In the summer of 2013, the United States Supreme Court ruled that a mandatory life sentence without parole for children is unconstitutional. REUTERS PIC

SHOULD a child murderer be tried only as a child in juvenile court or can he be tried as an “adult” in an adult court? Put differently, should a country have two distinct and separate justice systems — one for a child offender, and another for an adult? It is a question that has preoccupied jurists since ancient times.

In 1995, a 15-year-old boy from Somerville, Massachusetts, Edward O’Brien Jr, was accused of murdering a friend’s mother by stabbing her 60 times. He pleaded not guilty. The case became the start of a new practice by the state prosecutor — trying young children for murder “as adults in an adult court”.

In 1996, a new law was passed in Massachusetts, stating that any person of 14 years of age and above accused of murder would be tried as an adult. The media described this new legal principle as “adult time for adult crime.” In jurisdictions where the death penalty has been abolished, conviction for murder means a life sentence without parole. However, in the summer of 2013, the United States Supreme Court ruled that a mandatory life sentence without parole for children is unconstitutional.

Michael O’Keefe, president of the Massachusetts District Attorneys Association, wants to retain the prosecutorial discretion to charge young children as adults for murder in appropriate cases. “We need a system where young juveniles who commit very sophisticated murders are not beyond the reach of the law,” he said. He wants to have “the flexibility” of charging young children for murder as adults.

In 2013, a Wisconsin judge ruled that two 13-year-old girls accused of attempting to murder a classmate be tried as adults. Under state law, if they are tried and convicted in juvenile court, the two girls will face detention until the age of 18 and then subjected to intense supervision and community services, before they are allowed to return to society. On the other hand, if they are tried and convicted as adults, they face a prison sentence of up to 65 years.

Under Wisconsin state law, any juvenile over 10 years old charged with homicide or attempted homicide is automatically tried in adult court, but defence lawyers may still request a trial in juvenile court if the accused is still under 16 years of age.

Many state jurisdictions in the US allow young children murderers to be tried as adults, including Michigan, Colorado, Missouri, Montana and Ohio. These states allow 12-year-olds charged with serious crimes to be tried in adult court. In other states such as Indiana, Kansas, Ohio, Vermont and Wisconsin, children as young as 10 years old can be tried as adults.

In England and Wales, juveniles can be tried as adults in the Crown Court for serious offences such as homicide, certain firearms offences, and grave crimes (including sexual assault and child sex offences).

In June 2017, in the aftermath of the arrest of several individuals suspected of causing the death of bully-victim T. Nhaveen, a senior Malaysian cabinet minister pleaded with the authorities to charge the accused (youths aged between 16 and 18) under the Penal Code and not the Child Act.

In the recent fire tragedy involving a tahfiz school in Kampung Datuk Keramat, where 21 pupils and two wardens perished, two juveniles, both aged 16, were charged on Sept 28, 2017, with 23 counts of murder in a magistrate’s court in Kuala Lumpur. The charges, under Section 302 of the Penal Code, carry a mandatory death penalty. No plea was taken and the next mention date was fixed on Nov 28.

As a follow-up to the earlier question, if a juvenile or a child can be tried as an adult in an adult court, can he then be imposed a death sentence like an adult?

In short, should civil societies tolerate the spectacle of execution of children?

In Roper v Simmons (2005), the US Supreme Court held (in a 5:4 majority decision) that it was unconstitutional to impose the death sentence on an individual who was still a minor when he committed the offence. As a result of the Roper decision, 72 juvenile offenders in 12 states on death row were given a new sentence. Prior to that decision, 22 convicted prisoners were executed for crimes committed before they reached 18.

In Malaysia, the Child Act 2001 (Act 611) defines a “child” as any person under 18 years old. If a child has been convicted of an offence carrying the death penalty, the act prohibits the imposition of that penalty if at the time the crime was committed, the accused was still a child. Under Section 97, the child can only detained “at the pleasure” of the king (if the offence was committed in the federal territory) or the ruler of the state (where the offence was committed). Criminal proceedings involving a “child” are regulated under Part X of Act 611.

To sum up, whilst a “child” in Malaysia can be charged as an adult for a serious crime, it would appear that both the procedure and the venue for the ensuing trial will be different from those of an adult, and if at the conclusion of the criminal proceeding, the gravity of the offence requires the imposition of a capital punishment, that, too, cannot be imposed on the child.

Verily, we have two distinct justice systems — one for the adult and another for the child.

Salleh Buang formerly served the Attorney-General’s Chambers before he left for practice, the corporate sector and, then, the academia. He can be reached via

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