REHABILITATION FUNCTION OF CORRECTIONS
Dato' Dr Mimi Kamariah
Majid
Professor of Law
Faculty of Law
University of Malaya
Kuala Lumpur
MALAYSIA
2.10.2000
Problems circumventing the incarceration
of offenders are well-known. Large prison populations with their
attendant difficulties, especially with an upsurge of AIDs amongst
inmates and the smuggling of drugs, pose problems and challenges
to prison administrators the world over. Then, again, the so-called
rehabilitated prison leavers face stigma, ostracism, suspicion,
isolation which would spur them to return to the much 'safer'
and 'comfortable' environment of the prison.
Incarceration in whatever form is undesirable. It is for this
reason that alternatives have been introduced in one way or another.
Some take the form of lesser punishments in the graduated scale
where imprisonment forms the most severe form, other than death.
Others are clear alternatives to imprisonment because but for
them, the offender would be imprisoned.
In Malaysia, there are statutes which provide for the first form
of alternatives and there are other statutes which provide for
the second form. There are also statutes which enable offenders
to be processed or diverted away from the criminal justice process,
if they meet all the necessary conditions. This paper examines
those statutes.
A. The Criminal Procedure Code (CPC)
The CPC has some provisions which encourage cases to be disposed
of without the need for persons to be sent to prisons. The usual
punishment of a fine is one such example; however, a default
to pay a fine would lead to imprisonment and therefore incarceration.
(a) Good Behaviour Bonds
Section 173A of the CPC provides for the dismissal of a charge
or complaint after an admonition or a caution to the offender
if the Court sees it fit to do so. The Court may alternatively
discharge the offender conditionally on his entering into a bond
with or without sureties, to be of good behaviour and to appear
for the conviction to be recorded and for sentence when called
upon at any time during such period, not exceeding three years,
as may be specified in the order. If the offender remains on
good behaviour during the specified period, he will not be called
back to the Court.
Section 294 of the CPC also provides for good behaviour bonds,
but unlike section 173A, the offender here has to be convicted
first before the bond may be considered. In both these sections,
the Court may select the disposition if it thinks, after considering
the character, antecedents, age, health or mental condition of
the offender or the trivial nature of the offence or any extenuating
circumstances under which the offence was committed, that it
is expedient that the offender should be released on probation
of good conduct. The offender hence remains in the community
and will be free from any fetters once the bond period expires
and he has fulfilled all conditions thereof.
(b) Compensation
The CPC has provisions for compensation to the victims of offences.
Section 173A provides that the Court may, in addition to a dismissal
of the charge after admonition or a good behaviour bond, order
the offender to pay compensation for injury or for loss, not
exceeding the sum of RM50.
The other provision of compensation is section 426 where the
Court may order the person convicted to pay a sum by way of compensation
to any person, or to the representatives of any person, injured
in respect of his person, character or property by the crime
or offence for which the sentence is passed. This order, however,
cannot be made in favour of the Government. The proposed Child
Act 2000 empowers the Court For Children to order the child to
pay compensation as well.
(c) Composition of Offences
The composition of offences is one good example of restorative
justice in Malaysia.
The composition of offences implies an agreement or an arrangement
between the victim and the offender. When an offence is compounded
it does not mean that there is no offence committed. It means
that although an offence has been committed, the victim is prepared
to forgive the offender and will accept compensation. A compound
cannot be withdrawn and it is immaterial whether the conditions
of the agreement are fulfilled or not. Any breach of agreement
will be remedied in the civil courts as in any other contract.
Before an offence is compounded, it must be one that is compoundable.
Section 260 itself provides for two types of compoundable offences,
those in Part A and those in Part B thereof. In the case of offences
listed in Part A,* the victims of those offences may compound
them provided there is no prosecution pending for such offence.
A prosecution is pending once the accused is summoned to appear
before the court. Thus, if the offence is one of causing hurt
either under section 323 or section 324, the person to whom the
hurt is caused may compound that offence provided no summons
has been issued against the accused person. If a prosecution
is pending, the consent of the court is required, presumably
because when a summons is issued it means an action has been
taken by the court in the matter.
For offences under Part B,** composition is allowed only with
the consent of the court before which the case is pending. Composition
prior to the issue of a summons is not provided. When any offence
is compoundable under section 260, the abetment thereof or an
attempt to commit thereof, where such an attempt is itself an
offence, may be compounded in like manner.
