A Study on Malaysian Child Act (2001) Faizah Haji Mas'ud

“Malaysianisation” of Malaysian Social Policy Development: A Study on Malaysian Child Act (2001)

Faizah Haji Mas’ud “BSc. (Human Development), Universiti Pertanian Malaysia, 1993: MSW (Applied), Massey University, 1997”

“This thesis is presented for the degree of Doctor of Philosophy of the University of Western Australia” 2012 ABSTRACT

Social policy development in Malaysia has gone through various stages and influences due to many factors, including the country‘s historical experiences and global policy. Social policy is formulated by the State according to a particular welfare model and to pursue intended political goals set forth for the country. In this study, the Malaysian Child Act (2001) (MCA 2001) has been selected to exemplify the development of social policy in Malaysia. The study seeks to examine what social, political, and economic circumstances in Malaysia have influenced the development of Malaysian social policy with reference to the MCA 2001.

Working from an ‗insider-outsider‘ perspective in qualitative inquiry, the research employs a thematic approach in the textual analysis of the MCA 2000, and is supported by relevant laws and information gathered from interviews with selected participants. In this research, the importance of text (statute) is acknowledged as a representation of the exercise of power in the social reality. To ensure a valid account of the phenomena, MCA 2001 is connected with other texts (laws and policy) and the local participants. This research has included interviews with stakeholders who are involved directly and indirectly with the formulation or implementation of the Act.

The MCA 2001 endorsed a change of direction away from a problem-solving agenda to a preventive approach. The study reveals how the Act was formulated as the means to achieve ‗Malaysianisation‘ in social policy, and at the same time adheres to the development of international social policy, in particular the United Nation Convention on the Rights of a Child (UNCRC). The formulation of the MCA 2001 facilitated the State‘s aims to achieve the status of a developed nation in Malaysian Vision 2020. Thus, the Act was utilised to deliver the State agenda in nation-building and at the same time corroborated the country‘s development plan. To do this, the multicultural population was homogenised by the MCA 2001 to achieve a universal standard of child welfare. This study highlights three main functions of the Act in Malaysia social policy: formalising the partnership between the State and the family in the protection and regulation of children‘s behaviour; merging child protection law and corrective justice into one law; and continuation of a residual approach to the protection and regulation of children's behaviour from the previous laws, especially for children in at-risk situations.

The thesis concludes with an argument that it is critical for social policy in Malaysia to be formulated only after a full consideration of the population it addresses, and how time, place, context and policies can be effectively used to achieve policy objectives. There should be a formal evaluation of social policy through various bodies of the State to evaluate effectiveness, and to provide input about achievement of future policy.

TABLE OF CONTENT

ABSTRACT ...... i

TABLE OF CONTENT ...... iii

LIST OF TABLES ...... vii

LIST OF FIGURES...... vii

LIST OF ABBREVIATIONS ...... viii

GLOSSARY OF MALAY WORDS AND TERMS ...... x

ACKNOWLEDGEMENTS ...... xii

THESIS DECLARATION ...... xiii

CHAPTER ONE: OVERVIEW ...... 1

Introduction ...... 1

Malaysia and Child Welfare Policy ...... 3

The Research Questions ...... 6

Thesis Outline ...... 6

CHAPTER TWO: THE RESEARCH JOURNEY: MEANING MAKING IN SUBJECTIVITY ...... 8

Introduction ...... 8

Methodological Perspectives ...... 9

Theory and Methods of Qualitative Inquiry ...... 10

Research on Social Policy ...... 10

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The Research ...... 12

Self-in-Research Methodology ...... 14

The ‗Outsider‘ Perspective ...... 16

The ‗Insider‘Perspecetive...... 18

The‘Insider-Outsider‘ Perspective...... 19

Data Collection ...... 22

Textual Analysis ...... 22

Conversations with Stakeholders ...... 24

Meaning-Making of Information ...... 25

Ethical Consideration ...... 28

Conclusion ...... 28

CHAPTER THREE: SOCIAL POLICY DISCOURSE: TOWARDS ‗MALAYSIANISATION‘ FROM A BRITISH COLONY TO A DEVELOPED NATION ...... 30

Introduction ...... 30

The Development of Malaysian Social Policy ...... 31

Issues in Social Policy; Internal and External Preoccupation ...... 36

‗Malaysianisation‘: From social work to social policy to social work ...... 44

A System of Binary Law versus the Universal Standard ...... 57

Malaysian Syariah Law: Internal and External Fusions ...... 59

Child Welfare Policy in Malaysia ...... 64

Conclusion ...... 73

CHAPTER FOUR : FORMALISING THE ROLE OF FAMILY FOR CHILDREN AT-RISK: ALLIANCE OF THE STATE, THE FAMILY AND THE CHILD ...... 75

Introduction ...... 75

A Merger of Protection and Corrective Justice: For the Welfare of the Child ...... 76

The Social Construction of a ‗Child in-Need and at-Risk‘ ...... 78

Social Construction of ‗The Family‘ ...... 80

The Social Construction of ‗At- Risk Family‘ ...... 85

The State: Power and Knowledge ...... 95

The Child - In Reality and in Social Policy ...... 105

Children as Future Citizens ...... 109

Individuals of Innocence ...... 111

Conclusion ...... 113

CHAPTER FIVE: CORRECTIVE JUSTICE FOR CHILDREN AT-RISK: FOR THE PEACE AND HARMONY OF A NATION...... 115

Introduction ...... 115

Regulation of a Child and Family and Society ...... 116

The Social Construct of Corrective Justice in the MCA 2001 ...... 120

Beyond Control ...... 128

Inappropriate Sexual Conduct ...... 130

Criminal Procedure for the Court For Children ...... 143

Child Offender ...... 145

Offending Adults...... 147

Conclusion ...... 150

CHAPTER SIX: THE PROTECTION AGENDA: LOOKING AFTER CHILDREN IN-NEED ...... 151

Introduction ...... 151

Protection of a Child from Abuse, Crimes and Immoral Sexual Activities ...... 152

Protection Approaches ...... 172

Empirical Evidence: A Thick Description ...... 174

The Family versus the State versus the Child ...... 178

Conclusion ...... 186

CHAPTER SEVEN: CONCLUSION: PAST, CURRENT AND FUTURE SOCIAL POLICY FOR MALAYSIA ...... 187

Introduction ...... 187

Challenges ...... 190

The Future ...... 192

Recommendation ...... 195

BIBLIOGRAPHY ...... 198

APPENDIX (THE MALAYSIAN CHILD ACT (2001)) ...... 227

LIST OF TABLES

TABLE 1 : POPULATION OF MALAYSIA 2010('000) ...... 40

TABLE 2 : INCIDENCES OF POVERTY AND HARDCORE POVERTY BY ETHNIC GROUPS (%),

1999 AND 2005 ...... 41

TABLE 3 : INTERPRETATION OF 'GUARDIAN' FROM THE MALAYSIAN JUVENILE COURT

(1947), THE MALAYSIAN WOMEN AND GIRLS PROTECTION ACT (1973) AND THE

MALAYSIAN CHILD PROTECTI ON ACT (1991) ...... 52

TABLE 4:INSTITUTION FOR CHILDREN UNDER MCA 2001 [(PLACE OF SAFETY)

REGULATIONS (2007)] ...... 148

TABLE 5 : AGE OF A CHILD IN VARIOUS LAWS ...... 162

LIST OF FIGURES

FIGURE 1: REPORTED CHILD ABUSE CASES...... 72

FIGURE 2: MARRIAGE AND DIVORCE TRENDS ...... 90

FIGURE 3: REPORTED CASES UNDER PROTECTION AND REHABILITATION ...... 167

FIGURE 4: REPORTED CASES UNDER PROTECTION AND REHABILITATION (FEMALE AND

MALE) ...... 168

FIGURE 5: NUMBERS OF CHILDREN IN INSTITUTIONS UNDER MCA 2001 ...... 169

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LIST OF ABBREVIATIONS

ASEAN Association of Southeast Asian Nations

BN Barisan Nasional

DAP Parti Tindakan Demokratik (Democratic Action Party, Malaysia)

JKM Jabatan Kebajikan Masyakat Malaysia (Social Welfare Department)

JPA Jabatan Perkhidmatan Awam Malaysia (Public Service Department)

MCA 2001 Malaysia Child Act (2001) (Act 611)

MOHE Ministry of Higher Education of Malaysia

NGO Non-Government Organisation

PAS Parti Islam Se-Malaysia (Pan-Malaysian Islamic Party)

PAKATAN RAKYAT Coalition of PAS, DAP and PKR

PKR Parti KeAdilan Rakyat (People‘s Justice Party)

UK United Kingdom

UMNO United Malays National Organisation

UNICEF United Nations Children's Fund

UNCRC United Nation Convention of the Rights of a Child

UNIMAS Universiti Malaysia Sarawak

US United States

1st MP First National Plan (1966-1970), Government of Malaysia

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7th MP Seventh National Plan (1996-2000), Government of Malaysia

8th MP Eight National Plan (2001-2005), Government of Malaysia

9th MP Ninth National Plan (2006-2010), Government of Malaysia

10th MP Tenth National Plan (2011-2015), Government of Malaysia

STB Sekolah Tunas Bakti (Approved Schools, sect. 65 of the MCA 2001)

TSP Taman Seri Puteri (Place of Refuge, sect. 40(3) (a) and sect.41 of the MCA 2001)

WWII World War II

GLOSSARY OF MALAY WORDS AND TERMS

Adat Traditional laws and customs in Malaysia

Bumiputera Combination of the Malay words ―bumi‖ (earth) and ―putera‖ (prince); literally mean the son of the soil. In the Malaysian Federal Consitution, this group is classified under the indigenous peoples of Malaysia.

Orang Asli Natives of Peninsular Malaysia or indigenous peoples of Peninsular Malaysia

ACKNOWLEDGEMENTS

I would like to forward my Syukur to Allah the Most Gracious and the Most Merciful for the strength given to me throughout the years in Perth and UNIMAS. Without the spiritual strength as a Muslim, I would not have been able to finish this significant stage of my life. The belief in only Allah Subhanawata‘ala as my saviour through thick and thin made me stronger each day.

I am much indebted to Dr Brenda Clare and Professor Mike Clare for believing in me and for considering that this study was worthwhile to complete, despite the challenges that I have had to face as an academic, a mother and a wife. Both of you have given me unconditional support the course of my studies and the strength to keep me sane. The academic discussions we had during my time as a student will remain with me for life and will be passed to others, Insya Allah.

I would also like to thank everyone who has crossed my path and whom I have called my teachers.

This study would also not be possible without the scholarship and the study leave granted to me by the JPA, MOHE and Universiti Malaysia Sarawak. I wish to thank the management of the university and the Faculty of Social Sciences for giving me the opportunity to complete this mission.

Last but not least, a sincere thank you to the staff and friends I have made at the Discipline of Social Work and Social Policy of the University of Western Australia. Your engagement with academic discourse and reality of life put me at ease in the course of this journey.

To all research participants and acquaintances, your involvement is a part of this thesis, and without it, this journey would never have reached its end.

To my family, especially my parents, my sisters (especially Alang and Angah) and my brothers, and nieces and nephews, there is no gift in the world that could recompense your support and kindness.

To all friends, as near as in Malaysia and as far as in Perth and Scotland – in particular,

K Fifah, K Kam, Dr Ling, Gill, Lin, Lucy, Bon, Ton, and others – thank you for being there. I will never forget your kind words, encouragement and doa throughout the years.

To my three beautiful sons, Ariff, Ammar and Aqel, thank you for never tiring of calling me mak even during the difficult moments in my life, as a wife, a mother, and a student.

Lastly, I acknowledge the presence of A in the 13 years of my life as the foremost reason for me to fight back to gain my dignity and self worth as a human being and a wife.

Alhamdulillah.

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THESIS DECLARATION

―This thesis does not contain work that I have published, nor work under review for publication.‖

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CHAPTER ONE OVERVIEW

Introduction

The proclamation of Independence of Federation of the Malay States was on August 31, 1957 by the first Prime Minister, Tunku Abdul Rahman Putra Al Haj in Kuala Lumpur. Malaysia as a country that is known until today was formed in September 16, 1963, consisted Federation of Malaya States (Peninsular Malaysia), Singapore, Sarawak and British North Borneo or Sabah from the Borneo Island (Purcell 1965; Ongkili 1985) . All were which had been British Colonies. This study examines the Malaysian Child Act (MCA) 2001 as a central element of the newly formed State‘s social policy agenda, and in particular its role as an instrument of protection and control of Malaysian citizens – children and families in particular. The research focuses attention on both micro and macro social, economic and political issues. Offering the concept of ‗Malaysianisation‘ as an integrating framework, the study explores the impact on the MCA of local and global forces. It considers intent, and success, of the MCA in: i) developing a national policy applicable across Malaysian multicultural populations, geographical divisions and varying levels of socioeconomic development; and ii) incorporating and adapting global discourses to suit the specific needs of Malaysian children.

The formation of the Malaysian Child Act (2001) (MCA 2001) (Act 611) is one of the changes in government policy that has directly supported the goals of Malaysia‘s nation-building. In the 8th National Plan (2001-2005) (8MP), MCA 2001 mirrors the State aspirations to uphold the best interests of the child and the significant role of the family in the development of a child.

18.50 Efforts to ensure the survival, protection, rehabilitation and development of children were continued to ensure improvements in their quality of life. To provide better protection for the well being of children, the Juvenile Courts Act 1947, the Women and Girls Protection Act 1973 and the Child Protection Act 1991, were reviewed and streamlined into the Child Act 2000, which covers all children under the

age of 18 years. This Act, while ensuring the best interest of the child, recognizes the role and responsibility of the family as the source (The 8MP, p. 516).

The MCA 2001 was passed by the Parliament in 2001 and gazetted as a law in the same year, but implemented in August 2002. It took three years for Malaysian Parliament to pass this document due the amendments in the Penal Code and Criminal Procedure Code in 2001.. Three previous Acts were repealed by this legislation; the Juvenile Court (1947), the Women and Girls Protection Act (1973) and the Child Protection Act (1991). The main objectives of this Act to standardize the definition of a child (age of criminal responsibility that include male and female), formalise the roles of legal guardians of a child, a higher fine structure and heavier sentences for offence committed under this Act.

From colonisation until the start of a new independent country in 1963, Malaysia and its social policy have endeavoured to develop an international policy on human rights. In the late 1980s through to the 1990s, Malaysia began to participate actively in the international human rights movement, especially with the appointment of Datuk Seri Anwar Ibrahim as the Deputy Prime Minister, thus instigating changes in child welfare policy (Binti Jamaludin, Talib, & Yusoff, 2002).

This research is important as the MCA 2001 is a piece of legislation that was formulated as a law and a policy that guides the State and its machinery to protect and care for Malaysian children within the context of the nation's multicultural population. The Act combines two areas associated with social policy of child protection and corrective justice into one law under the umbrella of ‗the welfare of a child‘. The enactment of MCA 2001 was initiated after Malaysia reached its 45 years of independence from the British Empire. The Act consolidates three previous Acts which focused on different aspects of child welfare: care and protection (1991), moral issues of young girls (1973) and juvenile delinquency (1947). The enactment of the MCA 2001 saw a new paradigm shift in the construction of child welfare. This Act was not only created to recognise local needs but primarily to fulfill the government's efforts to support international social policy, human rights and the development of knowledge.

This study of the MCA 2001 will impart the story of the development of Malaysian

child welfare policy within the international and local discourses on childhood and nationhood. As a researcher looking at the Act, I will present the findings based on my location and my professional reasoning. In accordance with constructionist perspectives, a study is constructed by the researchers within the context that has been chosen and the angle that is taken to carry out the research project. As a Malaysian, this study will be a personal journey with considerable responsibility to deliver a research project of relevance to my community. It is a personal decision as a researcher to explore child welfare policy developments in Malaysia, and to locate this development in the current discourse of social policy and child welfare.

This research explores a number of dimensions and goals of social policy in a Malaysian context within the country‘s historical journey and the quest of the country to be acknowledged as a developing nation. The MCA 2001 will be located and analysed within the Malaysian multicultural population, especially the children and their families, as well as how the State utilises the Act as an administrative tool to address social problems among children and their families. It will focus in particular on attempts made to incorporate international human rights discourses encoded in UN Conventions, and to operationalise western child-and-family policy and practice frameworks to meet the needs and complexities of Malaysia‘s rapidly changing population.

It is anticipated that the findings of this research will offer a new understanding of social policy roles in Malaysia as a newly emerging developing nation in the South East Asian

The findings will reflect how the State in the MCA 2001 has addressed and identified changes in local and global contexts, especially in child and family welfare.

Malaysia and Child Welfare Policy

The changes in family and child welfare policy reflect continous influence of global and local dominating forces in the country social policy formulation. These drives are manifestated in the changing of emphasis of the Malaysian national plan (Malaysia‘s Five Yearly National Plan) since the beginning of the formation of Malaysia as an independent nation until now. The Malaysian national policy has changed inevitably from residual and social development approaches into economic driven where family

and children becoming less visible in the country development agenda.

Development of social policy in Malaysia relates closely to British colonisation and international social policy (Shaffie, 2006). MCA 2001 is product of the country‘s goals to fulfil the current needs of the population but at the same time to fulfil international social policy commitments. It is important to locate the Act within the development of Malaysian social policy locally and globally to understand the factors that construct and influence the formulation of the MCA 2001. Since the British occupation in Malaysia, social policy was presented to the public in the country‘s national plan. From these local compounding aspects and through international forces, social policy similar to MCA 2001 is constructed to fulfil various goals of the State, especially in nation- building and global recognition as a developed nation.

This research will explore the MCA 2001 as a social policy document formulated to address changes and identify social problems in the population, in particular among children. Considering these in the MCA 2001, the document in this research is viewed as:

 A political document reflecting a stage in Malaysia‘s history and the State‘s goals and preoccupations with various matters including age, gender, and the nation state.

 An aspiration document reflecting dominant values and assumptions and the hope for the future as a country that strives to gain an international position as a newly developed country.

MCA 2001 was developed in the late 1990s and saw the merger of two different areas of child welfare policy. This Act amalgamates child care and protection policy with the juvenile justice system. However, both areas of policy require separate consideration by the State in policy and practice because they address different issues and need different ways of dealing with family and children.

In recent years, child welfare policy shifted from a previous focus on child care and the protection of family rights, to a focus on child rights (Axford, 2009). Traditional concepts previously used in the policy and programme of the State were replaced with a

universal language that is acceptable in the new, contemporary discourses in child welfare policy. MCA 2001 was designed to adapt a new approach to attending social problems. A range of approaches in childhood and family protection in social policy and practice globally is included to support the State's agenda (Fortin, 2003). These approaches evolved around individualistic, remedial, and discriminatory strategies which concentrate on the realm of family-centred, child-centred and community-based practice and policies (Bowes, 2004).

In Malaysia, social policy changed its course in the beginning of the 1990s (Wan Ramli, 1993). With the increased engagement of the State with international social policy, especially the Declaration of Universal Human Rights and the Convention of Human Rights, the nation slowly began to pursue current and new approaches to addressing social issues especially involving children. In the late 1990s, there was an increasing awareness of overwhelming social problems among children and youth groups throughout Malaysia. The ongoing report of child abuse, neglect and delinquency (Muhamed Jawhar, 1995; Wan Ramli, 1993) without effective intervention frameworks or measures to overcome these problems required the government of Mahathir Mohammad to formulate a policy capable of controlling the rate and minimising the consequences (Muhammad Jawhar, 1995) of these occurences. This move was also aligned with a long-standing international child welfare policy that promotes the role of the State in protecting and securing the rights of children (Country Report Malaysia, 2003). The call for this policy was generated by international bodies, especially UNICEF (United Nations Children's Fund) and the UNCRC.

In the year 2000, increased social problems among children and youth triggered the Malaysian government to set social policy priorities in its Five Year Development Plan (Martinez, 2000). One of the policies initiated under this plan was the MCA 2001 that was implemented in the new millennium as new legislation that incorporated three previous child welfare laws and legalised the family as an institution for social control and providing for the needs of children. The content of Malaysian Five Year Development Plans (The 8MP) (2001-2005) identifies families as a unit and a base for social stability and establishing a caring community.

Under MCA 2001, various training programmes and media campaigns were introduced

with the central aim of strengthening the family unit (The 8MP, p.50). The proposed legislation also shifted the focus from problem-solving to preventive interventions with the intention of maintaining family institutions and promoting a caring and loving community. This however has not yet been identified as either fulfilling the needs of multicultural Malaysian society or as merely a continuous reflection of international trends from a Western-dominated child welfare orientation.

The Research Questions

There is an absence of an integrated analysis of the intent and challenges inherent in the MCA 2001, which specifically focuses on contemporary child welfare legislation, policy development and evaluation in Malaysia. Important and significant studies of policy by Malaysian or international researchers have generally focused on the public and social administration of political and economic influences that have shaped this multi-ethnic society.

The MCA 2001 has been selected as the unit of analysis in order to examine both historic social policy initiatives in Malaysia and also its future motivations. Through adopting an interpretative analysis of social policy, it is possible to establish an holistic understanding of policy formulation within a broader context, taking into account both past and current social, political and economic forces both locally and globally (Yanow, 2000). The study seeks to answer two specific research questions: a. How does the MCA 2001 reflect the interface between local aspirations and universal declarations in its policy formulation and implementation? b. How does the MCA 2001 reflect the relationship between the State and the family as relates to the welfare of children as citizens of the nation and processes of nation- building?

Thesis Outline

Having introduced the reader to the focus and the background of the research in Chapter One, Chapter Two addresses the research perspective and methodology applied in the study in which the research process is discussed further, and how the researcher located

herself within the research agenda. Chapter Three examines contextual forces which led to the development of the MCA 2001. The chapter considers ways in which the Act differs from previous, laws on child welfare and corrective justice, focusing in particular on the debates and tensions - philosophical, political and social - influencing Malaysian social policy. This chapter set a scene on the context of ‗Malaysianaisation‘ of Malaysian social policy development and the discourse around indigenisation before chapter Four discusses the aims of the legalising a partnership between the State and the family to achieve two goals, the regulation and protection of a child that are the emphasis of the MCA 2001. Chapter Five follows on with a discussion about another very important aspect of the MCA 2001, the notion of corrective justice for children under the age of 18 years when a family fails to deliver in their roles and responsibilities, followed by a detailed consideration in Chapter Six of the discourses of child protection and wellbeing informing the Act. Finally, in Chapter Seven, a summary consideration is provided of ways in which the inception and operation of the MCA reflects the iterative relationship between local and global forces as they impact Malaysian child and family policy, and conclusions are drawn from the study.

CHAPTER TWO THE RESEARCH JOURNEY: MEANING MAKING IN SUBJECTIVITY

Introduction

Research projects in the era of postmodernism circumvent universal rules dictating a research project and a researcher. As a researcher, one is required to make choices among a number of theories to understand one phenomenon and to choose the best way to obtain valid and reliable findings. This conflict in locating the research and the researcher is a never-ending exercise within a qualitative inquiry, not only in selecting the methodology, but furthermore in choosing approaches and theories to defend such approaches when carrying out research. Furthermore, there is extensive debate ranging from positivist to postmodernist discourses about research ontologies, epistemologies and methodologies which have been highly variable depending on individuals, contexts and times. For every stance taken by a researcher, justifications offered about validity, reliability, and transparency about research processes are presented with the aim of ensuring that research is accepted as ‗scholarly‘ work.

In this research, my own world view endorses a constructionist approach to this research agenda. According to constructionists, like most writers on qualitative inquiry, there is no absolute truth in this world; rather, truths are constructed by our engagement with the world around us (Crotty, 1998; Ezzy, 2002; Fine, 1998). For researchers planning their research, the processes and meaning-making from the literature and research findings make sense as the direction and purpose of the research takes place (D' Cruz & Jones, 2004). Choosing qualitative research ensures that what is presented does not represent a general understanding of the phenomena but more importantly an understanding of the researcher‘s world views and choices made throughout the research process.

This research is based on a personal construction of meaning-making as an Islamic Malaysian woman of Malay descent seeking to understand social policy constructs about the care, protection and supervision of Malaysian children, young people and families (Kanuha, 2002). What I present in this writing does not manifest any absolute

understanding of the topic of study. Rather, what is presented here is my own personal analysis of ideas drawn from an extensive literature – published both in Malaysian and English languages – and information gathered from extensive interviews within the Malaysian context. Constructionism, as an epistemology, defines a phenomenon, and meaning is derived from social interactions within a particular environment (Seale, 2004). Understanding of my particular subject matter is located within a range of Malaysian contexts, including different States and cultural groupings. Crotty (1998) argues that the fundamental principle of constructionism is located in personal belief, and that truth or meaning exists through one‘s engagement with the realities in our world. Thus, what is presented in what follows reflects personal and professional meaning-making within the realities of my own Malaysian world, not of an Australasian world.

Methodological Perspectives

As a case study of Malaysian social policy, this research adopts two levels of social policy analysis suggested by Dannison and Chapman (1967). The first ‗Manifest Level‘, invites the researcher to analyse what is presented in the official document. The second ‗Assumed Level‘, encourages the researcher to involve key personnel involved with law and policy formulation or practice to give their views on the selected social policy, in this context, MCA 2001. This research does not extend to Dannison and Chapman‘s third and fourth levels of analysis, since the Act has not yet been assessed officially as to its effectiveness as social policy or child welfare policy in Malaysia.

Theory and Methods of Qualitative Inquiry

Phenomenology is a philosophy that acknowledges the influences of the life experiences of the researchers and the position of the researcher (‗insider-outsider‘ perspective) in the research study that has significant influence especially in a situation where both (the researcher and the topic) have commonalities and shared meanings (Byrne, 2001). The phenomenon under consideration in this research is the Malaysian Child Act 2001. This document is the outcome of the attempts of multiple stakeholders, all of whom bring ‗constructed‘ understandings of purpose, process and relationships to its inception and enactment. Hence, the choice of position of the research is constructionist ontology.

From this perspective, meaning-making is socially constructed (constructionism as the epistemology or the theory of knowledge) during the (‗self‘ as an individual) interaction with the social and physical world during the research process. Phenomenology requires a researcher to ‗stand aside‘ from their own sense-making of information gathered in the research, but at the same time be aware of how they (personal and professional) will influence the research process.

Meaning-making within this realm is extended beyond the written word. Crotty (1998, p.91) describes the hermeneutics method of analysing texts and in this study the MCA 2001 as a means of transmitting meaning-experience, beliefs, values from one person or community to another. The process requires the researcher to understand and articulate their own personal perspective about understanding texts, conversations and methods of communicating any information derived from their research.

To carry out this research, a phenomenological perspective has been used to describe and explain the transformation and the development of ‗self‘ in understanding this research topic, using what is commonly referred to as a stand-alone approach. From such a perspective, understanding the MCA 2001 and the concept of ‗Malaysianisation‘ is sought within the current social reality of life as a Malay woman with Social Work training. Meaning-making and interpretation of the Act are based on the researcher‘s interpretation and analysis of the subject based on reality and the context as both an insider and an outsider throughout the research process (Fine, 1998).

To conduct this research on the ‗Malaysianisation‘ of the MCA 2001 based on ‗self‘ reflection and my own world view, discourse analysis was selected as a method to approach the data and postcolonial theory consistent with constructionist approaches to research. These methods and theory of analysis provide the space for a Malaysian to understand ‗Malaysianisation‘ in a broader way, while still applying local understanding.

