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Malaysia - Consideration of reports submitted by States parties under Article 44 of the Convention: Initial report of States parties due in 1997 [2006] UNCRCSPR 32; CRC/C/MYS/1 (22 December 2006)
UNITED NATIONS
|
|
CRC
|
|
Convention on the Rights of the Child
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Distr. GENERAL
CRC/C/MYS/1 22 December 2006
Original: ENGLISH
|
COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF
REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 44 OF THE
CONVENTION
Initial report of States parties due in 1997
MALAYSIA
[*]
[20 December 2006]
CONTENTS
Paragraphs Page
PART I. INTRODUCTION 1 - 63 3
Chapter 1 General Background 1 - 24 3
Chapter 2 General Political Structure 25 - 63 9
PART II. THE REPORT 64 - 373 20
Chapter 3 General Measures of Implementation 64 - 130 20
Chapter 4 Definition of the child 131 - 132 35
Chapter 5 General principles 133 - 155 40
Chapter 6 Civil Rights and Freedoms 156 - 173 45
Chapter 7 Family Environment and Alternative Care 174 - 237 50
Chapter 8 Basic Health and Welfare 238 - 282 65
Chapter 9 Education, Leisure and Cultural Activities 283 - 323 75
Chapter 10 Special Protection Measures 324 - 373 88
PART III. CONCLUSION 374 - 376 97
Chapter 11 Conclusion 374 - 376 97
PART I: INTRODUCTION
CHAPTER 1
GENERAL BACKGROUND
- Malaysia
is a Federation comprising thirteen states and three federal territories.
Straddling the South China Sea, the land comprises
Peninsular Malaysia and the
northern portion of the island of Borneo. Countries bordering Malaysia are
Thailand to the north, the
Philippines to the east and Indonesia and Singapore
to the south. To the west, Malaysia is separated from the island of Sumatra by
the Straits of Malacca.
- Malaysia
lies within the equatorial zone, which is characterised by a hot, humid and
invariable climate throughout the year. The climatic
regime is governed by the
seasonal northeast and southwest monsoons that bring heavy rainfall to nurture
the luxuriant flora of the
tropical rainforest, which extends over a large part
of the country. The coastal areas are typified by mangroves, tropical wetlands
and sandy ridges.
- The
monsoon winds were an important factor during the days of sailing ships, which
brought traders, settlers and colonisers to the
Malay Archipelago, particularly
from the north, west, and south. Chinese, Indians, Thais, Indonesians, Arabs and
later Europeans
- mainly the Portuguese, Dutch and British - have contributed to
the multi-ethnic population mix along with the indigenous people
namely the
Malays, Orang Asli and natives in Sabah and Sarawak such as
Iban, Bidayuh, Melanau, Penan, Kadazan, Bajau and
Murut.
- The
Malays and other indigenous people are collectively known as Bumiputera
(sons of the soil). The various Bumiputera groups share the
characteristics of being rooted in an agricultural-seafaring economy and having
a village society where leadership
is largely through consensus and where
attitudes are formed by a belief in an-all pervasive spirit world. The animistic
culture of
the Malays came to be overlaid by Hinduism and later was subsumed by
Islam.
- The
non-indigenous (non-Bumiputera) people are descendants of later migrant
settlers. Around the time of the British colonial administration, the Chinese
came to the
Malay Peninsula (as the country was then known) as tin-mine workers,
traders and support workers. The Indians, notably the Tamils
and the Telegus,
were brought in by the British as indentured labour to work in rubber
plantations while others worked as teachers
and professionals in various
fields.
- The
migrants brought with them their social, religious and cultural traditions.
Hence, we have Hindu and Buddhist traditions, Confucian
and Taoist values,
Christianity, Sikhism and Islamic religious practices. Today, Islam is the
official religion of the Federation
and Muslims form the largest single
religious group i.e. 65.9 percent in 2005. However, the right to freedom of
worship is protected
by the Federal Constitution and other religions are freely
practised in Malaysia.
POPULATION AND DEMOGRAPHIC INDICATORS
- Malaysia’s
population increased from 23.49 million in 2000 to 26.12 million in 2005 at an
average annual rate of 2.6 percent,
with non-citizens accounting for 2.39
million. It is estimated that the population will increase at an average annual
rate of 1.6
percent to reach 28.96 million in 2010. The rate of population
growth will continue to slow down with the declining fertility rate
as the
country progresses towards a developed nation status and more women pursuing
higher education are entering the labour market.
- Malaysia
has a fairly young population with 60 percent of its population below 30 years
as depicted in Table 1.1. Thus, the future
success of the country depends on the
quality of this human capital.
TABLE 1.1: POPULATION BY AGE GROUP AND SEX, 2005
|
2005
|
Male (‘000)
|
percent (%)
|
Female (‘000)
|
percent (%)
|
Total (‘000)
|
0-4
|
1,575.9
|
51.58
|
1,479.1
|
48.42
|
3,054.9
|
5-9
|
1,456.2
|
51.50
|
1,371.6
|
48.50
|
2,827.8
|
10-14
|
1,362.8
|
51.57
|
1,279.7
|
48.43
|
2,642.5
|
15-19
|
1,288.4
|
50.98
|
1,239.0
|
49.02
|
2,527.4
|
20-24
|
1,197.6
|
50.69
|
1,165.0
|
49.31
|
2,362.6
|
25-29
|
1,064.5
|
50.53
|
1,042.2
|
49.47
|
2,106.8
|
30-34
|
974.4
|
50.56
|
952.8
|
49.44
|
1,927.2
|
35-39
|
931.8
|
50.72
|
905.4
|
49.28
|
1,837.2
|
40-44
|
843.8
|
50.89
|
814.1
|
49.11
|
1,657.9
|
45-49
|
734.7
|
51.28
|
698.2
|
48.72
|
1,432.9
|
50-54
|
604.6
|
51.41
|
571.5
|
48.59
|
1,176.1
|
55-59
|
435.4
|
51.64
|
407.8
|
48.36
|
843.2
|
60-64
|
312.6
|
51.10
|
299.1
|
48.90
|
611.7
|
65-69
|
223.6
|
48.45
|
238.0
|
51.55
|
461.6
|
70-74
|
141.8
|
46.29
|
164.6
|
53.71
|
306.4
|
75+
|
154.6
|
43.98
|
196.9
|
56.02
|
351.5
|
Total
|
13,302.8
|
50.91
|
12,824.9
|
49.09
|
26,127.7
|
Source: Department of Statistics.
- The
population by ethnic group and sex is shown in Table 1.2 below.
Table 1.2: Population by Ethnic Group and Sex, 2005
Ethnic group
|
Sex
|
Total (‘000)
|
Male
(‘000)
|
Female
(‘000)
|
Malaysian Citizens
|
12,318.3
|
12,043.7
|
24,362.0
|
Bumiputera
|
8,099.6
|
7,960.9
|
16,060.5
|
Chinese
|
3,144.5
|
3,010.4
|
6,154.9
|
Indian
|
916.8
|
918.0
|
1,834.8
|
Others
|
157.4
|
154.4
|
311.8
|
Non-Citizens
|
984.5
|
781.2
|
1,765.7
|
Total
|
13,302.8
|
12,824.9
|
26,127.7
|
Source: Department of Statistics.
- Since
1990, both the fertility and mortality rates have declined. The crude birth rate
dipped from 27.9 per thousand in 1990 to 23.4
and 19.4 per thousand in 2000 and
2005 respectively. Meanwhile the crude death rate fell from 4.6 per thousand in
1990 to 4.5 per
thousand in 2000 and this rate was maintained in 2005. The total
fertility rate dropped from 3.5 per woman in 1990 to 2.6 per woman
in 2005.
Infant mortality rate declined from 13.1 per thousand live births in 1990 to 5.1
per thousand live births in 2005. Life
expectancy for both men and women has
increased from 69.2 years (men) and 73.7 years (women) in 1990 to 70.8 years
(men) and 75.3
(women) in 2005 respectively.
ECONOMY
- The
general path of the country’s economic evolution has been mapped out in a
series of five-year plans beginning from 1970.
Presently, the Government is
implementing the Ninth Malaysia Plan (2006 to 2010). During the period 1971 to
1990, national development
was guided by the New Economic Policy, which focused
on growth with equity. The two-pronged strategy of the New Economic Policy was
to reduce and eventually eradicate absolute poverty by raising income levels and
increasing employment opportunities for all Malaysians.
This policy was also to
restructure society by correcting economic imbalances to reduce and eventually
eliminate the identification
of race with economic functions.
- The
National Development Policy (1991 to 2000), which succeeded the New Economic
Policy, retained the main elements of the New Economic
Policy and introduced
several new thrusts for a balanced development. These thrusts served to
emphasise the non-materialistic aspects
of national development, especially the
strengthening of social and spiritual values as well as the protection of the
environment
and ecology.
- Subsequently,
the National Vision Policy (2001 to 2010) was introduced to guide Malaysia in
facing the challenges of the 21st century. In essence, the National
Vision Policy represents the consolidation of all past development efforts,
aimed at establishing
a united, progressive and prosperous Malaysia that lives
in harmony and engages in full and fair partnership. Emphasis is also given
to
the building of a resilient and competitive nation as well as an equitable
society to ensure unity and social stability.
- In
addition, Vision 2020 which outlines the progress towards a developed
nation by the year 2020 is a key blueprint for the country’s future. It
calls
for total development and envisions that by 2020 Malaysians will live in
harmony, in a country which is economically dynamic and
robust, democratic,
liberal, tolerant, caring, progressive and prosperous, with a society that has
strong moral and ethical values.
- Malaysia
achieved significant progress in economic growth as well as in meeting its
social objectives in the two decades following
1970. The nation was able to
sustain its pace of development with the Gross Domestic Product growing at an
average rate of 6.7 percent
per annum, while the incidence of poverty was
reduced from 49.3 percent in 1970 to 16.5 percent in 1990. As a result of the
success
in implementing poverty eradication programmes and favourable economic
growth, the incidence of poverty among Malaysians further
decreased to 7.5
percent in 2000 and 5.7 percent in 2004. In addition, the Malaysian economy grew
at an average rate of 4.5 percent
per annum for the period 2001 to 2005. It is
projected to grow at an average rate of 6.0 percent per annum with low inflation
and
price stability for the period of 2006 to 2010. This growth will be
supported by domestic demand due to strong recovery in private
investment.
Foreign investment will remain important, particularly for the upgrading of
technology, skills and management expertise.
- There
were several temporary economic downturns such as the oil crisis in the
mid-1970s, the economic slowdown in the mid-1980s and
the Asian financial crisis
in 1997, when growth reached below average levels. To overcome the 1997 crisis,
for example, the Government
formulated the National Economic Recovery Plan in
July 1998. This Plan was prepared to revitalise the economy as well as to lessen
the impact of the crisis on the country’s poverty reduction and
restructuring of society programmes. The measures introduced
in this Plan
include adopting an appropriate exchange rate regime and increasing foreign
reserves, strengthening the banking system
and continuing with the
socio-economic agenda of providing appropriate social programmes for people
adversely affected by the crisis.
EDUCATION AND LITERACY
- Education
and skills training are accorded high priority in nation building to provide a
sufficient pool of educated, highly skilled,
strongly motivated workers as well
as responsible citizens with high moral and ethical values. In addition, there
were also measures
to increase accessibility and participation in education and
training, especially for the low-income groups and rural communities.
The Sixth
Malaysia Plan (1991 to 1995) and Seventh Malaysia Plan (1996 to 2000), for
instance, emphasised on promoting educational
opportunities in the fields of
science and technology. Meanwhile, under the Eighth Malaysia Plan (2001 to
2005), the thrust of the
education programmes is to increase accessibility,
strengthen the delivery system and improve the quality of education. Existing
facilities were expanded and additional facilities were provided to increase the
absorptive capacity as well as to create a conducive
teaching and learning
environment. Besides focusing on capacity development and quality enhancement,
the inculcation of good values
and positive attitudes among students was also
stressed in curricular and co-curricular activities.
- Under
the Ninth Malaysia Plan (2006 to 2010) the main thrust of education is to
strengthen the national schools, enhance the school
curriculum and
co-curriculum, raise the standard of education institutions, reduce the gap
between rural and urban schools, improve
the teaching profession and delivery
system as well as to expand information and communications technology (ICT)
programmes in schools.
- The
student enrolment at primary and secondary school level in government assisted
schools is comparatively equal for both sexes.
However at the tertiary level,
female enrolment is higher than male, except for enrolment in polytechnics as
shown in Table 1.3.
Table 1.3: Student
Enrolment in Government Assisted Schools, 2001 and 2005
Sex
Level
of Education
|
2001 figures (%)
|
2005 figures (%)
|
Male
|
Female
|
Male
|
Female
|
Primary School
|
51.4
|
48.6
|
51.4
|
48.6
|
Secondary School
|
49.5
|
50.5
|
49.8
|
50.2
|
Polytechnic
|
61.2
|
38.8
|
57.5
|
42.5
|
Teachers’ College
|
32.5
|
67.5
|
29.8
|
70.2
|
University
|
42.2
|
57.8
|
38.8
|
61.2
|
Source: Ministry of Education
- A
good indicator of the progress of human development is the literacy rate. Using
the population aged ten years and above who have
attended school as a proxy for
literacy, it was found that the literacy rate in 2005 is 91.5 percent compared
to 88.7 percent in
2000. The overall literacy rate improved as a result of
continuing efforts to expand education opportunities to all
citizens.
LABOUR AND EMPLOYMENT
- Overall,
the labour force participation rate increased during the period of the Seventh
Malaysia Plan (1996 to 2000) at an average
annual rate of 2.8 percent to reach
62.9 percent in 2000. As a result of the expanding economy during the Eighth
Malaysia Plan (2001
to 2005), the labour force participation rate continued to
increase at an annual rate of 3.4 percent to reach 66.7 percent in
2005.
- The
labour force increased from 9.6 million in 2000 to 11.3 million in 2005. The
size of the labour force is expected to increase
by an average annual rate of
1.9 percent to reach 12.4 million persons by 2010, of which 12.4 percent will be
foreign workers. The
labour force is expected to continue having a young age
profile, be better trained and educated.
- The
economy registered full employment with the unemployment rate at 3.5 percent in
2005. To augment the labour force during the period
of labour shortages, the
Government liberalised its policy on foreign labour utilisation. The end of 1995
saw a total of 649,680
temporary work permits issued to migrant workers. Nearly
two thirds of the temporary work permits were issued for work in the plantation
and construction sectors, 11 percent in the manufacturing sector and 23 percent
for female domestic helpers. Subsequently, foreign
workers with work permits
increased to 1.7 million in 2005 with the manufacturing sector as the largest
employer, accounting for
31.0 percent.
MINISTRY OF WOMEN,
FAMILY AND COMMUNITY DEVELOPMENT
- The
Ministry of Women and Family Development was established on 17 January 2001 as a
focal point to achieve gender equality and enhance
family well-being as the
basis for the formation of a developed nation of distinction. Subsequently,
after the general elections
in March 2004, the functions and responsibilities of
the Ministry were expanded to include social development. In line with this
change, the Ministry was renamed the Ministry of Women, Family and Community
Development. As a result, matters related to children
were entrusted to the
Ministry. With the ever increasing necessity to address issues and challenges of
children, a special Child
Division was created in 2005 at the Department of
Social Welfare, an agency under the Ministry. This move allowed the Government
to handle and administer matters pertaining to children more
effectively.
CHAPTER 2
GENERAL POLITICAL STRUCTURE
Political History
- Three
major periods in Malaysian history were largely responsible for shaping its
current legal system. The first period saw the founding
of the Malacca Sultanate
at the beginning of the 15th century; the second was the spread of
Islam to South-East Asia and its subsequent entrenchment in the indigenous
culture and the
third and probably most significant for modern Malaysia was the
period of British colonial rule, which brought constitutional government
and the
common law system to the country.
- The
establishment of Malacca as a port in the 15th century resulted in
Islam being spread to Malacca by Indian and Arab traders. Eventually, Islam
became the state religion and Muslim
laws were applied alongside customary law.
Malacca was occupied by the Portuguese from 1511 to 1641, by the Dutch from 1641
till
1795, then by the British, reverting back to Dutch control in 1818. In
1824, British rule was restored. These events brought with
them the colonial
system, which included the appointment of magistrates to try civil disputes and
criminal cases, whilst local people
continued to practise Islamic Law and Malay
customs.
- Britain
established its colonial presence in the Malay Peninsular in the middle of the
18th century with the acquisition of the island of Penang in 1786.
Sovereignty over Singapore (which was then part of Johor) was obtained
in 1824
and Malacca was acquired from the Dutch in the same year. These three states
(Malacca, Penang and Singapore) became colonies,
known as Straits Settlements.
Many of the other Malay States came under British control through a series of
treaties.
- In
states under the rule of the Sultans, the British imposed a system of indirect
rule in contrast to the direct government practised
in the Straits Settlements.
The Malay States were theoretically independent and ruled by their respective
sovereigns and their status
was accepted and recognised by the British. In some
States, a Council of State was set up to advise the Sultan. In other states,
the
Rulers accepted the office of a Resident-General who had exclusive authority
over the administration of the State.
- In
1909, the Federal Council was established. This formed the basis of the
centralisation of authority by the British. After the
Second World War, the
Malay Peninsula fell under Japanese occupation (1942 to 1945). Subsequently, the
Federation of Malaya was brought
into being in 1948. It comprised the nine Malay
States and the Straits Settlements (except Singapore). The Federation has a High
Commission, an Executive Council as well as a Legislative Council while each
state had its own Executive Council. The Council of
Rulers met regularly with
the High Commissioner.
- In
1956, a Constitutional Conference was held in London wherein an agreement was
reached with the British Government that full self-government
and independence
within the Commonwealth should be proclaimed by August 1957. A commission known
as the Reid Commission was appointed
to make recommendations for a suitable
constitution for the nation. These recommendations formed the basis of the
Federal Constitution and Malaya was granted independence on 31 August
1957.
- The
constitutional development of Sabah and Sarawak took a somewhat different path
from that of the states in Peninsular Malaya. Sabah
and Sarawak were formerly
British protectorates. They gained independence in 1963 when the Federation of
Malaysia was formed by the
then Federation of Malaya, Sabah, Sarawak and
Singapore. Special provisions were included in the Federal Constitution to
safeguard the interests of these three states. However, Singapore left the
Federation of Malaysia in 1965.
Framework and System of Government
- The
Federal Constitution of Malaysia is both the basic and supreme law of Malaysia.
It provides for, inter alia, the following basic features of the nation:
(a) The establishment of Malaysia as a Federation comprising 13 states and three
federal territories (Kuala Lumpur, Labuan and Putrajaya);
(b) The division of powers between the Federal and the State
authorities;
(c) A constitutional monarchy; and
(d) A Westminster type of parliamentary government which provides for the
separation of powers as follows:
(i) Legislative authority, the power to make law vested in Parliament (Part
IV, Chapter 4 of the Federal Constitution);
(ii) Executive authority, the power to govern which is vested in the Yang
di-Pertuan Agong (the Supreme Head of the Federation) and exercisable,
subject to the Federal Constitution; and
(iii) Judicial power which is vested in the Judiciary (Article 121 of the
Federal Constitution).
The Head of State
- The
Yang di-Pertuan Agong (“King”) is the Supreme Head of
the Federation. His Majesty takes precedence over all persons including the
Rulers in the nine states in Malaysia
(i.e. Terengganu, Perlis, Kedah, Perak,
Selangor, Negeri Sembilan, Pahang, Kelantan and Johor). Each of the other four
states, namely
Penang, Melaka, Sabah and Sarawak is headed by a Yang
di-Pertua Negeri (Governor) who performs the functions of a titular Head of
State but is not eligible to be elected as a Ruler. The Conference of
Rulers,
consisting of the nine Rulers and the four Governors, elects the King from one
of the Rulers in the nine states.
Federal and State
Legislatures
- Article
44 of the Federal Constitution states that the legislative authority of the
Federation “shall be vested in a Parliament.” The Parliament, which
is elected
for a maximum period of five years, comprises the King, Dewan
Negara (Senate) and Dewan Rakyat (House of Representatives). Members
of the Dewan Rakyat are elected by the people while the members of
Dewan Negara are appointed by the King. The legislative power of the
States is vested in the legislature of the respective State which consists
of
the Head of State and one House to be known as the Legislative Assembly. The
Legislative Assembly of each State consists of such
number of elected members as
the Legislature may by law provide. The State of Sabah is an exception because
in addition to the elected
members, it consists of such number of other members
who are appointed by the Head of the State.
- Chapter
1 Part VI of the Federal Constitution stipulates the distribution of legislative
powers between the Parliament and the State Legislative Assembly. Article 73 of
the Constitution describes the powers of the Parliament and the State
Legislative Assembly to make law. As to the subject matter of the laws, Article
74 and the Ninth Schedule of the Federal Constitution sets out the basic
division into three legislative lists, that is the Federal List, State List and
the Concurrent List.
- In
exercising the legislative powers conferred on it, the Parliament may make laws
with respect to any matters enumerated in the Federal
List (First List in the
Ninth Schedule) such as the defence of the Federation, internal security,
external affairs, finance, education
and health. It may also make laws with
respect to any matters enumerated in the Concurrent List such as welfare,
scholarships, sports
and culture, housing, public health, town and rural
development, protection of wildlife, civil defence, drainage and
irrigation.
- The
Legislature of a State may make laws with respect to any matters enumerated in
the State List (Second List in the Ninth Schedule)
such as land, agriculture and
forestry. It may also make laws with respect to any matters enumerated in the
Concurrent List. With
respect to any matters not enumerated in any of the Lists
set out in the Ninth Schedule of the Federal Constitution, Article 77 of the
Federal Constitution provides that the residual power of the legislation rests
on the State.
The Executive
38. The executive authority of the Federation is vested in the King,
exercisable by His Majesty or by the Cabinet or any Minister
authorised by the
Cabinet, subject to the provisions of the Federal Constitution. The Prime
Minister is appointed from the members of the Dewan Rakyat (House of
Representatives), who commands the confidence of the majority of the
members of that House. The other Cabinet members as well as the Deputy Ministers
are appointed by the King on the advice of the Prime Minister.
39. At the State level, the executive authority is vested in the Ruler and
the State Executive Council which is headed by a Menteri Besar for states
which are headed by Rulers and Ketua Menteri for states which are headed
by Yang di-Pertua Negeri. Appointment of the members in the State
Executive Authority is governed by the State Constitution and the processes of
appointment are generally similar to the Federal practices.
The Judiciary
40. The Federal Constitution provides for the establishment of the judiciary
under Part IX. The diagram below illustrates the hierarchy of courts in
Malaysia:
Federal Court
Court of Appeal
High Court
in
Malaya
High Court in Sabah
and Sarawak
Sessions
Court
Sessions Court
Magistrate’s Court
/
Court for Children
Magistrate’s Court
/
Court for Children1
Subordinate Court
41. The Head of the Judiciary is known as the Chief Justice of the Federal
Court. The Court of Appeal comprises eleven judges and
is headed by a chairman
who is known as the President of the Court of Appeal.
42. Each of the High Court in Malaya and High Court in Sabah and Sarawak is
headed by a Chief Judge. All the judges are appointed
by the King on the advice
of the Prime Minister and the Conference of Rulers. Judicial independence is
secured by the Federal Constitution. For instance, the judge holds office until
sixty-five years of age. Removal of any judge from office can only be done on
the grounds
of breach of the code of ethics prescribed by the Federal
Constitution or because of the inability of discharging responsibility due to
infirmity of body or mind. This must be in accordance with an elaborate
procedure set out in the Federal Constitution, which requires, among other
things, the establishment of a tribunal by the King consisting of not less than
five judges or ex-judges
to inquire into the matter.
43. The other securities, which are provided by the Federal Constitution, are
as follows:
(a) Judges’ salaries are provided for by an Act of Parliament and are
drawn from the Consolidated Fund. Thus, they are paid
automatically and are not
subjected to annual approval;
(b) Judges’ salaries and other benefits of office including pension rights
may not be altered to their disadvantage after appointment;
and
(c) The conduct of a judge may not be discussed in either House of Parliament
except on a substantive motion of which notice has
been given by at least a
quarter of the members of that House. State Legislative Assemblies may not
discuss the conduct of a judge
at all as the administration of justice and
appointment of judges are the preserve of the Federal
Government.
44. The jurisdiction of the Federal Court is as follows:
(a) Appellate jurisdiction i.e. to hear and determine appeals from the Court of
Appeal’s decisions, the High Court or a judge
thereof;
(b) Original jurisdiction i.e. to exercise jurisdiction over matters vested in
it by Article 128(1) of the Federal Constitution; and
(c) Advisory jurisdiction, where the King may refer to the Federal Court any
question regarding the effect of any provision of the
Constitution which has
arisen or appears likely to arise, and the Federal Court shall pronounce in an
open court its opinion on any question so
referred.
45. The judicial personnel of the subordinate courts comprise of the Sessions
Court Judges and the First Class Magistrates.
Syariah Courts
46. The constitution, organisation and procedure of the Syariah Courts are
within the legislative powers of the States under List
II of the Ninth Schedule
of the Federal Constitution. With the exception of the Syariah Court in the
Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Syariah Courts in the
States are established by the laws made by the respective State legislatures.
47. The hierarchy of the Syariah Court System consists of the Syariah
Subordinate Court, Syariah High Court and the Syariah Appeal
Court. The diagram
below illustrates the hierarchy of Syariah Courts in Malaysia.
Hierarchy of Syariah Courts in the States and Federal
Territory
Syariah Appeal Court
Syariah High Court
Syariah Subordinate Court
48. The procedure for the appointment of Syariah Court Judges is governed by
the provisions of the Federal Territory and the respective
State legislations on
the administration of Islamic Law. In every State, the Syariah Subordinate
Courts are presided by the Syariah
Subordinate Courts Judges whereas the Syariah
High Courts are presided by the Syariah High Courts Judges. The Syariah Appeal
Courts
are presided by the Syariah Appeal Court Judges chaired by the Chief
Syariah Judge. Appointments of all Syariah judges are made by
the Ruler of each
State where the courts are situated in.
49. As a result of a 1988 amendment to Article 121 of the Federal
Constitution, Article 121 (1A) provides that the civil courts shall have no
jurisdiction in respect of any matter within the jurisdiction of the
Syariah
Courts. The Syariah Courts have jurisdiction over matters enumerated in
paragraph 1 of Part II, List II of the Ninth Schedule of the Federal
Constitution. The criminal jurisdiction of Syariah Courts constituted under the
law of the respective States, in respect of offences against precepts
of the
religion of Islam by persons professing that religion is provided by the Syariah
Court (Criminal Jurisdiction) Act 1965 [Act
355] subject to restrictions as
provided under Act 355.