Subsection (4) illustrates very clearly the contractual nature
of composition of offences. When the person who would otherwise
be competent to compound an offence under this section is not
competent to contract, any person competent to contract on his
behalf may compound such offence. Only adults, those aged eighteen
years and above, may compound offences. The effect of a composition
under this section is that of an acquittal of the accused. The
principle of autrefois acquit will thus apply should the victim
of an offence decide to apply afresh for a summons.
Section 260 makes no distinction between a prosecution commenced
by a private person and one commenced by the Public Prosecutor.
It focuses on whether the prosecution is actually pending or
not.
B. The Dangerous Drugs Act 1952
(DDA)
The DDA is the foremost statute governing dangerous drugs in
Malaysia. There is the Drug Dependants (Treatment and Rehabilitation)
Act 1983 (DDTRA) which provides for the detention of a drug dependant
in a Rehabilitation Centre to be followed by a period of supervision
by an officer, defined to include a Welfare Officer, or a direct
order for supervision. A drug dependant person may therefore
not be processed through the criminal justice system but may
be processed immediately for his dependency.
There may be cases where persons who are processed through the
criminal justice system are found guilty of offences against
the DDA, but the Court may feel that because of their drug dependency,
it may not be expedient to inflict the punishment provided under
the DDA. The offences they have committed must, of course, not
be serious offences like trafficking in dangerous drugs which
is punishable by death, or cultivation of plants from which raw
opium, coca leaves, cannabis plants, coca plants or poppy-straw
or cannabis may be obtained which is punishable by life imprisonment.
The offenders must not be adults, that is, persons aged 18 years
and above. Section 38A of the DDA empowers the Court to deal
with such persons under the DDTRA. In other words, the Court
may instead of imposing any punishment under the DDA, order that
these persons be sent to a Rehabilitation Centre for 2 years
to be followed by 2 years of supervision, or the Court may immediately
order that they be placed under supervision for 2 or 3 years.
C. The Offenders Compulsory Attendance
Act 1954
This Act provides for the compulsory attendance order. Section
5 states that where a person has been convicted of an offence
for which he is liable to be sentenced to imprisonment or is
liable to be committed to prison for failure to pay a fine or
debt, and the Court is of the opinion that such person would
have been adequately punished by a sentence of imprisonment for
a period not exceeding three months, and having regard to the
character of such person, the nature and seriousness of the offence
or the circumstances of such person's failure to pay, as the
case may be, and all the other circumstances of the case, it
is inexpedient to commit him, the Court may, in lieu of such
sentence or committal, make a compulsory attendance order.
With the order, the person concerned has to attend daily at a
Centre to be specified in the order and to undertake compulsory
work for a period not exceeding 3 months and for such number
of hours each day not exceeding 4 as may be specified in such
order.
The number of hours each day during which the offender is required
to be employed shall not exceed 4 exclusive of any intervals
prescribed for meals, refreshment or rest. If the offender is
gainfully employed or has a job, the hours to be spent at the
attendance centre would be his leisure hours.
Before the Court makes a compulsory attendance order, the Court
must ensure that the offender is willing to comply with the requirements
thereof. Obviously, this is to ensure compliance all vital for
the successful operation of the scheme.
Although these orders are available in the statute book, they
are not issued by the courts in reality. It is time these orders
are considered as an alternative to imprisonment and rules and
regulations be made for their smooth and satisfactory implementation.
D. The Proposed Child Act 2000
Children (those aged between 10 years and below 18 years) who
commit offences are currently governed by the Juvenile Courts
Act 1947 (JCA). The proposed Child Act which is supposed to be
tabled in Parliament in October 2000 will govern such children
with effect from the date of enforcement of that Act.
Among the orders the Courts For Children, as such Courts will
be called, may make upon a finding of guilt, are:
(a) admonition and discharge of the child;
(b) discharge of the child upon his executing a bond to be of
good behaviour and to comply with such conditions as may be imposed
by the Court;
(c) that the child be placed in the care of a relative or other
fit and proper person for such period to be specified by the
Court and with such conditions as may be imposed by the Court;
or
(d) that the child pay a fine, compensation or costs.
Sometimes, when the Court thinks
that a charge against a child is proved or a child admits the
facts constituting the offence in the charge, the Court may make
an order requiring the parent or guardian to pay compensation
or costs, or to give security for the good behaviour of the child,
without proceeding to record a finding of guilt against the child.
In criminal cases against children, the words "conviction"
and "sentence" are not to be used. Any reference in
any written law to a person convicted, a conviction and a sentence
shall, in the case of a child, be construed as a child found
guilty, a finding of guilt and an order made upon a finding of
guilt, respectively.
A finding of guilt of a child will be disregarded for the purposes
of any written law which imposes any disqualification or disability
upon a convicted person; or which authorizes or requires the
imposition of any such disqualification or disability.