Research on Social Policy

Social policy is formulated and enacted to fulfil the different goals of the State and provide different effects on the population. There are many reasons why social policy is enacted and formulated by the State in various contexts and setting. Thus, studying

social policy qualitatively in different levels and aspects of analysis will result in different findings. Dannison and Chapman (1967) suggested different levels of social policy studies that will give different results and findings. What is important in social policy analysis is to select the level of social policy analysis that will facilitate the research and achieve goals associated with the social policy research agenda.

Harding (1997) argues that various approaches to studying law and policy on children can be categorised in three different ways:

1. Research on the historical process of social policy development in general, based on cases that occur which are relevant to the laws and policies.

2. Discourses on the knowledge base, principles and values behind each law and policy.

3. Selecting one piece of legislation and then examining the background and discourses associated with its formulation and implementation. Sometimes this will illuminate the philosophy which underpins the legislation.

In this research, the third of Harding‘s (1997) categories was used as a shifting point from which to examine dimensions of his first and second categories. Such a strategy enabled this piece of legislation to guide the research towards an in-depth analysis of historical and philosophical underpinnings behind the formulation and implementation of the new Malaysian child welfare legislation.

Yanow (2000) argues that the nature of policy research is to follow the qualitative way. This particular research employs interpretative policy analysis to evaluate a policy after it was enacted within the Malaysian social, economic and political sphere. Yanow (2000) contends that such a policy examination will bring out multiple interpretations within a dynamic social world (p. 5). Qualitative research on policy proposes a different way in analysing a policy where the researcher follows their own beliefs, agendas, values and knowledge in the making of research decisions.

Significant studies of social policy by Malaysian or international researchers concerned with Malaysian social policy generally focus on public and social administration within Malaysia‘s political, economic and multi-ethnic society. This research specifically proposes to study the development of Malaysian social policy in the context of

protection and control of children and their families, exploring how social policy is utilised to achieve the State's agenda.

The Research

This research and the MCA 2001 are significant for me as a Malaysian woman who has been involved in teaching social work and social policy in one of Malaysia‘s public universities in Kuching, Sarawak which is located on the Island of Borneo. Having the opportunity to study this Act invokes an analysis of social policy that guides and outlines the role of the State in the protection and supervision of Malaysian children and their families across different contexts. How this Act symbolises or fails to reflect differences within the Malaysian population is a significant issue in the development of child welfare policy in Malaysia. Furthermore, MCA 2001 is utilised to deliver the wider agenda of the State with the aim of achieving national unity. Protection and supervisory control dimensions are merged and embedded under the flag of universalism to fulfil the State‘s preoccupation with nation-building, especially in its quest to be acknowledged internationally as a newly developed nation.

‗Malaysianisation‘ in this research is not defined exclusively with the internationally ambiguous definition or meaning of indigenous or related definitions. Instead, it takes into account a Malaysian perspective towards producing a child welfare policy that accommodates its multicultural society. This perspective is supported by Gray (2005) who defines the concept of indigenization in social work as the extent to which a practice fits local context (p.231). However within the international context, the concept ‗indigenous‘, is widely understood as;

…that quality of a people relating their identity to a particular area and distinguishing them culturally from other, ―alien‖ peoples who came to the territory subsequently. These indigenous people are ―colonized‖ in the sense of being disadvantaged and discriminated against (Gray, 1995, p.37).

Previous work by authors such as by Case (1996); Fong (1984); Martinez (2000); Muhamed Jawhar (1995); and Wan Ramli (1993) were limited to the study of social administration and public policy relating to ethnic relations, economics, politics and society. This study, in contrast, takes a different focus by exploring the

‗Malaysianisation‘ of child welfare legislation that was developed in the late 20th Century.

To explore the MCA 2001, a number of key themes were used to shape the study. These included:

 The extent to which the MCA 2001 reflects the development of Malaysian social policy in delivering the State‘s agenda and the dominant voices translated in the document.

 The relationship that is highlighted between the MCA 2001 and the childhood and family discourses, highlighting the protection of children and regulating children's behaviour within the local and international perspectives both historically and in the current context.

In doing this, the historical forces and current State preoccupations that shaped the MCA 2001 within local and global contexts were examined, highlighting them both during its formulation and its implementation. The Act represents the culmination of a number of factors within the country as well as internationally, reinforcing new ideas about the nature of childhood and of family approaches in welfare policy. This may help to inform future laws on child protection and care, especially given the particular economic, political and social development issues facing the country.

There have been limited researchs or evaluation effort carried out with regard to child welfare legislation or child and family welfare policy in particular in Malaysia, even though child welfare policy development is important to ensure effective and efficient service delivery (Tilbury, 2004). In a recent development, Malaysian scholars began to address issues of risk management in the nation‘s juvenile justice system and, during the writing of this thesis, early articles were published that look into the administration of care and protection of maltreated children and youths under the MCA 2001 (see for example Jal Zabidi, Siti Hajar & Weatherley (2008) and Farah Nini (2009) which examine this issue from a legal perspective). In October 2010, a local conference on the Rights of a Child in Malaysia was organized by a law faculty of one of the public universities in Terengganu.

Self-in-Research Methodology

The relationship between the researcher and the research project is an important aspect in this qualitative inquiry. Such positioning or locating the researcher in her research project shapes the overall research project findings. Writing on self-in-research offers a significant understanding about research and the subjectivity in knowledge development.

Using ‗self‘ reflection in qualitative inquiry, this researcher sought to locate and position any assumptions or preconceptions gathered, along with subsequent interpretations and analyses, in a meaningful way before presenting and sharing those findings more widely (Dowling, 2006). ‗Self‘ reflection or reflexivity was the first challenge encountered while doing this research, for as White (2001) concluded,

Decisions should be warranted not by sustaining the myth of certainty, but by looking at the problem of judgement for what it is, and opening it up for debate (p.113).

Research reflects political, theoretical and philosophical assumptions, which affect particular choices when doing such research (Nesbitt-Larking 1992; Campbell, McNamara & Peter, 2004). My research agenda and its outcomes have depended upon the context of the individuals involved (both researcher and participants), as well as time pressures and circumstances that impinged on the research. Crotty (1998, p.4) assertes that a researcher studying social phenomena cannot claim that one approach will produce the ultimate finding because different ways of viewing the world will shape different ways of researching and will produce different results. Within qualitative inquiry, the influence of subjectivity is among the most critical components in any research process. This relates not only to the roles of the researcher, but also to the roles of the participants and their texts involved. Researching the social world inevitably engages researchers in subjective positioning and presenting the subjectivity as a part of the research process (White, 2001). The challenge was to locate myself as a central subjective component of this research agenda. As Carer (2009) and D‘Cruz and Jones (2004) asserted, important subjective issues involving professional ethics, values and ethics are interwoven within qualitative inquiry and such issues shape the methodology chosen for any social work research. Such research is not free of values

and emotions, and it is essential that such issues be identified and ‗dealt‘ with in a scholarly manner (D‘Cruz, 2004).

From these understandings, qualitative inquiry has derived its own framework for reaffirming the ‗self-in-research‘, by explicitly acknowledging the inevitability of subjectivity and the researcher‘s position throughout the research process. In terms of self-in-research, a researcher must engage in a variety of continua between familiar and strange, ‗self‘ and other, domestic and foreign, same and different (Chambliss & Schut, 2003). Such awareness contributes to one‘s ability as the researcher to understand any decisions made throughout the research process.

There are considerable debates about the degree to which the researcher can assume an ‗outsider‘ perspective or whether they are inevitably immersed in a research process as an ‗insider‘. This is particularly the case when researchers are investigating issues, phenomena, and circumstances with which they are personally engaged. This research seeks to bring together these two perspectives, and reflects on the role of the researcher as ‗insider and outsider‘, in this researcher‘s case a Malaysian woman registered for PhD (Doctor of Philosphy) research studies at an Australian University after having completed Masters level studies at a New Zealand University.

At the beginning of this study, it was necessary to consider and distinguish between my present knowledge, embedded as it is with preconceptions, and knowledge emerging from the systematic exploration of research materials (Malterud, 2001). ‗Self‘ (I as a researcher) was not only located in physical space, or conceptual awareness, but also in deciding through which lenses and positions I might focus. Such choices have shaped my understanding of the participants involved in this research effort. It has served to define the purpose, the findings considered most appropriate, and both the framing and communication of any conclusions through a process known as reflexivity (Maltured, 2001, p.483-484).

The second critical component of the research activities involved locating meaning gathered from the research within broader social, cultural, and political spheres of understanding. Meaning-making has relied upon ‗self‘ to understand the information derived through the research process and on decisions, judgments that are

communicated in the end to prospective readers.

Maltured (2001, p.484) points out that different researchers might access different, although equally valid, representations of the situation that is studied, depending on their different positions and perspectives. None, however, can claim absolute truth about their research outcomes (Merton, 1972; Bentz & Shapiro, 1998; Denzin & Lincoln, 2003; Healy, 2005). According to Rossman and Rallis (20012), a researcher in qualitative inquiry might also endeavour in the belief that absolute truth is a problem in a social world.

The nature of qualitative inquiry depends not only on the rigour of the process and procedure, but also acknowledging and sharing the researchers‘ contributions or their effect on the research. The researcher‘s position is made known and transparent throughout the research process and finally at the stage of communicating the findings. A concept of reflexivity in qualitative research requires researchers be clear about their position – before, during, and after the study.

The reflexive narratives of researcher‘s encounters with the intersections between researcher‘s values and research process reintroduce the researchers as persons into account. Issues like: ethics, gender, race, validity, reciprocity, sexuality, voices, empowerment, authorship, and readership can be brought into the open and allowed to ‗breathe‘ as important as research matters (Shacklock and Smyth, 1998, p.1).

The ‗self‘ not only represents the outcomes of the interaction between their social and physical world, and also their personal qualities that are interacting with the outside world (Steier, 1991). This highlights the intricate relationship between the self and the political, social and economical circumstances within which the research activities are carried out.

The subjectivities of the research and of those being studied are part of the research process (Flick, 2002, p.6).

The ‘Outsider’ Perspective

The first approach to understanding and relating this research study to the scientific community is to employ an ‗outsider‘ perspective. The ‗outsider‘ perspective will

engage the research with discourses in the wider scientific community. The ‗outsider‘ analysis opens the door for a researcher to select and to locate the research activities within in a broader perspective.

According to the ‗outsider‘ perspective, a researcher‘s knowledge, skills, ideas and preconceptions are the tools deemed essential to carrying out the research project (Merton, 1972; Chambliss & Schutt, 2003). According to this perspective, a researcher describes and understands findings based on their own ability to interpret the information gathered throughout the research process. A researcher only engages in the information gathered from the literature and from the research activities. There is little space for emotions, motivations and other subjective components to be included in the research process.

According to ‗outsider‘ analysis, writings are judged according to their scientific merit (Crotty, 1998). There is no engagement with the writer‘s social and cultural context, or the circumstances of their research. According to sociological perspectives, this analytic paradigm is also known as ‗etic‘ analysis, or a description of a behaviour or belief by an observer, in terms that can hopefully be applied to other cultures (Merton, 1972). In ‗etic‘ analysis, the researcher attempts to distance herself from the research, the participants and the findings. The proponents of such a perspective argue that such an analysis will result in research that is free from a researcher‘s values and preconceptions, of emotions, motives, and feelings that are subjective and personal.

Advocates of ‗etic‘ analysis believe that by disengaging a research project from the researcher‘s social and cultural predispositions, the researcher is thus able to formulate a value-free research activity and produce findings that are accepted within the wider scientific community (Feleppa, 1986). However, such a perspective in Social Work and Social Policy research is largely expounded by Western writers with little acknowledgement given to indigenous voices, a view usefully articulated by Ling How Kee in her thesis on indigenous social work principles within the Malaysian context (2007).

Based on ‗etic‘ analysis, research activities should be isolated where possible from the research process and the researcher. This helps to guard the research from unnecessary

subjectivity that is difficult to explain scientifically through causes and the effects (Pack, 2006). As a Malaysian woman researching a Malaysian topic about children, young people and families, I engage with a Western-oriented knowledge and to draw upon ‗outsider constructs‘ as alternative lenses through which to study a local Malaysian topic. I move between different discourses, both Western and Malaysian but I do not locate myself ‗outside‘ my research.

The ‘Insider’ Perspective

Researchers who engage from an ‗insider‘ perspective guide their research activities by looking at the subject matter or the research project from a different lens. Advocates of the ‗insider‘ perspective clearly differentiate meaning-making of any given concept, language or understanding derived from the research project to be owned by the participants involved or from their own understanding.

There are two ways to understand the position of the ‗insider‘ perspective in research activities. The first is looking at the position of the participants, and the second involves the positioning of the researcher. In sociological perspectives, an ‗insider‘ orientation to analysis is also referred to as an ‗emic‘ analysis (Merton, 1972; Feleppa, 1986). From this perspective, a researcher interprets the voices of the participants having the power to select and present findings to both readers and target audiences. Research activities, conducted using the ‗insider‘ perspective, draw upon the participants‘ meaning-making in language or any types of communication to understand the subject-in-context. Participants are acknowledged as having their own expertise in such research activities.

The other way of looking at the ‗insider‘ lens is evaluating the relationship between the researcher(s) and the participant(s) or the subject matter. Using the ‗insider‘ perspective, researchers usually will have similar language, experiences or backgrounds as the participants (Brayboy, McKinley & Deyhle, 2000; Pack, 2006). The more extreme views embracing this doctrine sometimes argue that only an ‗insider‘ with common and similar characteristics has the right to conduct research with ‗insider‘ participants or subject matter.

Generally speaking, researchers advocating an ‗insider‘ orientation will be consciously

re-checking their meaning-making and the consequences of any findings as decisions are made throughout the research process. Furthermore, from the ‗insider‘ perspective, a good researcher will accept and acknowledge that ‗self‘ is an integral subjective part of the research process that will influence the research in any given context and time.

‗Insider‘ approaches require researchers to reflect the influence of their roles in any research activities (Thomson, 1998). In addition, their approaches also require them to give voice to and locate the participants as the experts in the research project. Among the requirements for conducting research from an ‗insider‘ perspective are, to accept the participants‘ culture, their language, their body of knowledge, and their past and current historical context (Brayboy, McKinley & Deyhle, 2000). Malaysian researchers researching Malaysian topics are able to apply an ‗insider‘ perspective as an advantage when seeking to conduct a meaningful research project. From this perspective, my insider ‗status‘ within the heterogeneity of the Malaysian population will only be relevant to my personal background. The research process has been constructed according to my location as a researcher with particular ideas, values, agenda and history. Nonetheless, the ‗self‘ in the ‗insider‘ perspective is not only considered as personal, but also as a significant contributor in the research process. This ensures that meaning-making is not only created from outside or universal perspectives, but from personal connections with the research content.

Knowing the language(s), reading local literature (which may or may not concentrate on equivalent items of interest to those in home country literature), visiting or even working for protracted periods abroad in so far as can be arranged may, even in an ideal world, be no substitute for being born and bred in each society in question (Jones, 1985, p.6).

The ‘Insider - Outsider’ Perspective in a Qualitative Inquiry

In a discussion by Merton (1972) on ‗insider‘ and ‗outsider‘ approaches; power, authority, status and superiority were continually used to analyse pros and cons with ‗insider‘ and outsider‘ doctrines in research activities. The researcher‘s identity in the research process is highlighted, not only in giving voice to the participants, but also as a contributor to knowledge development (Nesbitt-Larking, 1992).

The ‗Self‘ in this research is reflected in two different identities – personal self as a Malaysian woman, and also as a researcher that engages in scientific research discourses (Nesbitt-Larking, 1992; Pack, 2006). However, as a person who is born as a Malay woman (personal identity) and as a Malaysian (a national identity), I acknowledge that my research methodology and theoretical orientation will reflect the interaction between me as a Malay Muslim woman (‗insider‘ perspective) and the Western knowledge acquired throughout my years in higher education – in Malaysia, New Zealand and Australia – and my working environment in Malaysia as well as overseas (‗outsider‘ perspective).

The reason for assuming this stance reflects my background as a Malaysian who studies a familiar place and its people. However, my interpretation of the literature and information gathered in this study is closely attached to present knowledge (Padgett, 2004) and ideas from the Western-oriented education system. By using the ‗outsider‘ perspective, the research can be located in a broader perspective, informed by a phenomenological framework in pursuit of new knowledge and information as far as possible, and to ‗put aside‘ my own preconception in a hermeneutics cycle.

The influence of the self-in-research process is acknowledged as an integral feature of this research in and of the social world where it was carried out (Stoeltje, Fox & Olbrys, Fox & Olbrys, 1999). An exploration on the nature of the relationship between the self- as-researcher and the research process is therefore critical (Connolly, Crichton-Hill, & Ward, 2006; Shacklock & Smyth, 1998; White, 2001). This section discusses in greater detail the significance of subjectivity and reflexivity in the form of the ‗insider-outsider‘ perspective, as they influence both the research process and any research outcomes.

Qualitative researchers are learners, and qualitative inquiry provides the detailed and rich data for this learning process. The learner-the researcher makes choices that shape and are shaped by the emerging processes of inquiry (Rossman & Rallis, 2012, p.5).

As an ‗insider‘ in this study, I will carry along a national identity, the ability to speak the language, and the experiences of living in the country in its independent state. Nonetheless, I would not be able to claim that my view will represent the Malaysian nation as a whole, comprised as a multi-ethnic society, because my ethnic identity only

belongs to one section of Malaysian society, the Malay group. In this quest to understand the concept of ‗Malaysianisation‘, I have sought, to understand and to include voices of Malaysians from other ethnic groups, from different locations and places, and from people occupying important positions as stakeholders from diverse backgrounds.

My view and my reflection of the world are seen through the eyes of my background and socially constructed since I was born. This can be reflected by the ‗insider‘ and ‗outsider‘ conceptions in sociological doctrine (Merton, 1972). I enter this research as an ‗insider‘ with an ‗outsider‘ perspective. I seek to interpret information from literature, texts, and interviews through meaning-making (dialogic), applying an ‗insider‘ perspective (as a Malaysian) whilst also engaging in an exercise of meaning- capturing (analytical) according to an ‗outsider‘ perspective (Thompson, 1998, p.7). I am taking a phenomenological stance, standing apart from my own personal understandings. Thus it can be said that this qualitative research depends not only upon systematic data collection and textural explorations, but also upon the researcher interpreting and reflecting on the research, with the aim of producing insightful and relevant findings (Denzin & Lincoln., 2003; Dowling, 2006; Ezzy, 2002; Fine, 1998). This has required that I engage in reflexivity which, according to Seale

… is a capacity by the researcher to reflect upon what they are doing and to recognize that social research is it‘Self‘ a form of intervention in the social and cultural world (2004, p.2).

Shaw and Gould (2001) described this ability for self-location in the research process as critical to safeguarding researcher reflexivity. According to Steire (1991), reflexivity is the core of the hermeneutics process when conducting research. Reflexivity requires a researcher to work reciprocally with the research process (Dowling, 2006), to include ‗self‘ reflection on a personal level throughout the research process until finally communicating any findings to the reader.

Despite all the methodological controls, the research and its finding are unavoidably influenced by the interest and the social and cultural backgrounds of those involved (Flick 2002, p.4).

A research takes on a life or a world of its own. This relates closely to the position of this study within qualitative inquiry discourses. Valid research should be able to justify the actions and reactions it takes and communicate these features to others for validation (Nesbitt-Larking, 1992; Anfara, Brown & Mangione, 2002). The life of any research project and the story it will tell others relies heavily on a researcher‘s ability to situate the study within the academic world of scholarship and to communicate its findings in a manner that is acceptable within the academic community of scholars. In order to do that, a researcher must first be capable of reflecting themselves and their position throughout their research activities, or as Yanow argued, ―although interpretive analysis uses systematic, rigorous methods, these methods do not lead to universal, objective claims‖ (2000, p.18)

Data Collection

The data for this research was collected from three key sources:

1. The Malaysian Child Act (2001)

2. Relevant supplementary documents

3. Conversations with stakeholders involved with developing, interpreting and operating services under the new legislation

Data sources 1 and 2 above have been the primary source material throughout this study. These statutes reflect the history and current climate in which the new legislation was enacted. This refers not only to individuals in their environments but also to the social, political and economic contexts within which the new social policies were formulated.

Textual Analysis

Textual analysis in this research takes its form from a discourse analysis methodology to understand and interpret social reality as it existed (Philips & Jorgensen, 2002, p.6). In this research, child welfare policy texts were treated as a reflection or representation of the social reality in which they were constructed through the exercise of power in social reality. The texts that were analysed included:

 The Malaysia Child Act (2001)

 Relevant Acts for Malaysian children

 Parliamentary debates on the Malaysia Child Bill (1999)

 Official documents from relevant agencies

 Newspaper articles

The research applied a textual analysis to understand the ways in which diverse views and opinions about social phenomena were represented through the Malaysian Child Act (2001). As a statute, MCA 2001 represents and reflects discourses not simply dominated by one person but of various persons or stakeholders with power and influence at local and international levels. In this research, texts were seen to represent views or opinions from various discourses and social interaction.

We complicate the picture further if we consider not only public policies as text that are interpreted as they are enacted by implements, but also those enactments themselves as ―texts‖ that are ―read by various stakeholder groups: clients, legislators, other agency personnel, other citizens, and, at times, foreigners as well (Yanow, 2000, p.17).

Texts in various forms have provided information according to the objective of this research (Phillips & Ochs, 2004). They illustrate power, culture, idealism, values, knowledge and issues influencing the texts in a particular context and time. In this research, the MCA 2001 has lead the researcher to explore discourses on children's liberation, children's rights, indigenous rights and indigeneity, child protection and care and amongst other discourses to ascertain the meaning of ‗Malaysianisation‘. Furthermore, a discourse analysis also provided a social context for this phenomenon, for example, through considering how global forces have impacted on the local situation and how this interplays with the discourses globally and locally. To ensure that a valid account could be obtain of the phenomena in question, connections between the MCA 2001 to other texts and social players was also explored. During the second stage of this research, interviews were carried with stakeholders who were involved both directly and indirectly with the formulation and implementation of the Act.

Hermeneutics was used to examine the conditions that shape the interpretations of human acts and products (Rossman & Rallis, 2003, p.7). According to Bryne (2001, p.1), this methods helps to focus attention on textual analysis of cultural and historical influences on the qualitative interpretation of findings. The MCA 2001 as the unit of analysis helped to guide the researcher towards an exploration of key information deemed essential to an understanding of ‗Malaysianisation‘ and information on that topic.

Conversations with Stakeholders

For the interviews, initial contact was made with participants drawn from a list of Malaysian stakeholders in social services. The participants were selected using purposive sampling in the first instance with snowball sampling employed for subsequent participants. Prospective participants were contacted via telephone or email and such communication resulted in the inclusion of other stakeholders who were involved in child welfare policy formulation or implementation. Each prospective participant was followed up with a letter of invitation to participate in the research and a consent form. Once they agreed and signed the consent form, suitable times and venues were arranged for interview sessions.

The list of stakeholders was drawn from the Malaysia social services directory and through personal networking within the Malaysian social services. Voluntary participation was thus obtained from Malaysian child welfare social services stakeholders who included:

a) Legislators

b) Policy makers who had or will have directly influenced the formulation and implementation of the MCA 2001.

c) Interested observers, including professionals who were interviewed with a view to obtaining a greater understanding of their views about the process of policy formulation and implementation in the Malaysian context.

I was fortunate during the course of this study to meet with stakeholders who have been directly involved in the formulation and implementation of the Act from different states

in Malaysia. Age, sex or other personal attributes were not used as prerequisites for participation in this research. However, there were no participants under the age of 18 and participants resided in both West Malaysia at Kuala Lumpur, Kelantan and Pulau Pinang as well as East Malaysia at Kota Kinabalu, Sabah and Kuching, Sarawak.

This study employed semi-structured interviews with face-to-face contact with participants who engaged voluntarily and with informed consent. If a person was interested in participating in formal interviews including taped-recorded interviews, consent was obtained before proceeding. Participants were asked open and simple questions about the MCA 2001 as a child welfare law and as social policy concerning children, young people and families. Other questions concerned the Act itself in terms of understanding the objectives and the achievements, and lastly about Malaysian policy for Malaysians created by Malaysians. Interviews lasted between one and two hours and comprised topics based on the objectives of the research. However, the interviews were mainly directed by the participants on their current understanding of the MCA 2001 as a relevant law for Malaysian children.

The interviews were recorded using a digital voice recorder for participants who agreed. Other conversations were written down. From the 11 participants, seven were working within the social welfare system, two were members of the committee which drafted the MCA 2001, and two were academics from local universities.

Meaning-Making of Information

Data from texts and conversations were analysed based on thematic analysis. Information gathered in this study was then located in the current discourse on social policy and ‗Malaysianisation‘ derived from the findings. I did not use ‗Malaysianisation‘ or ‗indigenisation‘ as a part of my interview questioning as discourses associated with both concepts were not applicable in their field. For that reason, only selected verbatim evidence from participants that correspond with key issues relevant to this reserach are presented in this writing.

My position as a researcher within the continuum of ‗insider-outsider‘ associated with the documents and conversations remained a symbolic interaction with the aim of understanding these phenomena. I brought along predispositions as a Malay woman

from an academic world although I did not consider this as involving a less able or inferior position.

Meaning-making of the findings involved a continuous process of analysing and understanding the issues and the factors highlighted throughout the investigation. Key issues which guided the analysis from texts and conversations were:

 Protection of the child

 Regulation of children‘s behaviour

 The roles and responsibilities of families

 The roles and responsibilities of the State

There was an important distinction to be made between the status of the written word and the dialogues with participants, which were crucial considerations when studying legislation. Legislation is in a written and fixed form. Although texts may provide the majority of the data, the research was supported by interviews with selected stakeholders who had been directly involved in the formulation and decision-making associated with drafting and implementing the Act as it currently exists. This provided accounts of insiders‘ interpretations of the context throughout the process of policy formulation and its implementation.

The complexity of general knowledge epistemology contributed by Anglo-centric scholarly traditions often fails to acknowledge their own backgrounds and their participants‘ world views in their studies (Castle, 2001). This research sought to acknowledge the intricate relationships that exist between Western and local knowledge, between past and the present situations and the impact these influences have on Malaysian society. Loomba (1998) called for a paradigm shift in studying the social world, arguing that Western or colonist language within the academic world represents one of the primary biases associated with studying people who have been colonised throughout the world.

The meaning of the world around us is shaped by connotations we understand from the language we use to communicate. Discourse analysis is often associated with the work of Foucault amongst others (Healy, 2005b), who described many different perspectives

from which any topic can be understood, relating dominant understandings to discourses of power as related to the focus of this study – a legal document. A study of the MCA 2001 offered the possibility of analysing the Act from various perspectives about social policy in Malaysia, including perspectives for the State, the family and the child.

Parton (1998) discussed Foucault‘s notion of ‗governmentality‘ and how it is possible to understand and think about forces that shape child welfare provision at any given time. This framework offered space for the researcher to seek information from a variety of sources in order to gain as much information about a topic – in this case the MCA 200. The Act was not formulated and enacted from a vacuum, but was shaped through local and global forces of socio-political culture by a developing nation.

