Academic journal article Asian Social Science

The Rehabilitation Theory in Adjudicating Child Offenders and Its Application in Malaysia

Academic journal article Asian Social Science

The Rehabilitation Theory in Adjudicating Child Offenders and Its Application in Malaysia

Article excerpt

Abstract

Children who find themselves on the wrong side of the law must bear the legal consequences to ensure that they obey societal norms. The question is: what theory forms the legal basis for legal action against these troubled young offenders? Will the courts apply the deterrence theory by sentencing them to harsher punishments, or will they apply the rehabilitation theory by passing lighter orders? The objective of this article is to debate one of the theories applied by the Court for Children in their adjudicating process-the rehabilitation theory, and its application. This article will also discuss two legal provisions in the Child Act 2001 Malaysia (Act 611) which are based on the rehabilitation theory. This study finds that the rehabilitation theory is the best and most suitable theory to be applied to child offenders because it focuses on individual rehabilitation by taking into consideration the aspects of education, societal integration and rehabilitating them of their criminal mentality. The two aforementioned provisions, namely, on 'approved school' and 'community services', are orders founded on the rehabilitation theory and can potentially prevent child offenders from involving themselves in criminal activities in the future. The importance of this study is paramount as it shows that Malaysia is clearly behind in assimilating rehabilitative values and theory into Act 611. Ultimately, the placement of specific legislative provisions regarding community service within Act 611 is an initiative that must be expedited.

Keywords: rehabilitation theory, child offenders, Malaysian law

1. Introduction

The history of the juvenile criminal justice system for child offenders the world over is rife with conflict between efforts to uphold justice by meting out harsh punishments to children and prioritizing the best interest of the child by passing lighter orders. The harsher orders are products of the deterrence theory, while the lighter orders find their basis in the rehabilitation theory. At the centre of the conflict lies the question of whose interests need to be protected in the event of a crime committed by a child offender; the child who has in conflict with the law or society in general that has been and is at risk of being victimized? This conflict becomes visible when a given country experiences a phase involving its juvenile criminal justice system consistently changing back and forth from the deterrence theory to the rehabilitation theory. This situation, not unlike a swinging pendulum, infers that until the 'swinging' stops, the rehabilitation theory cannot be fully incorporated into the juvenile criminal justice system of any state, Malaysia included.

The return to the rehabilitation theory is necessitated simply by acknowledgment of it being the first and founding theory that formed the basis of this system at one point in time. In one of America's leading cases, Kent v United States, 383 U.S. 541 (1966), the court was of the opinion that children tried in courts for children today have been denied two of their basic rights; their constitutional rights and their right to receive rehabilitation as promised to them by the founding philosophy behind the formation of courts for children (Flowers, 1986). Therefore, this means that the pendulum must swing back to the rehabilitation theory, especially since that was its point of origin when the system was first constructed in modern civilization. This is to fulfil the need for application of the rehabilitation theory in handling the issue of the rise in crimes committed by child offenders in countries across the world, including Malaysia. It thus follows that this article will discuss the application of the rehabilitation theory in several legal provisions regarding child offenders in the Child Act 2001 (Act 611).

2. The Application of the Rehabilitation Theory in Sentencing Children

The rehabilitation theory is one that focuses on personal change in the offender so that they discontinue their criminal activities once and for all upon their return to society (Sherman, 2002) and enable them to have a more constructive role (Elrod & Ryder, 2005) via receipt of psychiatric therapy, counselling, vocational training, better education, drug-rehabilitation programs and any other techniques based on scientific methods that can reduce recidivism (Cragg, 1992). …

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