Jurisdiction of Syariah Subordinate Court
50. A Syariah Subordinate Court shall have jurisdiction throughout the
relevant State or Federal Territory and shall be presided by
a Judge of the
Syariah Subordinate Court. This Court shall:
(a) In its criminal jurisdiction, try any offence committed by a Muslim under
the Syariah criminal legislation or any other written
law which prescribes
offences against the precepts of the religion of Islam for which the maximum
punishment provided by such legislation
or any other written law does not exceed
RM3,000 or imprisonment for a term of two years or both, and may impose any
punishment provided
for such offences;
(b) In its civil jurisdiction, hear and determine all such actions and
proceedings as the Syariah High Court is authorised to hear
and determine, in
which the amount or value of the subject matter in dispute does not exceed
RM100,000 or is not capable of estimation
in terms of moneys (not including
claims of hadhanah or harta
sepencarian)2.
51. An appeal shall lie to the Syariah High Court from any decisions of a
Syariah Subordinate Court:
(a) In its criminal jurisdiction, by the prosecution or by a person convicted
and such appeal may be against an acquittal, a conviction
or a sentence or any
of them;
(b) In its civil jurisdiction:
(i) By any person aggrieved by the decision, if the amount claimed is no
less than RM1,000;
(ii) In all cases involving any decision as to personal status, by any person
aggrieved by the decision;
(iii) In all cases relating to maintenance of dependants, by any person
aggrieved by the decision,
but no appeal shall lie against a decision made by consent; and
(c) In any other case, if the Syariah High Court gives leave to appeal.
Jurisdiction of Syariah High Court
52. A Syariah High Court shall have jurisdiction throughout the relevant
State or Federal Territory and shall be presided over by
a Syariah Judge. This
Court shall:
(a) In its criminal jurisdiction, try any offence committed by a Muslim and
punishable under the Enactment or the Islamic Family
Law (Federal Territories)
Act 1984, or under any other written law prescribing offences against precepts
of the religion of Islam
for the time being in force, and may impose any
punishment provided therefore;
(b) In its civil jurisdiction, hear and determine all actions and
proceedings in which all the parties are Muslims and which relate
to:
(i) Betrothal, marriage, ruju', divorce, nullity of marriage (fasakh),
nusyuz, or judicial separation (faraq) or other matters relating to
the relationship between husband and wife;
(ii) Any disposition of, or claim to, property arising out of any of the matters
set out in subparagraph (i);
(iii) The maintenance of dependants, legitimacy, or guardianship or custody
(hadhanah) of infants;
(iv) The division of, or claims to, harta
sepencarian;
(v) Wills or death-bed gifts (marad-al-maut) of a deceased
Muslim;
(vi) Gifts inter vivos, or settlements made without adequate
consideration in money or money's worth, by a Muslim;
(vii) Wakaf or nazr;
(viii) Division and inheritance of testate or intestate
property;
(ix) The determination of the persons entitled to share in the estate of a
deceased Muslim or of the shares to which such persons
are respectively
entitled; or
(x) Other matters in respect of which jurisdiction is conferred by any
written law.
(c) In exercising its jurisdiction to determine appeals, the Syariah High
Court may:
(i) In a criminal matter, dismiss the appeal, convict and sentence the
appellant, order the trial Court to call for the defence or
make further
inquiry, enhance or alter the nature of the sentence, order a retrial, or alter
or reverse any order of the trial Court;
(ii) In a civil matter, confirm, reverse or vary the decision of the trial
Court, exercise any such powers as the trial Court could
have exercised, make
such order as the trial Court ought to have made, or order a retrial.
(d) The Syariah High Court also has supervisory and revisionary jurisdiction
over all Syariah Subordinate Courts.
Jurisdiction of Syariah Appeal
Court
53. The Syariah Appeal Court shall have jurisdiction to hear and determine
any appeal against any decision made by the Syariah High
Court in the exercise
of its original jurisdiction. When an appeal from a decision of a Syariah
Subordinate Court has been determined
by the Syariah High Court, the Syariah
Appeal Court may on the application of any party grant leave for the
determination by itself
of any question of law of public interest which has
arisen in the course of the appeal and the determination of which by the Syariah
High Court has affected the result of the appeal.
54. When leave has been
granted by the Syariah Appeal Court, it shall hear and determine the question
allowed to be referred for its
determination and make such order as the Syariah
High Court might have made and as it considers just for the disposal of the
appeal.
The Syariah Appeal Court also has supervisory and revisionary
jurisdiction over the Syariah High Courts.
Administration of Syariah Law
55. The 176th Conference of Rulers Meeting held on 1 August 1997
agreed with the Government’s proposal to standardise the laws pertaining
to Syariah Law in Malaysia. Pursuant to the same, the 188th
Conference of Rulers Meeting held on 22 March 2001 agreed on five Model Laws
relating to the Administration of Islamic Law, Islamic
Family Law, Syariah Court
Evidence, Syariah Criminal Procedure and the Syariah Court Civil Procedure. The
provisions of the Model
Laws relating to the said matters are reflected in the
Federal Territory and respective state legislations on the said
matters.3 For purposes of this report, the Islamic Family Law
(Federal Territories) Act 1984 [Act 303], the Syariah Court Evidence (Federal
Territories) Act 1997 [Act 561], the Syariah Criminal Procedure (Federal
Territories) Act 1997 [Act 560] and the Syariah Court Civil
Procedure (Federal
Territories) Act 1998 [Act 585] will be referred to in the elaboration of the
rights of the child under the Syariah
system.
Native Courts
56. Apart from the civil courts and Syariah courts, there is in East Malaysia
a separate system of state’s court known as the
native courts. These
courts are peculiar only to Sabah and Sarawak and their primary function is to
hear and determine disputes arising
from breach of native law and customs where
one party involved is a native. Under the law, native courts are empowered to
administer
and enforce native law and customs prevailing in the area of the
jurisdiction of the court only. Item 13 of List IIA (Supplement
to State List
for States of Sabah and Sarawak) in the Ninth Schedule provides for the
distribution of legislative powers for the
states of Sabah and Sarawak which
includes the constitution and organisation of native courts.
Information and Publicity
57. All national laws are published by the Government Printers in Bahasa
Melayu (the official language) and English. Translations into Mandarin and
Tamil and other vernacular languages are undertaken by either
the news media or
political parties representing these communities. The mass media, both print and
electronic, in the official and
vernacular languages contribute to create
awareness among the public with regard to their rights under the law and the
relevant international
instruments.
58. Press freedom is regulated by the legislation governing the press such as
the Printing Presses and Publications Act 1984 which
regulates the use of
printing presses and the printing, importation, production, reproduction,
publishing and distribution of publications
and for matters connected
therewith.
59. The Ministry of Information is responsible for the dissemination of
information via its departments namely the Broadcasting Department,
Information
Department, Special Affairs Department and Malaysia National News Agency. This
is done in the form of broadcasting, face-to-face
communication and press
liaison. Being a governmental body, the Broadcasting Department presents
Government programmes and policies
to the people. Besides promoting and
developing national unity, it also stimulates public interest, civic
consciousness and provides
information, education and entertainment.
60. The Malaysia National News Agency provides valuable services not only to
newspapers and news agencies, but also to embassies,
banks, universities,
industrial firms and various organisations through its news, economic and
feature services. It also provides
telecommunications facilities to subscribers
for the distribution of news and other services such as economic and commodity
news,
share market and financial services, photographs and international
features.
61. The Government has also established the Human Rights Commission of
Malaysia under the Human Rights Commission of Malaysia Act
1999 [Act 597]. The
functions of the Commission as stipulated under Act 597 are as follows:
(a) to promote awareness of and provide education in relation to human
rights;
(b) to advise and assist the Government in formulating legislation and
administrative directives and procedures and recommend the
necessary measures to
be taken;
(c) to recommend to the Government with regard to the subscription or
accession of treaties and other international instruments in
the field of human
rights; and
(d) to inquire into complaints regarding infringements of human rights as
referred to in section 12 of the Act.
62. For the purpose of discharging
its functions, the Commission has the power to:
(a) promote awareness of human rights and to undertake research by conducting
programmes, seminars and workshops as well as to disseminate
and distribute the
results of such research;
(b) advise the Government and/or the relevant authorities of complaints
against such authorities and recommend to the Government
and/or such
authorities appropriate measures to be taken;
(c) study and verify any infringements of human rights in accordance with the
provisions of the Act;
(d) visit places of detention in accordance with the procedures as prescribed
by the laws relating to the places of detention and
to make the necessary
recommendations;
(e) issue public statements on human rights as and when necessary; and
(f) undertake any other appropriate activities as are necessary in accordance
with the written laws in force, if any, in relation
to such
activities.
63. Children’s rights remain a significant part of the
Human Rights Commission of Malaysia’s agenda since its inception
in 2000.
The Human Rights Education and Promotion Working Group focuses on the area of
promotion and advocacy of the rights of the
child through community and school
based programmes, such as “Training of Adult and Young Trainers on the
Convention on the
Rights of the Child (CRC)”, CRC Awareness workshops,
message and poster competitions on CRC and also CRC Camps for selected
schools
and institutions of higher learning. The Working Group conducted a nationwide
survey between April and May 2003 on the knowledge
and practice of human rights
in schools following the success in including human rights education in schools.
In January 2004, the
Law Reform and International Treaties Working Group
organised a roundtable discussion on the status of the implementation of the
CRC. The discussion was attended by a wide range of stakeholders including
children and the young people.
PART II: THE REPORT
CHAPTER 3
GENERAL MEASURES OF IMPLEMENTATION
(ART. 4; 42 AND 44,
PARA. 6)
GENERAL LEGAL FRAMEWORK
- The
Federal Constitution sets out the basic human rights standards for the country.
The principal rights or provisions in the Constitution are:
(a) Liberty of the person (Article 5);
(b) Prohibition of slavery and forced labour (Article 6);
(c) Protection against retrospective criminal laws and repeated trials (Article
7);
(d) Equality before the law (Article 8);
(e) Prohibition of banishment and the right to freedom of movement (Article 9);
(f) Freedom of speech, assembly and association (Article 10);
(g) Freedom of religion (Article 11);
(h) Rights in respect of education (Article 12); and
(i) Rights to property (Article 13).
- The
rights entrenched in the Federal Constitution as mentioned above also extend to
a child. In addition the care, protection and rehabilitation of the child is
governed by the Child
Act 2001 [Act 611] which was enacted based on the
principles of the Convention on the Rights of the Child (CRC) as elaborated in
the paragraphs below. The rights of the child governed by the Syariah law also
reinforces the principle of best interest of the child
as reflected in the
provisions of the Federal Territory and respective State legislations on matters
concerning rights of the child
arising from matters enumerated under List II of
the Ninth Schedule of the Federal Constitution with regard to personal and
family law of persons professing the religion of Islam.
- In
this chapter, relevant legislations pertaining to a child’s rights, from
the perspective of both civil and Syariah, will
be discussed to reflect the
different provisions of laws and practices in Malaysia.
RELEVANT LEGISLATIONS PERTAINING TO CHILDREN
Child Act 2001 [Act 611]
-
In fulfilling Malaysia’s obligation under the CRC, Malaysia enacted the
Child Act 2001 [Act 611]. Act 611 repealed the Juvenile
Courts Act 1947 [Act
90], the Women and Girls Protection Act 1973 [Act 106] and the Child Protection
Act 1991 [Act 468]. The provisions
of Act 611 are based on the four core
principles of the CRC that is, non-discrimination, best interest of the child,
the right to
life, survival and development and respect for the views of the
child.
- The
preamble of Act 611 provides that every child is entitled to protection and
assistance in all circumstances without regard to
distinction of any kind, such
as race, colour, sex, language, religion, social origin or physical, mental or
emotional disabilities
or any status. The care, protection and rehabilitation of
a child under Act 611 is stipulated as follows:
(a) A child in need of care and protection under Act 611 includes, among
others, a child who has been or is subjected to substantial
risk that he will be
physically or emotionally injured or sexually abused, who have been neglected or
abandoned by his guardians
or parents, who has no parents or guardian, who needs
to be examined, investigated or treated for the purpose of restoring or
preserving
his health and his parents or guardian neglects or refuse to have him
examined, investigated or treated and a child who behaves in
a manner that is
likely to be harmful to himself or any other person and his parents or guardian
is unable or unwilling to take the
necessary measures to remedy the
situation.
(b) If the Court for Children is satisfied that a child is in need of care
and protection, the Court may make any of the following
orders:
(i) Order his parents or guardian to execute a bond to exercise proper care
and guardianship for a period specified by the Court;
(ii) Make an order placing the child in the custody of a fit and proper
person for a period specified by the Court;
(iii) Without making any other order or in addition to an order made under
paragraph (i) or (ii), make an order placing the child under the
supervision of:
- a
Protector4; or
- some other
person appointed for the purpose by the Court for Children,
for a period specified by the Court for Children;
(iv) Make an order placing the child in a place of safety for a period
as provided under Act 611;
(v) In the case of a child who has no parent or guardian or who has been
abandoned, make an order placing the child in the care, custody
and control of a
foster parent found to be suitable by the Director General of the Social Welfare
Department for a period as provided
under Act 611.
(c) In determining what order to be made, the Court for Children shall treat
the best interest of a child as the paramount consideration.
(d) Act 611 imposes on every medical officer, member of the
family of a child and child care provider the duty to inform a Protector if he
or
she believes that the child has been physically or emotionally injured as a
result of being ill-treated, neglected, abandoned or
exposed, or is sexually
abused. Act 611 makes it an offence for any person responsible for caring of the
child to ill-treat, neglect,
abandon or expose a child in a manner likely to
cause him physical or emotional injury. Any person who causes or procures a
child
for begging and a parent or guardian of a child who leaves the child
without reasonable supervision also commits an offence under
Act 611.
(e) Under Act 611 a child is in need of protection and rehabilitation if the
child is being induced to perform any sexual act or he
or she is exposed to any
physical or social environment, which may lead the child to prostitution and any
form of sexual exploitation.
(f) If the Court for Children is satisfied that a child is in need of
protection and rehabilitation, the Court may make the following
orders:
(i) Order the child to be detained in a place of refuge for a period
as provided under Act 611;
(ii) Make an order placing the child for a period as provided under Act 611,
in the care of a person who is willing and whom the Court
for Children considers
to be a fit and proper person to undertake the care of such child;
(iii) Make an order requiring the parent or guardian of the child to execute
a bond, with or without sureties, as the Court for Children
may determine, for
such period not exceeding three years from the date of the order subject to such
conditions as the Court thinks
fit for the proper care and guardianship of the
child;
(iv) Make an order placing the child under the supervision of a Social
Welfare Officer subject to such conditions as the Court thinks
fit and for a
period as provided under Act 611.
(g) In determining what order to be made, the Court for Children shall treat
the best interest of a child as the paramount consideration.
(h) In addition Chapter 2 of Act 611 provides for offences relating to
involvement of children in prostitution.
- Act
611 also requires the setting up of Child Protection Teams and Child Activity
Centres at both state and district levels, aimed
at mobilising community
participation in the implementation of preventive and rehabilitative programmes.
Such programmes and activities
are targeted towards children at risk or children
vulnerable to all forms of abuse and exploitation.
- In
terms of administration of juvenile justice, Act 611 provides for a procedure
before the Court for Children which is child-friendly
taking into account the
mental and emotional maturity of a child. The child is presumed innocent until
found guilty and is guaranteed
the right to be heard. The child also has a right
to a counsel.
- The
Court for Children consists of a Magistrate who shall be assisted by two
advisors, one of whom shall be a woman. It shall be the
duty of the Court to
explain to the child in simple language suitable to the child’s age,
maturity and understanding the substance
of the alleged offence. Where the child
admits the facts constituting the offence, the Court shall ascertain that the
child understands
the nature and consequences of his admission before recording
the finding of guilt.
- The
child also has the right to cross examine witnesses through a counsel. Where he
is not legally represented, the Court for Children
shall allow the child’s
parents or guardian or any relative or other responsible person to assist him in
conducting his defence.
If in any case where the child is not legally
represented or assisted in his defence, the child instead of asking questions by
way
of cross-examination, makes assertions, the Court for Children may put to
the child such questions as may be necessary in order to
bring out, or explain
anything in, the assertions of the child; and shall then put to the witness such
questions as the Court thinks
necessary on behalf of the child.
- If
the Court finds that a prima facie case is made out, the Court
shall explain to the child the substance of the evidence against him and, in
particular, any points in the evidence which
specially tells against him or
requires his explanation. The child shall be allowed to present his case by
giving evidence upon oath
or affirmation or make any statement if he so desires.
He is also allowed to call witnesses to support his case. The right to cross
examine witnesses, to give evidence and produce evidence to support his case are
consistent with the core principle on respect for
the views of the child under
the Convention.
- Where
a finding of guilt is recorded against the child by the Court, the Court shall
consider a probation report before any order
or decision is made pertaining to
the child. The report shall contain information on the child's general conduct,
home surroundings,
school record and medical history to enable the Court for
Children to deal with the case in the best interest of the child. The probation
report may also include any written report of a Social Welfare Officer, a
registered medical practitioner or any other person whom
the Court for Children
thinks fit to provide a report on the child.
- Act
611 also obligates parents or guardian to appear before a Court for Children
during the proceedings. Failure to attend the proceedings
without reasonable
reasons amounts to committing an offence under Act 611.
- Apart
from Act 611 other legislations which promote the welfare and development of the
child are the Education Act 1996, Guardianship
of Infants Act 1961, Births and
Deaths Registration Act 1957, Registration of Birth and Death Ordinance of
Sabah, Registration of
Birth and Death Ordinance of Sarawak, Married Women and
Children (Maintenance) Act 1950, Law Reform (Marriage and Divorce) Act 1976,
Childcare Centres Act 1984, Care Centres Act 1993 and the Workers’ Minimum
Standards of Housing and Amenities Act 1990.
Education Act 1996 [Act 550]
77. Upon accession to the CRC, Malaysia made a declaration
to Article 28 (1) (a) of the CRC as follows:
“With respect to Article
28 paragraph 1(a), the Government of Malaysia wishes to declare that in
Malaysia, even though primary
education is not compulsory and available free to
all, primary education is available to everybody and Malaysia has achieved a
high
rate of enrolment for primary education i.e. at the rate of 98 percent
enrolment.”
78. With respect to the development of a child, the
Education Act 1996 [Act 550] was amended in 2002 to provide for compulsory
primary
education. It stipulates that every parent is obliged to enrol their
child upon attaining the age of six years in primary school
and the child shall
remain as a pupil in a primary school for the duration of the compulsory
education for six years. Although education
is compulsory by law, the current
policy in Malaysia still requires students to pay a certain amount of fees upon
enrolment in primary
school. Although a minimal fee is imposed, financial
assistance is provided by various Government agencies to needy children to
ensure
their rights to education.
Guardianship
of Infants Act 1961 [Act 351]
- The
rights and duties of parents in relation to their children are provided for in
the Guardian of Infants Act 1961 [Act 351]. This
Act provides for the equality
of parental rights in relation to the guardianship or upbringing of an infant or
in the administration
of any property belonging to or held in trust for an
infant or in the application of the income of any such
property.
- On
the death of any one of the parents of an infant, the surviving parent shall be
guardian of the infant, either alone or jointly
with any guardian appointed by
deed or will. In the event that both parents of an infant died without
appointing a testamentary guardian,
any Magistrate, Penghulu, police
officer or Protector5 may cause the infant to be taken before the
Court, and the Court shall appoint a guardian of the infant’s person and
property
or either of them.
- In
the case of an abandoned child, the Court shall appoint a Protector6
to be a temporary guardian of the child until such time when a guardian of the
child can be appointed. In exercising the power conferred
by Act 351, the Court
shall have regard primarily to the welfare and best interest of the
child.
Births and Deaths Registration Act 1957 [Act 299], Registration of Birth and
Death Ordinance of Sabah (Chapter 123) and Registration
of Birth and Death
Ordinance of Sarawak (Chapter 10)
- These
legislations make it mandatory for every birth in the country to be registered.
The provisions provide the child with the right
to a name and an official
document. This official document becomes the basic document for all future
transactions for the child
concerned.
Married Women and Children (Maintenance) Act 1950 [Act 263]
- Under
Act 263, a Court may order a father, who neglects or refuses to maintain his
child, to make a monthly allowance in proportion
to his means as the Court deems
just and reasonable.
Law Reform (Marriage and Divorce) Act 1976 [Act 164]
- In
addition to the provisions of Act 263, Act 164 provides for the rights of the
child to be maintained by the parents. Act 164 also
has provisions pertaining
to the custody of the child in the event of a divorce.
Childcare Centres Act 1984 [Act 308]
- Act
308 is intended to ensure quality childcare for children below the age of four
years at childcare centres. All centres that take
in children for a fee are
required to register with the Department of Social Welfare. Through the issuance
of a Certificate of Registration,
which has to be renewed yearly, the Department
of Social Welfare monitors the operation of the childcare centres to ensure
compliance
with Act 308. This Act also stipulates that all care providers must
obtain the basic Childcare Certificate accredited by the Department
of Social
Welfare. Additional training in Early Childhood Care and Development is also
provided for childcare providers and parents.
Care Centres Act 1993 [Act 506]
- Act
506 provides for registration, control and inspection of day and residential
care centres. Any care centre which provides care
for four or more persons over
a continuous period of more than three hours per day and at least three days per
week whether, for
reward or otherwise, is required to be registered under Act
506.
- A
Certificate of Registration to operate such care centre is granted on the basis
of the number of residents which must not exceed
the stipulated available space
and the specified ratio between care givers and residents. The premise of the
care centre must fulfil
the requirements of the local authorities, observe the
health guidelines as set up by the Health Department and fire safety rules
as
stipulated by the Fire Services and Rescue Department. Besides that, an
appropriate menu and daily activities according to different
age groups must be
provided. Any offences under the Act 506 shall be liable to a fine not
exceeding RM10,000.00 or imprisonment
for a term not exceeding two years or
both.
Workers’ Minimum Standards of Housing and Amenities Act
1990 [Act 446]
- Act
446 prescribes the minimum standards of housing and amenities for workers and
their dependents in any place of employment or part
thereof other than the area
of a City Council, a Municipal Council or a Federal Territory. Amongst others it
requires the employer
to set up a nursery for their workers' children if there
are at least ten children below four years old.
- The
employer is also responsible for the maintenance of the said nurseries. Act 446
stipulates the minimum requirements pertaining
to staff-child ratio, provision
of food as well as programmes and activities for children under their care. An
employer who fails
to comply with the minimum requirements of Act 446 shall be
liable to a fine not exceeding RM2,000.00 and to a further fine of RM100.00
for
each day during which the offence continues. As of 2005, there are 348 nurseries
in the plantation sector in Peninsular Malaysia
compared to 609 nurseries in
2002. The reduction in the number of nurseries is proportional to the smaller
number of estates in Malaysia.
- In
addition to the Act 611, other legislations providing protection from
exploitation and abuse of children are the Domestic Violence Act 1994, Penal
Code and the Children and Young Persons (Employment) Act 1966 (Revised
1988).
Domestic Violence Act 1994 [Act 521]
- Act
521 aims to control the crime of violence amongst the family and maintain the
well-being of the family. It also protects the
child against any form of abuse
committed within the household. This Act has to be read with the Penal Code [Act
574] and the Criminal
Procedure Code [Act 593]. Domestic violence is defined as
wilfully placing the victim in fear of physical injury, causing physical
injury,
compelling the victim by force or threat to engage in any conduct or act, sexual
or otherwise from which the victim has a
right to abstain, and harassment or
psychological harm so as to cause ill health.
Penal Code [Act 574]
- Provisions
of Act 574 under Chapter XVI relating to offences affecting the human body
applies equally to children. Sections 312, 313,
314, 315 and 316 specifically
provide for offences relating to causing miscarriage and injuries to the unborn
child. Section 317
makes it an offence for exposure and abandonment of a child
under twelve years by the parent or any person having the care of the
said
child.
Children and Young Persons (Employment) Act 1966 (Revised 1988) [Act
350]
- Act
350 is aimed at protecting a child from economic exploitation including child
labour. It controls the kind of employment, number
of days and hours of work for
any child and young person. Under Act 350, a child is defined to be below
fourteen years of age and
young person is defined to be above fourteen years but
has not completed his or her sixteenth year of age. This Act also enables
the
child and young person to enter into a contract of service and to sue his or her
employer for wages or breach of services. The
child and young person is also
protected from having to pay damages or indemnity in the event an action is
taken on the child or
young person, by the employer for breach of contract of
service.
- Malaysia
has also enacted legislations governing adoption to safeguard the interest of
the adopted child. The legislations are the
Adoption Act 1952, Adoption
Ordinance Sabah 1960 and the Adoption Ordinance Sarawak 1958, Registration of
Adoption Act 1952 and the
Islamic Family Law (Federal Territory) Act
1984.
Adoption Act 1952 [Act 257]
- Act
257 is enacted to safeguard the interest of the child. Children adopted under
Act 257 will have the same rights and status as
the natural child of the
adoptive parents and will have the rights to inherit the adoptive parent’s
property as if he or she
is a natural child.
- There
is a provision which stipulates a minimum age of the adopter to be at least
twenty five years old and at least twenty one years
older than the child or over
twenty one years if he or she is a relative of the child. Act 257 also prohibits
the adoption of female
children by a sole male applicant unless under special
circumstances. The order of adoption under Act 257 is made by the Court. In
the
states of Sabah and Sarawak, adoption is governed by the respective
states’ Ordinances.
- The
provisions of Act 257 shall not apply to any person who professes the religion
of Islam and to a child who according to law is
a Muslim. The interests and
welfare of a Muslim child taken into custody as member of the family is
contained in section 78 of the
Islamic Family Law (Federal Territory) Act 1984.
This Act provides that where a man has accepted a child who is not his child as
a member of his family, he is duty bound to maintain the child. The fostered
Muslim child is given the same rights as a natural child
and may be entitled to
benefit from the foster parents’ property by way of gift (hibah) or
the foster parents may devise not more than one third of their property by will
(wasiat) to the child. However, the fostered Muslim child will not carry
the family name of his foster parents, nor will he be entitled to
inherit the
foster parents’ property.
Adoption Ordinance Sabah 1960 and the Adoption Ordinance Sarawak
1958
- The
Adoption Ordinance Sabah 1960 and Adoption Ordinance Sarawak 1958 are State Laws
which are applicable to the states of Sabah and
Sarawak by virtue of Article 95B
of the Federal Constitution which came into force on 16 September 1963. Both
Ordinances are listed in List IIA – Supplement to State List for States of
Sabah and Sarawak, Ninth Schedule of the Federal
Constitution.
- Both
the Adoption Ordinances provide for the procedures for the registration of
adoption and conditions relating thereto. Unlike the
Adoption Act 1952 (which
is applicable to non-Muslims in Peninsular Malaysia), these Ordinances
are applicable to both Muslims and non-Muslims.