Constructionism, demands sensitivity to issues of power, and a willingness to acknowledge how it is deployed and by whom. Taking constructionism seriously means not being naïve about power by, for example, ignoring the extent to which professionals are just capable of protecting their own self-interest as are the family members with whom they work. It also involves recognizing that everybody has some avenues to power. Even the weakest have the power to resist and to undermine the ‗best-laid plans‘ (Stainton, 2001, p.23).

The above paragraph reflects the beliefs of this researcher that power is delivered and expressed without qualms, whether indirectly or directly, within a plan by the government to assert power. That power is constructed and exercised through the expertise and authority of different positions within every level of the bureaucracy and institutions.

Discourse analysis in this research focuses closely on how people‘s knowledge about their social world is shaped by the language they use (Seale, 2004). In this study, the Act has been analysed in such a way as to look for the meaning it conveys in the document, what is present and what is absent, for example, the location of a child in the MCA 2001, as in need for either protection or control. This has been the focus throughout the Act and in the frameworks that inform the Act, whether in the terms of definition of events, the assessment and the action it will take for the child involved. This has also involved the contextual analysis before and after the MCA 2001 was

enacted, discourses debated amongst policy makers during their formulation of the Act, and the issues that motivated its enactment with the local and global environment.

The second theoretical influence has been that of post-colonialism, which concentrates on the production of meanings and ideology after the end of colonisation. Scholars focusing on post-colonial theory such as Said, Spivak, Bhabha and Fanon (Weaver, 1999; Castle, 2001) originally focused on language production and the meaning of the world around us especially within contexts involving Western colonial influences. Post colonial theory is especially relevant to Malaysia, as the State was formed out of a number of discrete colonised political entities – Malaya, North Borneo, Brunei, Kalimantan, Singapore, the Dutch East Indies, etc. This history continues to be directly relevant to the MCA 2001, reinforcing the complex interface between local and global discourses at a critical point in the country‘s evolution, and highlighting its distinctive focus on the State and the family as essential elements in the way forward.

Ethical Consideration

By its very nature, qualitative research is immersed in various important ethical issues from its very beginning through to the presentation of any research findings to others. Ethics are centrally concerned with the researcher‘s conduct and the ways in which the research derives an understandings that ensures no one is harmed and that the literature is handled appropriately. In this research, a list of ethical considerations has been taken into account. The significant requirement of confidentiality of research involving individuals has been fully acknowledged and implemented throughout. The research has followed the university‘s strict procedures around ethical approval for research involving human subjects. Protocols involving confidentiality, informed consent, privacy, and ethical procedures involving human participants have been strictly observed throughout this research project.

Conclusion

Anyone seeking to research Malaysian topics will have to engage with ‗insider-outsider‘ perspectives if they are to conduct meaningful research. As a part of the ‗insider‘ perspective, I have given voice to the participants and the social realities of Malaysia,

drawing attention to realities which are unlikely to be understood by non-Malaysians, even the most scholarly of academics. This has ensured that the research project empowers and privileges local participants, and as a result, reflects their real situation in such research outcomes as were obtained.

As a researcher in general, it has been an advantage to be an ‗insider‘ while at the same time utilising selected ‗outsider‘ perspectives while conducting this research. When studying their own situation, researchers need to seek a ‗degree of distance‘ sufficient to enhance their meaning-making. Malaysians are thus enabled to select appropriate research methodologies and to make more holistic meaning of their findings and research outcomes. The ‗outsider‘ perspective has provided a much valued general understanding that has formed the base for this local researcher to locate her research within broader perspectives. Knowledge and skills gained throughout my years in Western education systems has helped me as a researcher decides on appropriate directions from which to conduct this research and to develop appropriate knowledge that has enabled greater understanding about local realities with which I have been reasonably familiar.

CHAPTER THREE SOCIAL POLICY DISCOURSE: TOWARDS ‘MALAYSIANISATION’ FROM A BRITISH COLONY TO A DEVELOPED NATION

Introduction

RECOGNIZING that the country‘s vision of a fully developed nation is one where social justice and moral, ethical and spiritual developments are just as important as economic development in creating a civil Malaysian society which is united, progressive, peaceful, caring, just and humane. (Preamble of MCA 2001)

MCA 2001 was not formulated in a vacuum. It came about through the consolidation of three previous laws that dated from the long-standing relationship and influence of British colonial legacy and global forces. The Act incorporated the previously established child welfare policy with the current global approach to the rights and welfare of a child. The document addresses contemporary social issues with local, national and global undercurrents in the late 1990s. The enactment of MCA 2001 reflects Malaysian child welfare development and changes in approach, especially in looking after children in the current social policy environment. As a part of the Malaysian social policy, the Act not only reflects the current socio-political agenda of the country and the commitment to the international policy on the rights of the child, but also manifests the development of Malaysian social policy, especially after the country gained independence from the British Empire.

For that reason, this chapter explores and discusses the political context of MCA 2001 as a feature of social policy geared towards delivering the country's agenda in the protection and supervision of Malaysian children. This Act frames social policy for Malaysia‘s multi-cultural populations and geographical divisions. It is located within a social policy environment that was subject to social, economic and political issues – within the global context of universality and selectivity. The MCA 2001 reflects not only the development of social policy, but also the role of social policy in the nation state agenda, especially as an instrument of protection and over-sight of Malaysian children, young people and families.

All around the world, social policies have made a significant contribution to the design of localised child health and welfare provisions with respect to care, protection, supervision and rights of children (Jansson, 1994; Foley, Roche, & Tucker, 2001). This impacted on the development of Malaysian child welfare policy through a recognition that the rights of children in need of protection as a lawful right for all citizens with conditional oversight through the State institutions. Research findings suggested various factors and approaches affecting the formulation of social policy including history, time and place (Anttonen, Baldock, & Sipila, 2003; Williams, 1989). A child law such as the MCA 2001 can be interpreted and understood as both corrective justice as well as the protection of the child. The Act was shaped by local and global forces (Livingstone, 1969), which characterised nation-state relationships, child welfare knowledge, and evidence-based or ‗best practices‘. The extent to which these themes were incorporated will be discussed later.

The Development of Malaysian Social Policy

Social policy does not exist in a vacuum apart from each other and independent of the society within which and as part of which they have developed (Jones, 1985, p.5).

Social policy is created within the circumstances of a country and its people (Anttonen, Baldock, & Sipila, 2003). In analysing the MCA 2001, one might question what fundamental theoretical frameworks helped shape this policy. This means explaining the principles of the Act based on grand theory suggested by various means under different fields of study. To understand the holistic picture of the MCA 2001 and capture ‗the gist‘ of the Act within Malaysian social policy, an historical understanding of law reforms and the interrelationship between players and environment should also be included (Fitzpatrick, 2004). To locate the MCA 2001 within the historical and current contexts, an in-depth understanding of the journey towards ‗Malaysianisation‘ of social policy should be included to understand the ways in which social policy developed in the Malaysian context.

This research involved overlapping spheres, social policy and public policy. Titmuss examined social policy and relations between the State and the welfare of individuals (Abel-Smith & Titmuss, 1974). Spicker (1995) offered a narrower, more Western

social policy which focused on ‗social services and the welfare state‘ (p. 3). However, the study of social policy embraces many broad areas which are related directly or indirectly to the society‘s well being and welfare (Lavalette & Pratt, 2006). Social policy is formulated and enacted to promote social well being amongst the people it serves. This involves all related factors – physical and social – of the country that influences policy formulation and implementation (Wiseman, 1979). In Malaysia, social policy comes under various interrelated major national plans. During the Malaysian Prime Minister Mahathir administration, a number of social policies were introduced with the aim of managing the impact of industrialisation and economic development in Malaysia (Ooi, 2006; Swee-Hock & Kesavapany, 2006).

With the various backdrops of Malaysian historical accounts and its contemporary context, social policy can be studied from various approaches. Spicker (1995) provided two principles that are basic to any understanding of social policy. First, one must understand any theory behind or underpinning that policy. The second encompasses social policy, or as Spicker argued, ‗Social policy does not focus on particular social studies such as class, the family, race, or gender, but the influence they have on the policy‘ (1995, p.6). Expanding on this idea, Jones (1985) suggested that social policy needs to be understood comparatively with other nations, known as country social policy. This will have a significant impact on the ability to understand the strengths and the weaknesses in the process or in its implementation. Moreover, comparing two or more policies from various countries will give a better understanding of the principles, ideas, and the goals of social policy across borders (Anttonen, Baldock & Sipilia, 2003; Hudson & Lowe, 2004; Morris & Barnes, 2008).

Thus, the politics of the MCA 2001 can be divided into two main 21st Century goals: first, as Malaysia promotes nation-building as a goal of social policy, and second to formalise the protection and supervision of children and their families as an agent of the State (Kerajaan Malaysia, 2001). The Act reflects a significant achievement in child welfare policy that saw various pre-Independence laws on children consolidated into one law that incorporates current knowledge and best practices in child welfare (Binti Jamaludin, Talib & Mohd Yusoff, 2002). All participants interviewed for this research agreed that the MCA 2001 either directly or indirectly supported UNCRC and the best interests of the child. The roots of the Act are strongly based within Malaysian political

history, especially within the period of the British occupation of the Malay States.

Like other commonwealth countries around the world, British ideologies on the Malay States provided the backdrop to the current Malaysian social policy and contemporary Malaysian laws (Swettenham, 1984). The British colonial policy was similar in all commonwealth countries, to develop the colony according to British customs (Vasil, 1980). According to the British Empire, the Malay States were not perceived as advanced in socioeconomic and political structure. Therefore, it needed intervention to fully benefit from the local resources and trading activities (Roff, 1967).

The Malay States had a decentralised form of governance by the individual sultanates before British colonisation. In the Pangkor Treaty (20 January 1874), the Malay Sultanates acceded to British administration after they were granted the power to maintain control over laws relating to Islam as the religion (Syariah law) and the customary law (Adat) of the Malays (Roff, 1967, p.6). During the period of Colonial Malaya, the enactment of ordinance other than matters relating to the teachings of Islam and Malay customs was controlled by the British colonial office. This change resulted in a new centralised system of administration for the Malay States under the Malay States colonial office, the form of governance by the British managed to control the power of the Malay Sultanates.

Establishing stable, overarching political and economic laws in the Malay States was an integral part of optimising the reward from the colonial presence. As Roff argues,

For the officials on the spot, the primary end purpose of British control was the creation of political stability and ordered government of a Western type, as a necessary precondition of and context for rapid economic and commercial development of the country‘s natural resources (1967, p.12).

Through this colonial policy, the British managed to establish a centralised system of governance across the Malay States, and divide the local policy into two systems (Harper, 1999). The Pangkor Treaty reassigned the power of the sultanates in social, political and economic spheres of the individual states into a limited local or indigenous-specific and unprofitable area. Sultanate power was slowly minimised in all matters of the people including the care and protection of the family and their

children (Emerson, 1964; Zakaria, 1995).

Towards the end of British colonisation in the Malay States, the country began to face ethnic disparity, especially in terms of economic development between the Malays and the Chinese. British policy, especially the ‗Divide and Rule Policy‘, resulted in unequal distribution of the country‘s wealth and professional development between major ethnicities (Ahmad, 1987; Andaya & Andaya, 1982; Bastin & Winks, 1979; Crouch, 1996). During the colonial era, migrants - especially the Chinese and the Malay elites - gained more in the country‘s economic development (Jomo & Hui, 2003; Vasil, 1980). To address this gap in the early period after Independence, Malaysia was introduced to affirmative action by a group of Malay leaders. Such affirmative action was perceived by some as the Malay hegemony as the power and authority in politics, since Government and policies were slowly dominated by them (Vasil, 1980).

The new state of the Persekutuan Tanah Melayu (Federated Malays) of Peninsular Malaya was an arbitrary amalgamation of states with little internal cohesion (Nah, 2006). The task of the new government was to develop and address ongoing issues left behind by the British administration (McKie, 1963). The new government continued British ways in planning through the country‘s economic and social development plans, especially the 5-year National Plans.

Throughout the early years after Independence, the Malaysian government put its major focus on achieving economic development and racial integration (Hamayotsu, 2002; Milne & Mauzy, 1978; Ongkili, 1985). Colonisation had left behind race relations problems like a ‗wound that would never heal‘. With scarce natural resources to assist in the country‘s development and inter-ethnic tension, the Federation of Malay States faced uncertainty in building a nation (Andaya & Andaya, 1982). As a starting point, social policy inherited from the colonial administration focused on issues of integration, economic equality, racial conflict and infrastructure. Nation-building was the dominant feature of social policy including the MCA 2001. The Act formulation took shape with a clear intention of becoming an integral part of the Malaysian National Plan to foster nation-building.

During the Ninth National Plan (9MP) period, the thrust of youth development

emphasizes empowering youths to enhance their role in society, fostering national unity and nation building. (The 9MP, p. 295)

As social policy, MCA 2001 upholds the State agenda by adopting the philosophy and values that parallel other policies, especially in uniting people from various ethnic groups and from different parts of Malaysia. This agenda, according to social policy literature, reflects the contemporary ideas on nation–states within local, global and historical experiences. Among the other State policies are the Pelan Tindakan Social (National Social Action Plan), Wawasan 2020 (Vision 2020) and Dasar Sosial Negara (National Social Policy). Social policy also represents Malaysia‘s main goals for social integration amongst various ethnic groups from diverse locations, and its continual agenda in economic development and political stability (Siti Hajar, 2007; Walton, 1993). According to Dr Nungsari in his support of the MCA 2001 formulation,

‗We think that the country has accomplished economic growth and fantastic development within the last 42 years. But when we sit back and think, before these 42 years, Malaysian, Malayans then, Federation of Malaya at that time were very simple people. Within these 42 years, if we consider a generation of 20 years, has such a huge change, its transformation is very rapid. Not many countries in this world and in the history of human development have undergone such a fast change in a short time period. Although it is a blessing and reflects our achievement, but we have to observe our support system in order to ensure the well being of the people‘ (Bin Radhi, 1999).

Nonetheless, MCA 2001 incorporates the ideas of the country's vision to attain economic development without losing the local values such as morality, ethics, and spirituality (Saw & Kesavapany, 2006; Weiss 2009). With Islam as the official religion, the State's agenda would have to base all its policies accordingly. Material development and spiritual development were important social values to forge a new era in Malaysian society, with its eastern values still intact. Here we find endorsement of Spicker‘s (1995) arguments about how social policy is shaped by historical and current influences in both formulation and implementation.

We wish to move beyond comparative accounts of national care systems that concentrate on institutional description, available data on expenditure and numbers provided for. Rather, we seek to capture something normative and moral qualities of

care systems: the degree to which citizens find them desirable, accessible, reliable and fair and trustworthy (Anttonen , Baldock & Sipilia. 2003,p.1).

An understanding the history of colonialism and the melting of structural and personal influences of colonisation by the British is essential when looking at current Malaysia (Rau & Sampathkumar, 2006). The analysis of MCA 2001 is guided further by understanding how the historical accounts had a significant influence on the State and its people and of how social policy is shaped by the history, the people and the current socio-cultural milieu - both locally and globally.

Issues in Social Policy; Internal and External Preoccupation

In fact, many of the challenges of today‘s nation state represent continuations of much older processes and world orders, characterized by centuries of independent population movements across more fluid frontiers, whether for trade, labour, learning, religious proselytization or conquest. Cultural exchange and cosmopolitanism were thriving long before the crystallization of the nation state (Nagata, 1997, p.159).

The MCA 2001 is located in Malaysia‘s national plan as an instrument of the State in protecting and promoting children‘s well being (Kerajaan Malaysia, 1996). The State also promotes the Act as a medium to address the country‘s concerns about the implication of social orders. Besides the goals to care and protect the well being of the general population, according to Fabian, Keynes, Marx and Foucault, social policy is also an instrument of social control or social engineering by the State (Finch, 1989). MCA 2001 is not only a child welfare policy of care and protection, but is the State‘s tool to shape and mould future Malaysian citizens according to dominant institutional values and discourses.

Only then is it revealed how forms of social care with similar names and policy intentions have different social and cultural meanings and practical consequences (Anttonen, Baldock, & Sipilia 2003, p.1).

Internal and external preoccupations of the State shaped the formulation of Malaysian social policy, significantly by British colonialism, and especially the ‗Divide and Rule‘ policy (Verma, 2002).

It is not entirely a myth but: You occupy much of a man‘s land, buy his produce at your price, sell the goods he needs in your shops, control the labour market in your own interest, develop his country resources, bully him economically, and dominate him politically, and then accuse him of being lazy, a good-for-nothing who won‘t work‘ (McKie, 1963, p.93).

MCA 2001 is an Act that reinforces prior rules and procedures inherited from the British administration during colonial expansion in South East Asia. It gave a continuity with the laws of British colonial periods to attend social problems in the Malay States and other colonies (Siti Hajar, 2006, 2007). During the colonial administration in the Malay States, the British superimposed their social policy, which at the time dealt with the destitute and problems of social unrest in the 19th Century as a result of rapid urbanisation and industrialisation of Britain (Ho, 2004). MCA 2001 continues to address Malaysian social unrest and child welfare in a manner strongly influenced by the British.

The policy was used by the British Empire to secure and shape the colonial Malay socio-economic environment according to race affiliation. From the beginning of the Federation of Malaya in 1957 in Peninsular Malaysia to the formation of Malaysia in 1963, the government had made significant changes to the country‘s development by formulating policies that addressed economic disparity, especially between the Malays and the Chinese (Harper, 1999).

Independence for the Federated Malay States brought along the unrest and conflict between the Malays and the Chinese due to the country‘s wealth distribution, education and economic disparities. The British ‗Divide and Rule‘ policy engineered the geographically-based divide on ethnic economical settings. As a significant colonial policy, ‗Divide and Rule‘ managed to segregate the population to benefit the British colonial agenda (Vasil, 1980). Under the policy, the majority of Malays occupied rural areas where small-scale agriculture was a major source of income. This created significant problems where economic activities were not enough to provide for the needs of the growing population, as the result of improvement in health care costs.

Tensions between the Chinese and the Malays have never been resolved (Purcell, 1948; Saw & Kesavapany, 2006; Vasil, 1980) and has been a major influence on every aspect

of Malaysia‘s national plans and programmes since the Malay States regained Independence.

The British role in furthering multi-ethnicity of the peninsular [sometimes referred to as Semenanjung Malaysia or West Malaysia] was essentially a by-product of British commercial policies rather than a deliberate step (Purcell, 1948, p.23)

Further consequences of the ‗Divide and Rule‘ policy were British discrimination in politics, and managing the country‘s wealth distribution. Dissatisfaction, clearly expressed by the Malay elites in the pre- and early Independence periods, resonated in the policy that engineered the Malay States‘ heterogeneous populations into economically-based, geographically-structured population (Weiss, 2009).

Since early Independence, the Malaysian government has promoted racial harmony in its public policy. The policy was also required to respond to the unrest and conflict between Malays and non-Malays in citizenship issues (Malay supremacy), particularly in wealth distribution. A new political system of one-party rule (the Alliance or BN) with a coalition of Chinese and Indians groups led the country in a similar vein as the British did before Independence. The post-colonial government managed to compromise and has maintained racial harmony among ethnic majorities since the first election in 1952 (Emerson, 1964).

Since the beginning of European empires in the Malay Archipelago, Malaysia has been challenged by Western influence, especially by the British, in defining and understanding the nation-state relationship (Nurjannah Abdullah@Li Hue, 2007). Through globalisation, the challenges to developing a country according to local aspiration became impossible. It is likely that these influences were assimilated and accepted by locals without their realising it.

In Malaysia, the two causes that became the backdrop to ethnic relation issues and dissatisfaction of citizenship rights were the status of indigenous peoples and Bumiputera special rights, especially the Malays in federal constitutions. The roots of these issues were the distribution of wealth, power and the opportunity to participate in the economic, social and political development of Malaysia as a developing country (Milne, 1970; Milne & Mauzy, 1978; Milner, 1995). Historical experiences and the

current environment contributed in shaping the definition of indigeneity. This involved statutory recognition of the Malays as the Bumiputera (indigenous peoples of the land) who assumed the statute above and beyond citizenship rights. In short, Malays have ancestral rights to their lands. Malaysians of Chinese and Indian ancestry have different citizenship rights.

As nationalism spread across the ex-colonies and the fight for the rights of indigenous groups around the world intensified, the Malays were alienated to fulfil the criteria as an indigenous group that is internationally accepted (Nah, 2006). Malay supremacy and Malay special rights became an issue within the local and global environments, thus creating a channel through which to express the dissatisfaction among the Malaysian- born Chinese and Indian populations still perceived as outsiders. However, because of the slow social development for the majority Malay population, especially in rural areas, these special rights became a basis for the government to continue its policies and laws that adopted positive discrimination in favour of the indigenous Malay participation in the country‘s economic development (Saw & Kesavapany, 2006; Scott, 1968).

With a diverse cultural population, the State faces continuous challenges to unite and integrate the heterogeneous members of the population (Abidin, 2010; Ahmad, 1987; Andaya & Andaya, 1982; Aun, 1999). The colonial British in Malaya just before Independence had already developed a national plan to lessen the racial gap between the Malays and the Chinese, as a consequence of their own colonial policies (Means, 1969). The concentration on racial conflict was far more significant in the government agenda compared to the well being of families and children at this early stage of Independence.

Since the beginning of Independence, Malaysia has embarked on establishing itself as a nation and addressing local issues left by European empires, especially the British (Andaya & Andaya, 1982). This agenda is continued in the formulation of the MCA 2001 in 2002. The Act indirectly reflects the objectives of the newly independent country moving away from a long-standing reliance on ‗outsiders‘ in managing their country. For most Malaysian social services stakeholders and for the politicians, this Act provides the opportunity for Malaysians to create and shape a policy that takes into account the contemporary local needs within established framework of universal standards in the care and protection of all children.

Table 1: Population of Malaysia 2010('000)

State Total Male Female MALAYSIA 28 250.5 14 379.9 13 870.6 JOHOR 3305.9 1709.1 1596.8 KEDAH 1966.9 973.9 992.9 KELANTAN 1670.5 834.8 835.8 MELAKA 771.5 387.2 384.3 NEGERI SEMBILAN 1011.7 519.6 492.1 PAHANG 1534.8 816.1 718.7 PERAK 2460.8 1239.3 1221.5 PERLIS 240.1 117.8 122.3 PULAU PINANG 1596.9 783.9 813.1 SABAH 3214.2 1664.2 1550.0 SARAWAK 2506.5 1279.1 1227.4 SELANGOR 5102.6 2591.3 2511.2 TERENGGANU 1050.0 539.1 510.9 W.P. KUALA LUMPUR 1722.5 874.6 848.0 W.P. LABUAN 95.5 50.0 45.5

Source: Malaysia‘s Department of Statistics

In the 9MP (2005-2010), the government policy was still geared towards nurturing the Bumiputera to be at par with non-Bumiputera especially the Chinese. The prevalence of poverty among Bumiputera is still high in comparison with the Chinese and Indian populations.

In general, the levels of poverty were decreasing from 1999 to 2004. However, the Bumiputera poverty levels remain high.

From only relying on British ideas, in the 1980s the State - under Mahathir Mohammed - began to launch new international relations which saw the move to find methods of development in developed Asian countries. The Malaysian government‘s ‗Look East‘ policy removed the long-standing reliance on Western ideas for a modern and developed example of a nation-state. This different outlook provided a paradigm shift for the State in adopting more appropriate ideas to develop the country based on local needs and ideas.

Furthermore, in the 8MP and 9MP , there was still a significant gap between urban and

rural poverty in Malaysia. The rural population in Malaysia still records high levels of hardcore poverty (The 8MP, p.57; The 9MP, p.330).

Table 2: Incidences of Poverty and Hardcore Poverty by Ethnic Groups (%), 1999 and 2005

1999 2005 Bumiputer a Chinese Indian Bumiputera Chinese Indian Hardcore Poverty 2.9 0.2 0.3 1.9 0.1 0.3 Urban 0.7 0.1 0.2 0.7 neg.¹ 0.2 Rural 4.4 0.4 0.5 3.3 0.3 0.5 Overall Poverty 12.4 1.2 3.5 8.3 0.6 2.9 Urban 5.1 0.8 2.4 4.1 0.4 2.4 Rural 17.5 2.7 5.8 13.4 2.3 5.4 Poverty Gap 3.3 0.2 0.7 2.1 0.1 0.6 Notes: ¹ Less than 0.05 percent Adapted from the Malaysian Ninth National Plan (2005-2010)

The gap between urban and rural areas in social development and economics has been an ongoing issue since the 1st Malayan Plan in 1957. The Act will not achieve its objective if the Act and the State fail to address the intricate issues of poverty and accessibility to government services. The enforcement and the achievement of MCA 2001 will rely upon the whole agenda of the State to ensure the accessibility to services. Lack of accessibility to social services will affect the implementation of MCA 2001, especially in human resources and facilities.

Policy in contemporary Malaysia focusing on ethnicity and demographics might hinder the government plan to induce the integration and nation-building of Malaysia (Hooker, 1999). For the State, especially during the Mahathir administration, ethnic-based policies endeavoured to recognise the needs of specific ethnic and demographic areas (Haque, 2003). With the special rights given to the Malays and the Bumiputera, socio- demographic provisions will only induce more dissatisfaction towards the State policy among other ethnic groups. Therefore, MCA 2001 was intended to locate socio- demographic factors as a ‗technical‘ provision that safeguarded the interests of the State

and its machinery – both during and after implementation (Part II of MCA 2001).

In the 9MP, it is clearly expressed that the State‘s vision is to use public policy as a tool to promote integrity and unity among Malaysians. As part of a social policy, a public policy and furthermore as a law that covers the well being of Malaysian children, the document is subject to various interpretations, especially from the individuals who are involved directly with its formulation and implementation.

Intensive efforts will be undertaken to foster as well as harness national unity and social integration, particularly among the younger generation (The 9MP, p.320).

In the development of the rights of the child, especially in social policy formulation and programming, Malaysia has been influenced significantly by its international-relations agenda and the status quo of becoming a developed country. Adopting, transplanting and assimilating external ideas have been ongoing since the beginning of the Malay Archipelago. Engagement with international policy was not only recent, but rooted in Malaysia‘s historical experiences as a British colony (Swettenham, 1984). MCA 2001 is not only a part of social policy in general but also covers other important roles of welfare policy: caring for, protecting and securing the rights of the child. The differences between the previous and current environments are the political decision- making and the country‘s position as an independent state (Harper, 1999).

The Western preoccupation with the civil rights movement and the global commitment to the care and protection of minorities has had significant influence on the country's agenda (Siti Hajar, 2007). Universal law and policy, for example the UNCRC (United Nation Convention of the Rights of a Child) and the Universal Declaration of Human Rights, were dominated by the civil rights movement in the West. Globalisation and the commitment to be recognised as a developed country had driven State policy toward assimilating international policy when addressing local issues. With the goal of the Malaysian government to rectify UNCRC, MCA 2001 became the vehicle and objectives for promoting ‗universality‘ for the welfare and rights of a child.

