By Jim Lim ( former Director of Social Services in a London Borough)
This paper outlines the record of the Government in upholding the rights of children and affording adequate protection to children who are disadvantaged and from disadvantaged groups.
Malaysia may have acceded to the Convention for the Rights of the Child in 1995 and passed the Child Act in 2001, but key challenges remained and have to date, shown few signs for optimism.
At the heart of the problem lies the country’s vague definition of ‘nationality’ as derived from its founding Constitution, resulting in complex and exaggerated inconsistencies and contradictions over children in general but particularly from marginalised communities and from disadvantaged groups in particular.
The difficulties can be seen at legislative level on private law on children and on public law; the definition of and criteria for and access to fundamental rights and services become even more confusing.
Legal practitioners will attest to the complexities and the absence of transparency in child care law, especially in fundamental rights and duties. The disproportionate high numbers of years an application for a child to citizenship, only because Malaysia does not grant automatic citizenship by birth and its differential treatment on the sex and national status of the parents.
This private law conundrum above is not the purpose of this paper. However, it is the provisions and the denial of services through a fundamental human rights’ deficit in the public law aspects that is the subject of our current attention.
We refer to the situation of children at greatest disadvantage or ‘marginalised’ by the circumstances of their birth, upbringing or status.
The following groups have come to our attention and their current situation;
- Children, mostly orphans, brought up in State-run children’s homes,
- Children from the refugee communities,
- Children from rural and poor communities, e.g. the Orang Asli community
- Children in wedlock.
Children brought up in care in residential institutions
Orphans raised in Care Homes are common practice, placed in establishments run by private entities, by voluntary (NGO) groups, usually religious organisations and by the social welfare department.
In general, children who become orphans fall under those abandoned or abused and would normally end up in residential establishments. The length of stay can range from a few weeks to many years, including up to 18 years old. As there is no formal legislative procedure for the rescue and safeguarding of vulnerable or children ‘at risk’, many different stakeholder agencies intervene in their own way to help.
There is no requirement (legislative compliance) on standards of care for any establishments looking after/caring for such socially dislocated children. The absence of regulation would mean that there is a gap in protection for the vulnerable residents.
Whilst many Home owners and management provide excellent to good care, there is no way to prevent abuse, physical, emotional or sexual, by a minority unsuitable care staff, especially against a backdrop of wider cultural paternalistic views about children. There have been voices raised by some of the children themselves on their abuse.
Much of these concerns have come from ‘Perbak’ (Pertubuhan Kebajikan & Sosial Malaysia) an organisation set up by an ex-resident child in care where it is alleged that there are hundreds of abused children now adults, who have recalled their painful experiences. It is the Government- run Orphanages that Perbak is referring to, in this instance and the majority are Malay-Muslim boys. There was previous media attention regarding Perbak.
Furthermore, many of these ex-Children in Government care are deemed either undocumented children or Stateless. Being ‘stateless’ means that access to many Government services is denied.
Perbak insists that complaints about abuse are very rarely upheld. Their members alleged that the orphanage would often take measures to protect its staff and the establishment concerned. Difficult boys are often threatened with the withdrawal of privileges including a severe reduction in their abysmally low one-off Care Leavers’ grant.
This threat to the boys goes further, from the deliberate delays or refusal of citizenship through the award of the Blue IC (Identity Card). Perbak maintain that this is used to suppress difficult complainants. Many of the care leavers are left to fend for themselves and many are living on the poverty line in cities across the country.
The founder and its President, Muhammad Khairul Hafiz Abdullah made a shock discovery recently over the statutory authorities’ treatment of him regarding his son.
Details can be found in https://www.mariammokhtar.com, Rebuilding Malaysia, a video of Khairul making his plea.
Apart from this recent discovery, Khairul previously made serious allegations over the physical and sexual abuse he suffered from the care staff (warders) but it would appear that those allegations were frequently dismissed.
Instead he encountered numerous obstacles throughout his adolescent life, undergoing various residential placements and being put up with different families, as well as the difficulties in securing the IC citizenship.
His frustration and anger is evident and understandable particularly from the experience he has endured. Khairul, in our view was punished for raising allegations against his perpetrators and ‘demonised’ for his determination to assist other young people from similar background who have experienced abuse.
It would appear that the double jeopardy is the ‘abuse suffered’ and the denial of citizenship. Malaysia does not adhere to the principles of jus soli, which is the automatic granting of citizenship by birth, which accounts for the confusion and compounds the grievances for many.
