The Protection of childrens’ rights and rehabilitation in Malaysia

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THE PROTECTION OF RIGHTS : CHILDREN IN NEED OF PROTECTION AND REHABILITATION IN MALAYSIA INTRODUCTION Children are our future. Every child has the right to a safe, happy and content childhood notwithstanding of their social origin, sex, religion, where and to whom they were born. This is the core principle enshrined in The United Nations Convention on the Rights of the Child (UNCRC), the most widely adopted international human rights treaty of the time.[1] [2] Malaysia too, is committed to provide the best protection and care for the Children, who forms 35% of the population[3]. Since the ratification of UNCRC in 1995[4], Malaysia has taken various steps in executing its responsibilities and commitments under the Convention. This includes the enforcement of the Child Act 2001 [Act 611]. Three specific laws in Malaysia relating to children were amalgamated in Act 611 namely, the Protection Act 1991 that focuses on child abuse and neglect cases; the Juvenile Court Act 1947 (Act 90) that deals with children in conflict with the law as well as the Juvenile Court procedures; and the Women and Girls Protection Act 1973 (Act 106) that provides the protection for the women and young girls who are involved in immoral activities[5]. The sexual crime rate among youth are increasing every year. Apart from the common crimes like molest and rape cases, prostitution, immoral sexual activities, pregnant out of wedlock involving children are indubitably alarming. Until June 2013, 141 underage girls were rescued from the promiscuous sexual activities and prostitution throughout Malaysia and over the past year, a total of 230 children were rescued and sent to a reform school[6]. For these children, it is never too late for them to be protected and rehabilitated. Part VI of Act 611, taken from Act 106 with further improvement[7], specifically articulates the provisions for the children in need of protection and rehabilitation. Section 38 of Act 611 defines a child[8] is in need of protection and rehabilitation if he or she: (a) is being induced to perform any sexual act, or is in any physical or social environment which may lead to the performance of such act; (b) lives in or frequents any brothel or place of assignation; or (c) is habitually in the company or under the control of brothel-keepers or procurers or persons employed or directly interested in the business carried on in brothels or in connection with prostitution. In addition, under Section 41, if there is a reasonable cause to believe that the child is being either threatened, intimidated, or to be confined or detained by another for the purposes of prostitution or having sexual intercourse or for any immoral purposes; or the child is pregnant out of wedlock, it is deemed under the law that the child is in urgent need of protection. Any place, institution or centre may be established or appointed as a place of refuge in accordance with Section 55 of Act 611, for the care, protection and rehabilitation of the children. There are three types of care and rehabilitation institution- governmental, semi-governmental and non-governmental organization.[9] Preserving the children’s right and their best interests are essential for the development of every child, including those who are in the custody and rehabilitation. However, Part VI of Act 611 lacks provision on the procedures and protection while in custody. Hence, the aim of the research is to investigate and evaluate to what extent the extent the children’s rights are observed and protected while in custody. LITERATURE REVIEW Research conducted: A number of researches with different aims have been conducted on the above category of children. Most of the research focuses on the effectiveness of the program offered. Johari Talib (1985) evaluates the effectiveness of the rehabilitation programme at Taman Seri Puteri Rembau[10]. Azizi Yahaya et all (2001) assesses the effectiveness of the rehabilitation process at Pusat Perlindungan Wanita & Gadis, Taman Seri Puteri Cheras, Jerantut, Rembau and Tunas Bakti Sungai Lereh Melaka[11]. Azizi et all(2010)further evaluate the effectiveness of the programmes conducted at Taman Seri Puteri Batu Gajah, Perak and Kompleks Dar-Assa’dah, Kuala Lumpur[12]. On the other hand, research conducted by Muhamad, Luqman Z (2006)[13] explores the nature