Registration of Adoption Act 1952 [Act 253]
- Act
253 provides for the registration of adoption upon application
made by the adoptive parents of a child under the age of eighteen years who has
never
been married and is in the custody of, and is being brought up, maintained
and educated by the adoptive parents. The adopted child
must be a permanent
resident and have stayed with the adoptive parents for two years before an
application for adoption can be made
and the certificate of registration of
adoption is issued by the National Registration Department.
- The
provisions of Act 253 are to ensure the welfare and development of the adopted
child, protection of the adopted child from exploitation
and abuse and
safeguards on adoption. Act 253 is applicable to both Muslims and non-Muslims.
- The
procedure under Act 253 is only by way of registration of the adoption at the
National Registration Department. The procedure
of registration of such adoption
would not in any way change the paternity of the Muslim child. This procedure is
not in contravention
with hukum Syarak and fosterage made under section
78 of the Islamic Family Law (Federal Territory) Act 1984.
Islamic Family Law (Federal Territory) Act 1984 (“IFLA”) [Act
303]
- The
provisions pertaining to a Muslim child’s rights may be found in IFLA.
Section 79 of IFLA provides that parents are obligated
to maintain their child
until the child reaches the age of 18 or until the child completes higher
education or further training.
- In
terms of custody of a Muslim child, section 81 of IFLA provides that a mother is
the best person to take care of a child. However,
in terms of guardianship,
section 88(1) of IFLA provides that the father shall be the first and primary
natural guardian of the person
and property of his minor child, and where he is
dead, the legal guardianship shifts to the father’s father, the executor
appointed
by the father’s will, the father’s executor’s
executor, the father’s father’s executor and the father’s
father’s executor’s executor.
- The
IFLA also stipulates provisions pertaining to the welfare of an illegitimate
child. The responsibility towards the illegitimate
child is placed exclusively
to the mother and her relations. In the case of a Muslim child who is abandoned
or needs protection,
the child may be taken into custody for the purposes of
upbringing and education. The Syariah law provides that when any person brings
home a child to foster, to educate and treat as if the child is one of his own;
he protects, feeds, clothes, teaches and loves the
child; but the child is not
attributed to him. Section 78(1) of IFLA makes provision for maintenance of a
child accepted as a member
of the family.
- In
all matters relating to a child, the provision of Part VII under IFLA places the
welfare of the child as the paramount consideration.
ADMINISTRATIVE ACTION AND PROGRAMMES RELATED TO THE CONVENTION ON THE RIGHTS
OF THE CHILD
- To
ensure effective dissemination and greater understanding of the CRC, a
sensitisation workshop was held in 2003 among senior government
officers by the
Department of Social Welfare in collaboration with UNICEF. For the year 2007,
the Department will carry on with more
Child Participation programmes to empower
children to be facilitators of the CRC. Four programmes will be implemented
throughout
the country in 2007, targeting mainly the marginalised children as
well as children from the Children’s Home.
- The
administration of the Department of Social Welfare was restructured in 2005 with
the establishment of a Child Division to handle
issues involving children more
effectively. This exercise resulted in the addition of more officers in charge
of children. A Child
Unit is also set up at all state and district
levels.
- The
Legal and Advocacy Division of the Department of Social Welfare has taken steps
to advocate child issues. Since March 2004, the
Division conducted 10 training
courses on handling child abuse cases throughout the country to all social
welfare officers. The Department
has targeted that all its officers will be
trained and exposed to issues pertaining to children by the end of 2006. With
the expansion
of the Department and increased number of officers, similar series
of training programmes as well as refresher courses are scheduled
in
2007.
Community Based Rehabilitation Centres
- Community
Based Rehabilitation (CBR) centres were established throughout the country by
the Department of Social Welfare. A CBR center
is a one-stop centre for persons
with disabilities (PWD), including children. This centre provides services such
as diagnosis, rehabilitation,
treatment and special education. It also provides
vocational training to prepare the PWDs for employment. The CBR centres are run
by members of the community, volunteers and representatives from the relevant
government agencies, namely the Ministry of Health,
Ministry of Education and
the Ministry of Human Resources. Presently, there are 313 CBR centres with 8,453
PWDs, including children
throughout the country. The Ministry of Women, Family
and Community Development plans to open at least 10 new CBR centres every
year.
Table 3.1: Community Based Rehabilitation (CBR) Centres,
2000 to 2005
Year
|
No. of CBR Centres
|
No. of PWDs
|
2000
|
229
|
7,210
|
2001
|
243
|
7,400
|
2002
|
259
|
7,620
|
2003
|
274
|
7,870
|
2004
|
293
|
8,193
|
2005
|
313
|
8,453
|
Source: Department of Social Welfare
- The
Ministry provides yearly monetary grants to the CBR centres for their
operational expenses, programmes and activities. PWDs who
participate under the
CBR receive a monthly allowance of RM 25.00 per month and free meals from the
Ministry. This allowance will
be increased to RM50.00 per month beginning from
January 2007.
- The
CBR centres organise several activities for the benefit of the disabled
children. Among them are:
(a) Therapy
There are three kinds of therapy offered, namely physiology therapy,
occupational therapy and speech therapy. This training is done
under close
supervision of selected specialists. Physiology therapy focuses on the
rehabilitation of the human body which involves
activities concerning basic
motion skills such as crawling, walking, running, jumping and kicking. The
occupational therapy teaches
the PWDs on various occupational skills to help
them with their jobs. Lastly, the speech therapy focuses on verbal
communications
skills, designed with advanced techniques to help PWDs with
speech impediments to learn to speak better.
(b) Language and Social Development
The PWDs are taught to express themselves verbally, through writing and
inscriptions. This allows them to communicate properly and
for other people to
understand them better. Under this activity, PWDs are also taught interaction
skills, such as sign language
and other methods.
(c) Basic Daily Life Skills
This activity provides basic activities on how a person takes care of
oneself. It includes food and water intakes, bathing, toilet
training, grooming,
wheel chair handling as well as getting in and out of bed and vehicles.
(d) Reading, Writing and Arithmetic (3R)
The PWDs, especially the children are taught basic skills in reading, writing
and arithmetic. In addition, they are trained to handle
writing tools and
materials.
(e) Recreational Therapy
In this activity, PWDs are encouraged to explore their talents through games,
making handicrafts and playing musical instruments.
Often, outdoor excursions to
various places are made to further enhance their self esteem and sense of
accomplishment.
(f) Independent Living Training
This is a treatment that focuses on helping PWDs to achieve independence in
all aspects of their lives. It can provide children with
various needs with
positive as well as fun activities to improve their cognitive, physical and
motor skills. Several ‘hostels’
are set up where four to five PWDs
could learn to live together on their own under the supervision of a
coordinator.
- The
CBR training thus benefits the PWDs, their families and the community. Adequate
training and suitable rehabilitation services
are provided to cater for the
different needs and types of disabilities. This will allow the PWDs to be
integrated into the society
and not left discriminated. It will also instil the
value of independence and positive attitude among PWDs. The National Council
for
Community Based Rehabilitation (NCCBR) was established by the Government to
assist in the rehabilitation programmes. In essence,
CBR has raised the
awareness level among family members on the importance of early prevention as
well as to participate actively
and contribute to the development of the
disabled children.
- The
ratio of carers to children with disabilities in CBR centres was reduced from
1:10 to 1:5 in 2003. This allowed the carers to
give more attention to the
disabled. A Training Manual was developed in 2003 to train carers, parents,
families and the community
members on various rehabilitation and vocational
modules to improve the quality of care for children with disabilities in the
community.
- In
addition, the Department of Social Welfare has developed a portal known as CBR
Net (www.pdknet.com.my) in 2003. Through this portal,
CBR programmes and
activities are readily available online. Parents can access and obtain relevant
information for the benefit of
their children.
Monetary Assistance
- With
effect from 1 January 2006, the financial assistance by the Department of Social
Welfare for needy children was increased from
a minimum rate of RM80.00 to
RM100.00 per month per child, and the maximum was increased from RM350.00 to
RM450.00 per month per
family. This monetary assistance is aimed to ease the
burden of poor families in bringing up their child.
- The
Department of Social Welfare also provides financial assistance known as
Bantuan Kanak-kanak (BKK) for the purchase of school uniforms,
transportation, examination fees and spectacles for needy school-going children.
This reduces
the burden of families that have school-going children. The details
of this financial assistance in given in Table 3.2.
Table 3.2: Financial Assistance (BKK) from the Department of Social Welfare
(2001-2005)
Year |
Number of Cases |
Amount of Financial Assistance |
2001 |
8,908 |
RM 19.09 million |
2002 |
11,841 |
RM 28.51 million |
2003 |
14,234 |
RM 38.77 million |
2004 |
16,363 |
RM 39.47 million |
2005 |
19,346 |
RM 43.66 million |
Source: Department of Social Welfare
118. The Department of Social Welfare has introduced fostering allowances to
encourage the participation of the public in caring
for the orphans. The foster
family is given RM250.00 for each child. 104 children were fostered out in 2004
and 121 children in 2005,
with RM236,894 and RM347,450 spent for the fostering
programme for these corresponding years.
Intervention Action with Regard to Disabled Children in Institutions
119. The Counselling and Psychology Division of the Department of Social Welfare
has produced four intervention modules specially
designed for the children
placed in institutions under the Department. These modules are based on the
“Counselling and Psychological
Service Model”, focusing on children
facing low self-esteem problems. The four modules are as follows:
(a) Assessment Module
This module is to identify psychological aspects of children and family
including:
(i) Competency of basic skills in education;
(ii) Psychological being that is personality, self-concept and self-esteem;
(iii) Self control that is skills in decision making, delay of gratification and
life planning;
(iv) Verbal and non-verbal communications skills, listening skills and
assertiveness;
(v) Coping ability to handle stress and depression;
(vi) Family functioning and family environment; and
(vii) Identify any signs of psychopathology and provide referral services to a
child psychiatrist.
(b) Counselling Module
This module consists of individual, group, family and career counselling.
(c) Psycho Educational Module
This module focuses on educational aspects and delivers necessary information to
instil internal awareness amongst children. Some
children admitted to the
institutions are those with behavioural problems and lack of awareness
pertaining to negative behaviours.
Developmental programmes are geared towards
self-enhancement that focus on values, moral, psychosocial, cognitive and
affective,
physical and sexual as well as career development. This includes
coping ability, stress management, decision making, communications
skills,
eliminate smoking habits and glue sniffing, and anger management.
(d) Crisis Intervention Module
This module handles psychopathological cases and cases requiring short-term
intervention and immediate expert’s attention,
such as a child
psychiatrist.
Training Modules on Handling Child Abuse Cases
120. The Department of Social Welfare has developed seven Training Modules on
Handling Child Abuse Cases through the funding of
UNICEF. These modules guide
Social Welfare Officers, members of the Child Protection Teams, Health
Department, police and the prison
personnel in handling child abuse cases
professionally. Between 2003 and 2005, five Training for Trainers courses were
conducted
by the Department.
Childcare Centres
121. The Ministry of Women, Family and Community Development encourages the
establishment of more childcare centres at the work place.
As an incentive,
employers who set up childcare centres are given 10% tax reduction per annum on
the cost of setting up the childcare
centres for a period of ten years. In the
public sector, Government departments receive a RM80,000 grant to set up such
centres.
The Department of Social Welfare plans to print 3,000 copies of the
“Establishing Childcare Centres at Workplace” guideline
to create
awareness and encourage more employers to open childcare centres. Other agencies
involved in the planning and promotion
of childcare centres at workplace are the
Malaysian Employers Federation, Ministry of Human Resources and the Local
Authorities.
122. The Department of Social Welfare together with the Association of Childcare
Providers Malaysia conducts Training of Trainers
course on childcare. This
course aims to provide qualified trainers with basic childcare courses. These
trainers must comply with the criteria set by the Department and they
must be accredited before they can start teaching.
123. In 2006, the Ministry of Women, Family and Community Development has
targeted to set up 10 community based childcare centres
on a pilot basis. Thus
far, three centres are already operational while the rest are expected to be
operational by the end of 2006.
These childcare centres are established in
strategic locations throughout the country to cater the needs of low income
families.
Each new centre is given RM119,000 for the first year and subsequently
RM64,000 operational budget every year. A subsidy of RM180.00
per child is given
to parents whose income is below RM2,000 per month in the urban areas and
RM1,200.00 per month in the rural areas.
Public Advocacy and Publication on CRC Materials
124. The English text of the CRC was translated into Malay
language, Mandarin and Tamil. All these four versions of the CRC were
disseminated to schools, Government agencies and NGOs in an effort to promote
awareness on the rights of a child.
125. Publicity materials on CRC such as posters,
pamphlets, handbooks and calendars were also developed and distributed
throughout
the country. Amongst some of the handbooks produced were “A
simple guide to your rights ... as a child” and “My
Rights and
Responsibilities as a Malaysian Child”.
126. The Department of Social Welfare organised workshops to create awareness
with regard to the implementation of the CRC. These
workshops listed in Table
3.3 were targeted for the staff of the Department as well as other Government
agencies, NGOs, academicians
and children.
Table 3.3: CRC Awareness Training Workshops, 2003 – 2005
Program |
Date |
No. of Participants |
Workshop on Convention on the Rights of the Child – Sabah
|
4– 6 June 2003
|
31 children from Sabah
|
Convention on the Rights of the Child workshop (Ministry of
Education)
|
13– 15 Oct. 2003
|
43 staff
|
Workshop on Convention on the Rights of the Child - Sarawak
|
1– 2 March 2004
|
40 children from Sarawak
|
Workshop on Convention on the Rights of the Child – Pulau
Pinang
|
24– 26 May 2004
|
37 children (Northern Zone)
|
Workshop on Convention on the Rights of the Child – Terengganu
|
25– 27 July 2004
|
38 children (Eastern Zone)
|
Workshop on Convention on the Rights of the Child – Johor
|
20– 22 Sept 2004
|
27 children (Southern Zone)
|
Workshop on Convention on the Rights of the Child – Kuala
Lumpur
|
20–22 Dec 2004
|
30 children (Central Zone)
|
Convention on the Rights of the Child workshop for staff of the Department
of Social Welfare
|
31 March – 2 April 2006
|
30 staff
|
Source: Department of Social Welfare
127. Malaysia’s country report on the implementation
of CRC will be printed and circulated to all the stakeholders in the country
namely the government departments, NGOs, academicians and the Judiciary. This
report will be made available free of charge upon request
and will also be
posted on the website of the Ministry of Women, Family and Community
Development.
NATIONAL STRATEGY AND IMPLEMENTING
MECHANISM
128. Following the commitment made during the World Summit
on Children in 1990, Malaysia has formulated a National Plan of Action
for
Children Survival, Protection and Development through concerted and coordinated
efforts of various Government agencies, NGOs
and international agencies
particularly UNICEF and the World Health Organisation. This plan will be
succeeded by the second National
Plan of Action for Children which will be
streamlined with the proposed National Child Policy in 2007.
129. A Coordinating Council for the Protection of
Children was established under Child Act 2001 [Act 611]. The Council is
responsible
for advising the Minister of Women, Family and Community Development
on all aspects of child protection as well as coordinating the
resources of
various Government departments involved in child protection. It also renders
advice on the management and operation
of the Child Protection Teams throughout
the country. This Council is chaired by the Director General of the Department
of Social
Welfare and represented by the relevant Government departments, child
experts as well as NGOs.
130. In addition, a National Advisory and Consultative Council for Children
was established on 1 September 2001. This Council acts
as a national focal point
for the children's well-being and development. It is responsible to advise the
Government on matters relating
to policy, direction and programmes for children
in line with the CRC. The Council is chaired by the Minister of Women, Family
and
Community Development with members comprising the relevant Government
departments, NGOs and child experts.
CHAPTER 4
DEFINITION OF THE CHILD (Art.
1)
131. In Malaysia, the definition of a child is governed under the relevant
legislations in accordance with their respective purposes.
Not withstanding the
various legislations, Malaysia’s legislations with regard to the
definition of a child in civil and Syariah
law is consistent with Article 1 of
the CRC with the exception of the Adoption Act of 1952 [Act 253] which defines a
child as a person
below 21 years of age. The following legislations are of
relevance:
(a) Under the Age of Majority Act 1971 [Act 21], the age of majority is
eighteen years.
(b) The Children and Young Persons (Employment) Act 1966 [Act 350], which
governs the appointment of a child and young persons, defines
a child as any
person who has not completed his or her fourteenth year of age while someone
above fourteen but has not completed
his or her sixteenth year of age is
considered as young person. No child or young person shall be required or
permitted to be engaged
in any employment other than those specified in the said
Act. (Please refer to Chapter 10, paragraphs 22 and 23)
(c) Under the Law Reform (Marriage and Divorce) Act 1976 [Act 164], the
minimum age for marriage is eighteen years. However, the
Chief Minister
of a particular State may in his discretion grant a license authorising the
solemnisation of a marriage of the girl child who is under
the age of eighteen
years and has completed her sixteenth year.
(d) The Islamic Family Law Act (Federal Territory) 1984 (IFLA) provides that
the minimum age for marriage is eighteen years for male
and sixteen years for
female. If any person wishes to marry below the minimum age requirement,
section 18 (1)(a) provides that an
application may be made to a Syariah Judge to
obtain permission to solemnise such marriage.
(e) The Child Act 2001 [Act 611] defines a “child” as a person
under the age of eighteen years.
(f) In relation to criminal proceedings, section 82 of the Penal Code [Act
374] stipulates the minimum age of criminal responsibility
is ten years old. A
child (a person who has attained the age of ten years and below the age of
eighteen) who is alleged to have committed
an offence may be arrested with or
without a warrant and may be detained for the purpose of investigation under
section 117 of the
Criminal Procedure Code [Act 593]. When an investigation on a
child cannot be completed within the period of twenty four hours, the
police
officer making the investigation shall transmit immediately to a Magistrate a
copy of the entries in the investigation diary
relating to the case. The child
shall at the same time be produced before the Magistrate who may authorise the
detention of the child
in such custody as he thinks fit for a term not exceeding
fifteen days in whole. The Magistrate authorising the detention shall record
his
reasons for doing so. The Magistrate also has a responsibility to inquire
whether the child has any complaints to make and to
record and make an order in
relation to the complaint. Section 85 of Act 611 provides for the separation of
a child from adults while
being detained in a police station.
(g) Under section 375 of Act 374, it is an offence for a man to have sexual
intercourse with a woman under sixteen years of age with
or without her consent.
(h) Under the Syariah law, the liability for criminal act is attributed to
the act of a person who has attained baligh, of sound mind and of free
will. A Muslim child is not held responsible for any criminal act until the
child reaches the age of puberty.
This is reflected in the provision of the
Syariah Criminal Offences (Federal Territories) Act 1997 [Act 559] and the
respective states’
legislations pertaining to Syariah criminal offences
which provide that “nothing is an offence which is done by a child who
is
not baligh”. The provision of Act 559 and the respective
states’ legislation pertaining to Syariah criminal offences further
provides
that “baligh means having attained the age of puberty
according to Islamic law”.
(i) Generally, under the Syariah law, the sign of puberty for a male is
ejaculation of sperm and for a female is the first menses
she experiences. In
the absence of these signs, puberty of a person will be determined according to
his or her age.
Muslim scholars however have different views in determining the appropriate
age of puberty. Their views are as follows:
According to the Hanafiyah, the age of puberty for both male and female is
15.
According to Imam Abu Hanifah, the age of puberty for male is 18 and for female
is 17.
According to the Malikiyah, the age of puberty for both male and female is
18.
According to the Syafi`iyah and the Hanabilah, the age of puberty for both male
and female is 15.
In Malaysia, Mazhab Shafie is the main source of the authoritative
applicable principles in the administration of Islamic religion or Islamic Law
especially
in matters pertaining to ibadah. Only if there is no
Shafie jurist answering the particular legal questions, reference may be
made to the authoritative works of other Sunni schools of law. Hukum
Syarak is defined in the Administration of Islamic Law as “hukum
Syarak according to Mazhab Shafie or any one of Mazhab Maliki,
Hanafi or Hanbali”.
It can be concluded that from the provisions of Act 559 and the respective
state legislations on criminal offences, a child’s
criminal liability is
not determined by the minimum age requirement but is dependent on the attainment
of his or her puberty.
Section 2 of the Syariah Criminal Procedure (Federal Territory) Act 1997 [Act
560] provides for the age of youthful offender as “an
offender above the
age of ten and below the age of sixteen years”. Any Muslim child who is
above the age of ten is presumed
to have the ability to understand the nature of
the act committed but the child lacks the understanding of legal consequences of
such act. Thus, the legislation provides for such category of person not to be
punished by imprisonment as follows:
“128 (1) When any youthful offender is convicted before any Court of
any offence punishable by fine or imprisonment, such Court
shall instead of
awarding any term of imprisonment in default of payment of the fine or passing a
sentence of imprisonment:
(i) order such offender to be discharged after due admonition if the Court shall
think fit; or
(ii) order such offender to be delivered to his parent or to his guardian or
nearest adult relative or to such other person, as the
Court shall designate, on
such parent, guardian, relative or other person executing a bond with a surety,
as the Court may require,
that he will be responsible for the good behaviour of
the offender for any period not exceeding twelve months or, without requiring
any person to enter into any bond, make an order in respect of such offender
ordering him to be of good behaviour for any period
not exceeding two years and
containing any directions to such offender in the nature of the condition
referred to in paragraphs 130(a),
(b) and (c)7 which the Court
shall think fit to give.
(2) The Court before which a youthful offender is convicted may, in addition
to or instead of punishing such offender in the manner
provided in this section,
inflict on his parent or guardian a fine not exceeding RM200.00 in any case in
which such Court, after
summary inquiry, is satisfied that such parent or
guardian has, by neglecting to take proper care or otherwise, conduced to the
misconduct
of such offender:
Provided that no parent or guardian shall be fined without his having had an
opportunity of being heard and, if he desires it, of
adducing evidence in his
defence.”
(j) Under Act 611, a child below the age of ten years shall not be sent to a
probation hostel or an approved school and a child below
fourteen years shall
not be sent to a Henry Gurney School (an institution under the administration of
the Prisons Department). A
child under the age of fourteen years shall not be
ordered to be imprisoned for any offence or be committed to prison in default
of
payment of a fine, compensation or cost. A child aged fourteen years or above
shall not be ordered to be imprisoned for any offence
if he can be suitably
dealt with in any other way whether by probation, or fine, or being sent to a
place of detention or an approved
school, or a Henry Gurney School. The Act 611
also provides that a child below eighteen years who is in need of protection may
be
taken into temporary custody by the police or Protector until he or she can
be brought before the Court for Children for further
orders.
(k) Section 3 of the Essential (Security Cases) Regulations 1975 (ESCAR)
provides that where a person is accused of or charged with
a security offence,
he shall, regardless of his age be dealt with in accordance with the provision
of this regulation and the Juvenile
Courts Act 1948 [Act 90], shall not apply to
such a person. Section 16 of the Juvenile Courts Act [Act 90] prohibits the
pronouncement
or the recording of the sentence of death on a juvenile. To date
there has only been one case on the issue of the pronouncement of
the death
sentence on a juvenile which is the case of Lim Hang Seoh v PP [1978] 1 MLJ 68.
The Federal Court in the said case affirmed
the death sentence on the accused
who was a boy of the age of 14. He was found guilty of the offence of possession
of a pistol and
ammunition. However, in this case the King exercised his
prerogative power of pardon and commuted the death sentence to a detention
in
the Henry Gurney School until the juvenile reached the age of 21. As of today
there have not been any similar cases to the above.
Section 16 of the repealed
Juvenile Courts Act 1948 is now contained in section 97 of the Act 611.
(l) The Evidence Act 1950 [Act 56] provides that the evidence of a child of
tender years who does not understand the nature of an
oath may be received if in
the opinion of the Court he possesses sufficient intelligence to justify the
reception of the evidence
and understands the duty of speaking the truth. Where
such evidence is admitted on behalf of the prosecution, the accused shall
not be
liable to be convicted of the offence unless that evidence is corroborated by
some other material evidence in support thereof.
(m) Under the Syariah Court Evidence (Federal Territories) Act 1997 [Act
561] evidence of a child of tender years who does not understand
the nature of
an oath may be considered if in the opinion of the Syariah Court he
possesses sufficient intelligence to justify the evidence and understands the
duty of speaking the truth. This is provided
for under section 83(4) of Act
561.
(n) Generally, a person under the age of eighteen years does not have the
capacity to enter into a contract. However, the Contracts
Act 1976 [Act 136]
provides that no scholarship agreement shall be invalidated on the ground that
the scholar entering into such
contract is not of the age of majority i.e. below
the age of eighteen years.
(o) It is provided under the Armed Forces Act 1972 [Act 77] that a person
below the age of seventeen and a half shall not be appointed
as midshipman or
cadet officer without the consent of his parents and a recruiting officer shall
not enlist any person under the
age of seventeen and a half without the written
consent of his parents. In actual practice, only persons of the age of eighteen
and
above are recruited to join the Malaysian Armed Forces.
(p) The Control of Tobacco Product Regulations 1993 stipulates that the sales
of tobacco products to a person under the age of eighteen
is an offence and if
convicted, shall be liable to a fine not exceeding RM1,000.00.
132. Malaysia takes the view that laws which are not consistent with the
definition of the child under Article 1 of the CRC should
be reviewed to ensure
full compliance with the Convention. Therefore, concerted efforts are taken by
the Ministry of Women, Family
and Community Development, with the assistance of
the Attorney General’s Chambers, to address this matter.
CHAPTER 5
GENERAL PRINCIPLES
Non-Discrimination (Art. 2)
133. Article 8 of the Federal Constitution upholds the principle of
non-discrimination and expressly prohibits discrimination against citizens on
the grounds of religion, race,
descent, gender or place of birth, subject to
certain restrictions. Children of the various races, religions and descent are
not
discriminated against in areas such as education, healthcare services and
access to amenities and social facilities.
134. The Child Act 2001 [Act 611] also upholds the principles of
non-discrimination. The preamble of Act 611 recognises that every
child is
entitled to protection and assistance in all circumstances without regard to
distinction of any kind, such as race, colour,
sex, language, religion, social
origin or physical, mental or emotional disabilities or any other status.
Therefore, the principle
of non-discrimination is reflected in many activities
and programmes run by the Government and NGOs throughout the country.
135. However the principle of non-discrimination as provided under the
Federal Constitution is qualified. This qualification is based on the concept of
lawful discrimination or reasonable classification which provides that
a law
must operate alike on all persons under like circumstances. The concept is only
allowed on permissible grounds which is provided
by the law such as for the
protection and advancement of a class of person.