Despite the intention and the goals of 21st Century child welfare policy to prevent and protect children from harm, MCA 2001 as a law carries on with the previous approach in child laws: the residual, minimal and institutional approach in dealing with child

welfare in Malaysia. The language and concepts may differ from the previous laws, as MCA 2001 is developed by directly ‗picking and choosing‘ from various sources to be compatible with the State agenda. Participant 31, as a member of the formulating committee shares her experience,

‗The Attorney General is not comfortable if we formulate a comprehensive law. He does not want the government to be held responsible by lawyers for any issues after the rights of a child are implemented. For example according to a health representative, if the rights for immunization is passed for children, it should be detailed out clearly in terms of its number, who deserves it and when. We need to spell out how many, who and when. Education is another aspect, if it is made compulsory, the Government should build schools all over the country. If the State fails, the people can reprimand the State‘.

To ensure that Malaysia will achieve the developed-nation status, the government must ensure that Malaysia's social policy will be able to compete with developed countries. In Malaysia, social policy comes under various interrelated major national plans. During the Mahathir era, a number of social policies were put forward to manage the impact of industrialisation and economic development in Malaysia. Based on this objective, the State changed its policies from economic to social to avoid attention from the public for unequal state policy. To do this, the State introduced Bangsa Malaysia, a proclamation of the united yet diverse Malaysian population. Mahathir Mohammad had championed the vision to promote Bangsa Malaysia. The government‘s ability to attract the notion of Malaysian as a race induced substantial moves to silence variants of multiculturalism such as ethnic, religious and geographical differences in social policy and focus on other universal issues that were promoted as beyond socio-demographic differences (Sheridan, 1964).

Recently Dato‘ Seri Najib Tun Razak, Malaysia‘s sixth Prime Minister, introduced a new concept of nation-building, One Malaysia or Satu Malaysia as an agenda to unite

1 She, the committee and JKM wanted to propose to the State and the Attorney general a comprehensive law similar to UK child laws.

Malaysia‘s diverse populations. Policy and programmes under the State will support and ensure that the objectives of One Malaysia are realised. Nationalism is once again the aspiration of government to unite Malaysia‘s multicultural population.

Using universal standards and forces as strong determinants, and supported by Malaysian stakeholders – especially by Anwar Ibrahim as the Deputy Prime Minister - MCA 2001 was formulated and enacted by the State to deliver a greater national objective of shaping the future Malaysian generation. To address social issues during this phase, the State joined with selected stakeholders from the legal and social services spheres formulate a law that is recognised and comparable to the development of international policy on child welfare. This will ensure that the country will continue to progress towards becoming a ‗developed‘ nation.

A social policy at this phase, according to the Parliament, the members of drafting committees and Anwar Ibrahim (the Deputy Prime Minister during the formulation), should focus on the prevention of harm and support the development of the human being. Previous social policies, according to Ibrahim, were derived from punitive principles that were not effective enough to solve social problems in Malaysia (Binti Jamaludin, Talib & Mohd Yusoff, 2002). Based on this principle, a new way using of using social policy was initiated that supports universal principles and standards to address social problems. For the policy on children, the UNCRC and the Universal Declaration of Human Rights were the frames of references to provide the guidelines in formulating the law.

To be at par and to be recognised as a developed nation, the nation should be able to adopt and participate actively in international policy. In the 1980s, after signing the UNCRC declaration, Malaysia began ‗decoupling‘ and ‗sweetening‘ policies and practices that were parallel to those of international policies (Beckett, 2006).

‘Malaysianisation’: From social work to social policy to social work

There is limited published research into the extent and nature of the ‗indigenisation‘ of the formation of Malaysian social policy since Independence from the British Empire in 1957. In this research, the concept of ―indigenization‖ sits alongside the more localized concept of ‗Malaysianisation‘ to explore the unique and intricate situation of the

Malaysian multi-ethnic society and culture. ‗Malaysianisation‘ in this context refers to all post-colonialist Malaysian political and social movement, theory and discourse (Castle, 2001, p.i). This is intertwined with themes such as nationalism, patriotism and local aspiration by government, society and within the academic community across Malaysia (Verma, 2002).

'Malaysianisation' is not unfamiliar in a Malaysian context (Asmah, 1997; Joseph, 2010; Rajadurai, 2010). A number of published works on ‗Malaysianisation‘ (Malaysian and non-Malaysian) suggest that the term is more appropriate to be used in comparison to indigenisation (Embong, 1999; Daud & Zain , 1999). If indigenisation is used, it only refers to the Malays, Orang Asli and the Bumis from Sabah and Sarawak. In the public policy for instance, the MCA 2001 is for Malaysians both Peninsular and East Malaysian. Indigenisation will not fit the purpose of looking at the policy for the general population.

The term ‗Malaysianisation‘ was coined when the Malay Federated States achieved their independence from the British in 1957 (Asmah, 1997; Jan, 1972; Wijeysingha, V. (2005). ‗Malaysianisation‘ is defined as the process of Malaysians regaining the power and authority to control the country in all aspects of society, economy and politics. The major steps that were taken in the process of ‗Malaysianisation‘ were: replacing expatriates in public sectors, distributing wealth among Bumis (the Malay, Orang Asli, Sabah and Sarawak) and non-Bumis (other citizens of Malaysia), and the establishment of academic programmes in public universities to support the progress of ‗Malaysianisation‘ (Johnson, 2009)

During this research journey, I had to first construct and decide what both concepts mean in the universal context or as a Malaysian. The discourses on indigenous theorising and indigenisation reflect the general concept of privileging local sources with the universal knowledge and practice (Al-Krenawi & Graham, 2003; Coates, Gray, & Hetherington, 2006). Furthermore, it elucidates the adoption and authentication of foreign input according to the local context. ‗Malaysianisation‘ on the other hand manifests a local aspiration to give shape, mould action and reaction according to the need of Malaysians. The concept gives more meaning as a Malaysian researching a Malaysian topic. However, many levels of discussion on indigenising will produce

different perspectives and understandings of the various contexts and circumstances. By choosing ‗Malaysianisation‘, I am not ignoring the process of indigenisation suggested by postcolonial theory, but merely avoiding the issues related to indigenous identity, which relate closely to the specific local identity of a certain group. The tension in Malaysia is referred to in the federal constitution where the Malays are denoted as a ‗special‘ group when discussing citizenship and special rights.

From my personal understanding of the available literature and discussions with Dr Stephen Dobbs2, ‗Malaysianisation‘ is selected to reflect the goal of Malaysia as a country and to move away from the universal tension of indigenous status. It is also about giving proper recognition to Malaysians and the Malaysian vision in social policy development that may or may not be similar to other people and their interest around the world.

The first question for me to answer in researching a Malaysian topic was whether to base this research in the context of indigenisation or multiculturalism. I also had to answer whether the MCA 2001 fulfils the needs of the Malaysian population, and whether it is considered a process of indigenisation or merely social policy goals. I chose the ‗Malaysianisation‘ of social policy that attempts to fulfil the needs of the population and acknowledging the move by the State to formulate social policy based on the local aspiration. ‗Malaysianisation‘ refers to the formulation and implementation of the MCA 2001 to attend and address local, national and global issues. It is how Malaysians established social policy that reflects not only individuals‘ motivation, but the State goals in shaping and moulding a country according to the current environment.

However, indigenisation in social work is a process of authentication and adoption of all knowledge and practice in social work according to the local context (Cheung & Liu, 2004). Furthermore, the concept also acknowledges and emphasises local knowledge and practices to be a part of the body of knowledge and practice in social work to be used locally (Hurdle, 2002). To be more neutral without becoming entangled with the

2 Dr Stephen Dobbs, a lecturer in Asian Studies, School of Social and Cultural Studies, the University of Western Australia.

indigenous concept, I chose ‗Malaysianisation‘ to reflect the goal of social policy. Indigenisation in this research is ‗Malaysianisation‘ that only refers to the Malaysian context (David, 1986). It is about the process and the goals of social policy of the MCA 2001 to attend and address social needs and issues of children, families across the Malaysian population.

From this point on, I reflect on my own experience as to how local knowledge and practice is available to Malaysians in achieving the goals of social policy, and also in social work. My experience is also about the gap between two places within a country that has been united under one flag, Sarawak and Peninsular Malaysia.

Sarawak has a lot to offer for the people in the Peninsula. The State should acknowledge Sarawak not only as one out of 14 states that make up Malaysia, but also its indigenous knowledge, practices, the flora and fauna that are significant and relevant as part of the country‘s development. Most of the writing about Malaysia‘s indigenous peoples concentrates on this part of Malaysia, Sarawak and Sabah. This was due to the parallel meaning of the local ethnic group with the universal meaning of the indigenous group. In Peninsular Malaysia, however, the indigenous ‗label‘ is not entirely as clear as it is in Sabah and Sarawak. The indigenous group within the constitution is defined in a different context and for different purposes. The Malays who do not fulfil the international definition of an indigenous group are acknowledged in the Malaysian federal constitution as members of the indigenous peoples of the nation. To understand this, the subject of race-relations and the historical background of Malaysia are to be explored and analysed so that the Act is relevant within the local and international context. In Peninsular Malaysia, the indigenous group that fulfils the international definition of indigenous status is the Orang Asli or the Natives of Peninsular Malaysia. Uniting the diverse population has become the base in every policy by the State since the British began focus on multiculturalism as a problem that hindered the goal of economic development.

To give a background of the Malaysian population and the relevance of indigenous issues in social policy, it is important to review the concept within the distinctive Malaysian context. To understand what is indigenous and what is not, raises several fundemental questions, including:

 Who can present an indigenous perspective?

 From which group(s) of people?

 From which part of Malaysia: the Peninsular or East Malaysia?

 Why it is a focus of the State to attend and address race relations issues, especially in social policy?

In most Asian countries, the category of indigenous people is not as clear as it is in Australia, New Zealand or North America (Barnes, Gray, & Kingsbury, 1995). This complex issue has been explored by several writers (Howel, 1995; King, 1995). In Malaysia for example, indigenous people in the constitution include the Orang Asli (aboriginal people or Natives of Peninsular Malaysia), Bumiputera (Sons of the earth/soil) Malay and Bumiputera from Sabah and Sarawak, and each covers a complex diversity of peoples and cultures. Nonetheless, rather than this being a problem, it became a starting point to seek answers to these questions.

This research does not focus on the concept of indigenousness, but whether the policy fulfils its purpose of protecting and securing the welfare of the child and the Malaysian population. As Barnes, Gray, & Kingsbury (1995) and Weaver (2000) wrote about the indigenous concept: it is not a representation of Asian society, but merely a legacy of European colonialism to maintain power during and after their invasion. The term indigenous is different according to the context and purpose it is used in by individuals, States and international bodies (Weaver, H. N., 1998, 1999a, 1999b; Weaver, J., 2000).

In addition, the Act manifests the struggle by the Malaysian government to comply with international and legal facets of indigenousness and at the same time accommodate the needs of two major ethnic groups – the Chinese and the Indian, who are neither natives nor Bumiputera. Any policy and State legal document in Malaysia has to consider all these peoples to sustain peace in society and pursue its development agenda. In addition, over time, new generations of people are born from ‗cross-cultural marriages‘ or arrive through economic and refugee migration to add to the challenges facing the community and the government. This is where nation-building aspirations have been embedded in social policy since the beginning of British administration in the Malay States to address and attend to the diverse character of the population. The Government of Malaysia has promoted national identity and the notion of ‗One Malaysia‘ in all

public advertising and public policies with the aim of uniting the people of Malaysia.

The ‗Malaysianisation‘ of MCA 2001 also embeds the notion of ‗meaning–making‘ as Malaysian; legally, the rights and responsibility of a Malaysian if a family or child is in conflict with the law. All of these notions of a ‗Malaysian‘ are either absent or implicit in MCA 2001. It creates a national identity about ensuring the universal welfare standard for children and impedes culturally appropriate responses and obligations assigned to the State in social policy regarding the rights of the child.

Research was carried out by Ling How Kee (2007) for her doctoral study at the University of Queensland. Her study is significant because the majority of Malaysian indigenous communities occupied the research location. This research provides a fundamental way to have the appropriate balance between the indigenous knowledge and practice in social interaction with the mainstream social work practice or Western oriented ways of ‗help-seeking‘ and ‗help-giving‘. To begin to understand the available knowledge and practice in this context, Kee (2007) began by selecting the appropriate research approaches to explore the reality of indigenous practices in the helping process. Appropriate methodology and perspectives derived meaningful findings to reflect local aspirations as part of the process of ‗help-seeking‘ and ‗help-giving in indigenous communities.

Her study of indigenous social work focuses on ‗local‘ knowledge and practice in ‗help- seeking‘ and ‗help-giving‘, she provided a background of the possibilities of a ‗third culture‘ of social work in Malaysia, in particular within the Sarawak indigenous group. This study and its findings illuminate the possibility of developing indigenous social work knowledge and practice. This in return will inform the formulation of social policy in Malaysia. There are ways to move forward and acknowledge the local or indigenous knowledge and practices to achieve social work goals. In her study, ‗indigenous‘ renders a different interpretation. The clear understanding of what a professional brings and what is available within the local context will facilitate the objective in all helping professions. To come into this ‗third culture‘ of uplifting indigenous knowledge and practice, she managed to cross borders between ‗insider‘ and ‗outsider‘ throughout her study. The ‗third culture‘ of knowledge and practice will locate and place the future direction of Malaysian social policy and Malaysian child welfare

policy.

Indigenisation in social science was first highlighted in the international setting by social workers. The major turning point was the move by the United Nations in 1973 to recognise the concept as the medium to consolidate local knowledge and practice in universal Western-oriented social work if it was to be applied in other countries. The notion of universal knowledge and ideas for all human beings was contested by many writers in social science in general and in particular among writers on social policy, social work and social development (Alatas, 1992; Alford & Muir, 2004; Midgley, 1981a; Midgley, 1997b; Walton & Abo El Nasr, 1988; Fulcher, 2002).

According to Walton and Abo El Nasr (1988), indigenisation of social work represents universal knowledge and the practice of social work as receptive to emphasising the local client or a means to consider or accommodate the local culture of helping and giving. Midgley (1981) describes indigenisation as the appropriateness of professional social work functions to the needs of different countries, and social work education must be appropriate to the demands of social practice. Midgley (1981), who devoted most of his professional life to the study of social development and social work in developing countries, has opened a space for professional and Western-oriented social workers to consider local needs before practising social work and formulating social policy in these contexts. Gray‘s definition is relatively close to this by emphasising that indigenisation referred to the extent to which social works fits local content using local terminology (2005, p.231). This should begin with understanding social policy that informs social work practice.

Social policy based on the works of Midgley and Gray endorsed the indigenisation of knowledge and practice in attending to local needs, especially when there is a transfer of Western knowledge and practice for local use. Social policy plays a significant role in shaping the thinking of people who will be implementing the Act. Therefore, it is critical they understand the philosophy and ideas behind the law. It involves an in-depth understanding of language, knowledge and practice in child welfare.

Indigenisation was first used globally in the Fifth United Nations international survey on the application of American social work training in other countries (United Nations,

1971). This concept is well accepted by Anglo-centric scholars, especially within the international social work sphere as the most promising means to privilege local knowledge and practices in the social work profession. Indigenisation has taken root from Western ideas and developed intensively within international social work profession. Indigenisation becomes the means and the ends for the universal social work agenda in facing diverse peoples from different local contexts. The concept is widely used in the social work profession, especially in countries where social work has been transmitted or transferred directly since colonisation. Substantial literature on indigenisation is popular among social workers from Australia, Canada, New Zealand and Latin America (Al-Krenawi & Graham, 2003; Aminzade, 2003; Resnick, 1976). These parts of the world are struggling with the failing of Western-oriented social work in working with their indigenous or aboriginal communities (Aminzade, 2003).

Indigenisation in social work has invited substantial feedback among scholars among non-Western backgrounds. Some have come up with other concepts such as ‗authentication‘ and ‗ingenuity‘ to cover and include local cultures and knowledge in helping activities. Resnick (1976) published an article on the indigenisation of social work in Latin America. Latin America pursued a different concept, ‗conscientization‘, to reflect and represent their work in setting up locally-based social work knowledge and practice. This was an idea based on Paulo Freire‘s famous approach on adult education. ‗Conscientization‘ represents one‘s ability to reconstruct one‘s consciousness towards accurate engagement with one‘s place in nature and society. Freire focused on individual mentality in dealing with destiny and future. His work is related to anti- oppression and the individual‘s ability to change for the better in a particular environment, especially within the education system.

From the Arab world, an article by Walton and Nasr (1988) on social work in Egypt puts forward ‗authentication‘ as a developed version of indigenisation to include local input in the social work profession. According to both authors, in Egypt and other non- Western countries, indigenisation is not enough to privilege local input in the social work profession. There is a crucial need to come up with local terms and language that will facilitate the ability for locals to ―own‖ and commit themselves to developing local knowledge and practices to achieve their standard of well being. The idea of owning concepts and practices will provide a sense of belonging and the purpose of universal

well being within a particular community.

Thirty years after it was introduced, indigenisation of policy and the practice of social work is still a relevant discourse in the social work profession, especially within a multicultural and complex society faced with the ongoing demand of fulfilling the needs of different groups and communities. In the context of political movements, from sovereignty to liberal democracy, indigenisation has become one of the struggles of a nation seeking to achieve a policy or practice that will encapsulate the reality of local people. This has forced for more indigenous or local knowledge and practice to be implemented. Active citizenship, according to Yip (2004), has driven substantial changes in international human rights concerned with caring for individuals in society. Substantial change has taken place within governance throughout the world in social service provision. With the emergence of the welfare state as an ideology, greater demand is placed on the state in developing countries by the local and international community.

In countries that have experienced colonisation, the struggle is more specific to progress independently without the influence of colonists in the constitution. In Malaysia, the historical background points to influences of the British in all levels, especially in the constitution and public policy. In helping professions such as social work, there have been evolving discourses on a Western ethnocentricity and the move towards validating the ‗local voice‘. However, in the formulation of social policy in Malaysia, such as MCA 2001, there has been little implicit or explicit discussion.

In terms of social work practice and knowledge, considerable advances have been made over the past ten years to accommodate indigenous cultures and beliefs around helping activities. Numerous practices and values have emerged, for example cross-cultural, ethnic-sensitive, culturally-sensitive and anti-oppressive social work practice, but none has been acknowledged to fulfil the needs of the current diverse society (D‘Cruz, 2004). Thus, these issues have provided a benchmark to revisit indigenisation as a concept that offers the space to develop substantial changes in the social work profession in the current Malaysian multicultural society.

Articles on indigenisation by Resnick (1976), Walton and El Nasr (1988) and Midgley

(1981) presented a significant review of the implications arising from indigenisation in policy and practice in social work for non-Western countries and with non-Western clients. Important discourses on indigenisation in social work have made way for indigenous helping cultures and knowledge now accepted as legitimate within the universal social work profession. Indigenisation and discourses have been made universal. Anglo-centric social work is now contested as having comparative relevance for all peoples with diverse needs and backgrounds that have contributed significantly to the dominant culture of the social work profession.

Social work knowledge, practices, values and ethics are now not only ‗owned‘ by a few elite from particular countries, but flexible enough for changes to take place in the interest of the people it serves. Although there is a general notion of universal values that need to be kept to a set standard in human welfare and human rights, the way to achieve these standards has changed based on the needs of the community. Thus, an increasing number of works are published by social workers from non-Western countries as a response to postmodernism ideologies.

There has been a slow but steady development of emphasising indigenous knowledge in the practice of social work. Much of this development was initiated by international social work associations such as the International Federation of Social Work (IFSW) which promotes a number of works of non-Western social work scholars. Issues arising from these publications have made a significant impact within the global social work discourse. The issues around the problems of universal social work knowledge, values and practices, especially in developing and non-Western countries, are still relevant.

Coates et al. (2006) offeres a new approach to indigenous or localised knowledge and practice – an eco-spiritual social work approach that is embedded in the indigenous or local communities‘ beliefs and culture, specifically the spiritual aspect of working with local communities. Eco-spiritual social work is suggested as a missing piece of the puzzle that complements universal social work practices with relevant local input for local communities.

There is a trend within the global social work discourse on the terminology utilised to reflect the support for dispensation of local value, culture and practice. Midgley (1981)

introduced the concept of professional imperialism in international social work agendas to represent the problems created by professional social work in attending local clients in non-Western countries. He revisited the elite of social work through their dominant voices, power structures, agendas and the world-views about social work education and a profession that will always be unevenly shared between Western social workers and their developing-nation counterparts. Published works by social workers from non- Western countries, especially from China, Egypt, India and Africa, have reaffirmed the obvious problems of Western-oriented social work knowledge, practice and values implemented without local input. The problems arose not only with the implementation, but from the fundamental issues upon which knowledge, practices and values are based.

Within the development of international social work and the practice orientation in social work, indigenisation has recently lost its position as the means and the ends of indigenous social work. Global phenomena and events lead directly to the focus of international social work on polarising issues by the media, such as human rights and poverty in developing countries (Alatas, 1992). While, this portrays a general understanding of the reality of these countries, it fails to acknowledge the strength and resources of the local communities. Developing countries are perceived negatively by using issues of human rights and poverty Burman, 2003). This eventually deems the resources of these countries as inferior to the resources from Europe and Western countries (Carling, Duncan & Edwards, 2002; Fulcher, 2002). This relates closely with the dominance of knowledge and the ability to influence the discourse in social work and social policy (Midgley, 1981). The vast majority of social work knowledge and skills are still under the dominance of Anglo-centric social workers who have the credibility and validity to influence or establish current trends in social work (Midgley, 1981).

Indigenisation was previously an answer to accommodate indigenous clients either locally or internationally. This was viewed as a politically correct concept according to most writers in international social work in earlier days if used in accordance with local needs (Resnick, 1976; Walton and El Nasr, 1988 and Midgley, 1981. A number of works from the disciplines of psychology, politics and religion have come up with different understandings of indigenisation (Weaver, 2000). This continuum ranges from

left to right wing. The left represents the local and the right is the global or universal ideology. This also relates to the ‗insider‘ and ‗outsider‘ perspectives in qualitative inquiry. A definition or understanding that reflects indigenisation is rooted in the discussion about dominance or power that frames the understanding and definition, and this influences the practice.

International social work represents the beginning of social workers engaging themselves with non-white, non-Western (whatever they might be) peoples in the local scenario. There is a need to understand and to respond appropriately to clients from different backgrounds and cultures. Ultimately, this increased demand from what used to be silent voices will force social workers to reconsider accepting a new way to work with various groups of people (Weaver, 1999a). The current knowledge and practice is insufficient for social workers to attend the needs of their clients. Those seeking help will no longer accept ignorance in the practice of attending to local needs.

Indigenisation calls for selected practices based on ethnic sensitivity, cultural competence, cross-cultural practice, anti-oppression and other local applications to be considered (Walton & Abo El Nasr, 1988). It is not a concept that stands on its own but has to engage with concepts of adoption, accommodation, exchange, inclusivity, consideration and improvisation to ensure proper implementation (Hurdle, 2002). The ongoing changes in society with migration and interracial marriage present new challenges to a heterogeneous society from different backgrounds.

In this context, indigenisation in social work gives me a framework to understand the term ‗Malaysianisation‘ as an impetus of the Malaysian government to create social policy that fulfils the needs of the Malaysian multiethnic population. In this thesis, ‗Malaysianisation‘ will refer to the means of social, economic and political patterns in defining the meaning, action and reaction that reflect the idea, the process and the objectives of social policy to attend to the population. ‗Malaysianisation‘ of the document comes not only as the objective to fulfil the needs of Malaysian children, but moulding and shaping them as a medium to continue Malaysian aspiration in the future. In the case of MCA 2001, the importance of children is transcended within the realm of shaping, moulding and controlling them and the family within the context of welfare and in the best interest of the child.

The MCA 2001 was formulated within social policy development in Malaysia that needed to fit around the local context and the international forces, especially around the rights of the child and the role of family. Drawing on the writings of Malaysians on Malaysian development in science, technology, economics and society, ‗Malaysianisation‘ is referred to in almost all aspects of ideas and practices. This was commonly used by Malay writers to avoid ethnicity issues among ethnic groups. Dissatisfaction of non-Bumis around the issues of privilege in the constitution creates a different scenario of implying ‗Malaysianisation‘ in a local context. Most non-Bumis are dissatisfied if ‗Malaysianisation‘ is used to reflect the practices and ideas in addressing the whole population (Barlow, 1997). From this particular perspective, ‗Malaysianisation‘ is only for the Malays who have special rights in the constitution.

There is another understanding of ‗Malaysianisation‘ in the writing of non-Malaysians, reflecting the Malays‘ domination in government interventions or policy. From an outsider or non-Malaysian point of view, ‗Malaysianisation‘ is not the focus in social welfare policy provisions to the population, but rather issues of ethnic minorities, citizenship rights and indigenous status among Malays, and other Bumis of Sabah and Sarawak, and non-Bumis. In most writings on Malaysian population such as in economic development, the constitution and political texts by non-Bumi and non- Malaysians use the indigenisation concept that segregates the Malaysian population into race, ethnicity, colour and religion. This has become the rule of thumb for some researchers. As a Malay researcher who is studying my own country within the influence of postmodernism, I find that there is a tendency to blame the Malays who struggle for special rights and that they are perceived as dominating ‗Malaysianisation‘ discourse. It is difficult to admit that the Malay Federated States were forged through the work of colonists from Japan, Portugal, Britain and the Netherlands. It might sound oversimplified, but influences around ways of thinking and acting are far beyond the information derived from history. I am not blaming past experiences, but learning, from the past, how the current environment was constructed.

The concept of positive discrimination or affirmative action in law and in the Malaysian context was created by the Malay supremacy. Even if it is not agreed on by all, it is acknowledged as a way to accomplish particular goals. In the Malaysian situation, the Malay elite dominated ‗Malaysianisation‘ discourses shortly after Independence due to

the fact that the majority of Malays were left behind in the country‘s development and global competitiveness. The majority of Malays in remote and rural areas were still in poverty and did not benefit from any government interventions. The British colonial policies had changed the structure of the community and redistributed the country's wealth to Chinese migrants and foreigners. The only way for Malays to compete in economic development was with the help of the government. Government intervention is evident in all the laws, policy and practice.

‗Malaysianisation‘ is a complex way to build a nation that comprises multicultural groups of people, all of whom seek to live in peace and able to pursue their ambitions in economy and education, and to compete globally. It is difficult to identify what it means to have a Malaysianised social policy. However, in this writing, I will present a way of looking at the government interventions that pointedly acknowledges the local situation and the formulation of policy to resolve the country's local problems using legal interventions.

A System of Binary Law versus the Universal Standard

Following the system introduced by the British in Colonial Malaya pertaining to public matters, every child was entitled to be cared for and protected by the State regardless of their religious beliefs (Malaysian Child Act 2001). Religious sensitivity in MCA 2001 is considered significant to provide better services in child welfare. The MCA 2001 preamble states,

RECOGNIZING every child is entitled to protection and assistance in all circumstances without regard to distinction to any kind such as race, colour, sex, religion, social origin or physical, mental or emotional disabilities or any other status…

Religious matters are given the same provisions as ethnicity, sex, and other personal attributes. As to the provision of ethnicity in the MCA 2001, the selection of the membership of the council for the protection of children in Part II of the Act at the federal and state levels, takes into account the members‘ expertise on religious matters, which is crucial to render services to children and their families.

Section (1) (n) not more than seven persons with appropriate experience, knowledge

and expertise on matters relating to the welfare and development of children including any person qualified to advise on relevant indigenous, ethnic, cultural or religious factors, to be appointed by the Minister;3 (Act 611, p.18-19).

