Government must act on Suhakam's call without delay — Hafiz Hassan
As explained by the commission, a diversion mechanism allows children accused of minor or non-violent offences to be redirected away from the criminal justice system into community-based programmes focused on education, counselling, and behavioural support. This approach would not only reduce the risk of criminalisation and social stigma but also address underlying issues such as trauma, neglect, or mental health. Such a policy is not a denial of accountability, but a shift towards restorative and rehabilitative justice which is proven to be more effective and humane for children.
Diversion can be defined in different ways, but the term always refers to measures for dealing with children in conflict with the law without resorting to formal judicial proceedings or formal trial.
A more comprehensive description of diversion is this: it is the channelling of children who are in conflict with the law away from judicial proceedings through the development and implementation of procedures or programmes that enable many - possibly most - to avoid the potential negative effects of formal judicial proceedings, provided that human rights and legal safeguards are fully respected. (See Unicef, Toolkit on Diversion and Alternatives to Detention, 2009)
The purpose of diversion is to avoid instituting judicial proceedings against children in conflict with the law, or to suspend judicial proceedings, as well as to influence a child's proper development; to enhance their personal responsibility; and to promote their reintegration into society.
Make no mistake that the use of the term is not recent.
The writer says Suhakam is right to push for a child diversion policy — a move long championed by Unicef as key to protecting children's rights and futures. — Picture by Raymond Manuel
According to Unicef, the term is already used by the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985), also called 'Beijing Rules'. It can be found in Rule 11 which reads as follows:
11. Diversion
11.1 Consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority.
11.2 The police, the prosecution or other agencies dealing with juvenile cases shall be empowered to dispose of such cases, at their discretion, without recourse to formal hearings, in accordance with the criteria laid down for that purpose in the respective legal system and also in accordance with the principles contained in these Rules.
11.3 Any diversion involving referral to appropriate community or other services shall require the consent of the juvenile, or her or his parents or guardian, provided that such decision to refer a case shall be subject to review by a competent authority, upon application.
11.4 In order to facilitate the discretionary disposition of juvenile cases, efforts shall be made to provide for community programmes, such as temporary supervision and guidance, restitution, and compensation of victims.
The above acknowledges that diversion has been practised on a formal and informal basis in many legal systems. It serves to hinder the negative effects of subsequent proceedings in juvenile justice administration.
Four years later in 1989, the United Nations Convention on the Rights of the Child (CRC) is also said to have promoted diversion, without using the term. This can be found in Article 40(3)(b) which stipulates that 'State Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law, and, in particular … whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.'
Diversion is also a measure in the United Nations Guidelines for Action on Children in the Criminal Justice System (1997), also called 'Vienna Guidelines'. The Guidelines provide a comprehensive set of measures that need to be implemented in order to establish a well-functioning system of juvenile justice administration, consistent with international standards.
Guideline 42 on Diversion states as follows:
'To prevent further overreliance on criminal justice measures to deal with children's behaviour, efforts should be made to establish and apply programmes aimed at strengthening social assistance, which would allow for the diversion of children from the justice system, as appropriate, as well as improving the application of non-custodial measures and reintegration programmes. To establish and apply such programmes, it is necessary to foster close cooperation between the child justice sectors, different services in charge of law enforcement, social welfare and education sectors.'
According to Unicef also, European instruments too have incorporated diversion, albeit not comprehensively. The European Rules for Juvenile Offenders Subject to Sanctions or Measures (2008) do not mention diversion, but the Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice (2010) state as follows:
'Alternatives to judicial proceedings such as … diversion (of judicial mechanisms) … should be encouraged whenever this may best serve the child's best interests.' (See Guideline 24).
This year is the 40th and 15th anniversaries of the Beijing Rules and the European Guidelines respectively.
Do we sit further on diversion?
Kudos to Suhakam — especially its Chief Children Commissioner, Dr Farah Nini Dusuki — for highlighting the term.
The Madani government must act without delay.
For the sake of our children – our greatest treasure and our future.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
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