136. Based on this concept, Article 8 (5) of the Federal Constitution, among
others, provides that the provision on non-discrimination under Article 8 does
not invalidate or prohibit any provision for
the protection, well-being or
advancement of the aboriginal peoples of the Malay Peninsular (including the
reservation of land) or
the reservation to aborigines of a reasonable proportion
of suitable positions in the public service and Article 153 of the Federal
Constitution that provides for special position for Malays and natives of the
state of Sabah and Sarawak. These measures are to ensure that the
Malays and the
natives are able to compete with other races particularly in the economic field
and other important and crucial sectors.
Best Interest of the Child (Art. 3)
137. Article 3 (1) of the CRC provides that in all actions concerning
children, the best interest of the child shall be a primary
consideration. Act
611 upholds the principle of best interest of the child. Act 611 provides the
Court for Children with powers to
give orders, inter alia, to place a
child in need of care, protection and rehabilitation in a place of safety or in
the custody of a fit person. In determining
the order to be made with respect to
a child in need of care, protection and rehabilitation, section 30(5), 30(6)(a)
and 40(5) of
Act 611 specifically provides that the Court for Children shall
treat the best interest of a child as the paramount consideration.
The criminal
procedure adopted by the Court is also designed to provide the child offender
with a fair and equitable trial.
138. Other laws enforced in the country also uphold this principle, and they
are implemented accordingly to safeguard the best interest
of the Malaysian
children. In making an order for custody of a child, section 88 of the Law
Reform (Marriage and Divorce) Act 1976
[Act 164] provides that the paramount
consideration shall be the welfare of the child. Similarly, the Adoption Act
1952 [Act 257]
provides that the Court before making an adoption order shall be
satisfied among others, that the order if made will be for the welfare
of the
child. In making orders under the Guardianship of Infants Act 1961 [Act 351],
the Court or Judge shall have primary regard
to the welfare of the infant.
139. Other laws such as the Domestic Violence Act 1994 [Act 521], the
Childcare Centres Act 1984 [Act 308], the Care Centres Act 1993 [Act 506] and
Education Act 1996 [Act 550] mentioned
in Chapter 3 of this report are also
enacted to ensure the children’s right to development, quality care and
protection to
safeguard the best interest of the child. In ensuring that
childcare centres provide the best care for children, these centres must
be
registered with the Department of Social Welfare. Childcare centres must adhere
to the provisions of the Childcare Centres (Institution-based)
Regulations 1993
which provides for the minimum standards of service for the benefit of children
attending childcare centres. Other
measures taken to ensure that the facilities
responsible for the care or protection of children to promote development of the
child
are elaborated in Chapter 8 of this report.
140. In cases involving a Muslim child, the provisions of the IFLA stipulate
that the Court always places the welfare of the child
as the paramount
consideration before making any order. Section 86(2) of IFLA stresses that the
custody of an infant must be with
the best person and the primary consideration
is the welfare of the child. Even though the mother has the primary right for
custody
(section 81(1) of IFLA) and father has the primary guardianship (section
88(1) of IFLA), both rights of the parents may be terminated
if they are found
incompetent to take care of their child. Islam places importance to the
development of child, physically and mentally.
141. Section 86 of IFLA provides that:
“(1) Not withstanding section 81, the Court may at any time by order,
choose to place a child in the custody of any one of the
persons mentioned
therein or, where there are exceptional circumstances making it undesirable that
the child be entrusted to any
one of those persons, the Court may by order,
place the child in the custody of any other person or of any association the
objects
of which include child welfare.”
142. With respect to the rehabilitation of child offenders, some
33,226 children benefited from the various rehabilitation programmes provided by
eight Approved Schools known as the Sekolah Tunas Bakti nationwide
for the period 1990 to 2002. The institutional, preventive and
developmental programmes over this period cost a total of RM147.8 million. In
2005,
a total of RM11.0 million was allocated for the rehabilitation of 1,398
children in these Approved Schools.
143. Programmes involving job-placements for child offenders are being
implemented with the co-operation of the Child Welfare Committees
at the
district level, reflecting community responsibility and concern for the benefit
and welfare of the children. There are presently
110 Child Welfare Committees
nationwide with around 2,330 active members whose main function is to ensure
that the child offenders
are collectively looked after by their parents and
competent authorities, NGOs, the private sector and members of local communities
during the rehabilitative process. The formation of Child Welfare Committee is
provided for in Act 611.
THE RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT (Art.6)
144. The right to life, survival and development of a child are guaranteed
under Article 5(1) of the Federal Constitution which provides that “No
person shall be deprived of his life or personal liberty save in accordance with
the law”. This principle is further illustrated in Part XVI of the
Penal Code [Act 374], which stipulates that the act of causing miscarriage,
injuries to the unborn child, exposure of infants,
and concealment of births is
an offence.
145. In addition, Act 374 has provisions which cover offences affecting the
human body that apply equally to adults and children as
victims of such acts.
Act 611 further provides for offences regarding ill-treatment, neglect,
abandonment or exposure of children
to moral danger, children used as
prostitutes and beggars, children left without reasonable supervision, and
unlawful transfer of
possession, custody or control of children.
146. In respect of development of a child, the Education Act 1996 [Act 550]
stipulates that every parent is obliged to enrol their
child upon attaining the
age of six years as a pupil in a primary school and remain in a primary school
for the duration of compulsory
education. Assistance for child education is
provided by the Ministry of Education in the form of scholarships, milk
supplementary
programmes and school hostels.
147. The right to education has also been given recognition by the Malaysian
courts. In the case of Jakob Renner & others v
Scott King, Chairman of Board
of Directors of the International School of Kuala Lumpur & Ors [2000] 5 MLJ
254, the High Court
held that financial consideration took a back seat and gave
way to disabled children’s basic rights to education. In this case,
the
plaintiff who suffers from moderate spastic diplegia was not allowed to continue
his education on the grounds of his physical
handicap. The principle factor in
denying the plaintiff to continue his education was because of the financial
expenditure that the
school would incur in making the school disabled-friendly.
148. Under the Town and Country Planning Act 1976 [Act 172], the development
and use of all lands and buildings are regulated and
controlled by the local
planning authority. All housing developments must take into consideration the
concept of a child-friendly
and safe environment. The Buildings By-Laws of Local
Authorities provide for new buildings to be designed and constructed according
to the needs of the disabled.
149. In addition, the Government
of Malaysia has taken various measures to guarantee the child’s rights to
life, including creating
an environment conducive for his or her survival and
development. Towards this end, the Government officially launched the Malaysian
Child-Friendly Cities Initiative in 1997. Ten strategic actions were formulated
under this initiative to be implemented by local
authorities as follows:
(i) accelerate and strengthen local authority action to respect, fulfil and
protect the rights of children as ratified by the Government,
and in particular,
to protect children from neglect, abuse and exploitation;
(ii) train local authority administrators and managerial personnel to be
responsive to the needs and aspirations of the urban
children;
(iii) review and revise, where necessary, the local authority's rules,
regulations, by-laws, ordinances and administrative procedures
to be in harmony
with the purpose and spirit of the Charter;
(iv) devise and use suitable methods and mechanisms to engage children of higher
age cohorts in a regular and continuous manner;
(v) dialogue with the local administrators on matters which have direct impact
on the children's well being;
(vi) formulate and set in motion a set of criteria to accredit cities and towns
as child-friendly and ensure concerted action to
help local authorities meet the
criteria so adopted;
(vii) devise and use appropriate methods and administrative mechanisms to
harness the commitment, resources and experience of the
private sector and of
the non-governmental voluntary sector to forge strong and dynamic partnerships
with local NGO coalitions,
community organisations, citizen's groups and mass
media to supplement and fulfil the conditions necessary for our urban areas to
be child-friendly;
(viii) set up social support systems at the community level to help children who
need special assistance or protection, such as children
without family support,
the disabled, abandoned and children addicted to substance
abuse;
(ix) ensure cities and towns, especially public areas, common amenities as well
as roads and transport systems are safe for children;
and
(x) activate mechanisms to encourage, recognise and reward children with
outstanding talents and abilities, and ensure that children
have equal
opportunities and easy access to basic urban services such as health, nutrition,
water, sanitation and shelter.
150. Under the Malaysian Child-Friendly Cities Initiative, a resource book
entitled Ideas for Action - Making Urban Areas Child-Friendly - A Sourcebook
for Community Initiatives in Malaysian Cities was published in 1998. This
book contains ideas, which the Government departments, private sector, parents
and community members can
implement to make cities more child-friendly.
151. In 2005, there were 32 special schools (28 primary and four secondary)
which can accommodate 5,600 disabled children throughout
the country. Hostels
facilities are provided in 24 of these schools. In addition, there are 700
primary and secondary schools which
provide classes and programmes to allow
integration of the disabled children into mainstream education. In terms of
duration of studies,
the children are given two additional years as compared to
normal children to complete their studies at primary or secondary level.
The
Government also provides opportunities for the disabled children to continue
their study at the tertiary level.
152. With regard to skills
training, there are two rehabilitation institutions under the supervision of the
Department of Social Welfare
that provide training opportunities in specific
areas for people with disabilities. They are the Industrial Training and
Rehabilitation
Centre in Bangi (which offers courses in ICT, electrical,
electronic, sewing and fashion design), Taman Sinar Harapan Tampoi, Johor
and Taman Sinar Harapan Jubli, Johor (which provide vocational training
for the mentally retarded boys and girls respectively).
RESPECT FOR THE VIEWS OF THE CHILD (Art. 12)
153. In Malaysia, children are given the opportunity
to express their views through programmes organised by the Government. In
deciding
and determining the policies, programmes or matters pertaining to
children, the Malaysian Youth Council for instance, gains views
from the
children through programmes in collaboration with the 40 affiliates under its
administration. Programmes such as seminars
and workshops are organised
according to the age, theme and group of the children to provide the opportunity
to express their views
on matters affecting them. Resolutions from the views are
then forwarded to the Malaysian Youth Council Board. These resolutions
will then
be considered by the higher authorities that determine policies or programmes
that have an effect on children.
154. Malaysian children are allowed to give their views during seminars,
forums, workshops and talk-shows organised by the Government,
NGOs and the
corporate sector at both national and international levels. An example was their
involvement in the seminar "Understanding the Convention on the Rights of the
Child" in 1996 co-organised by the Government and NGOs. Twelve Malaysian
children were also given the opportunity to participate in the
United Nations
General Assembly Special Session on Children, held in New York on 8 to 10 May
2002. This Session was preceded by the
Children Forum where two Malaysian
children were represented in the said Forum. In addition, children were invited
by the Ministry
of Women, Family and Community Development to give their views
during a seminar to draft the National Reproductive Health and Social
Education
Guideline in March 2005.
155. A child is also given the opportunity to be heard in any judicial and
administrative proceedings affecting him or her either
directly, or through a
representative or an appropriate body, in a manner consistent with the
procedural rules and regulations. This principle is reflected in the
following legislations:
(a) Article 10 (1) of the Federal Constitution provides for freedom of
speech and expression as long as it does not jeopardise national security and
public order;
(b) the Evidence Act 1950 [Act 56] provides that the evidence of any child
of tender years though not given upon oath, may be received
if in the opinion
of the Court, the child possesses sufficient intelligence to justify the
reception of evidence and understands
the duty of speaking the truth. However,
if it is given on behalf of the prosecution, the accused shall not be liable
to be convicted
unless that evidence is corroborated by some other material
evidence;
(c) Part X of Act 611 provides for the criminal procedures to be followed by
the Court for Children. It provides for the procedures
to be followed
regarding bail, the trial, the powers of the Court for Children at the
conclusion of the trial and for appeals.
Section 90(3) of Act 611 provides
that the substance of the alleged offence must be explained to the child and
the Court shall
ask the child whether he admits the facts constituting the
offence. If the child admits the facts constituting the offence,
the Court
shall ascertain that the child understands the nature and consequences of his
admission. Upon the recording of a finding
of guilt by the Court, the child
and the child’s parent or guardian shall be given an opportunity to
mitigate.
Where a child does not admit the facts constituting the offence, the Court
shall hear the evidence of the witnesses supporting
the offence. Section 90(6)
of the Act 611 provides the child with the right to cross-examine each witness
at the close of the
evidence-in-chief of each of the said witness. If the
child is not legally represented, section 90 (7) of Act 611 provides that
the
child’s parent, guardian or any relative or other responsible person may
be allowed to assist the child in conducting
his defence. Where a prima
facie case is made out against the child, the Court shall explain to the
child the substance of the evidence against him and the child
shall be allowed
to give evidence upon oath or affirmation or make any statement he desires.
The evidence of any witness for the
defence shall be heard and where a finding
of guilt against the child is recorded at the end of the trial, the child and
the
child’s parent or guardian shall be given the opportunity to
mitigate the penalty.
(d) In matters related to making an order for custody of a child, section 88
of the Law Reform (Marriage and Divorce) Act 1976
[Act 164] provides that the
paramount consideration shall be the welfare of the child. The said section
provides that where the
child is of an age to express an independent opinion,
the Court shall have regard to the wishes of the child apart from the wishes
of the parents. In matters relating to adoption, the Adoption Act 1952 [Act
257] provides that before making an adoption order,
the Court shall among
others be satisfied that the order will be for the welfare of the child. For
this purpose due consideration
shall be given to the wishes of the child,
having regard to the age and understanding of the child. Under the
Registration of
Adoption Act 1952 [Act 253], the child shall appear
before the Registrar and shall produce to the Registrar such evidence either
oral or documentary that may satisfy the Registrar that the child has been in
the care, brought up, maintained and educated by
the adoptive parents before
an adoption can be registered under the Act.
CHAPTER 6
CIVIL RIGHTS AND FREEDOMS
(Art. 7; 8; 13 – 17 and 37 (a))
NAME AND NATIONALITY (Art.7)
- Under
the Births and Deaths Registration Act 1957, every birth in the country must be
registered with the National Registration Department.
Upon registration, the
child is given a name.
- Information
on the need to register every birth is provided through the mass media. Medical
personnel attending to the birth, family
members and friends also play their
part in increasing awareness on the need to register birth.
- A
child’s right to acquire Malaysian citizenship is stipulated under Part
III of the Federal Constitution. All Malaysian children on attaining the age of
twelve must apply for an identification card, called MyKad, issued by the
National Registration Department. Any Malaysian child with a valid birth
certificate shall not be refused the issuance
of such card.
PRESERVATION OF IDENTITY (Art. 8)
- In
Malaysia, the rights of the child to preserve his or her identity are well
protected by the Government. Malaysian citizenship is
the undisputable right of
every Malaysian child and the Government is not allowed to deprive a Malaysian
child of his or her citizenship
and identity, unless he or she has accepted the
citizenship of another country.
FREEDOM OF EXPRESSION
(Art.13)
- Article
10 (1) of the Federal Constitution provides for the freedom of speech and
expression as long as it does not jeopardise the national security, public order
and morality.
This right shall include freedom to seek, receive and impart
information and ideas. The provision is clearly in tandem with Article
13 of the
CRC.
FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION (Art. 14)
- Article
11 of the Federal Constitution provides the right of every citizen to profess
and practise his or her religion of choice. This is in compliance with the
provision
under Article 14 of the CRC which stipulates that the State shall
respect the right of the child to freedom of thought, conscience
and religion
and the right and duty of parents to provide direction to the child in
exercising this right.
FREEDOM OF ASSOCIATION AND PEACEFUL ASSEMBLY (Art.15)
- Article
10 (1) (b) and (c) of the Federal Constitution provides that all Malaysian
citizens have the right to assemble peaceably and also have the right to form
associations. The rights
are clearly extended to children and are consistent
with the rights to freedom of association and peaceful assembly as
specified under Article 15 of the CRC. Article 19 (2)(b) and (c) of the Federal
Constitution provides that the freedom to assemble peaceably and to form
association is subjected to the powers of the Parliament to enact laws
in the
interest of the security of the Federation, public order or morality.
- In
Malaysia, Section 22 of the Societies Act [Act 335] provides that registered
societies may accept the admission of a person under
twenty-one years of age as
a member or subscriber of the society with the exception that if he is over
sixteen years of age, they
shall not be a member of the committee, or a trustee,
secretary, manager or treasurer of the registered society.
- The
age of majority as provided under the Age of Majority Act 1971 [Act 21] is
eighteen. However, the minimum age for membership varies
in the political
parties and NGOs in Malaysia. Tables 6.1 and 6.2 show the minimum age for a
member in political parties and NGOs
respectively, based on their
constitution.
Table 6.1: Minimum Membership Age in Political Parties
|
Minimum Age (Years)
|
United Malays National Organisation (UMNO)
|
16
|
Parti Islam Se-Malaysia (PAS)
|
16
|
Democratic Action Party (DAP)
|
17
|
Malaysia Indian Congress (MIC)
|
18
|
Malaysia Chinese Association (MCA)
|
18
|
Source: UMNO, PAS, DAP, MIC and MCA
Table 6.2: Minimum Membership Age in NGOs
NGO
|
Minimum Age (Years)
|
Muslim Youth Movement of Malaysia (ABIM)
|
15
|
Jamaah Islah Malaysia (JIM)
JIM has a Kelab Remaja JIM, which
accepts members between the age of 12 to 17 years whilst its Kelab Remaja
Islah Malaysia (KARISMA) is open to university students.
|
18
|
Sisters in Islam (SIS)
|
18
|
Lions Club
Section 3 of the Lions Club’s International Constitution, which
is applied to its subsidiaries, provides that only persons of legal majority and
of good moral character and good reputation
in his or her community may be
granted membership in any duly authorised Lions Club. Membership shall be by
invitation only.
|
Lions Club has a Leo Club which admits persons from the age
of 13 to 18 years old
|
Source: ABIM, JIM, SIS and Lions Club
- It
is the Ministry of Education’s Policy that requires school children to be
members of at least one uniform body (such as the
Scouts, Girl Guides, the
Malaysian Red Crescent Society, Police Cadet, St. John’s Ambulance and
Fire Brigade Cadet), a club
or society (Mathematics Society, Computer Club and
Horticulture Club) and take part in a sports activities (such as track and
field,
netball, badminton and tennis).
PROTECTION OF PRIVACY (Art. 16)
- The
rights of privacy of an individual is protected by Article 5 (1) of the Federal
Constitution which can be interpreted to mean enjoyment of life and freedom of
an individual to move and be engaged in any activity which does
not contravene
with the law. The child’s rights to privacy are well protected under the
domestic legislation, which forbids
the disclosure of confidential and private
information by those privy to such information by reason of their profession
such as medical
records. Information on the health of the child is only given to
his or her parents or guardian.
- Where
a child is ordered to give evidence in Court, the Court may decide for the
hearing to be held in camera to protect the identity of the child, thus,
preserving his or her privacy. Children who are victims of abuse and children
who are
in conflict with the law are protected from all forms of trauma and
social stigma that may arise from inappropriate publicity through
the media
covering the cases. This is provided for under section 15 of the Child Act 2001
which imposes restrictions on any news
reports, publications or presentations
which may lead to the identification of any child concerned.
- Even
though the Syariah legislations in Malaysia have no specific provisions for
juvenile trial to be held in camera, section 6 of the Syariah Criminal
Procedure (Federal Territories) Act 1997 [Act 560] may be invoked by the
Syariah Court for the exclusion of public in certain cases. It provides
that a Judge, hearing any matter or proceedings may on special grounds
of public
policy or expediency in his discretion, exclude the public at any stage of the
hearing from the Court but he shall record
in every such case at the time on the
record of the proceedings the grounds upon which such order is
made.
- Not
withstanding the above, the Syariah legislations allow a trial to be conducted
in camera to protect the identity of the child and preserve his or her
identity for purposes of safeguarding the maslahah (benefit or interest)
of the child. This is based on the source of Syariah legislation musalih al
mursalah which is the rule applied to preserve public interest.
ACCESS TO APPROPRIATE INFORMATION (Art.17)
- In
Malaysia, a child is provided with access to information especially those aimed
at enhancing the child’s mental, physical,
spiritual and moral development
unless the information or material is forbidden in accordance to legal, moral,
religious and cultural
norms. Children are able to have access to information
via the internet, mass media and various reading materials. Specific programmes
and reading materials for children are also made available taking into account
their age and desirability of promoting his or her
social, spiritual and moral
well-being, physical and mental health. Legislations such as the Communications
and Multimedia Act 1998
[Act 588], the Film Censorship Act 2002 [Act 620], the
Printing and Presses Act 1984 [Act 301] and the Penal Code [Act 574] ensure
that
the child is protected from information and material which can be injurious to
his or her well-being.
THE RIGHT NOT TO BE SUBJECTED TO TORTURE OR CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT (Art. 37(a))
- The
right not to subject a child to torture or cruel, inhuman or degrading treatment
or punishment is recognised in Malaysia. This
is clearly illustrated in the
following legislations:
(a) The Penal Code covers offences affecting the human body which applies
equally to adults as well as child victims;
(b) The Criminal Procedure Code renders confessions obtained through
coercion, threat, inducement or punishment inadmissible in Court;
(c) The Domestic Violence Act 1994 [Act 521] provides protection for any
member of the family from physical, sexual, emotional and verbal abuse;
(d) Child Act 2001 [Act 611] provides for offences regarding ill-treatment,
neglect, abandonment or exposure of children to moral
danger, children used as
prostitutes and beggars, children left without reasonable supervision, and
unlawful transfer of possession,
custody or control of children. This Act
further provides that a child under the age of fourteen shall not be ordered to
be imprisoned
for any offence or be committed to prison in default of payment of
a fine, compensation or cost. A child aged fourteen years or above
shall not be
ordered to be imprisoned if he can be suitably dealt with in any other way.
- However
the Act 611 provides that in the event a child is punished with a sentence of
whipping, it can only be imposed on a male child.
It shall not be more than ten
strokes and is to be carried out using a light cane within the Court for
Children’s premises
in the presence of a parent or guardian of the child
if desired by them. In executing the order of whipping, certain safeguards are
strictly adhered to:
(a) before executing the whipping, the child shall be examined by a medical
officer to certify that he is in a fit state of health
to undergo the
whipping;
(b) the person shall use a light cane with an average force without lifting
his hand over his head so that the child’s skin
is not cut;
(c) after inflicting a stroke, he shall lift the cane upward and not pull
it;
(d) whipping may be inflicted in any part of the body except the face, head,
stomach, chest and private parts;
(e) the child shall wear clothes; and
(f) if during the execution of whipping the medical officer certifies that the
child is not in a fit state of health to undergo the
remainder of the whipping,
it shall be finally stopped.
- Section
97 of Act 611 provides that the death sentence should not be pronounced against
a child. (Please refer to Chapter 4, paragraph
1
(k))
CHAPTER 7
FAMILY
ENVIRONMENT AND ALTERNATIVE CARE
(Art. 5; 18, paras. 1-2; 9-11; 19-21;
25; 27, para. 4; and 39)
INTRODUCTION
- Malaysia
is blessed with a multi racial society. The majority are the Malays, Chinese,
Indians, Ibans, Kadazans and others who are free to practise
different religions, cultures and languages of their own. This unique blend of
population potpourri
makes Malaysia a unique and interesting country.
- The
role of the family has been recognised as being very crucial in moulding and
shaping the future generation. It is generally perceived
that family matters are
personal and private. However, when families break down, the effects reverberate
across society. When a marriage
breaks up or a family becomes dysfunctional,
there are often social repercussions. Hence, it is necessary for both the
Government
and the community to advocate the importance of a family to the
public. Strong commitment and continued action would enable Malaysian
families
to withstand the challenges of a modern society.
DEFINITION OF FAMILY
- The
Government of Malaysia has always made a consistent and firm stand on the
traditional definition of family that is “a family is formed out of
marriage or registration between a man and a woman, and comprises children and
extended family members”. Significant emphasis is placed on the
preservation of the family and its values. The Government views that the
strengthening of
the family institution is vital towards creating responsible
citizens to face the challenges arising from rapid economic development
and in
maintaining stability and harmony within the family.
- Towards
this end, the Ministry of Women, Family and Community Development has taken the
initiative to draft a National Family Policy
and its Plan of Action. The policy
aims to galvanise the commitment and support of all stakeholders and
beneficiaries as well as
to promote a family first concept as a means to develop
and enhance the family institution. Specifically, it hopes to incorporate
family
well being, based on universal values, in all development programmes for nation
building through legislations, programmes,
services, facilities and a conducive
environment.
- A
family plays an important role in nurturing and developing children to become
resourceful and resilient citizens. Taking into consideration
the major social
challenges affecting relationships in families, there is a need to provide
social support systems to enhance their
roles and responsibilities. To
strengthen family cohesiveness, the Government has implemented programmes such
as Community-Based
Rehabilitation (CBR) for the disabled persons, Family System
Children’s Homes, Child Activity Centres for children and families
in
‘high risks’ areas and Childcare Centres for working parents.
- Besides
financial aid and services, continuous efforts are being undertaken to review
the social legislations to protect those abused
and victimised. Various family
related legislations are under review with the aim of giving more emphasis,
among other things, on
parental responsibility. The Counsellors Act 1998 [Act
580], for example, helps to ensure that family members get quality counselling
from professional and trained counsellors.
- The
Child Act 2001 [Act 611] empowers a Court for Children to order the parents or
guardian of a child to attend an interactive workshop
to enable them to
establish positive relationship and mutual understanding in overcoming their
problems towards a harmonious family.
Such interactive workshop is carried out
by counsellors of the Department of Social Welfare.
- Counselling
is also provided by the National Population and Family Development Board to
assist those in need of guidance and advice
on issues associated with the
interest of the child. In addition, the Department of Women Development provides
individual and group
counselling for children. Counselling services are offered
for related issues such as depression, behavioural issues and social
problems
related to the child. The National Population and Family Development
Board, the Department of Women Development and the Department of Social
Welfare also provide counselling for parents on how to cope with
the child and
to enable parents to understand, communicate and listen to their children
effectively.
- Various
programmes, services and activities are conducted by the Government to help
families cope with contemporary living. Training
and education have been
identified as key strategies to equip all members of the family and service
providers with the necessary
parenting knowledge and skills. Parenting
programmes have been given priority in informal education programmes. Moral and
social
values have been introduced in the education system which highlights the
importance of family as the central unit in the country’s
social
development.
- In
this regard, the National Population and Family Development Board has developed
a training module called “Permata Kasih” for adolescents.
This module aims to contribute towards the adolescent’s psychological
development and the inculcation
of positive values. From 1997 until 2005,
approximately 3,000 trainers or facilitators from various Government agencies,
NGOs and
the private sector have been trained, while a total of 82,607
adolescents have attended workshops, talks and seminars.
- A
preventive programme was introduced in 2000 by the National Population and
Family Development Board to address issues related to
adolescent reproductive
health. This programme was initiated in collaboration with the International
Council on Management of Population
Programmes. The objective of the programme
is to institutionalise family life education by developing a core group of peer
educators
on adolescent reproductive health known as “My Peer
Programme”. Adolescents were trained as peer educators on counselling
and education, communications, adolescent sexuality and reproductive health
problems and issues, including HIV/AIDS education. Training programmes were
conducted in collaboration with other agencies such as
the Ministry of Health,
Ministry of Education and the Ministry of Home Affairs. A total of 303 peer
educators have been trained from
2000 until 2002.