One new addition to the proposed Child Act which cannot be found
in the Juvenile Courts Act 1947 is section 93. It provides that
in addition to exercising any of the powers provided in the Act,
the Court For Children shall order the parent or guardian of
the child to execute a bond for the child's good behaviour with
or without security and with one or more of the following conditions:
(a) that the parent or guardian accompanied by the child reports
at regular intervals to be determined by the Court, at the welfare
department or police station situated nearest to the parent's
or guardian's place of residence;
(b) that the parent or guardian accompanied by the child attends
interactive workshops organized at designated centers established
for such purpose;
(c) if the child is in an educational institution, that the parent
or guardian consults with the child's teacher and head teacher
or principal once a month for the duration of the bond; or
(d) any other condition as the Court thinks fit.
The rationale behind this provision
is to encourage parents to be more responsible for their children.
Hence, if any parent or guardian fails to comply with any of
the conditions of the bond, he commits an offence and the Court
may order the security, if any, to be forfeited and the Court
may fine him up to RM5,000. The Court should, of course, give
the parent or guardian an opportunity to be heard before the
court makes the order for him to execute the bond.
The Court For Children may order a parent or guardian to pay
the fine or compensation or costs awarded to the child, unless
the parent or guardian is not available or cannot be found within
a reasonable time, or has not conduced to the commission of the
offence by neglecting to exercise due care of the child.
It is interesting to note that in England, section 8 of the Crime
and Disorder Act 1998 (Cap. 37) provides for the 'parenting order',
under which the parents of offending or disorderly children may
be required to attend guidance sessions and to comply with requirements
specified by the court.
Chapter 4 of the Child Act 2000 provides for probation of children.
Probation cannot be ordered for three categories of offences,
namely, any grave crime;* voluntarily causing grievous hurt,
rape, incest or outraging modesty; or an offence under sections
377B, 37&C, 377D or 377E of the Penal Code (offences pertaining
to sex). For other offences, if the Court For Children feels
that having regard to the circumstances it is appropriate to
make the probation order, it may do so. It will consider inter
alia the nature of the offence and the character of the child.
It will have to explain to the child in simple language suitable
to his age, maturity and understanding the effect of the order
and that if he fails to comply with the order or commits another
offence, he will be liable to be dealt with for original offence
as well as for the other offence. The probation order may be
for between one year to three years.
The probation order may require the probationer to submit during
that period to the supervision of a probation officer; may specify
that the probationer is not to commit any offence during the
probation order; may contain certain other conditions, for example,
that the probationer resides at a probation hostel, at the home
of his parent or guardian or relative or at some other place;
that the probationer attend an educational institution to be
recommended by the probation officer; and that the probationer
remains indoors at his place of residence, be it at the probation
hostel or at a home, during the hours to be specified.
Before making a probation order containing the requirements as
to residence, the Court will consider the home surroundings of
the child if the order requires a child to reside in a probation
hostel, will specify in the order the period for which he is
so required to reside. In any case, such period cannot exceed
12 months from the date of the order.
If the probationer fails to comply with any of the requirements
of the probation order, the Court may impose a fine not exceeding
five thousand ringgit or deal with him for the earlier offence
in any manner in which it could deal with him if the Court had
just found him guilty of the offence.
E. Conclusion
Compulsory attendance at a centre as provided under the Compulsory
Attendance Centre Act 1954 may be viewed as a form of community
service, where offenders are diverted away from prisons.
Community service orders have been suggested for child offenders
at the draft stage of the proposed Child Act 2000 but when the
draft was finally tabled for the first time in Parliament, it
left out community service orders as one form of punishment available
to the Court. Community service orders have also been suggested
by the Ministry of Local Government and Housing and Kuala Lumpur
City Hall as an alternative for punishing vandalism offenders.
Unfortunately, these suggestions have received poor response
purportedly for two reasons, namely, shortage of manpower to
service the orders, and the provision in the Federal Constitution,
specifically Article 6. Article 6, clause (1) reads: 'No person
shall be held in slavery.' Clause (2) reads: 'All forms of forced
labour are prohibited, but Parliament may by law provide for
compulsory service for national purposes.' But, if clause (3)
can make 'work incidental to the serving of a sentence of imprisonment
imposed by a court of law' legal, there should not be any reason
why an amendment to Article 6 could not be made to allow community
service as an alternative to imprisonment or, in the case of
children, to committal to an institution. Prisons and custodial
institutions should be reserved for the offenders of grave crimes,
the recidivists, and the incorrigible offenders.
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