why we need an urgent review of the CA," he said.

One plus point in the CA, he noted, is the clarity given to the term 'grave crime' which meant very serious and dangerous to life in such offences involving loss of life, firearms, security threats, drugs abuse and kidnapping.