of child prostitution in Malaysia and identifies the key characteristics of victimized children. PS Tan et all (2012)[14] investigates the common characteristics of pregnant adolescents residing in a government shelter home. A qualitative research on the daily experiences of the unwed teenage mothers at the shelter homes in Malaysia has been conducted by NJ Saim et all (2013)[15]. A study by Abdullah (2010) examines the social interaction between the staff and the girls at the rehabilitation centre[16]. The findings According to Muhamad, Luqman Z (2006) the regimented three years system resulted depression, tense and sadness among the young women during the custody. The girls experienced a sense of depersonalization and disconnection due to the ‘control’ and restriction of social intercourse. The generic day-to-day living conditions and routine causes depersonalisation, while the physical and psychological isolation from their family, community, and culture causes disconnection[17]. NJ Saim et all (2013) found that the girls are emotionally insecure to share their feelings or problems with the social worker in charge or the staff who was appointed as their guardian. It was pointed out that some of the staff used derogatory names for them and their babies such as bitch, prostitute, “anak haram” [18]. According to Abdullah (2006) these children have developed pseudo-family relationship and prone to be pretentious throughout the rehabilitation to avoid being punished. In terms of education during custody, Abdul Hadi (1995) sustains that the system and detention are punitive, although it is regarded as a measure to protect the children. This is because their freedom is deprived and often subjected to a programme of instruction such as cooking, which they may not enjoy[19]. The programmes conducted at the rehabilitation centres, commonly cooking, sewing and handicraft making, do not fulfil the needs of society and job placement but rather designed to transform the children into good housewives (Luqman 2006 and Azizi 2010). Furthermore, according to Azizi (2001), the co-curricular activities are less likely to improve discipline as it is confined to leisure activities only[20]. Another important finding is that, there are instances whereby the children were not permitted to meet the adoptive families of their baby. They were also been deprived to sign the consent letter in front of the commissioner of oaths for intra-familial adoptions[21]. (NJ Saim et all). Furthermore, their time with family are often too restricted.[22] (Azizi 2010)(NJ Saim et all). PRINCIPAL RESEARCH QUESTION Most of the existing research gives an overview on the effectiveness of the programme offered at the rehabilitation centre. However, there is a deficiency in determining and assessing the adequacy of the law and policies to protect the rights of these children during and post-custody and rehabilitation, which this research seeks to investigate: Research Objective:
  1. To identify the Malaysian law and policy in protecting the rights of the children during and post-rehabilitation programme
  2. To evaluate the law and policies, whether it meets the standard of the UNCRC
  3. To evaluate the effectiveness of the law and policies by looking at the percentage of successfulness and recidivism.
Specific Objective: (concentrating on the following main areas of interest)
  1. The right to education-Proper education is essential for the Children improve their standards of living and will lead to the decrease in disparities and crime opportunities. Many of these children are school dropouts[23]. This research will propose options to enable them to have access to standard education.
  2. Right to be treated with dignity and respect- Girls who are pregnant or previously indulged with prostitution may be socially ostracised by the caregiver. This research will develop a standard of procedure / rules for the children and caregiver and to promote the enhancement of their interpersonal and intrapersonal communication skills.
  3. The well-being of the child (mother) and her baby- This research will propose a solution to ensure these children have the right to standard health care. Besides that, this research will investigate whether the legal procedures on adoption are adhere to.
  4. The integration with the society.- This research will study the children’s experience reuniting with their members and reintegration with the society.
