The Federal Court was unmoved by a lawyer's submission that his teenage client was a 'child' when detained for alleged assault, robbery and abduction and was therefore entitled to protection under the Child Act 2001.

Yesterday, a three-member bench comprising Justices Pajan Singh Gill, Alauddin Mohd Sheriff and S Augustine Paul upheld the internal security ministry's appeal against the Johor Bahru High Court decision to grant a habeas corpus application last September.

( Habeas corpus is a writ ordering detainees to be brought before a judge to ascertain if there are any procedural defects which could render their detention unlawful.)

The teenager, then 17 (now 19), had been taken into police custody on Dec 3, 2003 and was ordered to be held at a detention centre for two years under section 4 of the Emergency Ordinance (EO) 1969.

He was released after the high court decision, but will now have to go back to the detention centre to serve out the rest of the duration.

Met in Kuala Lumpur yesterday, his lawyer RR Mahendran expressed shock over the Federal Court decision, saying this implies the government can bypass its obligations under the Child Act and United Nations Convention on the Rights of the Child (CRC) 1989.

"The Federal Court did not allow us to canvas and ventilate the rights of minors that are entrenched in the CRC. Malaysia is legally bound (to adhere to the CRC) by way of accession on March 19, 1995," he said.

'Respect provisions'

Mahendran pointed out that the government should respect and enforce provisions that bar the preventive detention of children, as stated in section 42(b) of the CRC.

The Child Act states that, if a child is alleged to have committed a crime, a social welfare report on the background of the child must be provided.

"This is to show why the child allegedly acted beyond control or was in bad company. It is not required under the EO, which only requires a police report to be lodged," Mahendran said.

He also said the Act provides for those below 21 to be placed in vocational centres, probation hostels and places deemed safe for children, if found guilty by a court.

"International and local laws demand that the best interests of the child be taken into account. (Yesterday's) decision does not reflect that," Mahendran said.

"Why did Malaysia accede to the CRC? This is a black day for justice for children."

The CRC also states that certain rights of the child may be temporarily suspended, but only during a period of emergency.