Paradigm Shift In The Child’s Welfare Protection In Malaysia

Child’s welfare principle in Malaysia

In Malaysia, this principle is upheld by both civil and Syariah courts. The concept of child’s interest particularly in the custody of a child can be seen in various provisions for example section 88(2) (a) and (b) of the Law Reform (Marriage and Divorce) Act 1976 (Act 164) (LRA), section 86(2)(a) and (b) of the Islamic Family Law (Federal Territories) Act 1984 (Act 303)(IFLA), section 30(5) of the Child Act 2001 and section 11 of the GIA. It signifies that the welfare of the child will take priority over the other things including the parents’ rights, their claims and wishes. The principle of the child’s welfare is applicable not only in custody and guardianship of a child, but to other aspects that may affect children such as health and safety, division of property, education and even in sentencing the children for the wrong that they have committed.

Protecting the child’s welfare: analysis on the functions of the National Council for Children

The establishment of the council for children at national level now becomes a practice in many countries. The examples are the Republic of Philippines Council for the Welfare of Children, National Council on Child Welfare of Sudan, Delhi Council for Child Welfare and the California Child Welfare Council. In Malaysia, the establishment of the NCC is made by virtue of section 4 of the Child (Amendment) Act 2016 (A1511), which substitutes the provision of section 3 of the Child Act 2001 (Act 611). The new provision establishes the NCC in replacing the Coordinating Council for the Protection of Children (CCPC). The functions of the CCPC were relatively limited as compared to this newly established NCC. In upholding the government’s aspiration in safeguarding the child’s welfare and preventing cases of negligence of parents in caring for their children, the functions of the NCC as stated in the Child (Amendment) Act 2016 (Act A1511) are extended (House of Senate Debates, 2016). By looking at the name of the Council itself, i.e. the National Council for Children, it is comprehensible that the function is now intended to be performed by the NCC as the main agent with full authority and discretion. It is now not merely to co-ordinate its functions with other resources, to be an assistant or be side by side with other enforcement agencies. Notably, the public is not fully aware of the existence of the CCPC and its functions due to insufficient information supplied or inefficient roles played. Therefore, the establishment of the NCC is hoped to improve any shortcomings from the CCPC. The extended scope and the improvements made can be seen in the very function of the NCC in advising the government and making recommendations. The new law widens the scope of advices to include all issues and aspects relating to the child’s care, protection, rehabilitation, development and participation at national, regional and international levels. Previously, the law provided for the CCPC to advise the Minister on aspects of child protection only.

The same goes for the extended power of the NCC to co-ordinate the various resources from all parties, being public or private sector, non-governmental bodies or organisations, which involve in providing services for the care, protection, rehabilitation and development of children. It is not limited to various resources among government departments only. For instance, in the case of Tahfiz school arson which killed 23 individuals, whom the majority of them were children, the NCC can co-ordinate the various resources to come out with a comprehensive and workable requirements, good practice, guidelines and other necessaries to prevent the tragedy from re-occurring. In addition, the enhanced power is seen when the NCC can develop programmes to educate society not only to prevent child abuse and neglect but also to prevent the child’s involvement in immoral or criminal acts. The NCC is not just to design the management system incorporating information channels for reporting cases of children in need of protection but it can design the system for children in need of protection by itself. This means that the function is not just to gather and integrate the information but also to project the system by its own. Significantly, the NCC may have the power to perform anything, which it deems fit and incidental to properly carry out its functions at national, regional and international levels. This is a very wide and unrestricted sort of power given to the NCC for using its wisdom and discretion for the best result of its decision. As compared to the previous provision, the CCPC may perform such other functions as may be prescribed by regulations made under the Child Act 2001 (Act 611) only. In other words, the functions must be within the scope prescribed by the regulations only. Notably, in the new law the government is required to allocate with adequate funds annually to enable the NCC to perform its functions well. It is very significant to have such provision as to trigger the functions of the NCC, which is none in the former law. Such provision on financial responsibilities by the state or allocation of sufficient budget to fund the activities for the welfare of the child and matters incidental thereto is a good practice of many countries like Norway, Netherlands, United Kingdom and Egypt.

Furthermore, the recognition of the NCC’s importance is seen through its functions to educate society and raise awareness on the rights and dignity of a child. It shall be responsible to develop relevant programmes and strategies, warrant the standard of services provided by all parties involved in caring, protecting and rehabilitating the children so that they meet the children’s needs. On top of that, the NCC is also accountable to co-ordinate and monitor the implementation of the national policy and national plan of action relating to children. These include facilitating, undertaking and promoting the research on child’s protection, care, rehabilitation, development and participation. In relation thereto, the Attorney General of Malaysia, Tan Sri Mohamed Apandi Ali, is reported to have said that the children would be given more chances to voice out and participate in the decision-making process affecting them through the establishment of the NCC (http://www.sinarharian.com.my/, 2016). This function is assigned to the NCC through its members from the department responsible for welfare services to promote the children’s participation and assist them in the process. In fact, this provision reflects the provision of Article 12 of the UNCRC that fundamentally gives children a privilege to be heard in any matters that influence their lives.