RESEARCH METHODOLOGY This research will employ qualitative method. The children’s daily activities will be highly considered. Equally, all other Stakeholder on the issue, for instance the Public Welfare Department, the administrator and the staff of the place of refuge, the child protection team, NGOs and the Court for children officer, are expected to take part in the data collection. Fundamentally, the internationalstandards and principles on child protection will be critically studied to set a benchmark.The existing legal and policy framework concerning the children defined in Part VI of the 2001 act shall be scrutinized to determinethe extent to which domestic legislation, systems and policies reflect the principles and provisions of the UNCRC. For these purposes, a library research will be conducted to examine the legal literatures from the primary and secondary sources which includes but not limited to the statutes, case-law, extra-legal materials, books, articles, seminar papers and newspapers. Secondly, observation, focus groups and personal interviews with defined children. The focus groups will be carefully designed so as to giveevery child the opportunity to express their experiences, views and recommendations. Children-centred approach will be adopted during the interviews. This will place the children at the heart of the research process, by recognising them as strong, capable, and knowledgeable experts on their own lives, possessing knowledge, perspective and interest that is best gained from the children themselves[24]. This is highly important to give the insights of the daily experience of the children and is essential for the evaluation of the implementation of the law and policy on the protection of their rights. In-depth interviews with child rights’ duty-bearers and stakeholders will be conducted in ascertaining the roles and responsibilities. It will also analyse and evaluate the activities being implemented and the achievement to the best interest of the children, as well as investigating the issues that hinder the implementation. RESEARCH PLANNING BIBLIOGRAPHY A Study On Pregnant Adolescents Residing In A Government Home: Common Characteristics And Their Views On The Pregnancy Tan Pei Sun, Su Xu Vin, Kevin Tan Teck Meng, Hizlinda Tohid, Noor Azimah Muhammad, Khairani Omar The official Journal of the Academy of Malaysian Family Physician 2012 Volume 7, Number 1, ISSN: 1985-207X (print), 1985-2274 (electronic) Child Protection Laws In Malaysia: The Changing Trend Jal Zabdi Mohd Yusoff A conference paper presented at The 6th International Malaysian Studies Conference (MSC6): Engaging Malaysian Modernity 50 Years and Beyond, 5-7 August 2008 Available at <https://www.scribd.com/document/35692898/Law-and-Child-Abuse> asessed on 1 April 2014 Children in Prostitution: A study of young women in the rehabilitation centres in Malaysia. Mohamad, Lukman Z.(2006) Doctoral thesis, Durham University available at <http://etheses.dur.ac.uk/2688/> retrieved on 4 April 2014 Convention on the Rights of a Child The United Nations Treaty Collection available at < https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en> retrieved on 31 March 2014 Keberkesanan Program-Program Pemulihan Tingkah laku Di Taman Seri Putri Batu Gajah Dan Kompleks Dar-Assa’adah. Yahaya, AziziandHashim, SharinandAbd Wahab, Jesmin(2010) Universiti Teknologi Malaysia Institutional Repository (Unpublished) available at < http://eprints.utm.my/10617/> retrieved on 6th April 2014 Listen to the Voices of Unwed Teenage Mothers in Malaysian Shelter Homes: An Explorative Study Nor Jana Saim,Mona Dufåker, Malin Eriksson & Mehdi Ghazinou Global Journal of Health Science Vol. 5, No. 5; 2013 ISSN 1916-9736 E-ISSN 1916-9744 