- To
enhance the former peer programme, two drop-in centres for teenagers known as
kafe@TEEN were established on a pilot basis in Kuala Lumpur and
Butterworth, Penang. A total of 2,250 teenagers have registered at the
centres
since they were set up in 2005. Among the services provided by kafe@TEEN
are information and knowledge on adolescent sexuality and reproductive health as
well as guidance and other services specifically
for adolescents.
- In
order to create strong and resilient families, six guiding principles for the
National Family Action Plan have been established.
The principles were adapted
from the international guiding principles contained in the United Nations
International Year of the Family
Global Blueprint for Action on Families. The
principles are:
(i) attainment of quality population;
(ii) role of women in development;
(iii) encouraging the family to care for the elderly;
(iv) educating the public on the benefits of family development;
(v) developing programmes for the survival, protection and development of the
children; and
(vi) encouraging family, community and Government’s support for the
vulnerable and disadvantaged groups.
PARENTAL GUIDANCE (Art.
5)
- The
Government of Malaysia recognises that the family has the primary responsibility
for human development and enhancement of cultural,
moral and social values of
children. The general direction of laws and national plans of the country is
towards facilitating the
establishment of a family and strengthening its
foundation. Parental guidance in a majority of Malaysian families evolves around
sibling relationships, approved behaviour and manners, time management, speech
development and the acquisition of living skills at
home. Parental guidance is
most often in the form of setting good examples for the children to emulate.
- A
program known as Interactive Workshops is carried out by the counsellors of the
Department of Social Welfare to assist parents in
the upbringing of their
children especially those in conflict with the law. Activities under the
Interactive Workshops are family
counselling, parenting skills, dynamic group
activities, family recreational activities and family functioning assessment.
- Since
its pledge in 1990 at the World Summit for Children, Malaysia has committed to
give every child a better life and future. The
“Say Yes for
Children” campaign was launched in March 2001 where children and
adults from all over the country gathered together to speak out on the Ten
Imperative Actions that must be undertaken in order to improve the lives of
children as part of the international crusade.
- It
is recognised that the best defence against child abuse is the public
participation in reporting the cases. Therefore, the Department
of Social
Welfare has set up a Hotline known as Teledera in 1994 with the aim of
encouraging members of the public to report child abuse cases directly to the
Department for immediate action.
Once the public lodges a report, the gazetted
protectors will investigate, evaluate and take appropriate actions with the
child’s
best interest in mind. As of December 2005, a total of 4,163 cases
of child abuse and domestic violence were reported through the
hotline.
- The
National Population and Family Development Board have developed the Belaian
Kasih Module in 1998 to equip parents with parenting knowledge and
skills needed to handle children. The module focuses among others
on:
(i) The physical, social and psychological development of children below twelve
years of age;
(ii) Techniques and skills in harnessing the children’s potential;
and
(iii) Safety at home including issues of sexual abuse.
- The
Department of Women Development has also embarked on programmes in co-operation
with the Government agencies and NGOs, with the
aim to enhance family values.
These programmes include legal literacy, para-counsellor training, information
and communications technology,
literacy courses as well as capacity building and
awareness campaigns. In the year 2005, the Department conducted 62 training and
capacity building programmes, which benefited 14,155 participants. In addition,
the Department of Women Development organised 161
legal literacy programmes from
2001 to 2005 that benefited 38,039 participants.
PARENTAL RESPONSIBILITIES (Art. 18 (paras.1-2))
- The
rights, duties and responsibilities of parents are provided in various
legislations such as the Child Act 2001 [Act 611], Law
Reform (Marriage and
Divorce) Act 1976 [Act 164], Maintenance Orders (Facilities for Enforcement) Act
1949, Married Women Act 1957,
Married Women and Children (Enforcement of
Maintenance) Act 1968 [Act 356], Married Women and Children (Maintenance) Act
1950 [Act
263] and Guardianship of Infants Act 1961 [Act 351]. Act 351, for
instance, provides for the custody or upbringing of an infant or
in the
administration of any property belonging to or held in trust for an infant or in
the application of income of such property.
- In
relation to disabled children, it is the Government’s policy to encourage
parents to register their children with the Department
of Social Welfare. The
registration would help to facilitate the planning and formulation of policies,
strategies and programmes
that would ensure equal opportunities and full
participation of disabled persons in the mainstream development. Up to December
2005,
a total of 170,455 disabled persons have registered with the Department.
In the year 2005, the number of newly registered disabled
children is 14,780.
Awareness programmes are carried out at grassroot levels by related Government
departments and NGOs on the importance
of registration, namely through Community
Based Rehabilitation centres, health clinics and schools.
- With
regard to single parents, the Department of Social Welfare provides financial
assistance to enable their children to have access
to education. In addition,
the Department of Women Development has established fifteen service centres
nationwide known as Rumah Nur, which provide education, skills training
as well as guidance, counselling services and entrepreneurship programmes in
collaboration
with the Ministry of Entrepreneur and Co-operative Development and
NGOs.
SEPARATION FROM PARENTS (Art. 9)
- It
is to be noted that separation against the will of the child does not take place
in Malaysia except where the Courts determine
through a judicial process that
such separation is necessary for the best interest of the child in cases
involving abuse, neglect,
or in the case of separation or divorce of the
parents. On the separation of the parents, the Malaysian Legal System is in
compliance
with Article 9 of the CRC. In cases of divorce, the Law Reform
(Marriage and Divorce) Act 1976 [Act 164] and the Islamic Family Laws
of all
states in Malaysia provide that the Court may at any time by order place a child
in the custody of either father or mother.
- In
deciding on the issue of custody, the Court is obliged to give paramount
consideration to the ‘best interest’ of the
child and in this
respect the Court shall have regard to the wishes of the parents of the child
and to the wishes of the child where
he or she is of an age to express an
independent opinion. The law provides for a rebuttal presumption that it is for
the best interest
of a child below the age of seven years to be with his or her
mother. However, in deciding whether that presumption applies, the
Court adopts
the cardinal principle of not disturbing the life of a child by changes of
custody. The Court may also impose any conditions
to benefit a child as
follows:
(a) provisions for the child to visit a parent deprived of custody or any member
of a family of a parent who is dead or has been
deprived of custody at such time
for such periods, as the Court may consider reasonable;
(b) give a parent deprived of custody or any member of the family of a parent
who is dead or has been deprived of custody the right
to access to the child at
such times and with such frequency, as the Court may consider reasonable;
and
(c) provisions for the child’s welfare in terms of education, health and
well being.
- In
Islam, the rule of thumb pertaining to child’s custody is the mother is
the best person to be given custody of her child.
Section 81(1) of Islamic
Family Law (Federal Territories) Act 1984 (IFLA) gives priority to the mother
but section 83 on “How
Right of Custody is Lost” qualifies this
right. The right of hadanah of a woman is lost:
(a) by her marriage with a person not related to the child within the
prohibited degrees if her custody in such case will affect the
welfare of the
child but her right to custody will revert if the marriage is dissolved;
(b) by her gross and open immorality;
(c) by her changing her residence so as to prevent the father from exercising
the necessary supervision over the child, except that
a divorced wife may take
her own child to her birth-place;
(d) by her abjuration of Islam; and
(e) by her neglect of or cruelty to the child.
- Section
86 of IFLA provides the Court with powers to make order for the custody of a
child to any one of other persons where there
are exceptional circumstances
making it undesirable that the child be entrusted to the child’s parents.
Section 86, Powers
of the Court to make order for custody states
that:
(a) Not withstanding section 81, the Court may at any time by order choose to
place a child in the custody of any one of the persons
mentioned therein or,
where there are exceptional circumstances making it undesirable that the child
be entrusted to any one of those
persons, the Court may by order place the child
in the custody of any other person or of any association the objects of which
include
child welfare;
(b) In deciding whose custody a child should be placed, the paramount
consideration shall be the welfare of the child and, subject
to that
consideration, the Court shall have regard to:
(i) the wishes of the parents of the child; and
(ii) the wishes of the child, where he or she is of an age to express an
independent opinion.
(c) It shall be a rebutable presumption that it is for the good of a child
during his or her infancy to be with his or her mother,
but in deciding whether
that presumption applies to the facts of any particular case, the Court shall
have regard to the undesirability
of disturbing the life of a child by changes
of custody.
- The
term “exceptional circumstances” used in section 86 of IFLA,
as illustrated in numerous cases involving custody of a child, is the
circumstances whereby the welfare
of the child, morally or physically, would be
badly affected should the custody is given to the person entitled to custody
under
section 81(1) and (3). Among the examples are the father is alcoholic or
child abuser, he is incapable to make a living due to mental
or physical
disability or prolonged unemployment. Al Imam An Nawawi wrote in
3rd Juzu’ of Al Mughni Al Muhtaj, that “if
any of the parents is declared as insane, kufr, insolvent, fasiq
or the mother has remarried, then the right shifted to the other”.
- The
practice by the Malaysian Syariah judges in awarding custody to people
other than those entitled to custody under section 81(1) and (3) is based on the
recommendations
made in the reports prepared by the Department of Social Welfare
as well as considering the criteria that the person must be a Muslim,
of sound
mind, of an age that the person is able to bestow on the child the care, love
and affection needed by the child, of good
conduct from the standpoint of
Islamic morality and lives in a place where the child will not be at risk,
morally or physically.
The person may be a child’s foster mother or father
who has no blood relation with the child, but is known to have taken good
care
of the child. In the case of Zawiyah v Ruslan (1980) 1 JH (2) 102, the
Syariah judge referred to page 94 of Kifayah al Akhyar in
determining the conditions of an entitled mother. The seven conditions are
namely of sound mind, independent, Muslim, piety, trustworthy,
unmarried and has
a permanent residence.
- The
Child Act 2001 [Act 611] provides for offences regarding ill-treatment, neglect,
abandonment or exposure of children to moral
danger, children used as
prostitutes and beggars, children left without reasonable supervision, and
unlawful transfer of possession,
custody or control of children. In addition, a
child may be separated from his or her parents or guardian who committed such
offences.
Under the Act, the Court for Children is empowered to order the child
in need of care, protection and rehabilitation to be placed
in a place of
safety. In determining the order to be made the Court for Children shall treat
the best interest of the child as the
paramount consideration. An opportunity
will be given by the Court to the parents and guardian to be heard before the
order is made.
- Where
separation results from any action initiated by a State Party because of
imprisonment of one or both parents, the Prison Regulations
2000 allows
communication and visits between prisoners and their relatives in accordance to
the provisions of the Regulations. Thus,
the child is not denied the right to
visit his or her parents and is able to maintain personal relations and contact
with them.
- It
is the policy of the Government to allow any child under three years to be
placed with the mother who is serving prison sentence
and the Government
provides basic necessities for both the mother and child. When the child attains
the age of three years, a Medical
Officer shall ascertain whether the child can
be removed or retained in prison with the mother for an additional year.
However, a
special authority is needed to retain the child until the age of four
years. When a child attains the age of three or four years
as the case may be,
references will be made to the relatives of the child or to the Department of
Social Welfare to ensure the best
interests of the child are protected.
FAMILY REUNIFICATION (Art.10)
- There
is no law that prevents either parent or child to leave the country or enter the
country. However, immigration formalities and
regulations need to be complied.
ILLICIT TRANSFER AND NON-RETURN (Art.11)
- The
Government has fulfilled its obligations in preventing and taking remedial
action with regard to kidnapping or retention of a
child from his or her
parents. Part VIII of the Child Act 2001 [Act 611] provides for provisions in
relation to unlawful transfer
of possession, custody or control of child
(section 48), and importation of child by false pretences (section
49).
- Under
Part VII of Act 611, the Protector has the power to examine the child who has
entered or been brought into Malaysia and any
person who may appear to have the
custody and control of such child. Where the Protector has reasonable cause to
believe that a child
has been brought into Malaysia either after having been
transferred for valuable consideration or by fraud, misrepresentation or
any
false pretence, or has been transferred to the custody or control of any person
for valuable consideration either within or outside
Malaysia or is being
detained against his will by some other than his parent or guardian, the
Protector has the power to make an
order for the child to be taken out of the
custody of the person who has care, custody and control of the child. The child
will be
placed in a place of safety or with a relative or other fit and proper
person until the child attains the age of eighteen years or
for any shorter
period.
- It
is also a serious offence under the Penal Code [Act 574] to kidnap a person.
Sections 359 through 369 make kidnapping and kidnapping
for various reasons as
offences under the Act 574. The Immigration Act 1959/63 [Act 155] also provides
protection for a child from
being illegally transferred out of the country. In
addition, the Kidnapping Act 1961 [Act 365] provides for the detection and
punishment
of the offences of abduction, wrongful restraint and wrongful
confinement for ransom.
- With
respect to parental abduction, section 52 of Act 611 provides for the offence of
taking or sending out a child, whether within
or outside Malaysia, without
appropriate consent of the person having the lawful custody. If this situation
happens, the Court may
make a recovery order on an application made by or on
behalf of any person who has the lawful custody of the child. The recovery
order
may:
(a) Direct any person who is in a position to do so to produce the child on
request to any authorised person;
(b) Authorise the removal of the child by any authorised person;
(c) Require any person who has information as to the child’s
whereabouts to disclose that information to the authorised person;
or
(d) Authorise any police officer to enter into any premises specified in
the order and search for the child, using reasonable force
if necessary.
- Act
574 distinguishes between kidnapping from Malaysia and kidnapping from lawful
guardianship. Section 361 of the Act 574 specifically
makes it an offence for
whoever to take or entice any minor under fourteen years of age if male, or
under sixteen years of age if
female, or any person of unsound mind, out of the
keeping of the lawful guardian of such minor or person of unsound mind, without
the consent of such guardian.
- In
order to protect the child’s welfare and interest, the Syariah judge has
the power to restrain the taking of a child out
of Malaysia by either parent or
by other person (kafil) having custody of the child. Section 105 of IFLA
provides that:
(a) The Court may on the application of the father or mother of a
child:
(i) where any matrimonial proceeding is pending; or
(ii) where, under any agreement or order of Court, one parent has custody of
the child to the exclusion of the other,
issue an injunction restraining the other parent from taking the child out of
Malaysia or may give leave for the child to be taken
out of Malaysia either
unconditionally or subject to such conditions or such undertaking as the Court
thinks fit.
(b) The Court may, on the application of any interested person, issue an
injunction restraining any person, other than a person having
custody of the
child, from taking a child out of Malaysia.
(c) Failure to comply with an order made under this section shall be
punishable as a contempt of Court.
- In
addition to section 105 of IFLA, section 87 of the same Act provides the Court
with the power to subject an order of custody to
such conditions as the Court
thinks fit to impose. One of the conditions the Court may consider is the
prohibition on the person
given custody from taking the child out of
Malaysia.
RECOVERY OF MAINTENANCE FOR THE CHILD (Art. 27, para. 4)
- The
child’s rights to maintenance are well protected in Malaysia. It is to be
noted that in custody matters, the financial position
of both parents are
assessed by the Court to determine the quantum of maintenance for the
child.
- For
Muslims, the maintenance of the child is governed by the various Islamic Family
Law legislations of the states. Under these laws,
it is the duty of the father
to maintain his children whether they are in his custody or in the custody of
another person. In the
case of death of the father, or his whereabouts are not
known, the court will determine who should maintain the child. Section 72
of
the IFLA states that except where an agreement or order of Court otherwise
provides, it shall be the duty of a man to maintain
his children, whether they
are in his custody or the custody of any other person, either by providing them
with such accommodation,
clothing, food, medical attention, and education as are
reasonable having regard to his means and station in life or by paying the
cost
thereof.
- Islamic
jurists are unanimous that a child who has no property of his own is entitled to
receive maintenance, in the first instance
from his father, under the authority
of a Quranic verse which means “The duty of their feeding and clothing
according to seemly custom is upon the father of the child” (Surah Al
Baqarah 2: 233). However, this right is subject to two
conditions:
(a) that the child is in need, i.e. indigent and unable to earn a living;
and
(b) that the father has the means to provide maintenance from his capital or
income.
- Inability
to earn a living can be a matter of age, physical or mental condition. According
to Sunni, a child with no property of his own shall lose his right to
maintenance by his father on reaching the age at which he can earn a
living,
even before puberty, but shall retain that right if he cannot work due to
illness or handicap. However, the maintenance of
a student shall continue after
that stage, provided that the course of studies he pursues is religiously
acceptable. The son who
has reached the age of majority shall also be entitled
to maintenance by his father if the son is incapable of earning a living because
of chronic disease, mental or a physical handicap and has no private means, or,
is of such a social status as to render it impossible
to be employed to do
menial job.
- As
for the daughter who has no property, the condition of her being in need is
fulfilled by the very fact of her gender. Even though
she may have the ability
to earn her own living, she is not obliged to do so. The duty to maintain her
shall pass to her husband
once she marries. However, if she later ceases to be
maintained, for example, on divorce or because of disobedience to her husband,
her father shall be bound, once more, to maintain her. This principle is
expressly codified in section 73 the IFLA which states that:
(a) The Court may at any time order a man to pay maintenance for the benefit
of child of his:
(i) if he has refused or neglected to provide reasonably for his child;
(ii) if he has deserted his wife and the child is in her charge;
(iii) during the pendency of any matrimonial proceedings; or
(iv) when making or subsequent to the making of an order placing the child in
the custody of any other person.
(b) The Court shall have the corresponding power to order a person liable
under hukum Syarak, to pay or contribute towards the maintenance of a
child where it is satisfied that having regard to his means it is reasonable so
to order.
(c) An order under subsection (a) or (b) above may direct payment to the
person having custody or care and control of the child or
to the trustee for the
child.
- If
a child possesses property, maintenance is not made compulsory upon others.
Moreover, maintenance of their necessities will be
taken from their own
properties because the basis of compulsory maintenance is a necessity
(hajat). One who possesses a property will not be dependant on other
people’s property for their life maintenance. This will not be
affected
even if the father is wealthy and rich.
- This
principle of those who are responsible under the Syariah law is provided
in the Federal Territory and respective states Islamic Family Law legislations,
which impose the obligation on the father
to provide the children’s
maintenance whether or not those children are under their custody or other
people. Nonetheless, this
obligation can change and shift on to others who are
accountable according to the Syariah law in the event the father
to the children is dead or the place of the father is unknown or the father is
not capable of maintaining
the maintenance. Section 72(2) of IFLA clearly states
that:
“Except as aforesaid, it shall be the duty of a person liable under
hukum Syarak to maintain or contribute to the maintenance of children if
their father is dead or his whereabouts are unknown or if and so far
as he is
unable to maintain them.”
The provision provides that the obligation to maintain the child is imposed
on the male relatives, especially on the father’s
side and not upon other
female relatives even though she is a mother to the child.
- Both
the Syariah and Civil Courts are empowered to order a father to maintain
his children in the case of neglect or desertion. The Married Women and
Children
(Enforcement of Maintenance) Act 1968 [Act 356] provides provisions
whereby a child may apply for an order for maintenance against his or her
father. The Court may further order
the father to make a monthly contribution
for the maintenance of such child in proportion to his means and to the needs of
the child
as the court thinks fit and reasonable.
- With
respect to recovery of maintenance from abroad, the Maintenance Orders
(Facilities for Enforcement) Act 1949 [Act 34] facilitates
the enforcement of
maintenance order made in Malaysia in reciprocating countries.
CHILDREN DEPRIVED OF THEIR FAMILY ENVIRONMENT (Art. 20)
- Under
Chapter V and VI of the Child Act 2001 [Act 611], the Court for Children is
empowered to order a child in need of care, protection
and rehabilitation to be
placed in the care, custody and control of a foster parent or a relative or a
person who is willing and
whom the Court for Children considers to be fit and
proper person to undertake the care of such child. The Court may also make an
order for the child to be placed in a place of safety or a place of refuge.
- The
Department of Social Welfare runs homes for the orphans, needy, abandoned as
well as abused and neglected children. Under the
Act 611, all Children’s
Homes are gazetted as Places of Safety. The Department administers six
Children’s Homes throughout
the country, each with a capacity of 100
children. These Homes provide substitute care and protection that encourages
healthy growth
and holistic development of children in a harmonious and safe
environment. The duration of stay in the Homes is only for a specified
period as
determined by the Court for Children until their own families are ready to
accept them or until the Social Welfare Officers
find suitable foster families
for them.
- Programmes
carried out in the Homes are focused on care and protection through counselling
and guidance, formal education, tuition,
vocational training, religious and
moral education, recreational activities, health and medical
services.
Family System Children's Home
- The
Family System Children’s Homes (Rumah Tunas Harapan) were
introduced to provide proper care, protection and love within a family
environment for children who are unable to stay with
their natural families due
to unavoidable circumstances. These Homes provide an innovative alternative to
institutional care by
placing them in groups of eight to ten in specially built
homes under the care of married couples selected from the community to
act as
their foster parents. Thus, the children are given the opportunity to grow up
like normal children in a family atmosphere
within their own ethnic, cultural
and religious practices. This programme also emphasises the importance of the
involvement of the
Board of Management in the running of the Homes.
- The
Family System Children’s Homes have been made possible through
partnerships and collaborations with the corporate bodies,
state governments and
other related agencies namely the National Welfare Foundation, NGOs and the
community based organisations.
As of 2006 eight Homes, that have 25 house units,
are operational with 225 children.
- Children
under this programme are found to be emotionally and socially stable. Many of
the children showed progress in their studies,
sports and co-curricular
activities and have succeeded in their chosen careers.
- As
elaborated in the subsequent topic of “Adoption” the Syariah
also permits the taking of a child for the purpose of upbringing and
educating the child through the procedure known as
kafalah.
ADOPTION (Art. 21)
- Adoption
is allowed in Malaysia, and the legislations pertaining to adoption are aimed to
protect the welfare and best interests of
the child. Under the Adoption Act 1952
[Act 257], in making the adoption order the Court shall be satisfied that
consent from every
person that is necessary has been obtained and that they
understand the nature and effect of the adoption order. The Court shall
also be
satisfied that the order, if made, will be for the welfare of the child and that
adoption was made pursuant to any payment
or reward between the applicant and
the parent or guardian or any other persons. In registering a de facto
adoption under the Registration of Adoption Act 1952 [Act 253], the Registrar
may on application of the adoptive parents, register
the adoption if he is
satisfied by evidence before him from the adoptive parents and the child, that
the child has been in the custody,
brought up, maintained and educated by the
adoptive parents for not less than two years continuously and immediately before
the date
of the application was made.
- The
Department of Social Welfare monitors cases pertaining to application for
fostering before the child is placed with suitable applicants.
The Department
further supervises the well being of the child as required by the respective
laws until the adoption procedure is
completed. Formal adoptions are processed
and monitored by the Department. However, there are cases of informal adoptions
which are
arranged between the adoptive parents and natural parents as well as
temporary placements with relatives for the care of the children.
In the case of
the latter, there is no supervision as to the procedure of adoption but the
adoptive parent is still obliged under
the law to provide care and protection to
the child. Various awareness programmes on the rights of a child to care and
protection
have been implemented by relevant government agencies and NGOs.
- Likewise,
the Syariah law permits the taking of a child for the purpose of
upbringing and education. This procedure is known as kafalah and under
the hukum Syarak it is not ‘adoption’ in the sense as
understood under civil law. Kafalah is a concept adopted by the
provisions of Part VI of IFLA whereby a child in need of protection may be
entrusted either by a decision
of the Syariah Judge or by the
administrative act of the Department of Social Welfare. The Syariah Judge
may entrust the child to a public or social institution or to a Muslim family
which will care for the child’s person (shelter,
maintenance, education)
and if needed, for the property of the child and when necessary, would receive
delegation of guardianship
over the child.
- Kafalah
is not adoption and creates no effect of ‘parent-child’
relationship. The child remains the obligation of the biological
parent who
remains as the legal guardian. Kafalah does not make any child to become
a family member of the custodian or appointed guardian (kafil). The child
retains his natural parent’s name, not affiliated to the foster father or
mother and he is still able to inherit
from his biological father or mother. An
allowance of RM250.00 per month is allocated by the Department of Social welfare
for each
child placed under this scheme. Thus far, 121 cases have been recorded
by the Department.
PERIODIC REVIEW OF PLACEMENT (Art. 25)
- The
Department of Social Welfare has regularly evaluated the placement of a child
who is placed in a place of safety or place of refuge.
An order given by the
Court for Children placing a child in a place of safety or place of refuge are
subject to amendments, verification
and revocation by the interested parties. In
addition, the Board of Visitors is empowered to reduce the period of detention
of a
child in a place of refuge.
- The
progress of the child in a place of safety and place of refuge is monitored
through the Child Protection (Places of Safety) Regulations
1992 and Women and
Girls Protection (Places of Refuge) Rules 1982. Each child has an individual
file so that his needs can be monitored
with regard to the appropriate
intervention. The Client Management System also stipulates the following actions
to be taken once
a child is placed at the respective homes:
(a) Every place of safety and refuge is to have medical facilities and sick
bay;
(b) The Director General of Medical Services shall appoint a visiting medical
officer for each place of safety and place of refuge;
(c) The visiting medical officer of the place of safety and place of refuge is
responsible to visit the home once a month;
(d) A nurse is placed at both homes to observe, give medical attention and
prepare and maintain a medical card for every child;
(e) The medical officer shall carry out thorough medical examination on each
child on admission, thereafter annually and again shortly
before the child
leaves the home;
(f) The medical officer shall carry out weekly inspections on the sanitary and
hygienic condition of the home;
(g) The medical officer shall carry out examination and treatment of the
children and also for the members of the staff. The attendants
and cooks will
have to undergo necessary medical examinations and to be inoculated to prevent
unnecessary infections;
(h) The medical officer shall keep records in a form and manner approved by the
Director General;
(i) The medical officer shall furnish such reports and certificates as the
Director General may require;
(j) Where in the opinion of the medical officer a child requires treatment in a
hospital, arrangements shall be made for the child
to be received in a hospital
for such period as may be necessary;
(k) During the period of such stay in the hospital, the child shall be deemed to
be under the custody of the Principal;
(l) Where a surgical operation for a child is necessary and urgent and the
consent of the parent or guardian as required by the hospital
is unobtainable
within the time available, the Principal shall sign the consent for and on
behalf of the parent or guardian;
(m) The staff shall observe the daily health condition of each child with regard
to the appearance, general cleanliness, personal
hygiene, temperature, skin
troubles and any other abnormal conditions detected;
(n) There shall be in every place of safety and refuge at least one fully
equipped first aid box which shall be maintained;
(o) The duty officer shall receive every child with appropriate documents and
medical report;
(p) The duty officer shall gather information on medical history and health
status. For sexual abuse cases, the duty officer shall
ensure the child
undergoes VD/STD/HIV examination and shall provide such relevant information to
the visiting doctors or to the medical
officers;
(q) Disabled children or children who are sick are to be examined by a
medical officer to ensure their level of disability and
their needs;
(r) The nurses shall take note of the child’s height and weight (ie. to
monitor the stages of a child’s development);
(s) The duty officers, nurses and carers shall ensure that every baby and
toddler gets proper innoculation from time to time as
recommended by the medical
officers;
(t) The duty officers, social welfare officers and the counsellors shall prepare
a treatment plan for the child;
(u) Each child in the home will undergo dental examination and treatment every
six months;
(v) The Board of Visitors shall review the progress of case by evaluating
immediate problems faced by the child;
(w) The duty officer or the Board of Visitors shall recommend placement to
foster families or adopted families whichever is
appropriate;
(x) The Principal of the place of safety shall prepare the child progress report
quarterly and discuss with an academic or vocational
teacher for placement in
schools, jobs or training outside. For children who attend school outside the
home they are entitled to
pocket money;
(y) The Principal of the place of safety, duty officers, counsellors and Board
of Visitors shall discuss the child’s progress
at the Review and
Discharges Panel Meeting according to Part 16 Reviews and Discharges Child
Protection (Places of Safety) Regulations
1992 and Women and Girls Protection
(Places of Refuge) Rules 1982. Children who are released from homes are also
entitled to an allowance
of RM200.00;
(z) The duty officer shall prepare progress report for the case
worker;
(aa) Prior to release, the duty officer, Principal and the Social Welfare
Officers shall discuss with the child and the family of
the child with regard to
the child’s progress report on the future plan of the child;
and
(ab) Interactive workshops are also carried out to inculcate positive
relationship and understanding between parents and child.