Section 7 (3) A Child Protection Team shall have the authority to co-opt from time to time such other persons as it may reasonably require to assist it in the performance of its function and duties or as the circumstances of each case may require, including any person qualified to advise on relevant indigenous, ethnic, cultural or religious factors (Act 611, p.21).

Similar to the provision given to ethnicity in the MCA 2001, religion and other factors of social demography are acknowledged as important in making sure that the Act will be able to achieve its objectives. In Section 30, the Act implicitly emphasises the background of a child including culture, beliefs and circumstances, which may include religion, to be presented to the Court for Children as a part of the report before any decision is made by the Court.

Section 30 Power of Court for Children,

(6) Before making an order under subsection (1) or (4), the Court For Children shall consider and take into account any report prepared by the Protector which-

(a) shall contain such information as to the family background, general conduct, home surrounding, school record and medical history of a child as may enable the Court For Children to deal with the case in the best interest of the child; and

(b) may include any written reports 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).

Despite the significance of religion in ensuring the welfare of a child in the MCA 2001, the implementation and the domination of Islam as an official religion of Malaysia cannot be denied. MCA 2001 is shaped and formulated not to be in conflict with the Malaysian Syariah Law (Binti Jamaludin, Talib & Mohd Yusoff, 2002). Whether or not

3 PART 11, Sect 3. Establishment of the Co-ordinating Committee for Protection of Children at federal level.

this is a reflection of support for Islamic knowledge and practice has not yet been studied.

Nonetheless, the assumption behind what is moral behaviour and what is not relies upon the perception of stakeholders and policy makers of the norms of the general population. Various policies that are perceived as privileging Islam do not directly represent Islamic jurisprudence or teaching. These are included superficially to acknowledge Islam as the official religion of the country. What is important to acknowledge is that MCA 2001 is not only for the welfare of a child but a law with several goals including nation- building, above and sometimes beyond the welfare of a child.

Malaysian Syariah Law: Internal and External Fusions

Religion has a significant place in Malaysia‘s social, cultural and political development (Ahmad, 1987; Andaya & Andaya, 1982). I am still proud to witness various social fabrications of the language, food or culture that constitutes my ‗normal‘ daily life. Despite the on-going ethnic or religious tension expressed in the academic world, rurally or in Kuching, the Malaysian population is generally still living in peace and without much influence from research findings or the policy changes locally and globally.

Currently four major religions coexist in the population: Islam, Christianity, Hinduism, and Buddhism. The federal constitution gives the freedom to Malaysians to choose and practise their religion, with the special provision of Islam4 as the official religion of the nation.

(1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation (Art.3 (1))

In the Malaysian federal constitution, the Malays are Muslim as defined in Article 160,

4 Justice Abdul Hamid was one of the members of the Reid Commission who suggested Islam as Malaysia‘s official religion. The commission was established to make recommendations for a federal form of constitution for the Independent Federated Malay States.

Malay means a person, who professes to be a Muslim, habitually speaks the Malay language, and conforms to Malay custom.

The Malays form the majority of the population, which constituted 60.4 percent of the Malaysian population in 2000. In addition, Islam is also embraced by other ethnic groups in Malaysia (Haque, 2003). The status and the dominant voices of the Malays and Islam have long been a source of tension among Malaysian plural society (Kreuzer, 2006). Even though Malaysia comprises a diverse population, tension has evolved within two dominant discourses, Malaysian Syariah and civil law.

The civil law represents non-Muslims and the Syariah represent the Malays and other Muslims (Wan Arfah Hamzah, 2009). Underpinning this conflict is the dissatisfaction of non-Muslims with the recognition of Syariah law in the Malaysian judiciary system. It is difficult to compartmentalise and simplify the intricate tension that overlaps between various issues on the Malays and Islamic supremacy, religious intolerance, and citizenship (Vasil, 1980).

Law and policy of the Malay States separated religious matters from public affairs since the beginning of the British invasion in Malaya (Bastin & Winks, 1979). The British administration in the Malay States managed to separate the administration of social, political and economic spheres from the local religious and customary practices that had no direct benefit to the British. Since Islam is the religion of the majority of Malays and the Sultanates, the federal constitution conceded the power and authority for the institutionalisation of the religion. Malaysia officially established and developed Malaysian Syariah courts in the 1980s to recognise Islam as the official religion of the country ( Rau & Sampathkumar 2006, p.311).

With ongoing tension, after gaining Independence, especially between the Malays and other ethnic groups, the State continued to explicitly address the local Islamic movement without promoting the State's intention publicly. The previous prime minister of Malaysia introduced ‗Islam Hadhari‘, to promote Islam as a religion of peace and harmony. The government's intention was to gain support from non-Muslims and at the same time continue and secure support from Muslims in ensuring the ruling party‘s position in the government.

Recently, supported by the human rights movement, tension between Malaysian civil and Syariah law is no longer an ―undercurrent issue‖. Conflict and disputes over family matters, which were previously considered private matters, are now publicly discussed and attract public interest. One example was the custody case under the Appeal Court of Malaysia between a converted Muslim father and a Hindu mother (Goh, 2011; Ng, 2010).

Malaysian Syariah law has equal power and authority with the civil law in Malaysia‘s federal constitutions. Nonetheless, the Malaysian Syariah law only covers family and private matters of the Muslim population. Even though both laws cover different subject matters, MCA 2001 exists to include the general population and is expected by the State to take into account Syariah law to avoid conflict of interest in the document and in practice. However, the question remains: Is it enough for MCA 2001 to universalise care and protection of the child in the one law in a binary law system? Overlapping in the three previous laws on children was solved by MCA 2001, but how about other laws that directly involved child welfare: marriage, adoption, employment, custody rights, and property rights? Thus, the tension created in MCA 2001 is not between two legal systems, but with various laws and policies of the State.

The formulation of the MCA 2001 was intended to address issues of child welfare, which is above and beyond any differences in religion, beliefs or personal differences. In contemporary Malaysia, the Act is a civil law that was formulated to include the general population and to reduce the ongoing tensions between civil and Islamic law. Furthermore in practice, the Act gives the power and authority to social welfare officers in charge of each case to decide whether to include a child and family background that may influence the decision of the Court for Children. They are given personal discretion to consider factors and elements that may be significant in determining the best outcome5.

5 Recently, the Syariah Court denied the conversion of Buddhist girl to Islam because she was 16-years old and did not have permission from her legal guardian to convert. A new scene in Malaysia‘s Syariah Court.

In the current environment, civil and Islamist tension is not only compounded internally, but also by the influence of the international Islamist movement (Hamayotsu, 2002). Islam is not only identified as a personal statement and a private matter, but recently adopted universal political statements and assertions of radical change in the global population. Islam as a religion is no longer a local agenda but a global one, especially with the advancement of technology, accessibility of information and the mobility of people around the world.

In Malaysia, with Islam as a political force in the federal constitution, the Islamist movement is now more visible than before, especially after countless events that have united the Muslim community around the world such as the bombing of the United States World Trade Centre, the Palestinian conflict, the invasion of Iraq and Afghanistan (Henderson, 2005). Furthermore, the State and the ruling party have to promote the religion in social policy to maintain the continued support from the Malays who are considered ‗supreme‘ in this country. The local and external Islamisation re- writes the tension and the new wave of Islam in social policy (Hooker & Othman, 2003). Implicitly, MCA 2001 has to reflect not only the care and protection of children, but at the same time support the ‗Islamic‘ agenda.

The Islamist movement is rapidly making its way into the contemporary political discourse in Malaysia (Martinez, 2000). After the latest substantial loss by the ruling party in the 2008 election and the increasing support for PAS (Pan Malaysia Islamic Party) from Muslims and non-Muslims and from the coalition party PKR (Pakatan Rakyat which consists of DAP, PAS and PKR), the State's response was to clearly support Islamic values within State policy as long as it was not in conflict with other religious teachings and cultural values (Singh, 2009). However, this move was not received well by the general public, especially non-Muslims. As a multicultural population, the State faces continuous challenges to unite and integrate the heterogeneous members of the population and maintain racial harmony and at the same time continues to sustain the Malays‘ status in State policy. In a recent development, Mahathir‘s Bangsa Malaysia concept was replaced by the new prime minister with ‗One Malaysia‘ to revive the motivation of the country to nation-building and unite the plural Malaysian population.

As Islam is the official religion and the Malay Muslims are the majority, religion plays an important role in influencing the government and its policies. In an article by Muhammad Hanif Hassan (2007) based on his analysis of Joel Migdal‘s theory on State and Society, the position of Islam as the official religion has been developed by local and international forces within the society and the State (Bin Hassan, 2007). The official journey of Islam in Malaysia began when the British colonial administration created a special position for Islam as the religion for the majority of Malays in Malaya (Andaya & Andaya, 1982; Aun, 1999). The inclusion of Islam in the definition of Malays has increased the influence of Islam in the State‘s administration; these include the formulation and implementation of the MCA 2001.

Malaysian Syariah law runs parallel with civil law, except it is only applicable to Malaysian Muslims and in particular affairs: religious and family matters. In 1988, the Malaysian federal constitution gave special status to the Syariah Court6 with the power to supersede the Malaysian High Court in religious matters. Article 121 (1A) states

The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

The tension between civil law and Syariah law was created by the colonists to separate power and authority in the Malay States. The difference between what is civil and what is Syariah law invited negative interpretations from non-Muslims, especially with the promotion of Islam as an uncivilised religion. The labelling and reflection of the religion by Muslims themselves have continued to promote the religion as being opposed to modernity and development. However, the establishment of universal human rights has not yet resolved the social injustices of the world.

Neither Islam nor any other religion opposes the universal rights for children and families to achieve their well being and potential. The ongoing tension in Malaysian

6 There are two High Courts in Malaysia: the High Court of Peninsular Malaysia, and the High Court of Sabah and Sarawak. The High Court in the peninsula consists of a Chief Judge and forty-seven judges while the High Court in Sabah and Sarawak consists of a Chief Judge and ten judges (Article 121 (2) of the Malaysian Federal Constitution).

politics and economy needed to be considered before the formulation of the MCA 2001 to avoid the misunderstanding of the provisions in the document. Giving special recognition to Islam as the official religion invites various interpretations. With that in mind, tension between Malaysian Syariah law and MCA 2001 would not have taken place if the formulation had been planned carefully after considering various internal factors. The tension illustrates the inability of both legal systems to accommodate multiculturalism in the population. On the other hand, locating social demographic factors as the discriminating factors enhances the negative impact in delivering a social policy that caters for and addresses a multicultural population.

Every state in Malaysia has its own Islamic law which covers only the members born and registered under that state (Aun, 1999; Hooker & Othman, 2003; Rau & Sampathkumar, 2006; Vasil, 1980). Every Syariah law in every state is under the patronage of the head of each state, generally the Sultan. The Syariah Court is a state- based law system rather than a federalised one. As such, there are cases in which the plaintiffs brought their cases to the federal court if the decisions made by the state‘s Syariah Court were not to their satisfaction7. Lee (1994, p.131) offers a general overview of the Malay and Islamic influence in the country‘s socio-political development: the Islamic field is central to the definition of race relations since the Malay Muslim majority exerts a strong influence on cultural and political developments in the country (Lee, 1994).

Child Welfare Policy in Malaysia

I begin this section with a quote from one of the research participants, who completed his PhD on MCA 2001 focusing on care and protection procedures.

7 Two highly publicised cases in the local media were: Lina Joy vs the Federal Territory Islamic Affairs Council, the Government of Malaysia and the National Registration Department (NRD) director-general Datuk Wan Ibrahim Wan Ahmad in 2006, and Kaliammal Sinnasamy v Islamic Religious Affairs Council of the Federal Territory, Director Kuala Lumpur General Hospital & Government of Malaysia in 2005. Both of these cases were brought to the Malaysian Peninsular High Court.

‗There is so much happening in Malaysia. and the changes in the population. Furthermore, it is not easy to interpret the law, which is very general. There are some differences in MCA 2001 compared to Australia. The law is very general and it is not easy to be interpreted. Some aspects of MCA 2001 are different as compared to the Australian child law. As an example, the definition of parent in MCA 2001 is very general. I think these differences reflect MCA 2001 local features (Participant 1)

Another participant‘s views on the MCA 2001,

‗I assume this is a Malaysian law. Although it was passed by the Malaysian Parliament, I think it was formulated based on foreign sources‘ (Participant 11).

Laws on children and youth in Malaysia were developed and inherited from the British Colonial Administration (Shaffie, 2006). Official intervention, for example, the Juvenile Court (1947) and Children and Young Persons Act (1947), were introduced to solve problems and maintain peace after the Japanese occupation in the Malay States (Ahmad, 1987; Fong, 1984; Bakar, Kaur, & Ghazali, 1984; Purcell, 1948; Vasil, 1980; Zakaria, 1995). The Malay States under British administration received substantial welfare models and systems from Great Britain. Within the realm of local situations and the aftermath of World War II, the Malay States were liable for policies to attend the new social issues that had been recognised as problems for the British Empire.

The colonial policy in Malaysia provided the background of the child welfare system in Malaysia (Jones, 1958; Shaffie, 2006). The British administration in Colonial Malaya established official policies and laws to attend to social issues such as crime, juvenile delinquency, immoral conduct and destitution (Jones, 1958). Systems of governance were in place to standardise the process and procedures. The British authorities introduced policies that varied according to the issues and problems in specific geographical locations (Mean, 1966). Family and child matters before colonial expansion were based on communal responsibilities in providing care and protection. Islamic law and the Malay adat (customary law) were used to guide and provide a procedure in managing social conflicts and issues in the society, including the management of deviance in children and adults. However, as the Syariah law and adat were unfamiliar territories for the British Colonial offices, the existing British laws and policies were selected to be adopted as they gave more power and control to the British

(Emerson, 1964).

In British social policy, the family unit is officially acknowledged in the Poor Law as a private entity with a set of procedures to guide the State before intervention was delivered by the State in the family system (Hill & Aldgate (Eds,), 1996; Parton, 1998). Traditional and communal responsibilities for child welfare were not recognised as structures in caring for and protecting children without having official documents in the Western world (Skevik, 2003).

The goals of laws to regulate citizens' behaviour during the British occupation of the Malay States are still applicable in the current social policy development. Inevitably, the welfare of a child was not significant in colonial policy. According to Shaffie (2006), welfare policies before 1946 were enacted to secure and protect the well being of colonists and migrants in the Malay States. The focus on welfare, especially for the destitute and troublesome population of the Malay States only occurred after World War II (WWII). In 1947, the Juvenile Court was empowered to address juvenile delinquency in the Malay States. In the same year, the Social Welfare Department and Central Welfare Council provided relief schemes such as cash payments, free meals, clothing and shelter during the first two year after the war (Jones, 1958). There was no law or policy specifically targeted to families and child welfare before the Second World War as it was regarded as a private matter, under the responsibilities of clan groups and voluntary organisation (Jones, 1958)8.

Since the British occupation of the Malay States, the existing local government of the Malay sultanates and their administrative system of Adat was not effective enough to govern the increasingly diverse population during colonial expansion nor were they able to benefit fully from local resources available. As the population of the Malay Peninsula and Singapore became increasingly diverse with the influx of Chinese and Indian migrants, the British Colonial Office began to formulate social policy based on British law. Social policy in the Malay States by the British Colonial Office was

8 The Children and Young Persons Ordinance (1947) provides general protection for all children in-need, including those that are neglected, abused or destitute.

adopted from the Poor Law in Britain and the emerging solutions developed to address juvenile delinquency were derived from the British India Company in India (Triantafillou & Moreira, 2002). This policy was implemented to address social problems in the Malay States as perceived appropriate by the colonial office. The laws for families and their children began in Malaya to provide relief for the population under the British administration that were in need of protection and control after WWII.

Issues associated with ‗transplanting‘ laws and policies to address local problems began to take place after the colonisation of the Malay States and Borneo. The Colonial office began to transplant laws and procedures that were perceived inadequate to attend to the general population of the Malay States. The indigenous laws (Islamic and customary laws) became marginalised to the extent that they were only applicable for rituals and customary activities for the Malays. The 'natives', as the other local community, were already isolated in the Malay forest and they were never a threat to the British colonial office (Andaya & Andaya, 1982).

During British colonisation in the Malay States, a specific issue was targeted in every policy enacted by the colonial office. This is applicable to the basis of social policy formulation in Malaysia. For example, the Juvenile Court (1947) was set up to address juvenile delinquency after the Japanese occupation of the Malay States. A document by Hadi Zakaria (1995) traces the historical background of the Women and Young Girls Protection Act (1973) that began as an ordinance to address the exploitation of women within the Chinese settlement in the Malay States.

In 1965, with Singapore pulling out of the coalition, the State began to address the unequal development among the states and strove to focus on industrialisation and urbanisation as the means to achieve the country‘s economic and social development (Ongkili, 1985). Over time, with ongoing demand by global policies, especially with the establishment of UNCRC and the Universal Declaration of Human Rights, the State was indirectly immersed in ‗decoupling‘ and ‗sweetening‘ policy-making processes to make space for a paradigm shift in child welfare and social policy within the established law and order (Beckett, 2006). Various new ideas and practices were being adopted from local agendas and adapted to the local environment.

In Peninsular Malaysia, with the Malays as the majority, Malay customary laws and Islam as the official religion became the dominant culture requiring consideration in policy formulation and implementation (Shaffie, 2006). In Sabah and Sarawak, there was no dominating culture except the recognition of Islam as the country's official religion and the Malays‘ dominance in Malaysian politics since the formation of Malaysia in 1963 (Emerson, 1964). Furthermore, there were apparent differences in socio-economic achievement between Peninsular Malaysia and Sabah and Sarawak because of the unequal development of these places historically (Klitgaard & Katz, 1983).

The ‗new‘ welfare policy was left by the colonists after the Malay States no longer benefited the British Empire economically. For example, the juvenile justice system was adopted during British occupation among other public policies to avoid resistance among the locals. Care and protection of children were invisible and blended into other policies under social development within the realm of health and education. Midgley and other social policy scholars view this process as common by a newly independent nation. Social development becomes the main agenda for the State in social policy to attend to social issues and problems. The establishment of traditional child policy law only focuses on children as the vehicle to achieve the State‘s objectives in fulfilling a social development agenda. Notwithstanding the value of a child, the minimalist approach undertaken by the government for those who are really in need was to ensure State objectives were achieved, especially in nation-building (Siti Hajar, 2007). This was a common welfare policy among developing countries. A finding by Musolf and Springer (1979) showed that,

A basic policy making in Malaysia was not done in parliament, by the representatives in the cabinet or the government. It was mostly made by the stakeholders without much influence by the parliamentary process or dewan rakyat (p.23).

Child welfare policy in developed countries and in welfare states has been the frame of reference in international policy development (Government of Malaysia, 2006). The State‘s role in family matters, especially regarding the welfare of children is something of a contradiction in the formulation and delivery of social policy. Development of social policy in the West witnesses a clear function and responsibilities of families,

authorities and members of society in ensuring the welfare of a child. The State with its power and authority will regulate and formalise the roles and responsibilities of families in caring for their children based on recent developments in various fields of study (Bowes, 2004). Inevitably, the State in developed countries increasingly plays significant roles in supervising, monitoring and governing families according to the expectations of society for the best interests of a child.

With the growing interest in child welfare and the position of children in nation-states‘ discourse, focus on the family as a natural provider of a child‘s needs has been acknowledged significantly in social policy (Parton, 1998), not only in regards to child welfare and matrimony, but to safeguard the peace and harmony of the community. The partnership constructed in social policy between the State and the family in child welfare is interpreted according to nation-state roles in family matters and the rights of the child for protection and care by the State (Burden, 1998). The State and the family have clear roles and functions in protecting the best interest of a child and at the same time ensuring a child will be socialised as a citizen of the nation (Fox, 1986).

Development of social policy sees the increasing acceptance of the rights of the child that replaces the focus on the welfare of a child (Finch, 1989). To ensure the right of the child is protected and fulfilled, family becomes the main medium to achieve the child welfare objectives (Anderson & Hula, 1991). Hence, social policy has been geared to interpret legal and policy documents to reflect this notion. The State intervention in family matters to ensure the rights of a child accommodates this new social policy mandate according to current political circumstances.

The Malaysian government began to actively focus on child protection laws as a result of the Malaysian national social plan, publicly known as the National Social Action Plan (Pelan Induk Tindakan Sosial or PINTAS) in 1997. The PINTAS was created to review social laws, and propose new laws to address current social issues in Malaysia. The plan was presented to the meeting of the Cabinet Committee on 15 April 1997 (Binti Jamaludin, Talib & Mohd Yusoff, 2002).

Following that meeting, the committee agreed to review all laws that were enacted to focus on social problems. The meeting chaired by the Malaysian former deputy prime

minister concluded that a major change was needed to address the issues of laws on child welfare and the juvenile justice system. Furthermore, Anwar Ibrahim, in his speech to the international audiences on ‗A Caring Society‘, stated the need by Malaysia‘s government to shift the focus of public policy from solving problems to the prevention of social problems (Participant 2). A special committee was then formed to oversee the review of laws for the management of social problems in Malaysia. The chairman of the special committee was the Honorable Dato‘ Seri Najib bin Tun Haji Abdul Razak, the Education Minister of Malaysia.

In one of its meetings, the committee decided that laws on children and adolescents needed urgent attention (Participants 4, 5 and 6). The most significant conclusion that came out of the reviews was that too many laws relating to children were overlapping and inconsistent in practice. Hence, this conclusion became the main force behind the enactment of the MCA 2001. The laws were initiated to adopt a new objective of social policy, moving from problem-solving to preventive measures.

Formulation of the MCA 2001 in the late 1990s reflects the ongoing focus of the State to curb social unrest that may present challenges to the country's development process especially the focus of the country development. Notably in the 1990s, Malaysia was awakened by continual media reports on children‘s social problems, especially child maltreatment and juvenile delinquency. The State responded by blaming the previous law that failed. After a series of discussions in the cabinet, the State directed a committee to formulate a new law that would address the problems more effectively (Participant 3).

In the late 1990s, Vision 2020 was introduced by Mahathir Mohamed (Malaysian Prime Minister from 1982-2006). Vision 2020 was a list of goals in economic and social development for the country to achieve in 30 years. Among the significant changes in the nation-state‘s policies with Vision 2020 was the significant acknowledgement of individual well being as a part of the country‘s development (Siti Hajar, 2006, 2007). It was a change by the State to indicate that economic development was not the only path to achieve the country‘s development agenda.

The emergence of the MCA 2001 was a sign of a new beginning for Malaysia as a

nation. It symbolised the intention to move forward in universalising the protection and care of Malaysian children and to officially recognise the duties of the family and the family members in a child's life. In the 8MP (2000-2005) the government introduced the overall context of this law as part of the government‘s policy, creating national harmony and social integration among members of diverse ethnicities and religions. The proposed legislation, according to the official document, also shifted the family institutions and promoting a ‗caring and loving‘ community (Binti Jamaludin, Talib & Mohd Yusoff, 2002). This however has not yet been evaluated as either fulfilling the needs of multicultural Malaysian society or as merely a continuous reflection of universal trends from a Western-dominated child welfare orientation.

The MCA 2001 was also a product of government initiative to increase awareness of the public‘s issues concerning the well being of children and women. The establishment of voluntary organisations in the 1980s specifically looking after children and women‘s issues also forced the government to begin looking at increasing cases of child abuse, neglect and the ‗degradation of morality‘ among Malaysian youth, especially in urban settings and as the consequence of rapid urbanisation especially in major cities. Apart from domestic policy-makers, international policies – mainly the UNCRC – put pressure on the government to revise and enact a new law that addressed local needs and fulfilled global standards (Binti Jamaludin, Talib & Mohd Yusoff, 2002).

The MCA 2001 was passed by the Parliament in 2001 and gazetted as a law in the same year, but not implemented until August 2002. It took three years for the Parliament to pass this document due to the amendments in the Penal Code and Criminal Procedure Code in 2001. The three previous Acts were repealed by this legislation(see Chapter One). The main objectives of the MCA 2001 were to standardise the definition of a child (age of criminal responsibility and cover both male and female), to legalise the roles of the legal guardians of a child, and implement a higher fine structure and heavier sentences for offences committed under this Act.

Figure 1: Reported Child Abuse Cases

The MCA 2001 was officially announced by the Malaysian government in the 8th National Plan in 2000 (8th National Plan, 2000-2005). The Act was established to

...consolidate and amend the laws relating to the care, protection and rehabilitation of children and to provide for matters connected therewith and incidental thereto ( Child Act (2001), p.11).

MCA 2001 consists of 15 parts that cover the principles, the definitions of terms used, the mandatory interpretations, rules and procedures of the court, the appointment of staff of the Minister to protect and deliver the operations of the Act and other related acts or legislation that abide in the Act. This Act applies throughout Malaysia with an exception if it overlaps with the Syariah Court or Muslim Law.

In terms of geographical provisions in the MCA 2001, the document clearly states that it covers the whole of Malaysia, and that it is applied simultaneously throughout the country.

Section 1 (2) This Act applies throughout Malaysia

However, there are two conflicting ideas on geographical location in this Act.

Geographical location is highlighted in particular sections of the Act, where there are significant functions to care and protect Malaysian children (sect. 4, sect 19 and sect. 39). The Act covers the child in need of care and protection, rehabilitation, a beyond- control situation, a child that commits an offence, and the offence by others that will place a child in harm‘s way. The Act forbids the language of criminal, conviction, and sentencing throughout all proceedings in the Court for Children (Sect 91 subsections [2]) to protect their future undertaking.

Conclusion

MCA 2001 articulates the political motivation of Malaysia to be recognised as a developed nation by adopting an international policy, especially UNCRC and the Universal Declaration of Human Rights. In Malaysia, social policy has to address various issues internally, especially the disintegration of the family institution and the ongoing ethnic relations issues of the diverse population. As a tool to centralise the care and protection of Malaysian children, and as an instrument to support the country's vision for nation-building, recognition of multiculturalism and a child‘s location as significant factors to achieve the welfare of a child location will not be taken into account in MCA 2001 to avoid further dissatisfaction, even though multiculturalism and geographical location are significant factors that influence the education and economic development of Malaysia. Furthermore, the geographical location, for example the gap between rural and urban areas, not only distances peoples from accessing services, but also from the information on important laws and services provided by the government.

MCA 2001 as a law for children not only includes protection and care standards, but also behaviour control measures for families and children. Child welfare laws in Malaysia went through a transformation that was described by Beckett (2006) as a ‗refurbishment‘ process from a traditional and conservative law into a contemporary law that fulfils a new paradigm in social welfare policy, illustrating universal dominant discourses. MCA 2001 has not changed much from the previous laws on children, but composes a ‗new language‘ of welfare with a traditional approach in addressing destitution and social unrest in the population. What is not implicitly illuminated by

the State are the various objectives of the MCA 2001 as a part of Malaysian social policy to shape and mould children into law-abiding citizens in the future9, in mind of a ‗civil society‘ in the Malaysian mould.

9 The preamble of MCA 2001 asserts the goal of the State to protect and control children as the citizens of the future.

CHAPTER FOUR FORMALISING THE ROLE OF FAMILY FOR CHILDREN AT-RISK: ALLIANCE OF THE STATE, THE FAMILY AND THE CHILD

Introduction

RECOGNIZING the role and responsibility of the family in society, that they be afforded the necessary assistance to enable them to fully assume their responsibilities as the source of care, support, rehabilitation and development of children in society (Preamble of MCA 2001).

