Parents or guardians must be informed before a child is questioned by the police as the child does not have the capacity to make decisions in a legal context, lawyers said today.

Although the Child Act 2001 is silent on this matter, they said the child is still protected under the Criminal Procedure Code (CPC), which allows individuals the choice to abstain from answering police questions.

NONE “If a child is required to give a statement under Section 112 of the CPC, the child has a right and the police are obliged explain to the child until they are satisfied that the child understands (his or her rights),” Bar Council president Christopher Leong ( right ) said.

“In practical terms, parents must be present, for otherwise the police cannot be sure that the children understand they can choose not to answer a question.”

This is especially so in the case of young children, who may also not be able to discern if a question could incriminate them, Leong explained.

He said that, in the case of SK Seri Pristana, where parents have claimed that the pupils were questioned by police without their knowledge, the teacher or principal should have called the parents as “it was not a matter of emergency”.

Okay if to legal advisor not breached

NONE Lawyer Syahredzan Johan ( left ), who has dealt with criminal cases involving children, said the spirit of the Child Act is to protect the child.

As such parents or guardians must be informed, even if the principal or a teacher is present.

“The Act also indicates that the person to inform upon an arrest is the parent or guardian. So, in this case, the headmaster is not enough to ensure the welfare of the child,” Syahredzan said.

Senior criminal lawyer V Sithambaram said parents are usually informed by convention, even though it is not explicitly stated in investigation rules.

“A child can be threatened to say things, and may believe what he or she is told, especially if the person telling him or her claims to be a police (officer),” Sithambaram said.

However, lawyer Shamsul Sulaiman said that consent is not required when it comes to minors, as the CPC does not differentiate them from adults.

He said that Section 112 of the CPC states that police can ask someone questions without the person's consent if he is an adult.

"It would seems that even if a guardian were to be asked there is no question of the guardian withholding consent. So, it should follow that no consent needs to be asked for," he said.

He added that the CPC says the child, like any other person, has the right to a legal advisor, and if this right is not breached, his or her age is irrelevant.

Shamsul also said that Section 113 of the Child Act 2001 also gives "wider powers" to prosecutors and police officers to compel the production of children for investigations.

A group of parents whose children attend SK Seri Pristana have claimed that their children have been traumatised from the questioning police, which they said took place on the school grounds, without their knowledge.

They also claimed that an unidentified man photographed their children, accompanied by the school headmaster.

Leong said that while it is true there is no law barring the photographing of children without parental consent, the school is “ethics bound” to inform parents that this is happening.

“It depends on what the picture is used for. For example, is it for a yearbook? The (school head) can only permit photographs to be taken of students for school purposes,” he added.

“He is overstepping his authority if he allows the children to be photographed by anyone for any other purpose.”

Education Ministry ‘should step in’

Sithambaram also urged the Education Ministry to look into the matter, which has dragged on for a month, following the expose that the children were made to eat in a shower room during their recess.

NONE “The (shower room) incident happened, and now we hear of other things happening without the consent of the parents. Then someone is to be charged with criminal intimidation. What is a reasonable person to conclude?” he asked.

The headmaster has previously explained that the room was converted into a mini-canteen, as the school canteen is too small. He said non-Muslims ate there during Ramadan last month as the canteen was then under renovation.

On Monday, a parent of a pupil was arrested for allegedly issuing a death threat against the headmaster and is expected to be charged with criminal intimidation next month.

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