The Government is in the process of reviewing the relevant legislation
pertaining to the care, protection and rehabilitation of a
child placed in a
place of safety or place of refuge.
ABUSE AND NEGLECT (Art. 19), INCLUDING PHYSICAL AND PSYCHOLOGICAL RECOVERY
AND SOCIAL REINTEGRATION (Art. 39)
- Under
the Penal Code [Act 574], provisions which cover offences affecting the
human
body apply equally to adults and children as victims of such
acts. In addition the provision of the Domestic Violence Act 1994 [Act 521] is
also aimed at protecting a child against any form of abuse committed within the
household.
- The
Child Act 2001 [Act 611] provides extra protection for children, in which it
stipulates for offences regarding ill-treatment,
neglect, abandonment or
exposure of children to moral danger, children used as prostitutes and beggars,
children left without reasonable
supervision, and unlawful transfer of
possession, custody or control of children.
237. Under the Act 611, the Court for Children is also empowered to order the
child in need of care, protection and rehabilitation
to be placed in a place of
safety, place of refuge, custody and control of a foster parent or in the care
of a person who is willing
and whom the Court for Children considers to be fit
and proper to undertake the care of such child. The provisions under Part V
Chapter
2 and Part VI Chapter 1 provide for the identification, reporting,
referral, investigation, treatment and follow-up of the child
who is in need of
care, protection and rehabilitation. Before issuing the order, the Court for
Children is obliged to place paramount
consideration to the best interests of
the child. An opportunity will also be given to the parents or guardian to be
heard before
the order is made. 1,242 child abuse cases in 2002 and 1,800 cases
in 2005 were reported to the Department of Social Welfare which
include neglect,
physical, sexual and emotional abuse.
CHAPTER 8
BASIC HEALTH AND WELFARE
(Art. 6; 18, para. 3; 23; 24; 26; 27, paras. 1-3)
DISABLED CHILDREN (Art. 23)
- The
Government of Malaysia has implemented various programmes to accommodate the
basic needs of disabled children. The quality of
life of children with special
needs has markedly improved with the provision of Early Intervention Services at
the primary healthcare
level. The Programme of Care for Children with Special
Needs provides rehabilitation services for children with special needs from
birth to eighteen years of age.
- The
awareness and interest in rehabilitation programme was highlighted in 1979 in
the Fourth Asian Conference for the Handicapped,
followed by the Declaration of
the International Year of the Disabled in 1980. Since then, Malaysia has
committed to the concept
of “total rehabilitation” which entails a
multi-disciplinary approach. Rehabilitative services for children with special
needs are provided through institutional services and community-based
rehabilitation programmes.
- Presently,
there are seven rehabilitation centres which provide custodial, training and
rehabilitation programmes for the intellectually
disabled children. These
centres can accommodate a total of 1,060 trainees. In addition, the Bangi
Industrial Training and Rehabilitation
Centre for the physically disabled was
established in 1999 to provide vocational training and medical rehabilitation.
To date, 703
trainees have graduated from the Centre and many have successfully
secured employment in the community as well as the open labour
market.
Community Based Rehabilitation
- Community
Based Rehabilitation (CBR) was introduced in 1984 as a strategy within the
community for the rehabilitation, equalisation
of opportunities and social
integration of all persons with disabilities, including children. It is
implemented through the combined
efforts of persons and children with
disabilities themselves, their families and communities, along with the
appropriate health,
education, vocational and social services. It aims to reduce
the impact of disability and provide the support services for families
of
persons and children with disabilities.
- As
of 2005, the Department of Social Welfare has established 313 CBR centres
programmes throughout the country benefiting 8,453 persons
with disabilities. A
total of 1,283 teachers have been trained to undertake rehabilitation programmes
at the centres, make home
visits and facilitate parental involvement. In line
with the approach of community participation, the CBR centres are managed by
a
committee comprising of local community members, families and persons with
disabilities themselves. The Government acknowledges
the effectiveness of the
CBR programmes, thus providing an annual allocation for the worker’s
allowance, rental of premises
as well as a one-off grant for rehabilitation
equipment. However, the committee is responsible for the other expenses in line
with
the community based approach.
- The
CBR programme is a preferred alternative to institutional care since it provides
decentralised rehabilitation services and early
intervention for persons and
children with disabilities in their own community. It helps to ensure the
acceptance and social integration
of persons with disabilities, including
children, as well as providing them the opportunity to develop their abilities
and skills
to their full potential, leading to a meaningful live. As a result,
CBR prevents the separation of persons and children with disabilities
from their
families and communities and facilitates the evolution of a caring Malaysian
society.
HEALTH AND HEALTH SERVICES (Art. 24)
- The
Government of Malaysia is committed to provide adequate health infrastructure
and programmes which are accessible and affordable
to all. This has contributed
to a steady decline in peri-natal, infant and toddler mortality in the last
twenty years. Malaysia has
already achieved eleven out of the thirteen Global
Mid-Decade Goals on Children.
- The
Government allocated RM9.50 billion for the health sector during the Eighth
Malaysia Plan (2001 to 2005) and this figure increased
to RM10.28 billion for
the Ninth Malaysia Plan (2006 to 2010).
- The
issue of vitamin A deficiency in Malaysia has been addressed effectively by the
Government. It is not a public health problem
in Malaysia. Iodine Deficiency
Diseases are not a nationwide problem in Malaysia, except in some areas in the
states of Sarawak and
Sabah.
- With
the achievements in health, Malaysia has progressed beyond the child survival
issues to provide more concerted efforts towards
child protection and
development. The implementation of prevention and promotion of health programmes
as well as expansion of health
facilities was undertaken to widen the coverage
and accessibility of curative and rehabilitative health services. In this
regard,
planning and design works on new hospitals as well as urban and rural
health clinics were undertaken as part of the strategy to provide
a wider range
of preventive and curative services to the general public and to decentralise
outpatient clinics to reduce overcrowding
in hospitals. In addition, various
training programmes were undertaken and further enhanced through the expansion
of existing facilities
to meet the increasing manpower needs in an expanding
health sector.
- As
an integral part of the preventive and promotional health
programme, the healthy lifestyle campaign was implemented with the
co-operation of various agencies and NGOs. The first phase of the campaign
was
carried out from 1991 to 1996. It focused on disease prevention themes namely
cardiovascular disease (1991), prevention of AIDS
and sexually transmitted
diseases (1992), food cleanliness (1993), promotion of children health (1994),
cancer (1995) and diabetes
(1996). The second phase of the campaign (1997 to
2002) stressed on the promotion of healthy lifestyle. For instance, the campaign
focused on the promotion of healthy nourishment (1997), exercise and fitness
(1998), safety and injury prevention (1999), mental
health (2000), healthy
family (2001) and healthy environment (2002). A healthy lifestyle campaign with
the theme Be Healthy for Life was implemented in 2003. This theme
was then adopted to be the general campaign for the subsequent years. The
campaign focused on four elements, namely healthy
eating, exercise and physical
fitness, abstinence from smoking and stress management. In addition, HIV/AIDS
awareness programmes
for youths known as Program Sihat Tanpa AIDS Untuk
Remaja (PROSTAR) was launched by the Ministry of Health in 1997 to promote a
healthy lifestyle and prevent HIV/AIDS infection among youths.
- The
Plan of Action on Nutrition was implemented in 1996, which included the
improvement of food quality and safety, breast feeding
promotion, as well as
promotion of appropriate diet and healthy lifestyle. Subsequently, the National
Nutrition Policy was formulated
in 2003 to ensure public access to safe and
quality food regardless of location as well as ascertain that nutritious food is
crucial
for optimal growth, development and the health of the family. Nutrition
programmes for the prevention and control of nutritional
excesses and
deficiencies as well as promotion of healthy eating were further enhanced. In
this regard, the Food Regulations 1985
was amended in 2004 to include the
implementation of mandatory labelling of food content with relevant nutrition
information to assist
consumers in making informed choices when purchasing food
products.
- In
the year 2002, the provision of safe water and proper sanitation was further
expanded through the construction of 4,900 gravity-feed
water supply systems,
13,400 sanitary wells and 15,600 rain water collection schemes. The Government
has taken the necessary measures
to prevent and reduce waterborne diseases to
improve the health status of the population, especially in the rural areas. The
percentage
of houses supplied with safe water increased from 93.76 percent in
2002 to 95.24 percent in 2005. However, there was a slight decrease
in the
percentage of houses with adequate sanitary latrines in the rural population
from 98.54 percent to 98.02 percent in 2005 due
to the aborigines who preferred
to lead the traditional lifestyle in the rural areas. In essence, safe water and
proper sanitation
has helped to reduce the incidence of waterborne diseases such
as cholera from 2,209 cases in 1995 to 1,480 cases in 2005.
- Access
to medical and healthcare services were expanded, upgraded and new programmes
introduced during the Eighth Malaysia Plan (2001
to 2005). These services,
comprising primary, secondary, tertiary and rehabilitative care, continued to be
provided through an extensive
network of hospitals as well as health and
community clinics. The Government has upgraded and equipped 123 clinics with
laboratory
and diagnostic imaging facilities as well as the placement of family
medicine specialists. During the Eighth Malaysia Plan period,
a total of 22
hospitals were built, comprising 14 new and eight replacement hospitals.
Meanwhile, new programmes that include screening
for specific diseases and risk
factors, early intervention and treatment as well as reducing disability will be
implemented during
the Ninth Malaysian Plan (2006 to 2010). In this regard, an
integrated and comprehensive health risk management programme aimed at
early
detection of diseases will be implemented. The screening programme for
congenital hypothyroidism among newborns will be further
expanded. Services for
children with special needs will also be expanded and introduced in every
district. In addition, Thalassaemia
screening will be implemented to ensure
early detection of blood disorders.
- Proactive
measures are constantly undertaken to ensure an adequate supply of human
resource to support the expansion and delivery
of health services. Training
capacity in seven public universities and five private medical colleges was
expanded to train more doctors,
dentists and pharmacists. As a result, the ratio
of health personnel to population improved as shown in Table 8.1.
Table 8.1: Medical Personnel Ratio
Indicator
|
1995
|
1997
|
1999
|
2002
|
2005
|
Doctor: population ratio
|
1: 2,153
|
1: 1,521
|
1: 1,465
|
1: 1,406
|
1: 1,300
|
Dentist: population ratio
|
1: 11,822
|
1: 11,617
|
1: 11,897
|
1: 10,678
|
1 : 9,497
|
Pharmacist: population ratio
|
1: 13,461
|
1: 12,409
|
1: 9,798
|
1: 8,673
|
1: 6,512
|
Nurse: population ratio
|
1: 1,224
|
1: 883
|
1: 1,086
|
1: 695
|
1: 592
|
Source: Ministry of Health
- The
implementation of various programmes led to improvements in the health status of
the population especially children. Since 1990,
both fertility and mortality
rates have declined. The crude birth rate dipped from 27.9 per thousand in 1990
to 23.4 and 19.4 per
thousand in 2000 and 2005, respectively. Infant mortality
rates dropped from 13.1 per thousand live births in 1990 to 5.7 and 5.1
per
thousand live births in 2002 and 2005, respectively.
- A
new legislation known as the Private Healthcare Facilities and Services Act 1998
[Act 586] was introduced to replace the Private
Hospitals Act 1971. This
Act reinforced the enhanced role of the Ministry of Health as a regulator of
facilities and services pertaining
to healthcare. Among others, the Act
empowers the Ministry of Health to regulate the maintenance of safety,
distribution of services,
provision of quality care and the charging of
affordable rates. In this regard, the private healthcare providers are required
to
adopt a more caring concept and provide a wider scope of affordable
healthcare.
- Child
healthcare service has been provided since 1956 through the rural health
programmes. Currently the service is incorporated into
the Maternal and Child
Health Services, which is provided through all health and community clinics. The
main purpose of this service
is to provide optimum healthcare to the child from
the time he or she is born until the school going age. The Ministry of Health
has produced an attendance schedule for a child as shown in Table
8.2.
Table 8.2: Child Healthcare Attendance
Schedule
Age
|
Visiting schedule
|
Birth – 6 months
|
Every month
|
6 months – 12 months
|
Once every 2 months
|
1 year – 2 years
|
Once every 3 months
|
2 years – 4 years
|
Once every 6 months
|
4 years – 6 years
|
Yearly
|
Source : Ministry of Health
Note: This schedule is only for normal children
- Parents
are advised to bring their children to the nearest clinic to enable them to
obtain these services according to the schedule.
Among the services provided are
immunisation, normal development assessment, advice on feeding and nutrition,
general health assessment
and medical treatment.
- The
coverage and scope of the immunisation programme for children aged one
year and below was further improved during the Eighth Malaysian Plan (2001 to
2005). Coverage of the
Bacille Calmette-Guerin (BCG) immunisation for children
below one year in the year 2000 was 99.9 percent and have increased to 100.0
percent in 2005. Immunisation coverage for poliomyelitis (third dose for
children below one year) was 95.4 percent in 2000 and it
decreased slightly to
94.3 in 2005. Meanwhile, the triple antigen vaccine for diphtheria, tetanus and
pertussis coverage has improved
from 94.4 percent in 2000 to 99.8 percent in
2005. In an effort to further reduce morbidity and mortality among children
against
vaccine-preventable diseases, new vaccines were incorporated as part of
the child immunisation programme in July 2002, which is provided
free in all
Government facilities. These included the haemophilus influenza B (HiB) and the
combined mumps, measles and rubella (MMR)
vaccines. In addition, the National
Measles Vaccination Programme implemented in 2004 for children aged 7 to 15
years, achieved coverage
of 93.9 percent. MMR immunisation coverage for infants
has increased from 86.6 percent in 2002 to 89.9 percent in 2005. These efforts
reduced the incidence of vaccine-preventable diseases such as whooping cough and
measles while eliminating poliomyelitis. No polio
cases were reported in
Malaysia since 1993. The last two cases were reported in 1992. In October 2000,
the Western Pacific Region,
including Malaysia, was declared a polio-free
region.
- Anthropometric
data available in Malaysia in recent years to assess the prevalence of Protein
Energy Malnutrition has indicated that
acute malnutrition is no longer a
problem. Since 1990, weight-for-age data of children below five years who have
attended Government
child health clinics was incorporated into the Health
Management Information Systems. In 2005, the percentage of severely underweight
children was 0.4 percent for infants below one year of age and 0.8 percent for
children aged 1 to 4 years. The proportion of children
found to be moderately
underweight was 4.5 percent for infants below one year and 9.3 percent for
children aged 1 to 4 years. To
reduce the incidence of underweight, the food
basket programme is implemented and provided for underweight children from low
income
families under the purview of the Ministry of Health and supplementary
feeding programme for school children from low-income families
under the purview
of the Ministry of Education. The Department of Social Welfare also provides
assistance to families and children
in need of financial
support.
- Except
for a few studies that have indicated high prevalence rates in isolated parts of
Peninsular Malaysia, the problem of endemic
goitre does not appear to be a major
nutritional problem. However, iodine deficiency diseases have been recognized
as a salient
health problem in Sabah and Sarawak and in some other states in
Peninsular Malaysia. Efforts have been made to reduce the incidence
by giving
iodised salts and iodinated water in the affected states. Legislation for
iodised salt was gazetted in December 1999 and
implemented in June 2000.
Additional efforts include installation of iodinators in the water supply to
schools and longhouses in
the areas known to be endemic for iodine deficiency
disorders.
- The
rapid pace of socio-economic development and the increasing affluence among
Malaysians have resulted in a definite change in the
nutritional pattern in the
country. Presently, Malaysian young population is faced with another facet of
the nutrition problem, namely
obesity.
- Maternal
health and the prevention of maternal mortality has received due attention from
the Government with the development of comprehensive
maternal healthcare
programmes which include reproductive health and nutrition services. This is to
ensure pregnant women are monitored
regularly for early detection and treatment
for complications to ensure a satisfactory outcome for both the mother and the
newborn.
Anaemia during pregnancy still poses a problem and data collected from
routine antenatal visits to Government clinics in 2002 showed
that 2.8 percent
of pregnant mothers were found to have haemoglobin levels of less than 9mg/dl.
Reproductive health services focusing
on spacing of birth, infertility treatment
and counselling will be strengthened in an effort to enhance the well-being and
the health
of women especially of the reproductive age.
SOCIAL SECURITY AND CHILD CARE SERVICES AND FACILITIES (Art. 26 and 18,
para. 3)
- The
Department of Social Welfare maintains a register of welfare-related NGOs and
provides them with a yearly grant to assist in programme
sustenance. There are
75 child-related NGOs which include social organisations, religious groups and
grassroot community organisations.
These NGOs provide various services for
children who are orphans, from poor families and families with social problems,
abandoned
or neglected and children who need care and protection. Among the
services are care and protection, counselling, academic support,
religious
teachings, vocational training, social enhancement, sports and recreational
activities. In the year 2002, a total number
of 4,185 children were placed
under the care of these organisations, and this figure decreased to 3,257 in
2005.
Childcare Centres and Care Centres
- The
Government provides assistance to working parents by setting up or encouraging
employers in both the public and private sectors
to provide childcare
facilities. The public sector is encouraged to utilise suitable space within the
office complex for childcare
while employers in the private sector are eligible
for tax rebate if they build childcare centres in the workplace. The Department
of National Unity and Integration and the Ministry of Rural and Regional
Development have set-up childcare centres throughout the
country as part of
their community programmes at the grassroot level. In addition, the Department
of Social Welfare conducts various
training programmes for the operators of
childcare centres and for childcare providers.
- The
Childcare Centres Act 1984 [Act 308] and the Care Centres Act 1993 [Act 506]
exemplify the highest degree of societal care and
Government responsibility in
matters related to the children’s development. It is mandatory for all
childcare centres to be
registered with the Department of Social Welfare and
adhere to the rules and regulations outlined in the Childcare Centres
(Institution-based)
Regulations 1993 to ensure minimum standards of services for
children attending institutional childcare centres nationwide. The Regulations
also stipulate the need for parental involvement in activities to ensure
continuity of learning and quality care from the centre
to the home and vice
versa. Activities at the centre place strong emphasis on local culture and
moral values.
- The
Department of Social Welfare conducts monitoring visits and training courses to
ensure programmes and activities at the centres
are age-appropriate and promote
the total development of the child especially in the basic areas of physical,
emotional, cognitive
and language. The Department has produced a book on
guidelines for prospective operators of childcare centres, outlining the
procedures
to obtain a Certificate of Registration and the basic requirements of
the technical agencies involved in giving the approval.
- The
Care Centres Act 1993 [Act 506] ensures the minimum standard of quality care for
individuals placed in welfare institutions especially
those managed by
individuals or NGOs. It covers both day care centres and residential
institutions that provide alternative care
services with or without fees for
children, women, the elderly and people with disabilities. For each of these
target groups, a minimum
acceptable standard of care is ensured through the
issuance of licences only to those who comply with the requirements stipulated
in the guidelines which cover areas such as the safety, health and security of
the groups involved.
Child Protection Teams
- One
of the provisions of the Child Act 2001 [Act 611] is the establishment of Child
Protection Teams to co-ordinate support services
at the community level for
children in need of care and protection and families in crisis. According to Act
611, the Child Protector
functions as the Chairman while other members of the
Team include a medical officer, a police officer and community members
interested
in child welfare. The Child Protection Teams are encouraged to carry
out preventive and rehabilitative programmes such as the establishment
of Child
Activity Centres and Crisis Intervention Centres for children and families in
high risk areas. Other activities include
educating the local community in
advocating a safe environment for the young child.
- As
of 2005, 131 Child Protection Teams have been established throughout Malaysia.
These Child Protection Teams have been given training
and exposure through
conventions, seminars and courses on issues pertaining to child welfare with
special focus on working with abused
children, affected families and the
perpetrators.
Child Activity Centres
- The
Child Act 2001 [Act 611] stipulates that Child Protection Teams are responsible
for the setting up of Child Activity Centres. These centres were set up
as a proactive action by the Government to provide support services to help
families overcome their social
problems. Functions of these Child
Activity Centres are as follows:
(i) to organise programmes which will provide care and protection to children at
risk of being abused;
(ii) to provide different activities to cater to the needs of parents and
children; and
(iii) to conduct child development and parenting courses for the
community.
- Besides
serving as resource centres, the Child Activity Centres provide
counselling and crisis intervention services, educational support services,
child development activities, lectures, seminars,
workshops on parenting and
other family-oriented topics as well as motivational camps for children and
youths. As of 2005, 135 Child Activity Centres have been established
throughout Malaysia. The activities carried out at the Child Activity Centres
have, in some ways, contributed to the prevention of many social ills such
as child abuse, child neglect, school dropout, truancy
and moral decadence. In
addition, it has fostered community relations and the caring spirit by serving
as a place where the local
community interact, exchange ideas and work together
towards a common goal that is, the well-being of the child and family.
Students Activities Centres
- Students
Activities Centres were introduced by the then Ministry of National Unity and
Social Development in 1997. These Centres are
specifically meant for students
who need a place to study before and after school. The main objectives of
setting up the centres
are:
(a) to create a young generation that is educated, confident and inculcated with
positive social values and a vision for the future;
(b) to provide a space for children in an effort to prevent them from getting
involved with undesirable elements and activities;
and
(c) to provide an avenue and opportunity for increased interaction between
students of various ethnic groups and thereby indirectly
promote positive
neighbourhood spirit among them.
- There
were 17 such centres established throughout the country in 2000. The facilities
provided at these centres include mini library,
tuition classes (inclusive of
religious tuition), computer classes, indoor games, counselling, mediation
services and others. These
centres are directly under the auspices of the
Rukun Tetangga (Neighbourhood Area Committees) where the Youth Committee
is a sub-committee under it. Currently, there are more than 3,200 Rukun
Tetangga establishments throughout the country with more than 1,400 of them
having the Youth Committees. For areas where Students Activities
Centres have
yet to be established, student activities are organised in public centres or at
Rukun Tetangga centres.
Child Welfare Committee
- The
Child Welfare Committee is one of several mechanisms provided for under the
Child Act 2001. It is established at the grassroot
level to prevent the
involvement of children in undesirable social activities. The functions of a
Child Welfare Committee are as
follows:
(a) to encourage community involvement in the prevention of crime and moral
decay as well as explain the roles and responsibilities
of
children;
(b) to assist the Probation Officer obtain guardianship or foster parents for
children having problems with their families;
(c) to assist the Probation Officer in obtaining training and employment
opportunities for children under supervision;
(d) to assist the Probation Officer in the supervision of children under
probation as well as children who need supervision after
their
release;
(e) to regularly visit the children under remand and those committed to
Probation Hostels to ensure the well being of the child;
and
(f) to advise the Minister on the need for changes in policies or legislation
pertaining to the welfare of the child.
- In
the year 2005, there are 110 Child Welfare Committees at the district level with
1,320 members throughout the country. In most
cases, many of the members are
professionals who can make significant contribution to the well being of the
child. Each Child Welfare
Committee is given a grant to help the committee to
plan and implement programmes and activities such as awareness programmes,
seminars,
parenting courses, youth camps and motivational programmes. These
programmes help to enhance the self-esteem of the child.
- Since
1986, there has been a move towards improving the outcome of children with
special needs. The quality of life of children with
special needs has markedly
improved with the provision of Early Intervention Services at the primary
healthcare level. The Programme
of Care for Children with Special Needs provides
rehabilitation services for children with special needs from birth to 18 years
of
age.
- Section
64 of The Education Act 1966 [Act 550] provides power to the Minister to render
assistance, whether financial or otherwise,
in respect of pupils or any class to
pupils in Government or Government-aided educational institutions. Such
assistance may include
the granting of bursaries, scholarships, loans or such
other assistance; and the provisions of accommodation, transport, books and
medical and dental services for the purpose of enabling the pupils to take full
advantage of the educational facilities available
to them for the purpose of
promoting their health and well-being.
Emerging Health Issue
- An
emerging health issue which has the potential of becoming a major public health
problem is HIV/AIDS. The national surveillance
data shows that the HIV infection
has increased from three cases in 1986 to 6,120 cases in 2005. Whilst there was
one AIDS case and
one AIDS death reported in 1986, the number of AIDS cases
increased to 1,221 with 984 deaths in 2005. Between the year 1986 to 2005,
there
were a total of 70,559 HIV infection cases, 10,663 AIDS cases and 8,179 AIDS
deaths. In facing up the scourge of HIV/AIDS,
the Ministry of Health has
initiated actions well before the first case of HIV was detected in 1986.
- An
inter-sectoral committee known as National HIV/AIDS Task Force led by the
Ministry of Health was formed in 1985 to formulate policies,
develop strategic
action plans as well as coordinating the HIV/AIDS prevention programmes to
control its spread among the population.
This includes the Maternal to Child
Transmission Programme which was started in 1998 at all Government health
facilities to provide
free anti-retroviral therapy to all HIV positive pregnant
mothers, integrating the management of HIV cases at primary care level
through
voluntary testing and counselling, encouraging high risk women to go for
voluntary screening at public health clinics, and
provision of free
anti-retroviral therapy to children infected with HIV. Babies born to HIV
mothers are given free formula milk for
at least the first six months and free
treatment for HIV for life. The Ministry of Health also implements various
campaigns in co-operation
with NGOs. This includes the healthy lifestyle
campaigns and AIDS awareness programmes. A special programme called PROSTAR
has been designed to create awareness and educate the youths about HIV/AIDS.