In recent years, focus on family roles and functions in relations to achieving the welfare of a child has been discussed at length in child and family policy in Malaysia. Supported by nation-state discourses, they are acknowledged as integral parts of the survival and development of a country. Family function in social policy is not merely in relation to the welfare of a child but most importantly in supporting the State‘s agenda in social, economic and political development. The role of family in safeguarding and providing for the needs of children may differ according to various local contexts and circumstances but the position of families is increasingly acknowledged as assisting the State pursue its social policy agenda with support from the establishment of international social policy, especially the Universal Declaration of Human Rights and the UNCRC.

Protection and care of a child lies firstly under the responsibilities of the family as ‗natural‘ providers. In a normal and ideal environment, a child is the responsibility of the family. The roles of family are not only as providers of necessities, but they are at the same time central to the socialisation of children to make sure the culture and beliefs of society are transferred to the new generation (Spratt, 2008; Spratt & Callan, 2004). However, family and children in need of State intervention do not fit with this ‗normative generalisation‘ (Henricson, 2008). To ensure this ‗natural‘ responsibility is delivered accordingly, the State introduced measures that have minimum intervention in

family matters. Family private life is left alone unless the welfare of a child is threatened or there is evidence of children involved in crime or inappropriate sexual conduct. Thus, the role of the State in both circumstances is to protect and regulate children, family and society.

Law and policies on protecting and regulating children's behaviour need to recognise all parties involved in the life of a child, including interpreting the relationship between the child, adults (parents, family and members of society) and the State (Van Kricken, 2005). MCA 2001 represents the State‘s role in ensuring that the rights of a child are protected from a social environment that may jeopardise a child‘s current and/or future well being. The rights of the three parties are described by the document within the setting of normality and free of other factors such as social and economic circumstances, and disregarding the various cultural experiences and geographically diversified family antecedents in the Malaysian context.

Therefore to understand the partnership between the players in the welfare of a child in social policy in Malaysia, this chapter will focus on the significant changes in the MCA 2001 that formalised the roles of family to ensure the partnership between the State and the family was established. This partnership ensures the power of the State is presented in the Act to intervene in family matters when a child‘s welfare is at risk.

A Merger of Protection and Corrective Justice: For the Welfare of the Child

Before MCA 2001, Malaysian officials and politicians through the public media expressed their concern at the new wave of social disruption that appeared to be taking within the process of globalisation, urbanisation, migration and industrialisation. Among the findings during this stage was the significant role of families in children‘s lives, and the rights of a child to be cared for and protected by families and the State. The family as the basic unit of a society was being forcedto compete with and adapt to a new social and economic environment that put more pressure on the family institution. As a consequence, children who were dependant on adult care and protection were trapped in an insecure and uncertain environment. In Malaysia, previous laws that divided protection and regulation failed to deal with these issues effectively.

Furthermore, prior approaches adopted by the State in public policies had also failed to prevent and solve the impact of the country‘s rapid development after Independence. As such, public policies focusing on economic and industrial development were replaced by a new agenda of social policy to address and attend to the needs of the Malaysian population in a more holistic manner.

The failure of government policies was a signal for the State to rethink and re-establish social policy that would fulfil the needs of the Malaysian population and at the same time prevent further impairment in the population (Jaafar, 1999). It was realised that economic development was not the only answer to solving social problems. With the establishment of the Universal Declaration of Human Rights and the UNCRC, the Malaysian government began to change its outlook to acknowledge the changes in philosophy, recognising children as future Malaysian citizens and supported by the country‘s goal to be competitive not only in economics but in other fields also (Binti Abdul Majid, 2002).

The merger of protection and regulation of a child's behaviour is necessary to support and instil the ideas of welfare and the best interest of a child in civil society (Bellingham, 1986). What it does is to ensure children are provided with the means to grow and develop according to their physical, social, emotional and mental stages safely (Fulcher & Mas‘ud, 2002). MCA 2001 does not focus on participation but more importantly on securing the welfare of children. The literature on social policy, laws and child development agrees that childhood is socially constructed where children will have different capabilities, experiences and ways of dealing with their social and physical environment. However, there is a universal need for a child to be protected against risk. The risk may be from maltreatment or being lured into inappropriate sexual conduct or crime. However, some of this concern about universal needs is fulfilled with the establishment of the UNCRC. Its establishment saw the protection and regulation of a child delivered at the same time in all laws involving children and their well being (United Nations Convention on The Rights of the Child 10.1093/lawfam/6.1.245, 1992).

The UNCRC is globally acknowledged as the standard of practice and policy in child welfare (David, 2002). The moral order of the UNCRC is similar to the Universal

Declaration of Human Rights and is accepted as a universal manual for governments around the world to be on a par with developed countries in securing the rights of a child (Langlois, 2001).

One of the effects of describing human rights as a universal language is to reinforce belief in a universal moral order. Such a moral order is often taken to be that which is articulated by the language of human rights. What we observe from today‘s global languages - English, for example - is that they are spoken in many different ways around the world (p.1).

The UNCRC has become the contemporary global standard in terms of preserving the rights and the well being of a child in most developed countries. However, this standard will not be enough if governments fail to fully understand the spirit of the UNCRC and the overall support needed to achieve the objectives (David, 2002; Connolly, Crichton- Hill & Ward, 2006). It is not enough to adapt the spirit of the UNCRC without fully understanding and applying all of its ideas to social policy. Policy and programme should support and engage in the best interest of the child and their family to ensure the child will develop to their full potential.

The Social Construction of a ‘Child in-Need and at-Risk’

In the first provision, a child is under the MCA 2001 if he or she is deprived of obtaining the minimal requirements from their legal guardian, or if they are placed in risky situations that may curb their development and growth (Sect.17 of MCA 2001). This will include abuse, neglect and manipulation. Legal rights for a child state that the necessary needs shall be fulfilled by adults and, in this Act, the parents or legal guardians. It is a legal responsibility of parents to act on behalf of the State to make sure the needs of the child are fulfilled. In particular situations such as for a family in poverty, the State will provide minimum assistance to help families to care and protect a child under their responsibilities. However, the State will not accept any responsibility for ensuring that the family has the means to deliver this task.

The second provision of the MCA 2001 covers behaviour that is defined as unacceptable by societal norms, which include immoral sexual conduct and criminal offences. This part substitutes the provision in the Women and Girls Protection Act

(1973) (Part VI of the MCA 2001) and the Juvenile Court (1947) (Part VII of the MCA 2001). However, in the MCA 2001t, there is no distinction between males and females. With regards to the issues of immoral conduct by a child or towards a child, the Act restates the principle that a child will not be able to decide independently on the decision that will harm thems or others or lead them towards unacceptable behaviour.

The other supporting base of the MCA 2001 is the belief that a child is not capable of making decisions without direct influence by an adult and their environment, physical and social. An offence is committed by an adult if he or she encourages a situation that induces and supports immoral10 conduct by a child in a given context. An adult who, with or without intent, behaves in a manner that will lead to this conduct commits an offence under this Act. As for the child, she or he will be relocated to an appropriate institution for rehabilitation. Subject to the court‘s decision, the child will be able to continue his or her education during this time. A set of established institutions before independence is expected to provide services to fulfil the objectives of the MCA 2001. This is because the time requires to place children in care, for protection and for rehabilitation is likely to take between one to three years. As a general rule, one to three years are considered the norm to assist children and make any necessary changes.

In 1985, Malaysia became one of the signatories of the UNCRC. This move pushed the government to embark consciously on a social policy that would fulfil the declaration. The beginning of the 1990s witnessed the government finally begin to seriously commit to adopting the UNCRC in Malaysian child policy. In addition, Malaysian participation in the Beijing Declaration had also initiated a further review of Malaysian social policy especially in relation to family, children and women‘s welfare policies. In 2006, a report on Malaysian policies and programmes that agree with the UNCRC, was published by the Ministry of Women, Family and Community Development. This publication lists the current changes undertaken by the government to comply with the UNCRC and eventually the Universal Declaration of Human Rights.

The MCA 2001 takes a new approach to understanding children and how the

10 I will use immoral and inappropriate sexual conducts to reflect the same meaning.

government can play a greater role in the care and regulation of children. According to politicians and academics, Malaysia has had to face issues and social problems affected by global activities that have had a strong impact on the identity and behaviour of adolescents. What is happening in the present and may happen in the future, can no longer be solved by policies that had been were formulated pre-Independence.

It is clear from the supporting documents, including from the interviews undertaken, that this 21st Century child welfare policy aims to safeguard the best interests of the child11 and formalises the roles of family in the child's life, but just as importantly focuses on the survival of the country in the future. The Act in this research will reflect the intricate dominant discourse underpinning the State agenda in social policy formulation and implementation. In the 8MP, MCA 2001 was formulated to ensure Malaysian children are protected and cared for by their family during the critical stages of their development.

Social Construction of ‘The Family’

MCA 2001 begins to define family within a society and the eyes of the State in the preamble.

ACKNOWLEDGING the family as the fundamental group in society which provides the natural environment for the growth, support and well being of all its members, particularly children, so that they may develop in an environment of peace, happiness, love and understanding in order to attain the full confidence, dignity and worth of the human person (Preamble of MCA 2001)

Based on the above statement, family is defined as an institution that encompasses individuals based on their roles in a child‘s life (Finch, 1989). A Malaysian family in the above preamble is recognised as a unit or a system that provides a natural environment for the members to fully develop into civilised individuals. The definition and description of family in the MCA 2001 includes natural providers of an

11 There are 17 places in MCA 2001 that locate the best interests of a child as the pedestal before any Place of Safety decisions are made by the Court for Children.

environment of ―peace, happiness, loving and understanding‖ for a child to develop accordingly, despite the various circumstances children and families are face in the 21st Century.

Families in Malaysia have gone through different development phases (economic, political and social) and face various influences from local and global activities. Local and global influences directly and indirectly shape family dynamics and how the family is located within social policy (Quah, 2008). Sociologists and anthropologists describe the family from various angles and aspects of forms, functions and roles. A family, whether it is constructed by looking at social arrangements, functioning and/or transactional definitions, is based on formal descriptions and these have been used to inform laws around the world, including the concept of family and a child in MCA 2001. MCA 2001 illustrates the changes in family forms and function in Malaysia throughout the years and in the current environment. However, as a consequence of industrialisation and urbanisation around the world, modern and diverse forms and functions of the family have replaced the traditional roles of the two-parent family (Bellingham, 1986). Malaysian family institutions now include blended families, single-parent families, polygamous families, families with homosexual parents and ‗grandparent families‘.

During the final stages of the British colonial administration in the Malay States, especially in the ordinance and the law addressing social problems, family roles in public policy were very limited. An example from the Malaysian Juvenile Court (1947) illustrates that a family is only required to contribute monetary support if their child is under the State‘s care. According to Jones (1958), the colonial office in the Malay States only focused on and attended to the neediest individuals. Welfare was not a right. This is similar to the British Poor Law. Therefore, the family and the State were not accountable for the welfare of children, but relied upon the extended family and charity to provide for the needs and welfare of children.

In the previous three Acts, guardians were defined as:

Table 3: Interpretation of ‘Guardian’ from the Malaysian Juvenile Court (1947), the Malaysian Women and Girls Protection Act (1973) and the Malaysian Child Protection Act (1991)

The Juvenile Court (1947) guardian in relation to a child or young person, includes any person who, in the opinion of the court having cognizance of any case in relation to the child or young person or in which the child or young person is concerned, has for the time being the charge of or control over the child and young person‖

The Women and Girls Protection Act (1973) nil nil

The Child Protection Act (1991) guardian of a child means a parent of the child, or any person lawfully appointed by deed or will or by order of a competent Court to be the guardian of the child, or a person who has lawfully adopted the child, and includes any person who has lawful custody of the child (not including grandparents or siblings)

In the years after 1947, social policy relating to the protection and regulation of children‘s behaviour particurlarly kept the roles of the family to a minimum once the child was under the State‘s care12. These roles included:

 Providing information in the court procedure and investigations.

 Attending court cases and making sure they participate in the proceedings involving their children.

 Entering into a monetary bond.

 Paying a Contribution Order if applicable (for maintenance while their child is in the institution).

Minimal participation (monetary and interpersonal communication) in these laws

12 Section 22 and 23 of the Malaysian Children Protection Act (1991), Section 27 of the Malaysian Women and Girls Protection Act (1973) and Section 34 of the Malaysian Juvenile Court (1947).

illustrates the minimal partnership between the State and the family for children who had broken the law and/or are in need of care and protection in social policy. However, these provisions illustrate a different view: that family involvement was kept to a minimum because the family was deemed to have failed to protect and regulate their children‘s behaviour in accordance with normal and expected roles.

The argument rests on the belief that when family was not required to provide for the needs of a child within a formal document (laws), the State had minimum responsibility to ensure the family was delivering in their roles. In this context, partnership between the State and the family was very limited in social policy as the welfare was expected to be delivered naturally, and structural social services (formal services by the State‘s laws) were only targeted towards critical and at-risk situations that jeopardised peace and economic well being.

In attending to the multi-faceted characteristics of the Malaysian population, the State‘s role has changed throughout the years since Malaysian Independence. In Malaysian national policy, for example, in the five-year Malaysian National Plan, and in other national plans such as Vision 2020, the family is officially recognised as the deliverers of duty of care and protection for children. The State regulates the behaviour of families and children officially through social policy to achieve the agenda of the State to achieve the status of a developed nation.

The Social Construction of ‘At- Risk Family’

With the enactment of the MCA 2001, the role of the State of Malaysia in social policy has changed according to social policy development around the world. Family affairs, in particular childcare, are now a public affair with a particular statute and policy that governs the practice and the required standard. Children‘s well being is no longer subjectively defined but based on a list of legal criteria set up by the State in a single document, MCA 2001, to attend to Malaysia‘s multicultural population. Family becomes the significant actor in providing for the needs of a child. Furthermore, family in the Act is another instrument of the State to support the State's goal of nation- building. Family in Malaysian social policy remains significant in delivering the State agenda, similar to what was done by the British during their administration in Colonial

Malaya and other colonies (Jones, 1958; Shaffie, 2006).

Family under the MCA 2001 is constructed based on its function and roles in a child's life, derived from the local and global interpretation. In the interpretation of the term used in Part I, family is defined as parent/s, guardian and extended family. In relation to children‘s well being, family is then described as having the responsibility of protection and control over children's behaviour. In this part, the family and child relationship is based on family practice (acceptable parenting) and children's behaviour (conformity or non conformity).

In this section, I first discuss the direct notion and description of family, parents or guardian and extended family. Part 1, Preliminary of the MCA 2001 defines:

―member of the family‖ includes a parent or a guardian, or a member of the extended family. Who is a household member ; (Act 611,p.12)

―extended family‖, in relation to a person, mean persons related by consanguinity, affinity or adoption to a person; (Act 611, p.13).

―guardian‖, in relation to a child, includes any person who, in the opinion of the Court For Children having cognizance of any case in relation to the child in which the child is concerned, has for the time being the charge of control over the child; (Act 611,p.16).

The interpretation of family in Part 1 of theMCA 2001 is illuminated by the definition of ‗extended family‘ and ‗guardian‘ of a child. In the interpretation part of the Act, the family and parent/s are defined in two concepts: extended family and guardian. Both concepts are used interchangeably in the document. There is no direct definition of parents or parent in the MCA 2001. Throughout the Act, however, for example in Part V of the Act, parent or guardian is used as a legal term to represent a legal guardian of a child. In using both terms, a singular noun is used: a parent and/or a guardian.

Under the MCA 2001, family is defined in a way that includes various views on the functions of a family without being tied up with Western traditional definitions of the family structure, such as the nuclear family which comprises two heterosexual parents and blood-related children. This is parallel to the global development of the definition of family, and how family can be defined objectively in different contexts (Bellingham,

1986; Hutchinson, 2002). Furthermore, in the MCA 2001, parents, family members and extended family are grouped together to give more responsibility to the family to protect and control children and as a provider of their needs. The State will remain passive in the care and protection as long as a child does not disrupt the social, economic and political stability of the nation.

The actual family, however, is that which people can ―afford‖ to have according to the specific circumstances of their lives (Quah, 2008, p.2)

The general definition of family in the MCA 2001 includes parents and extended family members. This definition provides a space for a family that includes parents and other members who are not only related by blood or marriage, but also by legal appointments. This heterogeneous definition lessens the responsibility of the State in a child's life especially in regard to care and protection.

From a different lens, MCA 2001 acknowledges the reality of Malaysian families that are not reflected by the traditional definition of an ‗ideal‘ family. The current family forms are a reflection of the various social conditions of the current environment in Malaysia and globally. Traditional and Western definitions of family restrict the role and function of family members to those who are willing and capable to provide a safe environment for a child to achieve their full potential. Various researches have shown the significant roles of grandparents, uncles, aunties and siblings in providing a safe and secure environment for a child if parents are not available (Bellingham, 1986). This definition of family meets the objective of the 21st Century child law that the institutionalisation of a child is the last resort in the care and protection of a child (Foley et al., 2001).

Family or guardian is defined in more detail in the later part of MCA 2001 with further description of family practices that are incompetent to deliver care and protection to a child according to the interpretation of the State in accordance to the previous laws on children13.

13 Part V to Part VIII of MCA 2001 describes family practices that are expected by the State including, natural provision of children‘s basic needs and social and behavioural regulation of Malaysian children.

In Part IV, Section 34 [2], guardian is defined as:

(2) In this Chapter, ―guardian‖ of child means a person- (a) lawfully appointed by deed or will or by the order of a competent Court to be the guardian of the child; or (b) who has lawfully adopted the child (Act 611, p.42).

In the United Kingdom, the Children Act (1989) defines parents and family in a different perspective. Parental responsibilities are used to replace the function of a family for a child. Family and parents are not defined as a form and type, but as responsibilities or practices to ensure the well being of a child is secured and protected (Harding, 1997; Nigel Parton, 1998). It is important to have a standard guide within legal documents of what constitutes a family and what are the responsibilities of family or parents in particular. What are presented in MCA 2001 are ‗risk management‘ strategies to prevent impairment of family and society as a whole (Jal Zabdi, Siti Hajar &Weatherly, 2008).

The definition of family in the MCA 2001 influences the whole document and the implementation of the Act (policy informs practice). Therefore, in MCA 2001, family is grouped under ‗extended family‘ with every member responsible for the care and protection of a child. There are no details on preventative measures, especially the responsibilities of parents in a child's life, custody of a child and providing a safe and secure environment (MCA 2001). This is the opposite of the current reality of what family is in relation to children‘s well being. Family is not about form and structure, but the meaning of family to individuals, society and the nation (Scanzoni, 1991). All of this may not be in the same mould for the same reason. To place such importance on the role of family in nation-building and Malaysian development, all laws and policies should support and facilitate the same objectives of family welfare (Verma, 2002).

Social constructions about what is family and what family means in a child's life have been defined in MCA 2001 by a few in powers and the authority. There was no significant reason, neither discussed throughout my interviews nor found in parliamentary debates, for the use of this term in the Act to describe family, parents and guardians. I am not sure whether this has to do with the perceptions of interviewees and stakeholders that single parent families have a larger tendency to be involved in

social problems. This view is also reflected by members of Parliament who attribute the changing form of Malaysian families to increasing incidents of social problems, especially with juvenile delinquency. The problems of single parents and homosexual parents are acknowledged as among the reasons behind the increase of social ills in the country.

The heterogeneous definition of family may elucidate different reasons. This new definition of parents, family or guardians represents the changes in the forms of family locally. The MCA 2001 defines family very loosely to include all these forms in society. Family in the Act is an ‗extended family‘ with every member responsible for the care and protection of a child. This extends the definition to include not only parents or guardians, but other members who are related by blood or by legal contract. This follows the definition of family from a sociological perspective. Family is described as a social unit that will adopt life‘s changes.

The family is an intimate domestic group made up of people related to one another by bonds of blood, sexual mating, or legal ties (G. Marshall (Ed.), 1994, p.222).

While there is no doubt that the traditional family has become less common, it continues to have enormous normative power. That is, such families are seen as being the ideal, the model to which citizens will strive. Because of this, social policy continues its traditional attitudes toward families even though the ‗ideal‘ or ‗normal‘ forms are diminishing in reality. With the intention of the State addressing social unrest, the definition of family is relevant to those children and families who are forced to engage with the MCA 2001. With increasing focus on the family as the natural and best provider for children‘s well being, the State has taken one step further in addressing family as a part of their policy in the overall development plan of Malaysia.

Family can be defined in forms, types and practices. It is not enough to have a definition of family that is general and grouped together with various types and forms in the current environment, without attending to the complexity of these families. As a result of the MCA 2001‘s limitated definition of family, the document only targets the unfortunate families and their children who are in close proximity to the establishment of welfare provisions. For those in urban and disadvantaged families, the Act inculcates their duty, roles and their actions to be accepted or not. The Act regulates not only the

do‘s and don‘ts of a family, but also the list of tasks of a family or a legal guardian of a child.

However, it was publicised that this Act would have a more developmental approach compared to previous Acts for children that were more problem-solving in nature. According to stakeholders, there was clear reason to legalise the responsibilities of family outlining standards and procedures presented in the MCA 2001 behind the Act‘s push for increased knowledge about child development. However, in Malaysian parliamentary debates, mostly dominated by the Barisan Nasional party, there is not much discussion of the reality and the integrity of the Act for the Malaysian population, especially in addressing the multi-cultural populations. Many of the debates were superficial and did not deal in any depth with issues.

To fulfil the real needs of current One Malaysia families, laws on children should be able to understand the emerging and possible future trends with families. Social policy that focuses on family and children must understand the historical and past changes undergone and the history before any legislation is formulated and enacted. Child welfare policy should also be able to fulfil the needs of a family and a child in the current context (Gonzalez-Lopez, 2002) using current knowledge. Ideology and philosophy behind the MCA 2001 represents the conservative approach that follows the path of family and is accountable to deliver the list of tasks pivotal to the continuity of the next generation. In the Act, family represents the conservative notion with normative themes as Scanzoni (1991) argues on the public policy in the United States.

... of conservatives is focused on a structure or set of arrangements that are normatively ordered and highly predictable. Their vision or image is that the family is an organic system maintaining equilibrium in the face of societal vagaries and onslaughts (p.12).

Family and child well being should not be looked at separately in the MCA 2001. In a policy that is aimed at preserving the family to deliver their natural roles in a child's life, family welfare should also be a priority before it can be given the official task to care for and protect a child (Bowes, 2004). Family preservation is not only applicable to the Act but should be visible in all policies of the State. The family now is not only responsible for providing for their children but also accountable to the State as an agent of social regulation with minimum support (Fortin, 2003).

The development of social policy in general inculcates the increased demand of the family as a natural provider in a child‘s life (Hill & Aldgate, 1996). Social policy discourses recently have focused on the rights of children and their best interests (Baumrind, 1994; Bellingham, 1986; Ben-Arieh, 2009; Bowes, 2004; Burden, 1998; Burman, 2003). The changing role of family in social policy was aligned with Malaysian development as a nation. There was a considerable impact on government expenditure due to family policy and programmes. The 9MP allocated a higher budget for family development; nearly double that of the 8MP. Various programmes are planned to build a resilient Malaysian family that will be able to face current and future social, economic and political development.

All of these steps were taken to ensure the contemporary Malaysian family will endure changes in the local and global context. As stated in the Ninth Malaysian Plan, the objective of the provision is to ‗strengthen the family institution and family support mechanisms to facilitate child welfare, protection, development and participation… (p. 202).

Heterogeneity of family is only relevant to those who require State support in protecting and caring for children. Outside the domain of the MCA 2001, family and society are still expected to solve their family matters.

MCA 2001 is only concerned with families who are considered in need of constant supervision from the State and its machinery. The State's role only pertains when it comes to looking after a child when the family is in crisis. A Malaysian family during the social policy formulation process of the Act was described as irresponsible, in need of continuous support in the care and protection of their children. According to the MCA 2001 and in the Parliamentary debates, family is faced with uncertainty in the current context of Malaysia‘s stage of development. To address this social problem, the government is obliged to use and adopt the established body of knowledge on care and protection of a child – in this context the Universal Declaration of Human Rights and UNCRC as the standard in formulating appropriate policy for Malaysian families and children.

Adapted from the Malaysian Department of Social Welfare Report

Figure 2: Marriage and Divorce Trends

As suggested globally according to Hill (1990) and other writers on social policy, the reasons vary as to why a policy is enacted and different approaches and principles are selected. In social policy, approaches to address family and children revolve around either the notion of family preservation or the best interests of a child. In both approaches, family well being will influence the care and the protection of the child. Most family and child welfare literature agrees that a crisis within a family will influence the child‘s life. There should be an equal focus on both family and children in a policy on child welfare to achieve the holistic well being of a child, if family is regarded as the provider of a child‘s holistic needs, in both emotional and physical terms.

According to the policy makers and officials during the formulation of MCA 2001, the family is changing from a two-parent family into single-parent and blended families. Family is now a complex, intimate relationship. The portrait of an ―ideal family‖ with

both parents and clear breadwinner and homemaker roles is becoming the exception. During a parliamentary debate on the Child Bill (1999), the Malaysian family was described by a Member of Parliament as different from the traditional forms, structures, and functions (Hansard, DR.20.10.1999).

According to Gonzales–Lopez (2002) in A Portrait of Western Families, the traditional family is losing its hegemony in most Western countries. Traditional structure and function of family members is no longer prevalent. Gender division of family roles, especially two-parents families, is now replaced with various family structures such as blended families, single-parent families, homosexual parents and extended families. Men and women are no longer associated with the traditional roles of breadwinner and homemaker (Anderson and Hula, 1991).

The ideal picture portrayed in our lives via the media, movies and a majority of advertisements is the nuclear family with heterogeneous parents. This idealism has not changed, but has been focused differently in terms of caring for and protecting children and the elderly. In Malaysia, for example, the traditional family consists of heterosexual parents, a few children and extended family members. In recent years, especially in urban settings, many of the caring roles are shifted to paid agencies or individuals. New forms of family are more visible, such as families headed by a woman, blended families, and family with both parents working full-time (Kamerman, 2010; Thomas et al, 2000). With more nuclear families in the cities, care and protection of children are left to agencies, foreign domestic helpers or children are left home alone. Family practices and household tasks can be carried out by family members as well as non- family members.

Thus, these socio-political and cultural changes in contemporary Malaysia should be reflected in the MCA 2001. A child law should be able to address the ongoing changes within a family and outside the family14. The role of a family is not only a private matter among family members but is increasingly becoming an integral part of the State, and

14 Personal, environmental or ecological perspectives provide a basis to understand individuals and their relationship with the social and physical environment.

in Malaysia involving two jurisdictions, civil and Syariah law. Modernisation and development in technology have induced substantial changes in family structure and functions and subsequently family well being.

The historical and current social and physical environment in Malaysia has had a major impact on family practices. Many of these factors were influenced by the impact of urbanisation and modernisation. Families around the world are trapped within urban, social and economic activities (Mnookin & Weisberg, 2005). With the changes in economic demand, especially in urban settings, the family is now facing higher costs of living. Higher costs of living require both parents to work longer to provide for the needs of the children. This is a paarticular burden on the lower-income earning families. With the high cost of housing and living expenses, especially food, urban parents now are faced with more financial constraints.