Children who have suffered abused whilst in ‘public care’ should be appropriately compensated for the suffering endured. Nothing is worse than having one’s childhood heartlessly taken away. Discharging formal responsibility at the age of 18 or abandoning such young adults to fend on their own and further denying them ‘citizenship’ undermines any concept of civility in a developed nation.
In terms of alternative substitute parenting and care, the concept of ‘family-fostering’ or professionally paid fostering support is not well developed in Malaysia unlike other industrialised countries. In many developed countries, such family substitute care is widely promoted through Government investment, with its suitability and popularity endorsed by child care experts over often large institutional/residential care.
Children from the refugee communities
Refugees in Malaysia are normally accredited through the UN resettlement programme and almost all are awaiting disposal to a third safe country as Malaysia restricts the numbers it accepts. Therefore, many are resident in situ pro-tem until a country in the West takes them.
Refugee children are sadly denied access to local schools and any education provided to them is from voluntary NGO’s or local religious organisations like the Church. Adult refugees are allowed to take some employment and local work but on limited reduced hours.
Children from the Orang Asli community
The plight of the Orang Asli (OA) community in Malaysia is well documented and the Government’s acknowledgment is a positive sign that some help and resources are available. In short, this indigenous community is widely acknowledged as amongst the rural poor.
However, it remains the case that there is systemic discrimination against the community throughout the country and their resultant marginalisation has a negative impact in aspects of health outcomes, educational and positive social outcomes.
The OA community is largely in rural communities in most states of peninsula Malaysia and in East Malaysia. Most are employed in the agriculture sector although many OA are emerging as community activists campaigning for equal participation and representation and greater allocation of resources for their community. The Government’s paid lip service over the years has gone hand- in- hand with the private sector continued labour-exploitation within the agricultural sectors. NGO’s have complained bitterly about the disproportionate and unequal allocation of educational resources and lack of investment for the development of the community.
The issue of child marriage is a controversial one. The UN raised this as a concern as far back as 1995, amongst other issues including the ones highlighted above, around the dual legal systems of civil law and shariah law; the latter permitting marriage in exceptional circumstances for a child. A local prominent NGO, ‘Voice of the children’ publicised the issue as recent as 2013, together with ‘Girls not Brides’, a global organisation on girls being forced in wedlock.
The PH Government began to address the issue of Child marriage, as well as reinforced “Help lines” for child safety. However, with the new PN Government’s more conservative outlook, the outright ban widely sought for appears ‘on hold’.
Child marriages are abhorrent. It is a human rights issue. They deny and take away a child’s right to growing up and there is no rationale for not ending the practice by passing legislation and banning it outright.
Whilst there are continuing efforts to ensure children are adequately protected, much of the tasks appear to come primarily from concerned public and voluntary organisations with little direction or leadership from the Government.
It is difficult to defend the Government’s record in all matters on safeguarding and the protection for children. There remains a lack of regulation for the care of vulnerable groups in our society and much reliance is inappropriately placed on the shoulders of the voluntary or religious groups and where business and profits are to be made, on the private sector. Therefore, enforceable regulation and strict standards in operation when private sector companies provide services is necessary to promote safeguarding and well being.
With regards to legislative framework there is much to be getting on with, the Sexual Exploitation Act 2017 following from laws on prohibitive child employment, care centres, domestic violence etc but there is little evidence of effective co-ordination or collective responsibility on enforcement action. Equally, any planning and targeted resources allocation or, political determination to make social safeguarding legislation work is conspicuously lacking.
In short, existing laws are not effectively enforced and proposed social policy legislation suffers from insufferable inertia and delays.
Strikingly absent is also regulation for those seeking employment as care givers, care workers or wardens in residential institutions. For example, are they suitably qualified to care for children? Are those staff members adequately vetted?
Lack of compliance and enforcement on premises suitable and fit for purpose, i.e. safety access, fire escapes, was a contributory cause to the tragic fire at a Tahfiz school resulting in the deaths of children and a teacher. Although it was a criminal act, there was evidence of neglect and non-compliance by the building owners.
Finally, the much overdue recognition of social work as a profession, the Social Workers’ Act, all up and ready for legislative consent has been delayed yet further as the Government ponders and treads along its various priorities.
Besides putting a proper framework for social care and assistance to vulnerable groups in society such as children, there is an equal need to obtain social justice for the country’s disadvantaged children most of whom were brought up in institutional settings as opposed to, in family settings.
(The views expressed are those of the contributor)
Jim Lim is a former Director of Social Services in a London Borough, a former CEO of a charity. He is retired and is from Penang. He is a Member of the Malaysian Association of Social Workers.