From Dobby Chew

I first learned of the indefinite detention of juvenile offenders in 2018 when the family of a “juvenile” convicted under Section 39B of the Dangerous Drugs Act 1952, which deals with drug trafficking, came to Suaram for help.

By then, he had spent 17 years of his life in prison—the same length of time he had lived free previously.

As of March 2026, at least 25 juvenile offenders have spent more than 10 years in prison, and two have spent more than 20 years.

This indefinite detention is the result of multiple institutions failing to meet their obligations and responsibilities under the Federal Constitution and Malaysia’s ratification of the United Nations Convention on the Rights of the Child (UNCRC).

The premise of this indefinite detention is simple.

If you are a juvenile offender arrested for a grave crime — effectively offences that previously carried the mandatory death penalty — you will be sentenced to an indefinite term until you are determined to be “fit” for release. The purpose of this system is to spare juvenile offenders the mandatory death penalty.

This simple premise gives rise to two straightforward issues that Parliament and the Federal Court could have addressed, but have opted not to.

Parliament’s blunder

When Parliament abolished the mandatory death penalty, activists raised concerns that Section 97 of the Child Act 2001 was not addressed in any manner, leaving a significant gap in how the law would operate. Ahmad Fadhli Shaari of PAS raised the same concern during the parliamentary debate.

The offences described as grave crimes in the Child Act 2001 all carried the mandatory death penalty if committed by adults.

However, with the abolition of the mandatory death penalty, the protection offered to a child offender has become a burden.

With the abolition of the mandatory death penalty, all, including juvenile offenders, are now “eligible” for two sentences, either the death penalty or a life sentence of 30 to 40 years.

As far as I am aware, no judge in the past decade has considered it fair to sentence a juvenile offender to death. Given the two options for sentencing, I believe it is almost a guarantee that all judges would sentence a juvenile offender to a life imprisonment of 30 to 40 years.

Without the death sentence, Section 97(2) would not be triggered.

This creates two classes of juvenile offenders. The Pre-2023 juvenile offenders who are detained indefinitely under Section 97(2) while the mandatory death penalty was still on the books, and the post-2023 juvenile offenders who are likely to receive life imprisonment.

Whether it is appropriate for a child to be detained for a lifetime is something up for debate, but not the point of this letter.

I am certain that Parliament, the Attorney-General’s Chambers and all other agencies involved in the lead-up to the abolition of the mandatory death penalty were aware of this and cannot claim ignorance.

The judicial gap

In its ruling last month, I believe the Federal Court left a critical question unaddressed.

While the legality and constitutionality of Section 97(2) have not been disputed since it was decided in 2007, how Section 97(2) ought to have been implemented, and whether it was implemented in full, is a subject matter that should have been heard in full.

All of my past criticisms have been on Section 97(4) of the Child Act 2001, which provides for a yearly review of child offenders detained at the pleasure of the Yang di-Pertuan Agong.

Many hold the opinion that a pardon through Article 42 of the Federal Constitution is the only means for a juvenile offender to be released. I disagree with this position because of how Section 97(4) is constructed and Malaysia’s obligations under the UNCRC.

In contrast to the general context of how Article 42 is exercised, when it comes to juvenile offenders, there are specific measures in place, namely that the Board of Visiting Justices are required by law to review the juvenile offender annually and make recommendations to the king, ruler or governor as the case may be.

There is no mention in any part of the Child Act 2001 that indicates this to be a form of royal pardon.

It is an explicit provision that requires a report from a Board of Visiting Justices to the king, ruler or governor, and for them to decide whether the person should be released or further detained.

Beyond that, there is also the question of whether that annual review was conducted; if it was not, what remedy should the juvenile offender have? Did the Federal Court consider this failure, and could they have conducted the review in court?

Who is responsible now?

Unfortunately, with the failure in Parliament and the Federal Court’s rejection of the challenge put forward, the matter is left to the king, ruler or governor to decide whether they will grant pardon under Article 42 of the Federal Constitution to the 25 souls detained indefinitely, or provide an indirect resolution to the Child Act 2001 by exercising their power under Section 97(4).

Without this intervention, how long will it take before the government and Parliament get their act together and provide a resolution to this legal quandary?

Would an amendment to the Child Act 2001 resolve this issue for them, or would it abandon them as the abolition of the mandatory death penalty had?

Dobby Chew is a Muda vice-president and the CEO of human rights group Hayat.

The views expressed are those of the writer and do not necessarily reflect those of FMT.