The result of urbanisation is similar in Malaysia‘s urban setting. More families are now living as a nuclear family or a single-parent family. Families who are trapped in poverty in Malaysia‘s urban areas are worse off compared with rural families. Family expenses in the cities, not only the basic necessities, are affected by the petrol price, housing affordability, and other open-market activities.

For those earning higher incomes, the urban setting offers a more comfortable lifestyle. This sometimes may not be the in the best interest of a child. Government policies on allowing domestic helpers into Malaysia have created an influx of domestic helpers from Indonesia and Philippines, meaning the traditional role of parents have changed. For families with higher incomes, domestic helpers play a significant role in caring for children at home. Lower-income families have to opt for other services or children are left without appropriate supervision. During the parliamentary debates on the MCA 2001, disintegration of traditional family institutions and urbanisation were regarded as the major factors behind social problems in Malaysia. These issues were highlighted by two members of Malaysia‘s parliament:

‗Urbanization has diminished the extended family system, directly or indirectly, in the current Malaysian society. Family that consist of husband, wife and children is facing problem concerning care and protection for their children especially while their parents are away at work.. The kids are left with domestic helper who does not have enough

knowledge in child rearing. This is not a conducive environment for a child's development‘ (Keng , Hansard 20.10.1999).

‗The reasons behind this are the living environment, the breakdown of family institutions, and the society itself. To some extent when rapid urbanization took place 20-30 years ago, appropriate attention was not given to ensure that the family support systems are available and society were able to adapt to any changes in the environment‘ (Bin Radhi, Hansard, DR.20.10.1999).

Social policy targeting child welfare involves a clear involvement of family institutions. Laws involving children are divided into specific laws or merge into various other laws such as health and education (Anderson & Hula, 1991). The relationship or partnership between the family and the State in social policy is either implicit or explicit. It comes in two forms: informal and formal partnership with a child in the picture. An informal partnership of both parties covers the explicit roles of the family to deliver the natural and expected function as the provider of a child‘s needs and at the same time ensure the socialisation of the child as a citizen of the State. The informal partnership between these parties will eventually change to formal partnership if a child‘s needs cannot be met by the family, and the behaviour of a child deviates from the standard set forth in the State‘s law. Once a child enters the Malaysian legal system, the partnership of the State and family takes a different turn. The State with its power and authority will make decisions on behalf of the family and child.

A family (parent, guardian and extended) is expected by the law in this Act, by religion and the society as a whole, to provide a positive physical and emotional environment for a child to grow into an ideal individual. Families incapable of fulfilling the expectations of the MCA 2001 will lose part or all of their rights in making decisions on behalf of the child. When a family cannot make appropriate decisions, the government and its machinery will intervene and make decisions according to the best interest of the child. The emphasis on the role of extended family in the lives of children is still continued in the Act. In reality, around the world, many families who need government assistance are families who cannot deal with the increasingly challenging environment. Only with the assistance from the government, will some families be able achieve a better life. Malaysian social policy should be able to play a significant and proactive role to prevent

families from falling into the same challenges. The use of a residual and minimalist approach should be reconsidered in the formulation of social policy in Malaysia. The needs of children now require government intervention before the risk of abuse, neglect and involvement in crimes begins. Challenges in family life are unique and require flexible policies and programmes that are innovative.

The development of child welfare policies has seen family matters that were previously regarded as a private affair become a public concern, especially regarding the welfare of vulnerable and at-risk children (Wallach, 1981). Such social policy begins to institutionalise the welfare of children to bind the State in ensuring that families deliver their role as the natural provider of a child‘s needs (Nick Axford, 2009). In the 1980s, in Malaysia, there was an apparent change of focus in public policy. There were significant changes in the policy for families and children especially in recent developments where the policy formulated began to take into account a range of knowledge that contributed significantly to the understanding of family and child development. This includes how the family plays a significant role in nation-building.

During the formulation of the MCA 2001, at-risk families were described as in need of constant supervision from the State. Therefore, the State's role was pertinent especially when it came to looking after a child when the family was in crisis or failed to deliver in its expected role of protecting and controlling their children. For that reason, there is an urgent need for the State to construct a different policy, especially to address children from this type of family (Bin Radhi, 1999). However, despites all these issues, the State still maintains its minimalist role in family matters to ensure their natural roles in the life of a child is preserved.

The developments in the West have influenced child welfare policy in Malaysia (Fulcher & Ma'sud, 2000). Over time, the developments of Western-oriented welfare knowledge and ideology have produced clearer distributions of responsibilities between the State, the family and the community in providing for the needs of children (Colby, 1989; Van Kricken, 2005). This is not only in terms of material and non-material provisions, but also in ways to maintain and control social order in civil societies (Pappas, 1996). To maintain law and order in Malaysia, especially for children and youth, the responsibilities of the family are formalised in the MCA 2001 to ensure the

family will provide the basic needs of their dependants. The State on the other hand will monitor and intervene in family life if there is a risk involving the welfare and rights of a child. In general, MCA 2001's official interpretation of family is outlined as below:

1. Definition of the family, guardian or extended family that is responsible for a child‘s well being.

2. Interpretation of a non-performing family that will go under the jurisdiction of MCA 2001.

3. Under MCA 2001, the family‘s roles once a child is looked after by the State.

The changes in MCA 2001 make the role of the family significant to the survival of the nation and as an instrument of the State to deliver the task of continuation of the nation, Malaysia. Moving from the previous language of British colonists that perceived children as a ‗threat to order‘ of the nation into children as an investment in the future, the family becomes the medium through which to realise the bigger goals of the country (Siti Hajar, 2007). The State during Mahathir‘s leadership, especially after the severe economic crisis in 1997, had learnt that the previous focus on economic development is not enough to lead the country into a developed nation. The country needed a new paradigm shift that revised the ‗traditional‘ way of maintaining law and order.

The State: Power and Knowledge

The major role of a child welfare system in the twenty-first Century is to ensure the safety, permanency, care for children and youth whose families are not meeting these needs or protecting them (Mallon & Hess, 2005, p. 1).

There are two apparent reasons behind the establishment of the MCA 2001. One of the reasons is the aim of shaping individuals in accordance with Malaysian civil society. The second is to identify the roles and responsibilities of the State, the parents or families and the members of society. However, in the process of constructing the Act, Malaysian stakeholders in the Parliament, the public services and think tank groups were indirectly engaged in debates on international standards of children‘s rights, the political rights of children and the country‘s current problems in caring for and protecting children and youth (Hansard, DR.20.10.1999). This new agenda is presented

in one of the preambles of MCA 2001,

The government‘s rationale behind a public policy sometimes is seen as an authoritarian way of limiting the freedom of citizens (Drake, 2001; Fitzpatrick, 2004). Abiding by rules and laws, citizens indirectly or directly shape their behaviour to conform with the State and to maintain peace in society (Hudson & Lowe, 2004). A child policy is a reflection of the role of government in forging a direction towards establishing a country with a civilised society. The concern for the Malaysian future generation and the future of the country perpetuates the objective to develop a policy that is expected to attend to current needs. The MCA 2001 directly defines the unacceptable behaviour of a child, the legal guardian and society‘s role in the process of forming Malaysian ways in civil society. It is not only about what the objectives of the State are, but also the social and physical environment that initiate the action of the government.

MCA 2001 continues to define the role of parents, guardians and family members in relation to the child‘s natural rights and the legal conduct as parents according to the State. A natural right in the Act is about giving the responsibility to parents to protect and control a child under their care. The family is expected to provide the necessities for a child in all circumstances (Koffman, 2008). This idea is supported by participants, in particular the changes to legalise family roles in the MCA 2001.

‗Family needs to be accountable of their children‘s behaviour‘ (Participant 4).

‗In the previous three Acts on children, family participation is not really being spelt out‘ (Participant 5).

However, the families who are most specifically defined in the document are those with problems. Families covered by the MCA 2001 or under the State provision are ‗non- performing‘ families or parents and guardians who fail to deliver their roles as expected by the State. These families and parents are defined according to their negative association and relationship with a child‘s well being. Families who are referred to

under the Act are those who have a child that is maltreated and/or committing offences. Family is defined generally in the document, but in reality, family in the MCA 2001 only refers to what is currently perceived as a ‗troubled‘ family. Child welfare only becomes the interest of the State if a minimum standard of care and protection by family members has failed to be delivered.

The socialisation of a child‘s behaviour not only relies upon the family, society and religious norms but transcends into the nation-state‘s agenda in making sure the child is not a threat to the country's development process (de Winter, 1997). The Malaysian Juvenile Court (1947), the Malaysian Women and Girls Protection (1973) and the Malaysian Children Protection Act (1991) fulfilled the task of protecting and regulating Malaysian children until the enactment of the MCA 2001. All of these Acts provide the decisions on family practices, and those decisions are ultimately under the State‘s power when it comes to the welfare of a child. The failure of a family to provide for a child according to the state definition will result in the intervention by the State and its machinery. PART V Section 17 [1] (a) to (k) of the MCA 2001 begins to define a child in need of care and protection from the parent, guardian or a member of his extended family. The State will take over the role of protecting and caring for a child if parents and/or related parties have committed one or more of the listed offences described in the MCA 2001. For example:

Section 17 Meaning of a child in need of care and protection.

A child is in need of care and protection if—

the child has been or there is substantial risk that the child will be physically injured or emotionally injured or sexually abused by his parent or guardian or member of his extended family (MCA 2001).

The decision as to when a State can exercise its power and make decisions in a child and family‘s life has been an ongoing debate in Malaysia. In protecting and caring for a child there will be no direct answers to when is the right timing for the State to intervene (Hoyano & Keenan, 2007). The evolving knowledge and skills in child development and social sciences has made the decision more transparent and accountable, and at the same has given the family the right to care and protect their

members (Fulcher, 2002, p.34).

The State maintains its position to limit and minimise intervention in family life even though there is substantial need for a family to be supported by the State to function properly. For Malaysia, this harks back to issues of dependency on the State, especially during the early stages of Independence. The State will try to avoid the risk of creating a ‗subsidy‘ attitude among those in need, or most specifically among the Malays who were once perceived as a national problem (Crouch, 1993).

A family with a child or children has a significant position in social policy. A family is recognised in social policy because they affect and impact the formulation and implementation of state policies (Zimmerman, 1992). It is accepted in human development literature that the ability of an individual to grow into a mature, secure adult will rely upon the fulfilment of their basic needs, especially in childhood. Literature on child development suggests that a ‗happy‘ child with their needs being fulfilled will grow into a person capable of fulfilling her or his full potential (Foley, Roche, & Tucker, 2001). On that note, the family is the unit expected by society to provide the social and physical environment for a child to achieve their full potential as an adult. Thus, with the formalisation of the partnership between the State and the family, the well being of a child either in care, protection or corrective justice is secured to achieve the welfare standard.

The definition of a 'need' is covered not only in terms of the physiological need for food, shelter, clothing and education, but also in terms of making sure the child will behave and make acceptable decisions throughout their lives. The State with its machinery of agencies, laws and systems provides instruments such as schools, institutions, prisons, police and courts to govern the current provision of care and protection of Malaysian children (Yunus, 2006). The role and the function of the State in MCA 2001 is to safeguard the well being of a child in a risk situation (Jal Zabdi, Siti Hajar & Weatherley, 2008, p.433). The already set-up system with a designated ministry and institutions delivers the newly enacted law (MCA 2001).

In the previous laws on children, for example the Malaysian Juvenile Court (1947), the Malaysian Women and Girls Protection (1973) and the Malaysia Children Protection

Act (1991), the minimalist, institutional model catered for ‗problematic‘ families and their children. The State‘s role in these Acts was to maintain the peace and harmony of the whole population (Binti Tengku Muda & Engku Alwi, 2011). The State through the Court for Children and designated personnel evaluates, makes decisions and monitors the delivery of laws that involve children and child offenders.

Before the enactment of the MCA 2001, the State's role in social policy, especially in the welfare of the child, continues to focus on problem-solving and risk management. However, in discussing the partnership between the State and the family in social policy, the State has been perceived as having more roles and functions if a child is involved with the State legal system, for protection or regulation. The view was that the State was taking on too many responsibilities that minimised the natural and expected roles of the family. Parents, guardian and family members are expected not to interfere in matters involving decision-making once their children are under the State‘s care (Participant interviews). This is perceived as a ‗negative‘ element around the welfare of a child, especially in the critical time during court procedures, institutionalisation, and in after-care situations (Participant interviews).

Implementation of the MCA 2001 began in 2002. At that stage Malaysia embarked on various aspects of social policy for social and community development. Previous public policy by the government saw it concentrate on economic development that depended on industry and market to provide security for the population. However, after the economic downturn in 1997, industry failed to perform in accordance with Adam Smith‘s ideas on economic and human well being, ‗The Invisible Hand‘ (Smith, 2008).

Industry and economic development once expected to cure hard-core poverty and to provide for the well being of the population has so far failed to address some of the more blatant issues of capitalism and the free market. The industry-based public policy, a redistributive policy by the government, was drastically shifted to a more minimalist and conservative approach with residual goals to cater for the most disadvantaged groups in the nation (Siti Hajar, 2007). This was a move to try to prevent more social problems created by rural-urban migration and urbanisation, especially after independence in 1957.

In the 1980s, after serious reports from the media on the degrading moral behaviour of children with social problems including bohsia, bohjan and delinquents, the State began to focus on the family role as a social regulator of behaviour. See: http://www.parlimen.gov.my/files/hindex/pdf/DR-20101999.pdf). This reflects the move by the State to acknowledge the roles of family not only as reproductive and socialising agents of the country but most importantly in their role in the country's development. Hence, the State and in this case the MCA 2001 continue to assert the strong relationship with families if ‗personal matters‘ become a social threat to the State‘s development process. The roles of parents in MCA 2001 became the medium through which the State may intervene in family matters.

This construction of family in a child's life articulates a clear intention within the law that child welfare policies and practices are only made available for children and family after problems have occurred and been assessed (Henricson, 2008; Huntington, 2008). The prevention agenda was not translated in the document as a child only receiving attention from the State after an episode of maltreatment or offences is reported. The relationship between the State and the family is formed only when a law is broken by a child. The State will intervene to continue regulating social control over a child who has committed an offence (Mason, 2008b).

To understand the State‘s plan and its aspirations in economic, social and political development, one starts with exploring and seeking to understand the Government‘s national plan. In the 8MP, the MCA 2001 was officially recognised to fulfil the current needs of society within the universal rights of a child. In the 9MP, the government continues to focus on the family as the key in achieving a developed-country position internationally. To fulfil local needs and global expectations, the Act continues to uphold the aspiration to care for and protect Malaysian children. The universal standard of the rights of a child or UNCRC continues to be the standard rights of Malaysian children in the 9MP (2006-2010). Jones (1985; p.4) states similar reasons for social policy formulation in the United Kingdom (UK).

We should already be familiar with the notion that social policy is relative to time and place within the home country.

In the 9MP (2006-2010), the Malaysian government continues to develop programmes

100

that

…will give greater emphasis on building resilient families and a more caring society in order to achieve an optimal balance between material growth and societal development. (The 9MP [2006-2010]; p.307).

In MCA 2001, family consists of adults who are responsible to care for and protect a child in any circumstances. A child who is maltreated or committing crimes is not totally responsible for his or her actions. In all cases, families will have to be responsible for children's behaviour. The State with their policies will consider families to be offenders even though various other factors may influence the situation faced by those families in caring for and protecting their members. In both circumstances, family roles and functions are no longer a private matter but governed by the State‘s laws. The procedure will be applied to provide sound evidence if the law has been broken.

The ideas behind social policy in general derive from policy makers‘ analysis and decisions on what are the priorities, what can be done and what objectives need to be achieved (Chapin, 2007). Social and public policy undergo changes according to the time, place and intentions. From this point of view, MCA 2001 not only has a significant role as social policy but also a public policy that shapes and moulds the rights of a child, the roles of parents, the family and the State.(

The roles of the State in the MCA 2001 can be analysed in different ways. Harding (1997) offeres a general view of the State‘s roles in child care policy in the UK, based on a nation-state relationship, liberal perspectives or laissez-faire market forces. Harding proposed five general approaches adopted by the State in formulating child care policy, which refer to political perspectives in social policy. Likewise in whatever situation or circumstances, a child will have the right to develop to his or her potential.

The MCA 2001 expects that members of society shall be responsible for reporting to the police if a child is in-need of protection and care from their guardian, situation or events. Mandatory reporting and response will be delivered by extended families and other members of society, and designated personnel: parents, legal guardians, medical practitioners and child care centres. The line of reporting and response to any case will be pursued in accordance with the previous the Malaysian Juvenile Court Act (1947).

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There is a list of appointed personnel who are responsible to act and respond according to the provision of the MCA 2001. Furthermore, an investigation will be carried out by social welfare officers, assistant officers and the police if necessary.

On a similar note, Scanzoni (1991) views child care policy as a part of family policy. He argues that the State‘s roles in family related policy can be divided into two basic approaches. She first analyses the role of the State from progressive and conservative approaches that depend on the State‘s objectives, and secondly, the State‘s intervention in family life. Hence, both analyses explore the substantial impact of the State‘s objectives underpinning social policy, and the role of the State in preserving family and protecting children‘s well being either implicitly or explicitly.

MCA 2001 assumes a position within the overarching agenda of the State that is not explicitly expressed in the document. It represents the State and policy makers‘ goals to shape and mould Malaysian children to fit the characteristics of law-abiding model Malaysian citizens, in particular as children are perceived as innocent and impressionable. The document provides a substantial understanding of the State‘s roles and ideologies in care and protection and most importantly the rights of children and the responsibility of families under the law. Children‘s well being and family responsibilities are not only private matters, but are closely linked to the political, economic and social agenda of the country (Fortin, 2003). Responsibilities of the State, society and family are translated into legal language with a clear process and procedure, especially in terms of crime and punishment which is the focus of the State.

The role of the State in family life is made clear in the MCA 2001. In the best interest of a child, the State will make decisions for their child‘s current and future situation, if necessary. Likewise, in the absence of a child's parent or guardian and extended family, the State will intervene and take over the duties of a parent or guardian. In British child care policy, this is commonly known as the Parenting State or Corporate Parent (Healy, 1998a; Koffman, 2008; Mason, 1993a)

Contradictory to previous Malaysian child welfare policies or laws, the MCA 2001 provides common themes of care and protection under the ensign of the best interest and the rights of a child. To achieve the paramount welfare of a child, they are labelled as

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dependent individuals who need adults to fulfil their needs and provide them with the necessities to grow into full-potential citizens. Furthermore, the Act provides a clear hierarchy of responsibility to fulfil a child‘s needs. Family and family members remain the main and natural providers in the MCA 2001, especially in providing the basic needs. The State on the other hand will only intervene if the family fails to deliver, especially if the child becomes involved in crime-related behaviour (Part V, VI, VII and VIII of MCA 2001). The MCA 2001 preamble continues to present the role of the family as a socialising agent, regulating the behaviour of children, especially to achieve a civil society. The preamble of the Act states,

ACKNOWLEDGING that a child, by reason of his physical, mental and emotional immaturity, is in need of special safeguards, care and assistance, after birth, to enable him to participate in and contribute positively towards the attainment of the ideals of a civil Malaysian society.

Family roles in the MCA 2001 adopt a universal language as providers of a child‘s needs and the agent of the State to achieve nation-state objectives.

In public policy documents, the presence of the State is not a new thing (Fitzpatrick, 2004; Jomo & Hui, 2003). Public policy is formulated to encapsulate personal and structural ideas from policy makers who are representing only sections of the population and the dominant voices of the Malays in power (Hooker & Othman, 2003). In tracing the development of welfare policy in Malaysia, previous chapters in this thesis (see Chapter 3) demonstrated a strong relationship with the British social welfare provisions and the existence of the Malay hegemony (Ahmad, 1987). Since the beginning of British colonisation in the Malay States, the British Poor Law has been employed to provide substantial guidelines to manage social problems and to provide a formal structure in managing social welfare in the Malay States and surrounding areas. The British administration introduced policies and practices that covered the laws and ordinances with the establishment of hospitals, institutions, prisons and schools to cater

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for the needs of the peoples of the Malay States (Jones, 1958). What was not fully highlighted was the colonial agenda, with a particular ideology that constructed the history of current Malaysian social policy, including the MCA 2001.

A report by the Malaysia Ministry of Women, Family and Community Development in 2006 on the implementation of the UNCRC, had listed legislations and government policies that support and uphold the UNCRC. The report generally presented the previous and current policies that are in line with the UNCRC provisions of the rights and welfare of children (www.kpwkm.gov.my/). Among the laws and policies mentioned in the report are the federal constitution and education law. This includes the compulsory requirement for primary education for all children when they reach 7 years old. The government‘s healthcare policy includes primary care with minimum cost for all Malaysians. Various programmes were implemented such as this one that appoints family as a social agent of the State.

In 1999, during the parliamentary debates on the Child Bill in Malaysia, the focus was on the social situation faced by the family, after the impact of industrialisation and urbanisation, and the changes in traditional child-rearing practices. Issues circulated around the weaknesses of family practices in Malaysia and how the country's rapid modernisation impacted on the family system. It was argued that families in urban settings confronted difficulties in meeting the cost of living in urban dwellings. Many families have to live in dwellings that are unsuitable to their family needs as the cost of housing is very high. According to Binti Abdul Majid (2002), these opposing factors can lead to unwanted behaviour, especially among youngsters. At the time of formulation, MCA 2001 was perceived as the ‗key‘ to socialise and normalise children as the future citizens of Malaysia.

While the rhetoric of the MCA 2001 is to provide the best law for children in Malaysia, implicit functions to support the State agenda are paramount. The Act is a law that incorporated the ideas of prevention, punishment, and rehabilitation at the same time. In a nation-state relationship, a law provides guidelines for a citizen to relate to and interact with the State.

The MCA 2001 provided guidelines and principles of protection and care for a child

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within nation-state relationships. In addition, the law incorporated the goal of the Act within the local setting as below.

The Child - In Reality and in Social Policy

An Act to consolidate and amend the laws and incidental to the care, protection and rehabilitation of children and to provide for matters connected therewith and incidental thereto (Act 611, p.11)

As children‘s needs are provided by adults, mainly their parents, MCA 2001 considers children based on their physical, emotional and cognitive needs and their reliance upon adults to develop in the future. A child throughout the Act is represented as an individual who is in need of constant care and protection from the family, society and finally the State. The establishment of the Coordinating Council for the Protection of Children at the Federal Level and the formation of Child Protection Teams in every Malaysian state (Part II, MCA 2001; p.18-21) represented the monitoring and accountability of the State overlooking programmes, policies and decisions made for children in Malaysia. However, this provision is a continuation of what had been established in the Malaysian Children Protection Act (1991) (Sect. 9-12 of Act 468). The list provided by the MCA 2001 includes representatives from government agencies and voluntary professionals from various ethnicities. This also fulfils the intention to include participation from various sections of the population in the agenda, which reflects the implicit goal of addressing local tensions inherent in a pluralist population.

The definition of children in legal documents or policy depends on their objectives and context. In Malaysia, the definition of who is considered a child includes age, local expectations of a child and the extent to which the government wishes to comply with the requirements of global policy. In general, Malaysia will be affected by two main factors, civil law and Shariah law which have equal status in the federal constitution. Therefore, the social construction of a ‗child‘ and ‗childhood‘ can be understood not only in terms of common analysis of the social policy but also located in the current situation that will have a greater influence on Malaysian social policy formulation.

MCA 2001 started life in the late 1990s with various objectives of the State to incorporate the ideas of localism within universalism. One of the significant influences

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in social policy targeting children is the social construct of a child. The ideas behind the Act are the relationship between a child and the social and political environment, which combines with the notion of children as dependent individuals. This idea reflects the ‗position‘ of a child in the society and in the eyes of the State and global environment. As the instrument of the State, the goals of the MCA 2001 are bound by the personal and structural influences of those who have the power and authority to initiate and formulate the policy and finally to make interpretations on what is presented in the Act. Furthermore, the universal standard of the welfare of a child is translated into a legal document but in a different context, especially when children are in at-risk situations.

The position of the child in social policy, especially in public policy, can vary depending on the objectives of the State (Ben-Arieh, 2009). In the MCA 2001, a child is allocated as an individual who has a particular value to society, the nation and finally as a citizen of the world. Apart from being a child in a family, the Act positions a child as dependent and in need of the family and the State‘s constant support to grow and reach their full potential as an individual. Furthermore, the preamble implies the significant role of children as an ‗investment‘ for the future of the nation. To do this, the main objective of the MCA 2001 was formulated to reflect and deliver the task of supporting nation-building.

To achieve the aims, the child is subjected to particular theoretical perspectives that represent a child in a Malaysian and international context. This is indirectly reflected by the themes visible during the period in which it was initiated and enacted. A child in the MCA 2001 is subjected to the Western definition of the medical model, as a citizen in a political theory, and a part of families in the sociological and anthropological fields. Another perspective that will give a different approach to understanding the Act is the theory of time. Subject to particular times, social and physical influences, particular decisions are made by the government to address issues relevant to the State and to the people (Adams, 2002). Therefore time, place and approach in social policy are significant factors in understanding MCA 2001.

However, above and beyond all protection and control ideas are the values of children within social, political and economic contexts and the idea of children as citizens of a

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nation, Malaysia. The welfare of children masks the wider themes within the nation- state, such as forging a place in an international setting as a newly developed country, especially in South-East Asia (Ernst, 2001). The MCA 2001 becomes the instrument of the nation to carry on the State agenda of a developing country with ongoing changes within local and global environments (Burman, 2003). Protection and control of children from the State perspectives are defined according to the premise of social policy as an instrument to protect and control children of the present into the law- abiding citizens of the future (Goldson, 2001b). Child welfare is subjected to normative standards described and interpreted by a political agenda, economic forces and social forces both locally and globally.

RECOGNIZING that a child is not only a crucial component of such a society but also the key to its survival, development and prosperity (Preamble of MCA 2001).

In MCA 2001, a child is not only ‗owned‘ by their family, but is a citizen of the state that will inherit the responsibility to continue the survival of the nation. The survival of Malaysia relies upon citizens upholding its laws and thus a child should become a civilized Malaysian citizen. The task of socialising a child to become a civilised Malaysian is officially given to parents or other family members. However, when the family fails to deliver this official task, the State will use its power and authority to intervene and ensure a child will be socialised according to the objectives set forth by the State (Ben-Arieh, 2009).

The social construct of ‗children‘ is a product of various discourses locally and globally (Aries, 1962). In the Malaysian context, normalisation of childhood is based on current social, political and cultural developments within the micro and macro systems. Besides the universal definition of a ‗child‘ (i.e. someone under the age of 18-years, according to the UNCRC), MCA 2001 provides an extended definition of a child according to the interpretation of policy makers of childhood and its function in society. In Malaysia, with Islam as the official religion, the social construction of a child will always be influenced by Islamic teachings and interpreted by stakeholders to ensure that ethnic tensions will not be provoked by social policy documents. With the implementation of universal social policy and the continuation of acknowledging empirical evidence in the State agenda, a child is constructed according to physical, emotional, and mental ability

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(Axford, 2009). Due to the increased knowledge and forensic evidence on child maltreatment and child development, these constructions according to Richard (1997, p.64) reflect the general picture of a child:

…a child is an innocent whose misbehaviour, apart from that of truly exceptional ―bad seed‖, is limited to minor mischief and an occasional great blunder. Children do sometimes wrong, on this view, but in a very different way than adults do.

