The decision to try a teen from Kemaman, Terengganu, for infanticide rather than murder has denied her protection under the Child Act 2001, said an activist.
Anti Death Penalty Asia Network (Adpan) executive coordinator Dobby Chew said the lack of protection also prevented the juvenile from getting support after a traumatic event.
He explained that the Child Act is only applicable to offences that do not carry the death penalty, the mandatory effect of which has been abolished, or natural life imprisonment.
“While there is a public interest angle in ensuring those who have committed homicide are held accountable, it should not be pursued without any checks and balances by public prosecutors.
“Judicial discretion is only half the equation in ensuring justice is done. Public prosecutors bear the other half by ensuring the appropriate sections are used in prosecution,” he told Malaysiakini.
On Tuesday, the Kemaman teen pleaded guilty to the infanticide of her newborn son two years ago, escaping the death sentence under a previous murder charge against her.
The 17-year-old made the plea to the alternative charge under Section 309A of the Penal Code, which was read out to her before the Kemaman Magistrates’ Court.
Previously, the teen faced a murder charge under Section 302 of the Penal Code, which carries the mandatory death sentence.
However, the infanticide charge under Section 309A carries a maximum jail sentence of 20 years and a fine for the death of the newborn boy in February 2022.
Compassionate approach
Sharing Chew’s sentiment, International Women’s Rights Action Watch Asia Pacific founding director Shanthi Dairiam told Malaysiakini the justice system must view the act of killing by the teen as one committed by a juvenile.
She said there were mitigating factors to be considered: the conception of the child took place through statutory rape, whether the teen had access to legal abortion services, and that there are no welfare services in Malaysia that provide support for teen pregnancy.
“The above are all mitigating factors which compel a compassionate approach by the justice system to the ‘crime’ of the killing of the infant instead of a punitive approach.
“So instead of the justice system taking a punitive approach in this case, the legal system should view the case with compassion and take an approach that protects the girl from further harm,” she said.
As an example, the teen can be provided with counselling and rehabilitation services as well as assistance in continuing the latter’s education for her recovery, Shanthi said.
She expressed her hope for the Women, Family, and Community Development Ministry to step in regarding the matter.
Besides that, she enquired about the accountability of the teen’s boyfriend, a 22-year-old whom the authorities are looking for as he was believed to have raped her.
“He too needs counselling so he can be more responsible and not get girls pregnant,” she said.
The case also points to the need for sex education in schools, she added.
The teen’s case
The teen came into the limelight in early 2022, following an initial failed bid to be released on bail pending the then-murder case, with the Court of Appeal allowing her to be released on bail in May 2022.
On Feb 15 of that same year, the teen was charged with murder before the Kemaman Magistrates’ Court in Terengganu.
According to a Malay Mail report, magistrate Tengku Eliana Kamaruzaman rejected the teenager’s plea to be released on bail.
Under Malaysian law, murder is a non-bailable offence, meaning bail is only granted at the discretion of the court.
However, according to the teen’s lawyer Nurainie Haziqah, Section 388 of the Criminal Procedure Code allows for exceptions to be made if the person charged is either sick, a minor, or a female.
Before her appearance before the Magistrates’ Court, the teenager was remanded for seven days in February to facilitate a police investigation.
It was reported that the newborn was found dead on Feb 8, 2022, at the girl’s house in Felcra Sri Bandi in Chukai, Kemaman. - Mkini
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