Best Interests of the Child in Juvenile Justice: Analysis of Malaysia, Philippines, and Thailand

Abstract

The “best interests of the child” (BIC) is the most referenced child rights principle in international law, whereas juvenile justice is the most mentioned topic. This paper examines how countries in Southeast Asia (SEA) interpret BIC in juvenile justice and if their understanding is consistent with the Convention on the Rights of the Child (CRC) and other international standards and why. It contends that BIC’s indeterminate use led to misinterpretation of child rights and that BIC interpretation is influenced by several factors found within the socio-cultural and political economy of SEA. Using Malaysia, the Philippines, and Thailand as case studies for their representation of legal and socio-cultural traditions in SEA, this study applies a positivist and constructivist approach to qualitative research using surveys, jurisprudence, documentary research, and interviews with children and justice actors. It finds that CRC’s ratification and laws enacted with BIC therein do not guarantee the full protection of the rights of children in conflict with the law (CICL). It highlights the importance of using BIC cautiously, the value of asking children their BIC, and the need to deconstruct adult overgeneralizations on juvenile justice. As BIC is more than a legal concept, it recommends a constructivist approach in search of common values about childhood and justice across cultures. The study seeks to clarify the academic, legal, and practical interpretation of BIC in juvenile justice and to protect the rights of CICL in SEA.