Apart from that, the NCC is furnished with monitoring power over the activities and performance of two teams concerning children, namely the Child Protection Team (CPT) and the Child Welfare Team (CWT). In other words, the teams are answerable to the NCC for their activities and functions. Very significantly, the wide scope of its functions is further traced when a special provision is newly inserted to empower the NCC to do all things necessary or expedient for or in connection with the performance of its functions. Understandably, this empowering provision is a key for a wide power of the NCC without many restrictions. By looking at these extended functions, one can safely say that the government is serious and committed to protect the child’s welfare and well-being especially when many issues are inflicted by negligence in caring for the children. Instead of focusing merely on government departments or agencies as the service provider for the child’s care, protection, development and rehabilitation, various parties including the private sectors and non-governmental bodies or organisations now become the concern of government. By having a specific National Council for a particular purpose like the NCC, more focused protection and designated function to cater the issues surrounding that particular group could be taken more seriously and extensively (Md Salleh, 2016). Significantly, it is hoped that the involvement of various parties as its members, could strengthen the output and diminish finger pointing to one particular agency when any problem arises.

Protecting the child’s welfare: analysis on the functions of the Child Registry

Child Registry is another important mechanism of child protection which has been introduced by the Child (Amendment) Act 2016 (A1511). Sections 72 and 73 of the Act mandate the establishment of the Child Registry as a database of perpetrators who have been convicted for the crimes against children. Other jurisdictions that have already introduced such Child Registry are City of Ottawa Child Care Registry, Georgia Child Abuse Registry, Child Abuse and Neglect Central Registry of Michigan and Child Registry of Manitoba. Basically, the Child Registry contains the names of felons and their offences. In Malaysia, the data sourced from the Malaysian judiciary and Royal Malaysian Police. This Child Registry is to be maintained by the Ministry of Women, Family and Community Development and accessible by the request to the Director-General of the Social Welfare Department (House of Senate Debates, 2016). Unsurprisingly, the trust to maintain the registry is held by the Ministry as it is the apex agency for administration, empowerment and protection of children in Malaysia. The Registry will chiefly equip authorities with ready essential information concerning the identifiers.

The Child Registry is designed to enhance the supervision of criminals who may take jobs that will bring them into contact with children. It will function to screen individuals who handle or deal with children as a vulnerable group (House of Senate Debates, 2016). Policy Division Secretary of the Women, Family and Community Development Ministry, Dr Waitchalla V Suppiah disclosed the idea behind the introduction of the Registry which is that the employers in child-related businesses can involve in inhibiting child abusers, rapists and paedophiles from approaching children (Carvalho, 2016). This covers the applicants for the positions in schools, preschool and child nurseries. Notably, the Registry is capable to protect the children by screening felons and sexual predators and limiting their access to children. It potentially heightens monitoring of criminals and impedes their chances to victimise others, thereby augmenting the safety of children.

The Child Registry is anticipated to address the possible gaps and loopholes which exist under available Registries of Offenders in Malaysia. It fundamentally broadens the scope of extant registry of children who are in need of protection. The later has merely the record of victims and wrongdoers of child abuse and neglect which is utilised by the Ministry of Women, Family and Community for child protection interventions. Further, the Child Registry supplements the existing list of criminals held by the police force in pursuant to the Registration of Criminals and Undesirable Persons Act 1969. It has been argued that the criminal database is incomplete and not updated (Aziz, 2016). The Child Registry is hence intended to consist of current data and records of offenders who victimised children in communicable form (https://www.kpwkm.gov.my/, 2016). The Child Registry is also more specific and limited in sphere than the police record, considering that it will be applied only for convicted criminal conducts against children.

Despite the rationales of the Child Registry as highlighted by the government, it has sparked an intense debate in Malaysia. Many including civil right lawyers and activists are sceptical of the legitimacy or the efficacy of Child Registry. The completion of the Registry has even been inevitably delayed subsequent to the concern of Attorney-General’s Chambers about the issue of violation of offenders’ privacy and equal protection (Malaymail, 2017). Moreover, some commentators have argued that the accessible registry of convicted offenders denotes an expansion of criminal sanction. By contrast, the major premise of public opinion is that the Child Registry is desirable and beneficial for children. The Registry is predicated, in part, on the belief in deterrence. The proponents contend that the Registry serves as a preventive tool to retrain would-be-offenders and to curtail chances of culprit reoffending. This is given the increased probability of detection, detention and punishment particularly in the case of recidivism. This may lead to the avoidance of future child victimisation.

However, not much is known about the actual implications and effectiveness of such Registry on both individual predators and communities. It is vital to note that there is scant empirical evidence relating to the outcomes of the registrations including the magnitude of recidivism for registrants. The results of growing international research suggest a range of problems with offender registries including difficulty of offender reintegration into the communities, employment problem, housing disruption, social stigmatisation, harassments and psychosocial stress (Matson & Roxanne, 1996; Tewksbury, 2005; Lees & Tewksbury, 2006). Adding to this is the emotional problems that are experienced by the families of offenders (Tewksbury & Levenson, 2009; Frenzel et al, 2014).

Despite doubtfulness on whether the Child Registry should be implemented, arguably it has the high ability to supervise the behaviours of convicts in the communities and to trace their movement. The security concerns of children may outweigh the civil liberties claims of the convicted persons. It is significant for the criminal behaviours against children to be dealt with solemnity. But, all areas of concerns and problems as found by previous international research must not be overlooked. They should be considered for refining and applying a more functional and efficient structure and process of Child Registry in Malaysia. Attention must be provided to conduct risk evaluations and research concerning risk classifications of offenders, systems of registration (such as the extent of information required and lengths of time for registration) and different degrees of public notification for divergent categories of offenders. This should be coupled by techniques for maintaining the infrastructure of the system including trained workforce, logistics and adequate funding. Additionally, the government must implement effective measures to realise the efficiency of registration process and accuracy of information.