Canadian Center of Science and Education Listening to young children Clark, A. & Moss, P. National Children’s Bureau and Rowntree Foundation London, 2001. Muslim States And The Implementation Of The Convention On The Rights Of A Child : With Special Reference To Malaysia' Abdul Ghafur Hamid @ Khin Maung Sein Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives Marie-Luisa Frick and Andreas Th. Müller 1st Edition , Martinus Nijhoff , The Netherlands 2013. Penyata Rasmi (Hansard) Dewan Rakyat Penggal kelima Mesyuarat Ketiga [Rabu, 20 Oktober 1999] available at < http://www.parlimen.gov.my/hansard-dewan-akyat.html?uweb=dr&arkib=yes> retrieved on 4 April 2014 Population by Age, Malaysia, 2013 Department of Statistics Malaysia Official Portal, available at <http://pqi.stats.gov.my/result.php?token=b59bcc50b48aae3830f1c02bc5cc6b1f> retrieved on 31 March 2014 Program Pemulihan Akhlak Wanita: Sejauhmanakah Keberkesanan Pusat Perlindungan Wanita Membantu Proses Pemulihan? Azizi Yahaya, Yusof Boon, Mohd Anuar Abd Rahman and Abd Rahim Hamdan Paper presented at Persidangan Kebangsaan Pendidikan Moral Dalam Dunia Globalisasi di Universiti Malaya, 23-25 May 2001 available at < http://eprints.utm.my/1561/2/um_akhlak_.pdf> retrieved on 4 April 2014 Protecting Girls: Official Measures against underaged Girls rescued from Moral Danger Abdul Hadi, Z. Kuala Lumpur, University of Malaya Press,1995 Satu Kajian Tentang Sejauhmanakah Keberkesanan Rancangan Pemulihan Di Taman Seri Puteri Rembau, Negeri Sembilan Johari Talib Dissertation (M.Ed.) Fakulti Pendidikan, Universiti Malaya, 1985 Sexual Problems Among Teens In Malaysia: A Case Study At Youth Rehabilitation Centre In Kuala Lumpur, Malaysia Hemaloshinee Vasudevan (Phd Candidate) Interdisciplinary Journal Of Contemporary Research In Business Volume 5, No.4, August 2013 Tema dan isu penyelidikan mengenai gejala sosial pada dekad pertama abad 21 di Malaysia. Azlina Abdullah AKADEMIKA, 78 . pp. 3-14. ISSN 0126-5008.2010
[1] All United Nations member states, except for the United States and Somalia, have ratified the Convention [2] Abdul Ghafur Hamid @ Khin Maung Sein, 'Muslim States And The Implementation Of The Convention On The Rights Of A Child : With Special Reference To Malaysia' in : Marie-Luisa Frick and Andreas Th. Müller (eds),Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives(1st, Martinus Nijhoff , The Netherlands 2013) at page 290 [3] Department of Statistics Malaysia Official Portal, ‘Population by Age, Malaysia, 2013’, available at < http://pqi.stats.gov.my/result.php?token=b59bcc50b48aae3830f1c02bc5cc6b1f> retrieved on 31 March 2014 [4] The United Nations Treaty Collection, ‘Convention on the Rights of a Child’, available at < https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en> retrieved on 31 March 2014 [5] Jal Zabdi Mohd Yusoff, ‘Child Protection Laws In Malaysia: The Changing Trend’ ( A conference paper presented at The 6th International Malaysian Studies Conference (MSC6) : Engaging Malaysian Modernity 50 Years and Beyond, 5-7 August 2008) <http://www.scribd.com/doc/35692898/Law-and-Child-Abuse> assessed on 1 April 2014 [6] Hemaloshinee Vasudevan (Phd Candidate), ‘Sexual Problems Among Teens In Malaysia: A Case Study At Youth Rehabilitation Centre In Kuala Lumpur, Malaysia’, Interdisciplinary Journal Of Contemporary Research In Business, August 2013, Volume 5, No.4. [7] For instance, Section 40 (3) (d) provides that the court may order the parent or guardian of the child to execute a bond for a certain period or other order such as regular visits to the place of refuge. This new provision is included to held parents or guardians responsible to the conduct of the children; Section 43 establishes a new offense against any person