In addition, the Government provides funds to NGOs to
organise rehabilitation
programmes for HIV positive sufferers.
STANDARD OF LIVING
(Art. 27, para. 1-3)
- The
Government of Malaysia has taken the necessary measures to ensure the rights of
every child to a standard of living adequate for
the child’s physical,
mental, moral, spiritual and social development.
- The
Nutrition and Health Programme was introduced to provide a balanced diet,
healthcare and to enhance the quality of life of students.
This programme is a
collaborative effort between the Ministry of Health and the Ministry of
Education (MOE). Under the Supplementary
Food Scheme, free nutritious food is
provided to the needy students at more than 5,000 primary schools throughout the
country. In
2004, MOE provided milk to 494,700 primary school students under the
Milk Scheme Program with the objective to give additional nutritious
food to
poor students.
- In
addition, the Ministry of Health through its school health services has provided
various services which include medical and dental
treatment as well as the
prevention and control of contagious diseases. The Ministry also provides health
services and first aid
facilities in schools. This collaborative effort between
the Ministry of Health and the MOE was further enhanced through the School
Health Promotion Programme which aims to create awareness about healthcare among
the students.
282. The standard of living for the needy children has also been taken care
by the Government. Both the Government and NGOs have provided
various services
for orphans, abandoned, neglected and children who need care and protection as
well as children from poor families
and families with social problems. Among the
services rendered are care and protection, counselling, academic support,
religious
teachings, vocational training, social enhancement as well as sports
and recreational activities.
CHAPTER 9
EDUCATION, LEISURE AND
CULTURAL ACTIVITIES (Art. 28; 29; 31)
EDUCATION, INCLUDING VOCATIONAL TRAINING AND GUIDANCE (Art.
28)
- Education
in Malaysia is within the jurisdiction of the Federal Government and comes under
the purview of the Ministry of Education.
Education since the 1980s has moved
towards the holistic and integrated development of individuals as envisioned in
the National
Educational Philosophy (NEP). The NEP has been geared towards
achieving the nation’s vision to produce Malaysian citizens who
are
balanced, trained, skillful and cherish the national aspiration for
unity.
- Children
in Malaysia can enrol in two categories of educational institutions from primary
to higher learning, namely public schools,
which are provided by the Government
and private schools. The Education Act 1996 [Act 550] provides the fundamental
basis for curriculum
policies in Malaysia. It indicates the specific laws and
provisions that give direction to curriculum documents. These regulations
are
mandatory for all schools. The Act states that the National Education System
shall consist of pre-school education, primary education,
secondary education,
post-secondary education and higher education.
- In
the year 2002, Act 550 was amended to provide compulsory education. In public
schools, children are enrolled according to their
ages. They are pre-schools for
ages 4 to 6 years, primary for ages 6 to 12 years, and secondary for ages 12 to
19 years. As a matter
of fact, Malaysia has achieved its Mid-Decade Goals of
strengthening primary education. Nevertheless, the national target of 100
percent primary enrolment has yet to be achieved. Table 9.1 shows the public
primary school enrolment while Table 9.2 depicts further
on the number of public
primary schools, teachers and classes according to the type of schools.
Table 9.1: Public Primary School Enrolment, 1995 to
2005
Year
|
1995
|
2000
|
2002
|
2005
|
Enrolment
|
2,827,627
|
2,931,874
|
2,959,653
|
3,044,977
|
Population of Children
|
2,923,100
|
3,004,200
|
3,204,600
|
3,321,237
|
% Enrolment
|
96.73
|
97.59
|
92.36
|
91.69
|
Source: Ministry of Education.
Table 9.2: Number of Schools, Teachers and Classes in
Public Primary Schools by Type of School, 2002 and 2005
Year
Type of Schools
|
Number of Schools
|
Number of
Teachers
|
Number of Classes
|
2002
|
2005
|
2002
|
2005
|
2002
|
2005
|
National
|
5,564
|
5,761
|
124,205
|
149,852
|
71,636
|
78,445
|
National Type Chinese
|
1,285
|
1,287
|
28,837
|
32,978
|
18,233
|
18,446
|
National Type Tamil
|
527
|
525
|
6,040
|
6,941
|
4,112
|
3,867
|
Special
|
28
|
28
|
514
|
565
|
266
|
288
|
Total
|
7,404
|
7,601
|
159,596
|
190,336
|
94,247
|
101,046
|
Source: Ministry of Education.
AIMS OF EDUCATION (Art. 29)
- Education
programmes and activities are designed to equip pupils with essential skills and
to produce individuals who are intellectually,
spiritually, emotionally and
physically balanced, as well as functionally literate. It also aims to inculcate
and nurture national
consciousness by promoting common ideals, values,
aspirations and loyalties to foster national unity and national identity,
generate
manpower for economic and national development as well as to instil
desired moral values in pupils for them to contribute effectively
towards nation
building.
Pre-school Education
- Pre-school
education is provided by the Ministry of Rural and Regional Development,
Department of National Unity and Integration, Ministry of Education and the
private sector. Approximately 60 percent of pre-school
aged children have
attended pre-school. The Ministry of Education has designed a pre-school
curriculum which is mandatory for all pre-school operators. The curriculum
enables
the children to acquire basic communication, social and other positive
skills in preparation for formal school. As of December 2005,
the Ministry of
Education catered for 92,303 pre-schoolers while the Ministry of Rural and
Regional Development had 6,920 pre-school
centres that benefited 213,051
children. The pre-school centres under the Ministry of Rural and Regional
Development cater for the
children living in rural and resettlement areas,
estates and children of the indigenous groups. All these centres are subsidised
whilst the teachers are trained by the Government.
-
The Department of National Unity and Integration also runs kindergarten classes.
In 2002, the Department operated 1,165 pre-school
classes, handling 33,753
children from the urban poor and the multi-ethnic society which increased to
1,500 pre-school classes and
75,250 children respectively in 2005. While the
kindergarten classes were run in line with the curriculum and guidelines issued
by
the Ministry of Education, these classes also organised activities involving
parent participation thereby fostering inter-ethnic
community relations.
Pre-school education is also provided by private operators. There were 3,847
private pre-school institutions
with a total enrolment of 285,722 children in
year 2005 compared to 2,395 private pre-school institutions and total enrolment
of
232,563 children respectively in 2002.
Primary Education
- Primary
education is compulsory in Malaysia. The Education Act 1996 [Act 550] requires
that parents, as citizens of Malaysia and residing
in Malaysia, to register
their children at primary schools upon reaching the age of six years on the
first day of the current school
year. All schools follow a common curriculum
emphasising the acquisition of basic skills, namely reading, writing and
arithmetic.
The school system also provides holistic development of talents and
foster moral and social values.
Secondary Education
- Secondary
education aims at preparing young Malaysians to face the challenges of adult
life and to be progressive, outstanding and
productive citizens. All secondary
schools follow the Integrated Secondary School Curriculum which is a
continuation of the Integrated
Primary School Curriculum. It further emphasises
on the holistic development of the child, and imparts positive human values to
enhance
love and loyalty to the country. Tables 9.3 and 9.4 show the number of
school, enrolment, teachers and classes in public secondary
schools for the year
2002 and 2006.
Table 9.3: Number of School, Enrolment, Teachers and
Classes in Secondary Schools by Sex and Type of School as at 31 January
2002
Type of
Schools
|
Number
of
|
Number of Enrolment
|
Number of Teachers
|
Number of
|
Schools
|
Male
|
Female
|
Total
|
Male
|
Female
|
Total
|
Classes
|
Regular
|
1,604
|
947,209
|
979,257
|
1,926,466
|
38,584
|
69,611
|
108,195
|
56,905
|
Fully Residential
|
39
|
12151
|
10486
|
2,2637
|
1,036
|
1,424
|
2,460
|
911
|
Religious
|
56
|
16580
|
20978
|
3,7558
|
1,198
|
1,708
|
2,906
|
1,285
|
Vocational
|
4
|
29
|
672
|
701
|
22
|
152
|
174
|
22
|
Technical
|
82
|
23481
|
12194
|
3,5675
|
3,338
|
2,837
|
6,175
|
1,273
|
Special Model
|
4
|
1186
|
1379
|
2,565
|
99
|
103
|
202
|
103
|
Sports School
|
2
|
568
|
289
|
857
|
73
|
67
|
140
|
46
|
Special Schools
|
3
|
318
|
310
|
628
|
60
|
79
|
139
|
62
|
Total
|
1,794
|
1,001,522
|
1,025,565
|
2,027,087
|
44,410
|
75,981
|
120,391
|
60,607
|
Source: Ministry of Education.
Table 9.4: Number of School, Enrolment, Teachers and
Classes in Secondary Schools by Sex and Type of School as at 30 June
2006
Type of Schools
|
No of
|
Number of Enrolment
|
Number of Teachers
|
Number of
|
Schools
|
Male
|
Female
|
Total
|
Male
|
Female
|
Total
|
Classes
|
Regular
|
1,812
|
1,005,193
|
1,067,131
|
2,072,324
|
41,652
|
7,9821
|
121,473
|
62,826
|
Fully
Residential
|
54
|
17,606
|
15,448
|
33,054
|
1,309
|
1,993
|
3,302
|
1,241
|
Religious
|
55
|
16,574
|
22,490
|
39,064
|
1,250
|
1,874
|
3,124
|
1,377
|
Technical
|
90
|
46,068
|
26,770
|
72,838
|
3,948
|
3,651
|
7,599
|
2,686
|
Special Model
|
11
|
5,290
|
6,020
|
11,310
|
310
|
470
|
780
|
381
|
Sports School
|
2
|
677
|
373
|
1050
|
78
|
78
|
156
|
54
|
Special
Schools
|
4
|
331
|
268
|
599
|
62
|
102
|
164
|
68
|
Total
|
2,028
|
1,085,772
|
1,132,107
|
2,217,879
|
48,609
|
87,989
|
136,598
|
68,633
|
Source: Ministry of Education.
Private Education
- Private
education is provided by the private education institutions. The establishment,
management and operation of private education
institutions are subject to Act
550 and its Regulations. Education institutions which come under this category
offer education at
pre-school as well as primary and secondary school levels.
Table 9.5 shows the number of registered private schools for the year
2002
through 2005.
Table 9.5: Registered Private Schools, 2002-2005
Year
Type of School
|
2002
|
2003
|
2004
|
2005
|
Kindergarten
|
NA
|
13,924
|
13,337
|
13,052
|
Public Religious Schools (SMAR)
|
NA
|
205
|
188
|
188
|
Private Primary & Secondary Schools
|
127
|
127
|
138
|
139
|
Chinese Independent Schools
|
60
|
60
|
60
|
60
|
State Religious Schools (SMAN)
|
NA
|
110
|
120
|
112
|
Religious Primary and Secondary Schools
|
32
|
32
|
36
|
36
|
International Schools
|
27
|
29
|
31
|
32
|
Expatriate Schools
|
13
|
14
|
14
|
14
|
MARA
|
37
|
31
|
32
|
32
|
Source: Ministry of Education.
Special Education
- In
line with the Government's aim of creating a caring society, the Education Act
1996 also stipulates education for children and
young adults with special needs.
It provides them the same educational opportunities as other children. In
addition, the Ministry
of Education has provisions for vocational courses for
children with special needs in Secondary Special Education Vocational
Schools.
Table 9.6: Children Enrolled in Special
Education 1999 - 2005
Year
Type
|
1999
|
2002
|
2005
|
Visually impaired
|
627
|
663
|
719
|
Hearing impaired
|
4,012
|
3,649
|
3694
|
Learning difficulties
|
7,223
|
10,223
|
16249
|
Total
|
11,862
|
14,535
|
20,662
|
Source: Ministry of Education.
Sports Schools
- The
primary function of the Sports School is to nurture and develop potential
athletes among school children. At present there are
two such schools namely
Bandar Penawar Sports School, Johor and Bukit Jalil Sports School, Kuala
Lumpur. The total enrolment of these schools increased from 857 students in 2002
to 1,050 students in 2005.
- Pre-University
Sports School Programme is also provided to equip future athletes with proper
pre-university academic qualification
to enable them to pursue Bachelor’s
Degree Programmes at the Universiti Putra Malaysia and the Universiti Teknologi
Malaysia.
This pre-university programme is equivalent to the Malaysian Higher
Certificate of Education and the Matriculation Programme. The
programme spans
over four semesters and periodic evaluation is carried out based on the
requirements of the universities.
Gender Equality
- The
Government of Malaysia provides equal opportunities in education for all
children, irrespective of gender. The male and female
enrolment in public
primary and secondary schools for 2002 and 2005 are shown in Table
9.7.
Table 9.7: Students in Public Primary and Secondary
Schools, 2002 and 2005
Level
Sex
|
2002
|
2005
|
Primary
|
Secondary
|
Primary
|
Secondary
|
Male
|
1,526,226
|
1,001,522
|
1,612,153
|
1,037,791
|
Female
|
1,444,810
|
1,025,565
|
1,525,127
|
1,035,894
|
Total
|
2,971,036
|
2,027,087
|
3,137,280
|
2,073,865
|
Source: Ministry of Education
- Under
the Eighth Malaysia Plan (2001 to 2005), sufficient budgetary allocations were
provided for the physical development of educational
institutions through
various projects. These projects include the building of new school classrooms,
upgrading and renovating existing
school buildings as well as construction of
hostels and staff quarters. Under the Ninth Malaysia Plan (2006 to 2010), the
main thrust
of education development will be given on pre-school education,
strengthening the national schools, improving the teaching profession,
raising
the standards of education institutions and reducing the gap between rural and
urban schools. To achieve that, the Ministry
of Education will upgrade all the
facilities, infrastructure and buildings under its jurisdiction. Human
development in education
will also be duly emphasised. Table 9.8 shows the
budget allocated to implement various education and training programmes during
the Eighth and Ninth Malaysia Plans.
Table 9.8: Development Budget for Education and Training, 2001-2010
Programme
|
8th Malaysia Plan
Budget
(RM billion)
|
9th Malaysia Plan
Budget
(RM billion)
|
Education
|
37.9
|
40.3
|
Training
|
4.5
|
4.8
|
Total
|
42.4
|
45.1
|
Source: Economic Planning Unit
Education for Non-Citizens
297. Non-citizens are accepted into the Government assisted schools, subject
to the approval from the Ministry of Education and availability
of places.
However, they are free to enrol in any private schools throughout the
country.
Educational Support Services, Facilities and Special Projects
298. Educational support services, educational facilities and special
projects are an extension of the educational administrative
machinery to ensure
that the basic aim of providing quality education can be achieved. These are
imperatives as Malaysia strives
to achieve educational excellence in the new
millennium.
Scholarships
299. The Ministry of Education provides scholarships to selected and
deserving primary and secondary school students as an incentive
to excel in
academic. This scholarship known as the Federal Minor Scholarship has benefited
150,000 and 86,030 students in 2001 and
2006 respectively. In addition, 30,000
students were awarded Pre-University Scholarships in 2001 and 26,137 students in
2006. Government
agencies, state foundations, Government-linked companies and
the corporate sector as listed in Table 9.9 do provide scholarships
to enable
deserving students to pursue their studies in institutions of higher learning,
both local and abroad.
Table 9.9: Scholarship Award / Education Loan
Education Level
|
Agencies
|
Primary / Secondary School
|
- Ministry of
Education
- State
Foundations
- Private
Foundations
|
Higher Education
|
- Ministry of
Education
- National Higher
Education Loan Fund Corporation
- Tunku Abdul
Rahman Foundation
- State
Foundations
- Majlis Amanah
Rakyat (MARA)
- Public Service
Department
- Corporate Sector
(Petronas, Maybank, Tenaga Nasional, etc.)
|
Source: Ministry of Education.
Educational Loans
- Both
the Ministry of Education and Ministry of Higher Education provide educational
loans through the Matriculation Division and the
National Higher Education Loan
Fund Corporation respectively. The Matriculation Division, which is responsible
for preparing students
to meet entry requirements of selected universities,
awarded educational loans to 16,188 and 28,810 students for the enrolment
session
2002/2003 and 2005/2006 respectively. Meanwhile, the National Higher
Education Loan Fund Corporation (PTPTN) which was established
in 1997, awarded
loans to 83,849 students in 1999 and 71,283 students in 2002. As of 30 September
2006, PTPTN has awarded loans to
139,551 students, amounting to RM3.89 billion.
- Under
the National Higher Education Loan Fund, students in public institutes of higher
learning are entitled to a loan up to RM6,500
per annum, while those in private
institutions of higher learning can apply a maximum of RM16,000 per annum. As an
incentive, students
majoring in science and professional courses are given an
additional loan of RM500.00 per year. Eligibility of students to such loans
is
based on the financial ability of the students’ family. The educational
loan offered by PTPTN is aimed to subsidise part
of the education fees as well
as the living expenses of the student. Education fees in public institutions of
higher learning range
from RM1,500 to RM2,500 per semester, subject to the type
of course.
Textbook Loan Scheme
- The
textbook loan scheme, under the Ministry of Education, was first implemented at
the national level in 1975. This scheme covers
all levels of education from
primary to upper secondary. The objective of the scheme is to reduce the
financial burden of parents,
especially those from the lower income group, and
ultimately to ensure access to education for every child. A total of
4,186,145 students benefited from this scheme in 2002 and 3,911,243
students in 2005.
Table 9.9: Textbook Loan
Scheme 2005 and 2005
Source: Ministry of Education
The Nutrition and Health Programme
- The
collaborative efforts between the Ministry of Health and the Ministry of
Education enabled the Government to implement appropriate
healthcare programmes
for the benefit of students. The Supplementary Food Scheme for example, was
introduced to provide free nutritious
food to the needy students from more than
5,000 primary schools throughout the country. In 2002, a total of RM123.6
million was spent
on this programme and the amount spent increased to RM124
million in 2004. In addition, students also received milk under the Milk
Scheme,
which cost the Government RM16.3 million in 2002 and RM16 million in 2004. The
objective of the Milk Scheme is to provide
additional nutrition to students,
especially the poor.
- The
Ministry of Health, through its school health services provided medical and
dental care services as well as the prevention and
control of contagious
diseases services to school children. This effort was further enhanced through
the Health Promotion Programme,
aimed to create awareness about healthcare among
school children.
- In
2005, the Government of Malaysia has revised the allocation for food allowance
for children placed in the institutions under the
Department of Social Welfare
and institutions run by the NGOs. The allocation was increased from RM3.90 to
RM8.00 per child per
day to ensure that the nutritional needs of the children
are fulfilled.
Counselling and Guidance Service
- Every
secondary school has a counselling and guidance unit headed by a full time
counsellor or guidance teacher. The counselling and
guidance services in schools
are primarily focused to the students' welfare, career development and
motivational courses. Some of
the programmes organised are individual
counselling, peer counselling, leadership courses, self-resilience and social
skills development.
Boarding Schools
- Boarding
schools in the form of day school hostels, central hostels and fully residential
school hostels have been set up throughout
the country. These facilities have
improved and enabled students’ access to education, particularly in remote
and outlying
areas. With the increase in student population, more boarding
schools have been built to meet the demand. As of 2005, there are 54
residential
schools with a total enrolment of 30,005 students.
- Hostel
facilities are available in Special Education Schools for disabled children.
There are four hostels for secondary school students
and 19 hostels for primary
school students. In 2002, 627 students have been placed in the Government
secondary school hostels and
1,565 in primary school hostels. Meanwhile in 2005,
the number of students decreased to 568 and 1,500 in secondary school hostels
and primary school hostels respectively.
Information Technology in Education
- In
response to the rapid development in the information and communications
technology, the Ministry of Education has implemented a
wide range of programmes
and activities to equip students, teachers and the parents with basic knowledge
and skills in computer literacy
to enhance their skills and competence.
Computer in Education
- In
this respect, the computer literacy subject is offered to both primary and
secondary students. Students in the secondary technical
schools are also taught
computer applications in designing, manufacturing and programming. Besides
developing computer programmes
for teaching and learning purposes, schools are
encouraged to set up computer clubs as part of the co-curricular activities with
the co-operation of the Parent-Teacher Associations and the private sector. In
addition, the Ministry of Education has targeted to
set up computer laboratories
in every school by the end of Ninth Malaysia Plan (2010).
Ministry of Education E-Learning Project
- Recognising
the importance of information and communications technology in national and
socio-economic development, the Ministry of
Education has initiated the
E-Learning Project, aimed at educating and forging closer community-school
relationship. This is done
by opening school facilities and infrastructure to
the community as well as sharing of knowledge, ideas and experience.
Smart School
- Smart
School is one of the seven flagship applications of the Multimedia Super
Corridor. It is aimed at improving and reforming the
Malaysian school system
towards a creative thinking and problem solving culture. The implementation of
Smart Schools involves 90
schools comprising nine newly built schools and the
upgrading of 81 existing schools. Efforts are undertaken by the Ministry of
Education
to develop relevant and suitable learning resources as well as
software for student-directed learning in four core subjects namely
the Malay
Language, English Language, Science and Mathematics. Currently, the Ministry of
Education is at the initial stage of developing
an integrated school management
software system. To facilitate the implementation of the smart school concept, a
group of teachers
were trained in teaching-learning approaches with the use of
technology as an enabler. As at 2002, a total of 5,500 teachers had
undergone
this training programme. In addition, 2,823 principals and headmasters were
trained on the concept and administration of
a smart school in the year
2005.
Environmental Education Project
- The
Environmental Education Project aims to instill awareness and appreciation about
the environment among primary and secondary school
students. Students are
encouraged to carry out simple but meaningful and interesting activities that
contribute towards protecting,
promoting and conserving the
environment.
Tech-Prep Programme
- The
Tech-Prep approach to learning science and technology is gradually implemented
in the technical and vocational schools and in
the teaching of science in
secondary schools. The Tech-Prep system recognises and respects students with
different abilities and
styles, and uses the contextual “hands-on”
approach to teaching. It helps students understand and relate complex science,
mathematics and technical problems to real life situations. The
application-oriented approach promotes teamwork and problem solving
skills.
Courses are designed with the needs of the industry in mind.
Education for the Orang Asli Children
- The
Government of Malaysia recognised the importance of education for the Orang
Asli children. The Department of Orang Asli Affairs has
supported most of them in primary and secondary schools. In 2002, there were
22,098 Orang Asli students in primary schools and 6,219 in secondary
schools and it increased to 26,240 and 8,488 students in 2005 respectively.
From
1971 to 2005, 541 Orang Asli students have completed their studies
at tertiary level.
316. In complementing the services provided by the Ministry of Education, the
Department of Orang Asli Affairs has launched a pilot project called
“Stay With the School Programme”. The main objective of the
programme is
to encourage Orang Asli children to complete their primary
education. Among the initiatives undertaken to meet this objective are
motivational courses, sports
and cultural activities, tuition classes and
incentives.
- The
Government renders aid to the Orang Asli community to encourage greater
participation in pre-school education. The number of pre-schools throughout the
country increased
from 179 in 2000 to 222 centres in 2006 with 4,906 pupils. In
addition, the Ministry of Rural and Regional Development has established
childcare centres for children below four years. At present, the Ministry
managed to open 14 childcare centres which benefited 186
children. A literacy
programme was launched in 1998 to inculcate good reading habits among the
Orang Asli women and children. The centres under this programme increased
from three in 1998 to 30 centres in 2006, which benefited 529
children.
LEISURE, RECREATION AND CULTURAL ACTIVITIES (Art.31)
- Various
youth development programmes were implemented to increase the role and
participation of youth in national development. In
order to bring youths into
the mainstream of national development and promote the practice of healthy and
productive lifestyle, the
Rakan Muda Programme was introduced in 1994. It
focused on physical, spiritual, social and intellectual development of youths.
- Art
and cultural activities were also promoted through the Rakan Seni Budaya
lifestyle programme aimed at inculcating the appreciation of cultural heritage
among youths. In this regard, youths were exposed
to local arts and culture and
given the option to choose activities according to their interest and
talents.
- The
Government has carried out a programme known as the National Social Service,
specifically designed for upper secondary school
leavers. The aim of the
programme is to inculcate good moral values, enhance the spirit of patriotism
and to prevent school leavers
from engaging in crime or immoral activities. The
National Social Service includes community services, homestay, educational
visits,
motivation and self-discipline courses as well as cultural, adventures,
sports and recreational activities.
- Most
of major newspapers have special columns for youth and children. For example,
the Star Publications had a special column for
youth to express their views and
ideas. A programme known as BRATS (Bright, Roving, and Annoying Teens) was
carried out by Star Publication
from 1993 to 2005 to provide an avenue for
teenagers between sixteen to nineteen years to learn basic skills in journalism
and sensitised
to social issues and social work. Workshops on learning
journalistic and social skills and activities such as charity work were
organised
throughout the year during the existence of the programme.
Participants also learnt to lobby for their rights in policies pertaining
to
youth.
- Children
are also given equal attention by the broadcasting bodies. The National
Broadcasting Department plays an important role in promoting
child-friendly programmes by producing and screening more high quality
programmes especially
for children. The Department allocated 884 broadcasting
hours for children programmes in 2001 which increased to 1,024 hours in 2004
and
subsequently to 1,065 hours in 2005. The purpose of such programmes was to
disseminate information, educate as well as entertain
children.
40. In addition, schools organised co-curriculum programmes, which are
regarded as an integral part of the school curriculum. The
programmes provide
opportunities for students to interact, develop social skills, encourage team
building, comradeship and tolerance
as well as inculcate leadership qualities.
The three types of co-curricular activities are uniformed bodies, clubs and
sports activities.
CHAPTER 10
SPECIAL PROTECTION MEASURES
(Art. 22; 38; 39; 40; 37 (b)–(d); 32-36)
CHILDREN IN SITUATIONS OF EMERGENCY
Refugee Children (Art. 22)
- Although
the Government of Malaysia has not ratified the Refugee Convention, the
Government has always observed the customary international
laws in this area.
Persons entering Malaysia claiming to be refugees have always been given
assistance on humanitarian grounds.
Children in Armed Conflicts (Art. 38), Including Physical and
Psychological Recovery and Social Reintegration (Art. 39)
- Generally,
Malaysia is able to comply fully with its obligation under Article 38 and 39 of
the CRC. The Government’s domestic
and foreign policy has always been to
promote peace, stability and neutrality. Chapter 2 of Part II the Armed Forces
Act 1972 [Act
77] states that a person below the age of seventeen and a half
shall not be appointed as midshipman or cadet officer without the
consent of his
parents, and a recruiting officer shall not enlist any person under the age of
seventeen and a half without the written
consent of his parents. In practice,
only persons eighteen years and above are recruited to join the Malaysian Armed
Forces.
- Malaysia
is also a state party to the Geneva Convention (I) for the Amelioration of the
Condition of the Wounded and Sick in Armed
Forces in the Field, Geneva
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and
Shipwrecked Members of
Armed Forces at Sea, Geneva Convention (III) Relative to
the Treatment of Prisoners of War and Geneva Convention (IV) Relative to
the
Protection of Civilian Persons in Time of War. As a party to these Conventions,
the Geneva Convention Act 1962 was enacted to enforce the said
Conventions.
CHILDREN INVOLVED WITH THE SYSTEM OF ADMINISTRATION OF JUVENILE
JUSTICE
The Administration of Juvenile Justice (Art. 40)
- The
basic principle provided in Article 40 of the CRC is found in the Federal
Constitution, Criminal Procedure Code [Act 593] and the Child Act 2001 [Act
611]. Article 5(1) of the Federal Constitution provides that no person shall be
deprived of his life or personal liberty save in accordance with the law.
Article 5(4) of the same
provides that a person arrested has to be produced
before a Magistrate without unreasonable delay and shall not be further detained
in custody without the Magistrate’s authority. Article 7 of the Federal
Constitution provides for protection against retrospective criminal laws and
repeated trials which apply to all persons, adults as well as children.
In
addition, Article 8 of the Federal Constitution provides for equality before the
law.
- The
Penal Code [Act 574] provides that the minimum age of criminal responsibility is
ten years old and the act of a child above ten
and under twelve years of age is
not an offence if the said child has insufficient maturity to understand and
judge the nature and
consequences of his or her conduct.
- In
Malaysia, a person is presumed innocent until proven guilty. Section 90 of the
Child Act 2001 [Act 611] provides for the procedure
for the Court for Children
to follow when a child is brought before the court for hearing, determining or
disposing of any charge
against the child. Under this section, the child has the
right to be informed promptly of the charge against him or her. It shall
be the
duty of the Court to explain to the child in simple language suitable to his
age, maturity and understanding about the substance
of the alleged offence.
Then, the Court shall ask the child whether he admits the facts constituting the
offence. If the child admits
the offence, the Court shall ascertain that the
child understands the nature and consequences of his admission, and record a
finding
of guilt. If the child does not admit the offence, the Court shall then
hear the evidence of the witnesses in support thereof. The
child has the right
to be legally represented for the purposes of preparing and presenting his or
her defence.
- Act
611 provides that where the child is not legally represented, the child's
parents or guardian or any relative or responsible person
may assist him or her
in the case. The child also has the right to examine and re-examine witnesses
and to call witnesses on his
or her behalf. The decision of the Court for
Children can be appealed to a higher judicial body. The provision in the
Criminal Procedure
Code provides that the child is to be assisted by an
interpreter if the child cannot understand or speak the language used in court.
Proceedings of the Court for Children are held in
camera.
Children Deprived of Their Liberty, Including Any Form of Detention,
Imprisonment or Placement in Custodial Settings (Art. 37 (b)-(d))
- The
laws enforced in the country are implemented to safeguard the best interests of
the child. Article 5(1) of the Federal Constitution provides that no person
shall be deprived of his life or personal liberty save in accordance with law.
Article 5(3) of the Federal
Constitution provides that where a person is
arrested he shall be informed as soon as may be of the grounds of his arrest and
shall be allowed
to consult and be defended by a legal practitioner of his
choice. Meanwhile, Article 5(2) of the same provides that where a complaint
is
made to a High Court or any judge thereof that a person is being unlawfully
detained, the Court shall inquire into the complaint
and, unless satisfied that
the detention is lawful, shall order him to be produced before the Court and
release him.
- Section
96 of Act 611 provides that a child under the age of fourteen years shall not be
ordered to be imprisoned for any offence or be committed
to prison in default of
payment of a fine, compensation or costs. A child aged fourteen years or above
shall not be ordered to be
imprisoned for any offence if he or she can be
suitably dealt with in any other way whether by probation, or fine, or being
sent
to a place of detention or an Approved School, or a Henry Gurney School (an
institution under the administration of the Prisons Department).
- Detention
to a correctional institution is always the last resort. Under Act 611, a child
under the age of ten shall not be sent to
a probation hostel or Approved School
and a child under the age fourteen shall not be sent to a Henry Gurney School.
- Act
611 provides protection and rehabilitation of a child offender during the period
of detention not exceeding three years in an
approved school. The approved
school is based on an open system with child-friendly setting.
- Section
117 of the Criminal Procedure Code [Act 593] provides for the procedure where a
person is arrested and detained in custody
for purposes of investigation and the
investigation cannot be completed within the period of twenty-four hours. If the
person happens
to be a child, he will be separated from adults. His parents or
guardian and probation officer are informed of the arrest. He has
the right to
maintain contact with his family as long as it does not interfere with police
investigation. Where an extension of his
arrest is necessary for further
investigation, section 117 obligates the police to produce the child arrested
before the Magistrate
for the extension of his arrest. An investigation diary is
forwarded to the Magistrate for his perusal containing information on
the
arrest, the investigation that has been carried out and reasons for requiring
further period of detention. When brought before
the Magistrate for purposes of
extending the detention period, the Magistrate is duty bound to inquire of any
complaints from the
child. A legal counsel may also represent the
child.
- Section
85 of Act 611 provides that appropriate arrangements shall be made to prevent a
child while being detained in a police station
from associating with an adult
who is charged with an offence.
The Sentencing of Children with Particular Reference to the Prohibition of
Capital Punishment and Life Imprisonment (Art. 37 (a))
- Act
611 prohibits the death sentence to be pronounced against a child and section 96
of the Act provides for restrictions on order
of
imprisonment.
(Please refer to Chapter 4, paragraph 1 (j) and
Chapter 10, paragraph 9)
Physical and Psychological Recovery and Social Reintegration of the Child
(Art. 39)
- Approved
Schools have been established to provide protection and rehabilitation to child
offenders in conflict with the law or beyond
control as stipulated in Act 611.
As of 2005, there are eight Approved Schools with a total capacity of 1,200
children. Out of these
eight schools, six are for boys and two for girls.
Detention of a child to an Approved School is by the order of the Court for
Children.
- The
programmes in the Approved Schools are geared towards character building,
instilling positive attitude and improving their coping
skills to facilitate
their reintegration into the society. These programmes include counselling,
academic, religious or moral education,
vocational training, sports and
recreation. The children are given special privileges such as home leave, pocket
money and outings.
The administration of these Schools is guided by Act 611 and
the Approved School Regulations 1981.
- Each
Approved School has a Board of Visitors which comprises of not less than seven
members. The responsibilities of the Board of
Visitors are mainly to supervise
and assist the management in the administration of the Schools especially with
regard to the child’s
welfare. Rehabilitation in these institutions is for
a period of three years. However, a child may be released before the expiry
of
his or her rehabilitation period by the Minister or Board of Visitors subject to
his or her progress.
- In
addition, there are five other institutions known as Henry Gurney Schools under
the administration of the Department of Prisons.
Detention in these institutions
is for a maximum of three years subject to the child offender not exceeding
twenty one years old.
The Director General of Prison may reduce the term of
detention based on the progress of the child. The rehabilitation programmes
cover a wide range of activities from academic and vocational training to
spiritual, religious, sports and recreational activities.
- Probation
Hostels are centres for the temporary detention and rehabilitation of child
offenders who are in conflict with the law and
or beyond control. Admission to
these centres is by Court order for a period of not more than twelve months as
provided for under
Act 611. Children detained in these centres are children who
have committed minor offences. These centres provide care, protection
and
rehabilitation for children under remand, those on transit to Approved Schools
and those on Supervision or Probation Order.
As of 2005, there are 11 Probation
Hostels with a total capacity of 530 children.
CHILDREN IN SITUATIONS OF EXPLOITATION, INCLUDING PHYSICAL AND
PSYCHOLOGICAL RECOVERY AND SOCIAL REINTEGRATION
Economic Exploitation of Children, Including Child Labour (Art.
32)
- A
child is protected from economic exploitation, including child labour. The
Government of Malaysia upholds the principle that a child
should be protected
from economic exploitation, performing any work that is likely to be hazardous
to his health, or interferes with
the child’s education, or be harmful to
his physical, mental, spiritual, moral or social development.
- This
is in line with Article 1 of the International Labour Organisation Convention
No. 138, Minimum Age Convention 1973, which Malaysia
ratified on 9 September
1997. The International Labour Organisation Convention sets the minimum age for
entry into employment or
work at fifteen, or the age of completion of compulsory
schooling whichever is higher. Article 2 sets the minimum working age of
fourteen years with the view to raise it once the economic circumstances and the
development of educational facilities permit the
same. It further stipulates as
provided in Article 3 that the minimum age of eighteen years is considered
suitable for any type
of work that is likely to jeopardise matters relating to
health, safety and morals of young people. Therefore, in compliance with
the
spirit of the International Labour Organisation Convention, Malaysian children
are subjected to the Contracts Act 1950 [Act 136]
which bars any person who has
not attained the age of the majority to enter into any valid contract. The Age
of Majority Act 1971
[Act 21] provides the age of majority as eighteen years,
therefore enabling only persons who are 18 years and above to enter into
a valid
contract.
- Section
13 of the Children and Young Persons (Employment) Act 1966 [Act 350] however,
specifically states that "Not withstanding anything to the contrary contained
in the Contracts Act 1950, or the provisions of any other written law, any child
or young person shall be competent to enter into a contract of service under
this Act otherwise than as employer, and may sue as
plaintiff without his next
friend or defend any action without a guardian ad-litem, provided that no
damages and no indemnity under
Section 13 of the Employment Act 1955, shall be
recoverable from a child or young person for a breach of any contract of
service". This provision effectively gives a working child the right to sue
his or her employer for wages and or breach of service contract
whereas the
employer may not sue the child for damages or any breach of
contract.
- The
Government of Malaysia has also imposed the minimum age of employment for
children. The Children and Young Persons (Employment)
Act 1966 [Act 350] defines
a child as “any person who has not completed his fourteenth year of age
or of such age as the Yang di-Pertuan Agong may, by notification in the
Gazette
prescribe, whilst a young person means any person who, not being a child, has
not completed his sixteenth year of age”. Therefore, based on the
above-mentioned definition of the child and young persons, this Act is
applicable to persons below
the age of sixteen years.
- Section
2 (1) of Act 350 further stipulates that no child or young person shall be, or
be required or permitted to be engaged in
any employment other than those
specified by the Act. Section 2 (2) of the same Act allows the child to be
engaged in the following
employment:
(a) employment involving light work suitable to his capacity in any undertaking
carried on by his family;
(b) employment in any public entertainment, in accordance with the terms and
conditions of a license granted in that behalf;
(c) employment requiring him to perform work approved or sponsored by the
Federal Government or the Government of any State and carried
on in any school,
training institution or training vessel; and
(d) employment as an apprentice under a written apprenticeship
contract.
- Meanwhile
section 2 (3) of the Act 350 states that a young person may be engaged in any of
the following employment:
(a) employment as a domestic servant;
(b) employment in any office, shop (including hotels, bars, restaurants and
stalls), godown, factory, workshop, store, boarding house,
theatre, cinema, club
or association;
(c) employment in any industrial undertaking suitable to his capacity;
and
(d) employment on any vessel under the personal charge of his parent or
guardian.
- However,
section 3 of the Act provides that the Minister may in particular cases, by
order, prohibit any child or young person from
engaging or being engaged in any
of the employment mentioned in section 2 if the Minister is satisfied that
having regard to the
circumstances, such employment would be detrimental to the
interests of the child or young person, as the case may be. In addition,
the Act
provides for hours of work of children and young persons and penalties for
non-compliance with the provisions of the Act.
Therefore it is obvious that the
principle of the best interest, responsibility for care and protection as well
as the quality of
care are strongly upheld and widely practised in Malaysia.
Drug Abuse (Art. 33)
- The
Government of Malaysia has taken the appropriate measures which include
legislative, administrative, social and educational measures
to protect children
from the illicit use of narcotic drugs and psychotropic
substances.
- The
Dangerous Drugs Act 1952 [Act 234] provides for offences relating to the
possession and trafficking of drugs. The Act provides
severe punishment to drug
offenders. Whilst Act 234 stipulates severe penalties for offences related to
the possession and trafficking
in drugs, drug dependents are offered treatment
and rehabilitation through the Drug Dependents (Treatment and Rehabilitation)
Act
1983 [Act 283]. Under section 6 of Act 283, a Magistrate may send a drug
dependent (including persons below 21 years) to a drug rehabilitation
centre for
a period of two years or place him under the supervision of a rehabilitation
officer, within the community for a period
of not less than two years and not
more than three years.
- Section
27 of Act 283 provides that a minor be segregated from adults. The Child Act
2001 [Act 611] also affords protection for children
from exposure to moral
danger which includes drug abuse.
- The
Government through its various agencies and in collaboration with NGOs has
implemented various prevention programmes to create
anti-drug awareness and curb
drug abuse. One such programme is the school based ‘Student Resilience and
Interpersonal Skills
Development Education’ (STRIDE) curriculum consisting
of 24 lessons on anti-drug awareness to be taught in primary 4, 5 and
6 classes.
It also includes co-curricular activities. In 2002, 384 primary schools with
147,701 pupils were involved in this programme
while in 2005, the figure
increased to 281,977 pupils from 517 primary schools. These programmes are aimed
at building the students’
self-esteem, provide ‘coping skills’
and resilience to enable them to make the right choice and stay drug free. In
addition,
an extensive programme of exhibitions, seminars, motivational camps
and media campaigns has also been carried out.
Sexual Exploitation and Sexual Abuse (Art. 34)
- The
Child Act 2001 [Act 611] is also enforced to prevent sexual abuse and sexual
exploitation of the child. Section 43 of Act 611
makes it an offence for any
person who sells, procures, harbours, detains and advertises any children for
the purpose of prostitution
or having sexual intercourse either within or
outside Malaysia. Those who are found guilty shall be liable to a fine not
exceeding
RM50,000 or to imprisonment for a term not exceeding fifteen years or
both. For those who act as intermediary, aiding, abetting or
controlling the
prostitution of a child shall be liable, upon conviction, to a fine not
exceeding RM50,000 and to imprisonment for
a term of not less than three years
but not more than fifteen years and shall also be punished with whipping of not
more than six
strokes.
- Act
611 provides care, protection and rehabilitation for children exposed to various
forms of physical, emotional and sexual abuse
or exposed to moral danger. A
child who is sexually exploited and in need of protection and rehabilitation is
placed in a place of
refuge not exceeding three years whereas a child who is
sexually abused will be given care and protection in a place of safety for
a
period of three years or until he or she attained the age of eighteen years
whichever is shorter. However, the child may be discharged
or released not
earlier than 12 months subject to the approval of the Court for Children or
Board of Visitors, whichever is applicable.
- Act
611 also provides for the setting up of Child Protection Teams and Child
Activity Centres at both state and district levels aimed
at mobilising community
participation to assist the Department of Social Welfare in implementing
prevention programmes and to deal with child abuse cases by co-ordinating
locally based services to families
and children. Such programmes and activities
are targeted towards children at risk or children vulnerable to all forms of
abuses
and exploitations.
- Child
Activity Centres provide support for children from high-risk areas where the
children have a strong possibility to be victims
of social ills, including
sexual abuse and exploitation. Children in these areas are largely exposed to
socially deviant behaviour
and need community support in developing and
enhancing their coping skills. The Department of Social Welfare handled 15,185
reported
cases of child abuse between 1992 and 2005, of which 4,503 cases were
brought to the Courts for protection and justice.
- The
Penal Code [Act 574] also contains a provision making incest as an offence. The
punishment for incest is imprisonment for a term
of not less than six years and
not more than twenty years and that the offender shall also be liable for
whipping. This provision
came into force on 1 August 2002. Apart from incest,
sections 354 (provision on the offence of assault or use of force to a person
with intent to outrage modesty), 375 (provision on the offence of rape), 376
(provision on the punishment for rape), 377A (provision
on the offence of carnal
intercourse against the order of nature), 377C (provision on the punishment for
committing carnal intercourse
against the order of nature without consent) and
section 377E (provision on the offence of inciting a child to an act of gross
indecency)
of Act 574 are relevant in addressing the issue of sexual abuse of
children. Sections 372 and 373 of Act 574 (provisions relating
to the offence of
exploitation of any persons for purposes of prostitution) are relevant in
addressing issues related to the sexual
exploitation of
children.
- Apart
from the above provisions, section 292 of the Act 574 makes it an offence to
sell, let to hire, distribute, publicly exhibit,
circulate, import, export and
advertise obscene books and other obscene materials with the aim to prevent
sexual exploitation and
abuse of children.
SALE, TRAFFICKING AND ABDUCTION (Art. 35)
- Malaysia
recognises that trafficking in persons, especially women and children, is a
serious problem with the increasing involvement
of organised criminal groups.
Although Malaysian law does not specifically criminalise ‘trafficking in
persons’ as defined
in the Trafficking Protocol, its laws already
criminalise the component elements of the definition. The Child Act 2001 [Act
611],
the Penal Code [Act 574] and the Immigration Act 1959/63 [Act 155] address
the issues of sale, trafficking and abduction of children.
- Section
48 of the Child Act 2001 [Act 611] makes it an offence to transfer or confer the
possession, custody or control of a child
for any valuable consideration.
Section 49 of the Act makes the importation of a child by false pretences an
offence while section
52 makes it an offence of taking or sending out a child
without appropriate consent of the person having lawful
custody.
- Section
55A of the Immigration Act 1959/63 [Act 155] makes it an offence for any person
to be involved, directly or indirectly, in
conveying to Malaysia in or on any
vehicle, vessel or aircraft any person in contravention of the Act. Section 55B
makes it an offence
to employ one or more persons, other than a citizen or
holder of an Entry Permit, who is not in possession of a valid pass. The
penalty is a fine of not less than RM10,000 but not more than RM50,000 for each
such employee. Section 56(1)(d) of the Act makes
it an offence to harbour any
person whom that person knows or has reasonable grounds for believing has acted
in contravention of
the Act. The penalty provided under Section 57 is a fine
not exceeding RM10,000 or imprisonment for a term not exceeding five
years.
- Meanwhile
section 361 of the Penal Code [Act 574] makes it an offence of kidnapping for
any person to entice any minor (a girl under
sixteen years old or boy under
fourteen years old) or any person of unsound mind out of the keeping of his
lawful guardian without
the consent of that lawful guardian. In addition section
370 makes it an offence to import, export, remove, buy, sell or dispose
of any
person as a slave or to accept, receive or detain any person against his will as
a slave. Section 371 makes it an offence
to habitually import, export, remove,
buy, sell, traffic or deal in slaves. Section 372 and 373 stipulate that
trafficking a person
for purposes of prostitution is an
offence.
- The
Kidnapping Act 1961 [Act 365] makes it an offence to abduct or wrongfully
confine or wrongfully restrain any person with the intent
to hold that person
for ransom.
- The
Anti-Money Laundering Act 2001 (AMLA) makes sections 370, 371,
372, 373 and 373A of the Penal Code predicate offences under the Act. This
enables the proceeds of such unlawful
activity to be dealt with under the Act
and subject it to freezing, seizure and forfeiture. Section 4 of the Act makes
it an offence
to launder such proceeds of unlawful activity. The prescribed
penalty is a fine not exceeding RM5 million or imprisonment for a term
not
exceeding five years or both. AMLA empowers the Central Bank of Malaysia to
monitor suspicious transactions by requiring financial
institutions to submit
reports on such activities. The Central Bank is also empowered to disseminate
this information to enforcement
agencies for their further action. These powers
may facilitate action by law enforcement agencies against traffickers in
persons.
Section 29(3) expressly empowers domestic enforcement agencies to
co-operate with other enforcement agencies, in and outside Malaysia,
with
respect to offences under the Act.
- The
actions that may be taken under AMLA include:
(a) the freezing of dealings in any movable property that is the subject
matter of a money-laundering offence that is in the possession,
custody or
control of a financial institution on the direction of the Public Prosecutor
(Section 50);
(b) the seizure of immovable property that is the subject matter of a
money-laundering offence on the direction of the Public Prosecutor
(Section 51);
and
(c) the forfeiture of property seized under the Act by the Public Prosecutor
under an order of the High Court where there is no prosecution
or conviction for
a money-laundering offence if the Public Prosecutor is satisfied that such
property had been obtained as a result
of or in connection with a
money-laundering offence (Section 56).
- Provisions
of the Passports Act 1966 [Act 150] also aims at preventing the abduction and
trafficking of children.
368. Malaysia has several bilateral and multilateral arrangements to combat
transnational crime, including to prevent and suppress
trafficking in persons.
This covers border and security arrangements with neighbouring countries, the
use of INTERPOL and ASEANAPOL,
the Agreement on Information Exchange and
Establishment of Communication Procedures with the Republic of the Philippines
and the
Republic of Indonesia which was signed on 7 May 2002 in Kuala Lumpur and
the Mutual Assistance in Criminal Matters Treaty Among Like-Minded
Association
of South-East Asian Nations (ASEAN) Countries. These instruments and
arrangements provide for co-operation in criminal
matters and border control as
well as co-operation in the identification of the offender and victims, sharing
information about modus
operandi and routes used as well as the training of law
enforcement personnel.
369. In relation to regional efforts, Malaysia, as a member country of the
ASEAN, is also actively involved in the implementation
of the Trafficking in
Persons component of the Work Programme to Implement the ASEAN Plan of Action to
Combat Transnational Crime.
This Plan of Action was adopted at the
2nd Annual ASEAN Senior Officials Meeting on Transnational Crime in
Kuala Lumpur on 17 May 2002.
370. From the international perspective, Malaysia has signed the Convention
against Transnational Organised Crime on 26 September
2002.
OTHER FORMS OF EXPLOITATION (Art. 36)
371. Malaysia is committed to comply with the obligations under Article 36
of the CRC. In matters affecting children, the paramount
consideration is the
welfare and best interest of the child.
CHILDREN BELONGING TO A MINORITY OR AN INDIGENOUS GROUP (Art. 30)
372. In Malaysia, children belonging to the minority group or the indigenous
children have the right to enjoy his or her own culture,
to profess and practise
his or her own religion, or to use his or her own language. The rights under
Part II of the Federal Constitution apply equally to them as to other citizens.
The Federal Constitution gives the natives of Sabah and Sarawak special position
in respect of education, positions in public service, permits to operate
any
trade or business on the concept of positive discrimination. Article 161 of the
Federal Constitution preserves the right to use English and native languages in
the states of Sabah and Sarawak.
373. Section 4 of the Aboriginal Peoples Act 1954 [Act 134] places the
responsibility for the general administration, welfare and
advancement of
Orang Asli on the Commissioner of Aboriginal Affairs. He has under his
charge the Department of Orang Asli Affairs. Matters pertaining to
education, medical and health, economic and development, research and planning,
resettlement programmes,
training, administration, finance, operations and
communications of the Orang Asli would come under his purview.
PART III: CONCLUSION
CHAPTER 11
CONCLUSION
- As
a State Party to the Convention on the Rights of the Child, Malaysia has
undertaken efforts in ensuring the rights of its children
are protected. The
Government of Malaysia recognises that a child is the key to the country’s
survival, development and prosperity.
The advancement and participation of the
present generation will usher a future generation that is confident, responsible
and caring.
The Government acknowledges that by virtue of a child’s
physical, mental and emotional immaturity, he or she is in need and
entitled to
special protection and assistance in all circumstances regardless of any
distinction in race, colour, sex, language,
religion, social origin as well as
physical, mental or emotional disability.
375. Malaysia has adequate legislative, administrative and policy framework to
cater for the protection and needs of the children
and the promotion of their
physical, mental, intellectual and emotional development. From the legislative
framework, the Government
has enacted the Child Act 2001 which is a
comprehensive legislation for the protection, care and rehabilitation of
children. This
Act incorporates the core principles of non-discrimination, best
interests of the child, the right to life, survival and development
as well as
respect for the views of the child. In terms of administration of juvenile
justice, the Act established the Court for
Children, stipulating the procedures
before the Court which take into account the mental and emotional maturity of
the child. The
rule of law and natural justice is upheld in the procedures,
guaranteeing among others the right of the child to be heard and the
right to a
fair hearing before the Court.
376. Administratively, the Government periodically introduces
new policies and initiatives that help to enhance the welfare and development
of
children in line with the principles under the Convention on the Rights of the
Child. In addition, Malaysia has made continuous
progress towards achieving the
targets set by the World Summit for Children. The Government through smart
partnerships with the corporate
sector, NGOs, the Human Rights Commission of
Malaysia as well as the civil society has responded to the needs of
children’s
development in Malaysia by providing various platforms and
services to uphold the spirit of the Convention. The Government of Malaysia
is
committed and will continue its efforts to promote and protect the rights of its
children to survival, protection, development
and participation.
Endnotes:
______________________________________________________________
1 The Court for Children consists of a Magistrate who shall
be assisted by two advisers one of whom shall be a woman. It sits for the
purpose of hearing, determining or disposing of any charges against a child or
exercising any other jurisdiction conferred or to
be conferred on the Court for
Children by or under Act 611 or by any other written law.
2 In the States of Sabah and Sarawak the Syariah
Subordinate Court shall in exercising its civil jurisdiction, hear and determine
all
such actions and proceedings as a Syariah High Court is authorised to hear
and determine, if the amount or value of the subject-matter
is dispute does not
exceed three hundred thousand ringgit or is not capable of estimation in terms
of moneys (not including claims
of hadhanah or harta
sepencarian)
3 The provisions of the Model Laws have been adopted by the
Federal Territories and the respective States with the exception of the
State of
Kedah which is in the process of doing the same.
4 “Protector” means the Director General of
Social Welfare; the Deputy Director General; a Divisional Director of Social
Welfare; Department of Social Welfare; the State Director of Social Welfare of
each of the States; any Social Welfare Officer appointed
under section 8 of Act
611.
5 Section 2 of Act 351 provides:
Protector
means:
(a) the Director General of Social Welfare;
(b) the Deputy Director General of Social Welfare;
(c) a Divisional Director of Social Welfare, Department of Social
Welfare;
(d) the State Director of Social Welfare of each of the States,
and includes any Social Welfare Officer appointed under any law regulating
the appointment of a Protector
6 refer endnote 5
7 Section 130 of the Model Law on Syariah Criminal
Procedure provides “When any person is required by any Court to execute a
bond with sureties, and in such bond the person executing it binds himself to
keep the peace or binds himself to be of good behaviour,
the Court may require
that there be included in such bond one or more of the following conditions,
namely:
(a) a condition that such person shall remain under the supervision of some
other person named in the bond during such period as may
be therein
specified;
(b) such conditions for securing such supervision as the Court may think it
desirable to impose;
(c) such conditions with respect to residence, employment, associations,
abstention from intoxicating liquors or drugs or with respect
to any other
matter as the Court may think it desirable to impose.”
8 refer to endnote 4
-----
[*] In accordance with the information
transmitted to States parties regarding the processing of their reports,
the present document
was not formally edited before being sent to the
United Nations translation services.
GE.06-46021
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