who engages or hires a child for that person’s sexual gratification for any valuable consideration. The previous Act did not provide punishment for those involved in the exploitation of women and girls. See: Penyata Rasmi (Hansard), DEWAN RAKYAT, Penggal kelima Mesyuarat Ketiga [Rabu, 20 Oktober 1999], page 30-31, available at < http://www.parlimen.gov.my/hansard-dewan-rakyat.html?uweb=dr&arkib=yes> retrieved on 4 April 2014 [8] Article 1 of UNCRC defines ‘child’ as a person under the age of 18. Similarly, in the Child Act 2001 (Act 611) a ‘child’ is defined as a person under the age of eighteen years; however in relation to criminal proceedings, a ‘child’ is a person who has attained the age of criminal responsibility as prescribed in section 8 of the Penal Code. [9] Nor Jana Saim,Mona Dufåker, Malin Eriksson & Mehdi Ghazinou, ‘Listen to the Voices of Unwed Teenage Mothers in Malaysian Shelter Homes: An Explorative Study’, Global Journal of Health Science; Vol. 5, No. 5; 2013 ,ISSN 1916-9736 E-ISSN 1916-9744, Canadian Center of Science and Education [10] Johari Talib, “Satu Kajian Tentang Sejauhmanakah Keberkesanan Rancangan Pemulihan Di Taman Seri Puteri Rembau, Negeri Sembilan” Dissertation (M.Ed.) -- Fakulti Pendidikan, Universiti Malaya, 1985 [11] Azizi Yahaya, Yusof Boon, Mohd Anuar Abd Rahman and Abd Rahim Hamdan, ‘Program Pemulihan Akhlak Wanita: Sejauhmanakah Keberkesanan Pusat Perlindungan Wanita Membantu Proses Pemulihan?’, Paper presented at Persidangan Kebangsaan Pendidikan Moral Dalam Dunia Globalisasi di Universiti Malaya,23-25 Mei 2001, available at < http://eprints.utm.my/1561/2/um_akhlak_.pdf> retrieved on 4 April 2014 [12] Yahaya, AziziandHashim, SharinandAbd Wahab, Jesmin(2010), ‘Keberkesanan Program-Program Pemulihan Tingkah laku Di Taman Seri Putri Batu Gajah Dan Kompleks Dar-Assa’adah ‘. Keberkesanan Program-Program Pemulihan Tingkah laku Di Taman Seri Putri Batu Gajah Dan Kompleks Dar-Assa’adah . pp. 1-16. Universiti Teknologi Malaysia Institutional Repository (Unpublished) available at < http://eprints.utm.my/10617/> retrieved on 6th April 2014. [13] Mohamad, Lukman Z.(2006)Children in Prostitution: A study of young women in the rehabilitation centres in Malaysia.Doctoral thesis, Durham University, available at <http://etheses.dur.ac.uk/2688/> retrieved on 4 April 2014 [14] Tan Pei Sun, Su Xu Vin, Kevin Tan Teck Meng, Hizlinda Tohid, Noor Azimah Muhammad,Khairani Omar, ‘A Study On Pregnant Adolescents Residing In A Government Home: Common Characteristics And Their Views On The Pregnancy’, The official Journal of of the Academy of Malaysian Family Physician 2012; Volume 7, Number 1, ISSN: 1985-207X (print), 1985-2274 (electronic) [15] Nor Jana Saim,Mona Dufåker, Malin Eriksson & Mehdi Ghazinou, ‘Listen to the Voices of Unwed Teenage Mothers in Malaysian Shelter Homes: An Explorative Study’, Global Journal of Health Science; Vol. 5, No. 5; 2013 ,ISSN 1916-9736 E-ISSN 1916-9744, Canadian Center of Science and Education. [16] Azlina Abdullah,(2010), “Tema dan isu penyelidikan mengenai gejala sosial pada dekad pertama abad 21 di Malaysia.” AKADEMIKA, 78 . pp. 3-14. ISSN 0126-5008. [17] supra note 11, at page 243 [18] supra note 13, at page 26-27 [19] Abdul Hadi, Z. (1995). Protecting Girls: Official Measures against underaged Girls rescuedfrom Moral Danger. Kuala Lumpur, University of Malaya Press. [20] supra note 11, at page 11 [21] supra note 15 at page 22-23 [22] supra note 10; supra note 15 at page 24 [23] 69.3% of the adolescents who were school dropouts- PS Tan et all, supra note 14 at page 12 [24] Clark, A. & Moss, P. (2001) Listening to young children (London, National Children’s Bureau and Rowntree Foundation)
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