In this process, childhood and adulthood are defined and constructed to differentiate individuals‘ rights and functions in society (Bellingham, 1986). In the preamble of MCA 2001, the idea of a child as a ‗blank slate‘ is further defined within the human development approach and the nation-state relationship as a future Malaysian citizen. Children are located as dependent within the adult world and as citizens of the State.

The main idea behind the concept of children in Malaysian social policy is the acknowledgement that each child should have a childhood. This is based on the above preamble in the MCA 2001, where a child is eligible by law to security, care and assistance from birth. Being a child means that the individual is protected against bad things that may influence her or him negatively while she or he is still a naïve and innocent human being (Fortin, 2003; Pecora, Whittaker, Maluccio, Barth, & Plotnick, 2000).

Having a childhood phase in the MCA 2001 means Malaysian children have a law that protects them from adult activities such as sex, marriage and other inappropriate behaviour according to the local context. Malaysian children will be protected from particular social ills that may not be perceived as wrong doings in Western culture, such as prostitution, alcohol and drug consumption, free sex, illegal criminal groups, and black metal music (Binti Jamaludin, Talib & Mohd Yusoff, 2002). These constructions fulfil the local expectations that as Malaysians, they will differ from the rest of the world (Bui, 1999; Keng, 1999; BinRadhi, 1999).

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A child as an ‗investment‘ is discussed in length, especially in social policy development (Pecora et al., 2000; Ronfani, 2001). In MCA 2001 this idea is extended so that children are not only ‗owned‘ by their families, but by society and the country also.

Children as Future Citizens

The social construct of a ‗child‘ or ‗children‘ as an investment is upheld throughout the document based on the ideas that a child remains innocent until they reach adulthood. From the Malaysian Child Protection Act (1991) and in Part V of the MCA 2001, a child as a victim is constructed by the document to reflect this universal idea of childhood as the ‗age of innocence‘. In terms of the Act, children can fall into one of two categories: victims or offenders. Whether a child is an offender or is maltreated by adults, a child is always a victim of circumstance or by the influence of others in the social environment (Axford, 2009). Forging a new direction in the care and protection of Malaysian children, in the current legislation, a child in the Malaysian social policy is not defined by religious or local, customary perceptions, but through assessments based on Western and universal expectations. Bessant and Watts (2008) believe the concept of childhood begins with making a clear-cut decision on the differences between a child and an adult.

Section 1

―Child‖ —means a person under the age of eighteen years; and in relation to criminal proceedings, means a person who has not attained the age of criminal responsibility as prescribed in section 82 of the Penal Code (Act 611, p.13).

MCA 2001 objectively differentiates the age of a child from an adult to provide special provision in the welfare and juvenile justice system.

Section 1 covers the description of a child as a dependent of adults. In the UK, it begins with the idea of children‘s well being as the consequences of adult action and reaction:

Children are entitled to have the first claim because they are essentially victims of adults (Daniel and Ivatts, 1998, p.19).

Another significant construct of a child in social policy is suggested by Daniel and

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Ivatts (1998). A child as a victim is derived from the ideas that a child will not be able to make sound decisions and live independently from adults (Foley et al., 2001; Stainton, 2001). A child under the age of 18 is unable to make a sound decision and/or to differentiate between what is right and what is not.

Generally, definition and perception of children and childhood have evolved within the changes in the society, within the context of cultural and geographical settings. The experiences, expectations and the needs of a child are also influenced by global perspectives. Understanding the definition of a ‗child‘ and ‗childhood‘ involves a whole range of ideas on the past social, economic and political environment. Children are a part of a changing society. All the above factors influence the way children experience their childhood. Such factors also influence the ways in which adults and society view children in particular terms, context, and culture.

As such, health and welfare professions and services both shape and are shaped by re- visioning, theories, and understanding of children and childhood as they emerge. Historical analysis reveals how social, cultural and economic circumstances make possible the emergence and reception of certain ideas about children and childhood (Foley et al., 2001, p.9).

In Malaysia and in Malaysian social policy, children and childhood are constructed by various cultures, religions and global influences and officially defined by the State. Previous understandings of children and childhood were mainly derived from traditional beliefs and local knowledge of children‘s cognitive, emotional and physical being. The most accepted definition of children and childhood was derived from religious scriptures (Goldson, 2001b). The unwritten ideas of what comprises childhood are not entirely obsolete (Stainton, 2001).

For example, as a Malaysian and having the chance to know other cultures from friends and relatives, I was informed that in Islamic and Hindu teachings, puberty is a sign of entering the phase of adulthood. As a result, individuals will slowly take on responsibility before becoming a fully responsible adult by marriage, motherhood or fatherhood. A childhood has different meanings to family, community and culture within time and place (Freeman, 1983).

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Traditionally, responsibilities of parents and families to their members, especially children and the elderly are informed by norms and religious teachings. There is no official standard on the roles of the family as a provider of the needs of a child. However, in the late 1980s and early 1990s, the concept of childhood in Malaysia was being transformed into political relations (Jal Zabdi, Siti Hajar, & Weatherley, 2008). The increasing numbers of reported cases of child abuse, neglect and the active participation of urban NGOs (Non Govenment Organisations) on civil rights have affected the State‘s views and participation in children‘s lives.

Individuals of Innocence

Generally, the definition and perception of ‗children‘ and ‗childhood‘ have evolved within the changes in the society, within the context of the cultural and geographical setting. The experiences, expectations and the needs of a child rely upon the whole experiences of the world. Understanding the definition of a child and childhood involves a whole range of ideas on the past social, economic and political environment. Children are a part of a changing society (Zhao, 2011). All the above factors influence the way children experience their childhood and the way adults and society socialized children in particular ways.

French historian Philippe Aries was well known for his theorising on ‗children‘ and ‗childhood‘ (McGilirvray, 1997). Goldson (2001b) points out that Aries recognised that childhood was socially constructed based on social, economic, and political processes in history. Concepts of children and childhood are not natural and universal, but rather are culturally based, significantly influenced by time, location and societal change (Bessant & Watts, 2008). There is no standard definition of a child that is absolutely applicable to all (Stainton, 2001, p.26).

In most situations, childhood represents a stage where individuals are expected to be non-sexual human beings, naïve, vulnerable, innocent, natural, simple and uncomplicated (Bessant & Watts, 2008, p.6). Therefore a child is deemed to be easily manipulated, exploited and in need of protection and care from adults. A similar concept of childhood is laid out in this Sayings of the Prophet (Peace be Upon Him)

Tidak ada seorang pun dilahirkan kecuali dalam keadaan fitrah (suci). Kedua orang

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tuanyalah yang akan menjadikannya sebagai Yahudi, Nasrani, atau Majusi (Muhammad Nur Ábdul Hafizah Suwaid, 2000; p. 37).

(No one is born except in pure state. Thus, both parents are responsible to shape one into Jew, Christian or Majus)

Michael (2006) suggests the construction of childhood is influenced by various overlapping factors. He illustrated five basic factors within culture, context and time that will influence childhood experiences: material circumstances, health, education, play and leisure. Consequently, concepts of childhood and children are not only derived from nature, but also nurture aspects of the societal context in time and space (Zhao, 2011).

Another concept of childhood is the inability of a person to make sound decisions. A child will not be able to make justifications and logical decisions. In the MCA 2001 document for example, sections 18 to 24 give authority to the Court for Children, a p rotector and police officer to make decisions on behalf of a child in relation to medical examinations and treatment.

Section 24 Authorization of medical treatment

(1)if, in the opinion of a medical officer, the child referred to in section 21 requires treatment for minor illness, injury or condition, a protector or police officer may authorize such treatment. (2)if, in the opinion of a medical officer, the child referred to in section 21 is suffering from serious illness, injury or condition or requires surgery or psychiatric treatment, a protector or police officer--- (a)shall immediately notify or take reasonable steps to notify and consult the parent or guardian of the child or any person having authority to consent such treatment; and (b)may, with the written consent of the parent or guardian or such person, authorize such medical and surgical treatment as may be considered necessary by a medical officer (act 611, p. 32-33). The above directive also puts forward the authority of parents or guardians in making decisions for their children. However, the power is removed if a child‘s well being is jeopardised directly from the decisions they make.

In the criminal procedure of the Court for Children, a child will not punishable except if

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its actions are included in ‗grave crime‘ acts;

Part 1, Preliminary Section 1, ―grave crime‖ includes--- (a)The offence of murder, culpable homicide not amounting to murder or attempted murder; (b)(All offences under the firearms (increased penalties) act 1971; ©All offences under the internal security act 1960 punishable with imprisonment for life or with death; (d)All offences under the dangerous drug act 1952 punishable with imprisonment for more than five years or with death; and (e)All offences under the kidnapping act 1961 (Act 611, p.13).

In whatever circumstances except for the above offences, a child will have the right to be rehabilitated and have a future without being tainted by their childhood offences. As a child a person will be given a ‗second chance‘ (Bowes, 2004). As a policy, MCA 2001 believes in rehabilitation rather than punishment according to Participant 2:

‗I think there is no doubt it is about the protection, when it comes to the section that is related to young offenders or the children who commit crimes. The philosophy is about rehabilitation. It is using the word ―pemulihan‖ not ―hukuman‖. And I also think this a concern to the recent controversy. The fact that children will not be sentenced… not to be imposed capital punishment and is also in there, detain in at pleasure of Yang Dipertuan Agong‘ (Participant 2).

Behind every law on children is a principle that an offence committed during childhood should not be associated as an adult. According to Binti Jamaludin et. al (2002), offences committed during childhood should not follow a person throughout the whole of their life. The spirit of the Malaysian Child Act (2001) is to give the child the right to make mistakes and not be punished throughout their life by society and the State.

Conclusion

This chapter discusses the significant actors in a child welfare policy, the child and the family. MCA 2001 displays the construction and expected roles of family in a child‘s life based on particular views and ideas. The family and the child are addressed

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according to objectives set up in the document based on the expected roles and function by the State, with more focus on family responsibilities and children needs. The partnership between the State and the family is defined and interpreted according to the State objectives in social policy, especially with the explicit goal of nation-building. With that in mind, the roles and the functions of the State will not always favour and support the family as the State will have more power and authority, especially if the family and their child are involved in crime. It is clear that in the MCA 2001, the term ‗family‘ only refers to families that need supervision and constant monitoring by the State.

The MCA 2001 describes and represents Malaysian families as being similar to other families around the world. Family, according to the Act, has universal responsibilities to protect and care for a child regardless of backgrounds and circumstances. The reality of families being diversified in ethnicity, religion, geographical settings and class were not included in the characteristics of the Malaysian family. The MCA 2001 overlooked the significant variables of family in the current environment that will influence the roles and functions of a family in fulfilling the needs of Malaysian children.

Furthermore, Malaysian families are expected by the MCA 2001 to share universal standards of providing an ideal environment for a child to grow according to their potential. The generalisation of family and how a family should behave in relation to a child's life reflects the inconsistent goals of the Act as a law for all Malaysians.

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CHAPTER FIVE CORRECTIVE JUSTICE FOR CHILDREN AT-RISK: FOR THE PEACE AND HARMONY OF A NATION

Introduction

The formulation of a law that aims to address troubled children comes from treatment approaches based on developmental psychology, sociology of crime and the medical model. Corrective justice is important in Malaysia as a country that is still working towards becoming a developed nation. With this in mind, peace and harmony to provide and sustain economic development are essential to support the country's agenda. Children under 18 years who commit offences are given opportunities by the law (institutionalisation process) to change into responsible Malaysian citizens.

The approach of corrective justice in the juvenile justice system offers different measures and objectives for addressing offending children and youth (Pyne, 2010; Romig, Cleland, & Romig, 1989). The management of juvenile offenders depends on various ideas on childhood and children and the goals of the juvenile justice system in terms of rehabilitation and addressing the offending behaviour of a child (Schaffner, Shich, & Stein, 1996). Countries with an establish juvenile justice system will often have a law that details the objectives, measures and procedures to address juvenile offenders (Pyne, 2010). This is accompanied by the implicit functions of securing and protecting the welfare of children and youth within the corrective measures of addressing juvenile offenders.

With the enactment of the MCA 2001, the corrective justice system for children was merged with protection law to achieve a universal standard of child welfare. A new approach to dealing with children who commit offences and are beyond parental control

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was formulated to meet the social, economic, local, political and global circumstances. In Malaysia, the juvenile justice system and the law dealing with immoral sexual conduct among women and girls were established by the British during the colonisation of the Malay States and Borneo Island. Taking into account the history of juvenile justice in Malaysia, a major part of the MCA 2001 is focused on juvenile offenders. To replace the old law, particular provisions in the Act are set specifically for this purpose, for example, Part VI (children involved in sexual behaviour that is not appropriate), Part XI (sect. 58-82) the criminal procedure for the Court for Children, Part X for out of control children and Part VII to replace the juvenile court system in the previous the Malaysian Juvenile Court Act (1947), and the Malaysian Women and Girls Protection Act (1973).

To understand corrective justice in the MCA 2001, this chapter will discuss the development of juvenile law in Malaysia before and after the formation of the Act. The development of juvenile justice in Malaysia was greatly influenced by British policies during the colonisation of the Malay States and recently the influence of universal social policy, especially the UNCRC and the Universal Declaration of Human Rights. Further discussion focused on the respective components of the system of juvenile laws, in particular children beyond parental control, those engaging in inappropriate sexual conduct and criminal procedures for child offenders. Each component has its own themes that focus on issues and specific problems relevant to the time, place and context. However, the characteristics of this component are closely related to each other, especially to attend the current circumstances of the present population and the State‘s aspiration. The conclusion of this chapter will reflect the local social, cultural and political history and current circumstances which are influenced by significant religious values and local aspiration.

Regulation of a Child and Family and Society

When focusing on children, the general picture of children that we have, according to Goldson,(1997a), will not provide enough of a basis to shape effective policies to prevent criminal behaviour among them. There are many other factors that impact upon social policy formulation and effective implementation, especially when addressing children's issues. A full understanding of the needs of a child within the ideal family

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environment requires constant review and up-to-date knowledge on child development, their potential as individuals and how society plays an important role in their lives (Foley et al., 2001). It does not mean children should be treated as criminals but that the whole system of juvenile justice and control mechanisms should not be isolated from other laws and policies in place for preventing and addressing crimes (Pyne, 2010).

Despite the initial plan to change Malaysia‘s child laws from problem solving, protection and regulation into preventive and developmental approaches, the MCA 2001 continues to retain the substance of previous laws on regulating family and child behaviour. The premise to prevent and address criminal behaviour among children in the Act derives from previous foci inherited from British colonial policies dealing with crime and inappropriate sexual conduct among children in the Malay States and Borneo (Andaya & Andaya, 1982; Triantafillou & Moreira, 2002).

Given the tremendous increase in incidents of juvenile delinquency and involvement in crime in earlier stages, regulation of child behaviour is considered vital in Malaysian social policy (Kasmini, 2001). Even though various changes have taken place locally and globally since the 1990s to inculcate new approaches in ensuring children‘s rights as individuals, the focus is still on ensuring children will not become a threat to themselves or society (Romig, Cleland, & Romig, 1989). Having said that, the initial goals of the MCA 2001 were to ‗move away‘ from the previous approach into the current approach of prevention, and understanding the welfare of a child. Within the development of the State public policy in Malaysia, child laws that specifically look after various issues on children were consolidated into the MCA 2001 to regulate behaviour and provide protection at the same time. Protection from maltreatment and control over criminal children and inappropriate sexual conduct are merged in the Act to ensure the welfare of a child is protected against adults, including members of a family.

Social policy develops new regulation responsibilities in the MCA 2001 around issues of criminal behaviour and the responsibility of the family to regulate children's behaviour and develop them into citizens of Malaysia (Kerajaan Malaysia, 1996). New approaches in the juvenile justice system and family policies were introduced to accommodate rapid development in society especially with the advancement of

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technology (Baumrind, 1994). Despite the accumulation of new knowledge on children and adolescence, preventive measures in place failed to prevent the increase in cases of juvenile involvement in crime (Connolly, Crichton-Hill, & Ward, 2006; Pyne, 2010).

Interpretations and understandings about children and childhood offer certain expectations about children's behaviour and their ability to make a sound decisions – giving consideration to both ‗action‘ and ‗re-action‘ (Goldson, 2001b). The functions of MCA 2001 are geared towards ensuring children are provided with the opportunities and necessary means to make sound decisions on their actions and reactions. This notion encapsulates various notions on childhood. Children should not be totally responsible for their behaviour especially in relation to crime and inappropriate sexual conduct. Thus, MCA 2001 reflects a different idea on how social policy on children is presented in the current environment. Child protection and regulation laws should not be separated but merged into one to standardised care, protection and control over a child. Therefore, previous laws on children were combined to achieve the universal welfare of a child in Malaysia and to take into account the modern construct of childhood.

Corrective justice in Malaysia covers two areas, crime and inappropriate sexual conduct. This is also reflected in policies and laws for children. The State‘s focus on children's involvement in crimes and inappropriate sexual conduct in Malaysian public policy is not new. Approaches and the focus on this issue are a continuation of British colonial policies and are supported by the special position of Islam in Malaysia‘s federal constitution. Furthermore, the focus on juvenile offenders and the associated criminal procedures are still maintained to ensure children will not become a threat to society and the stability of the nation. The focus on children as a present and future threat to society has become the main thrust in the MCA 2001, where family and society become the instruments of the State to deliver the primary task of regulating children's behaviour.

MCA 2001 covers the welfare of children but the emphasis is on regulating a child's behaviour and punishing families and members of society who disrupt the normal life of a child. Using MCA 2001, the State sets a standard of protection and regulation of a child. The rights of parents and guardians are explicitly reflected in the court procedure, unless they jeopardise the welfare of a child. The right to make decisions in a child's life

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are taken over by the MCA 2001 if a child is at risk.

 No or low risk

Parents will get their child back and retain their rights as parents. However a court may order parents or guardians to be supervised by a protector,

(a) order his parent or guardian to execute a bond to exercise proper care and guardianship for a period specified by the Court For Children; (Sect. 30 [1](a) of MCA 2001)

 Low to moderate risk

The case will be under the supervision of welfare officers. A child is returned to the family, but the Court for Children will ensure the family is accountable to avoid another incident of abuse or neglect in the child‘s life. Highlighted in one of the interviews was the establishment of Interactive Workshops, and the execution of a bond to assign more responsibility to parents and families regarding a child‘s well being (Participants 1 and 7). In both orders of the Court, parents are liable for the child‘s well being and responsible for a child‘s ‗good behaviour‘ in the case of juvenile delinquency. Family is still considered the medium to regulate and control children‘s behaviour and to ensure peace and harmony.

Section 40 [3](c)) 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;

 Moderate to high risk

The Court for Children will make a definite decision in the best interest of a child within the jurisdiction assigned under MCA 2001 to care and protect a child in at-risk circumstances.

There is no section in MCA 2001 that focuses totally on the roles of the State in

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making sure family and children are ensured of support and help in caring for and protecting a child. However,

‗There is still a gap between the Western and universal knowledge and skills in child protection and care‘ (Participant 5).

Regulation of family, children and the population remains a significant feature in MCA 2001. With the overall objective of promoting the peace and harmony of the nation and a move toward the status of a developed state, regulating the population‘s behaviour is essential. Notwithstanding the importance of the welfare of a child, MCA 2001 continues to play an important function in regulating not only the behaviour of a child, but also the family and the general population as anticipated in nation-building.

The Social Construct of Corrective Justice in the MCA 2001

Like methodology in a research study, crime prevention evolved in accordance with the time, the people and the context. Gilling (1997) illustrated the interrelated context of time, society and the environment – locally and globally – that influences the theory and practice in crime prevention.

In the case of crime prevention, a distinction must be made here between theories of crime, which is an event and a legal category, and theories of criminality, which is the manifestation of an assumed motivation for behaviour which fits such a category. The distinction is an important one, not only because the causes of these two phenomena may be different, as the thing to be explained may be in dispute, but also because different historical epochs one or other of these approaches has tended to be dominant, although the contemporary emphasis is towards integration (p.23).

Countries with advanced corrective justice systems for juvenile offenders focus on restorative justice to modify young offenders‘ behaviour without them going through similar sanctions as an adult. Special measures for juvenile offenders, according to Jehle, Lewis and Sobota (2000, p.241) are highly promoted to keep the system in place. The criminal justice system uses specific terms and language to differentiate young offenders from adult offenders. Corrective justice is an important feature in the criminal justice system. However, the approaches and provisions vary slightly among countries. As with juvenile justice systems, different countries adopt different approaches and

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measures to deal with young offenders. By and large, juvenile offenders will have different treatment by the criminal justice system offered by each nation. What differs between countries are the methods and procedures dealing with the crimes committed and the offenders. This is significant when addressing children and youth.

Corrective justice in Malaysia illustrates the historical and current aspirations of the country. During the parliamentary debates on the Child Bill 1999, the issues included the local situation, international forces and the future of the nation. Nonetheless, the system and set-up from previous Acts remained intact and operational. The main characteristics that differ from the previous statutes were the definition of the age of criminal responsibility, the penalties for offending, the responsibilities of members of society and the issue of children as a future threat to the society‘s peace and harmony. With the enactment of the Act, the Criminal Procedure Code and Penal Code were also amended to reflect the changes in the age of criminal responsibility and treatment of minorities in criminal procedure.

Nonetheless, MCA 2001 is a stand-alone law that has no direct influence on other relevant laws concerning children, for example health, education and citizenship. According to one of the participants, the Malaysian government will delegate only one ministry to be in charge of one law. Therefore, MCA 2001 is very superficial because only one ministry is responsible for its formulation and implementation and looking after the protection and regulation of children‘s behaviour. Participant 4 would prefer one law that oversees matters relating to the welfare of a child and referred by all government and non government agencies and ministries. Furthermore, modernisation and development in economics, society and politics in Malaysia will not guarantee that the welfare of a child is secure and protected by the family as the natural provider of a child‘s needs. There is an urgent need for a country like Malaysia to rethink and reformulate appropriates social policy to attend to the current needs of children according to new knowledge and approaches.

The most prevailing principles of this Act were the position of a child in society or in the eyes of the State. It is totally based on the physical or violent behaviour of a child within the age bracket. The Act believes that a child's behaviour is not her or his total responsibility. A child is dependent and will not fully understand the surrounding world

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without the support of her or his social and physical environment. A child will behave in a non-conforming manner when there is a negative influence of adults or environment that supported their actions (Stainton, 2001). Based on this principle, within a controlled environment a child will be able to develop and grow to their full potential. The Act facilitates and proposes a system that provides opportunities for a child to relearn the commonly accepted good behaviour expected in a civil society.

Throughout the MCA 2001 a child has the potential to misbehave and will rely upon the family, society and lastly the State to guide and facilitate their behaviour. There are two circumstances for the Act to be implemented, based on a child's behaviour and the situations surrounding a child. A child who is behaving in a non-conforming way according to societal norms and commits a crime will need State intervention. Another situation is where a child is prevented from developing and growing normally. This will include neglect or an abusive and harmful situation surrounding the child. In both cases, the Act will group a child‘s situation according to three severities: a child in need of care and protection, a child in need of protection and rehabilitation, and a child beyond control and committing offences (based on the Malaysian Penal Code). The notion of family as a private system responsible for caring for children is transcended throughout the Act. Furthermore, within the MCA 2001, the family ‗stands alone‘ with minimum support from the State. One can easily locate the family as a private entity that at one point makes solo decisions for the children, but at the same time is responsible if they make unacceptable life decisions (Bellingham, 1986; Such & Walker, 2005).

In various sections of the MCA 2001, depending on the circumstances, there is a decree (report, inquiry and probation report by social welfare officers and other designated officers such as medical officers and/or police) that designated staff present evidence to the Court for Children about the family situation that may be the underlying reason behind offences committed. In this situation, the Court for Children on behalf of the State will be able to determine the circumstances of each child and family as either in need of protection or regulation. However, it is not compulsory for the court to order designated officers to produce a report on a child and the family background and use this as a part of proceedings before a judgement is made.

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Section 30 Powers of the Court For Children.

(6) Before making an order under subsection (1) or (4), the Court For Children shall consider and take into account any report prepared by the Protector which –

(b) may include any written report of a Social Welfare Officer, a registered medical practitioner or any person whom the Court For Children thinks fit to provide a report on the child.

(7) In order to enable the Protector to prepare and submit the report referred to in subsection (6), the Court For Children may –

(a) from time to time, adjourn the case for such periods not exceeding two months at a time; and

(b) make in respect of the child, as an interim order having effect only during the period of adjournment, any order which the Court For Children could have made under subsection (1) (Act 611, p. 38).

Section 39 Removal of a child to place of refuge.

(4)If the Court For Children is satisfied that a child brought before it is in need of protection and rehabilitation, the Court For Children may order the child to be detained in a place of refuge until –

(a) an inquiry under section 40 to inquire into the circumstances of the child‘s case has been completed; and

(b) a report of the inquired has been submitted to the Court For Children by the Protector under subsection 40(2).

(5) If the Court For Children is not satisfied that a child brought before it is in need of protection and rehabilitation, the Court For Children shall order the child to be returned to the care and custody of his parent or guardian (Act 611, p. 46-47).

Section 40 Order upon completion of an inquiry.

(1) An inquiry mentioned in subsection 39(4) shall be made by a Protector.

(2) A Protector shall complete the inquiry and submit the report of the inquiry to the Court For Children within a period not exceeding one month from the date of the admission of a child to a place of refuge under subsection 39(1).

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(3) If after considering the report submitted under subsection (2) the Court For Children is satisfied that any child brought before it is a child in need of protection and rehabilitation the Court may, subject to the other provisions in this section; -

(a)order the child to be detained in a place of refuge for a period of three years from the date of the admissions of the child into a place of refuge under subsection 39(1) and the order shall be an authority for his detention in a place of refuge;

(b)make an order placing the child for such period not exceeding three years from the date of the order in the care of a person whether a relative or not who is willing and whom the court for children considers to be a fit and proper person to undertake the take care of such child;

(c)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; or

(d)make an order placing the child under the supervision of a social welfare officer appointed for the purpose by the court for children, subject to such conditions as the court thinks fit and for such period not exceeding three years from the date of the order (Act 611, p.47-48).

Section 46 Children beyond control.

(1)If the parent or guardian of a child requests the court for children in writing to detain a child in an approved school, place of refuge, probation hostel or centre on the ground that the parent or guardian is unable to exercise proper control over the child, the court for children –

(a)Shall immediately inquire into the circumstances of the child‘s case;

(b)Shall direct the probation officer to submit a probation report to the court for children for the court to determine whether an order under subsection (2) may be made in respect of the child; and

©May order the child to be temporarily detained in an approved school, placeof refuge, probation hostel or centre if it deems it necessary to do so (Act 611, p.57- 58).

Section 90 Procedure in the Court For Children.

(12) The Court For Children shall, before deciding how to deal with the child, consider the probation report.

(13 )A probation report referred to in subsection (12) shall be prepared by a probation officer and the report –

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(a) shall contain such information as to the child‘s general conduct, home surroundings, school record and medical history as may enable the Court For Children to deal with the case in the best interests of the Child; and may put to him any question arising out of the probation report; and

(b )may 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, p.82).

Government rationale behind social policy is sometimes seen as an authoritarian way of limiting the freedom of its citizens. Abiding by rules and laws, citizens indirectly shape their behaviour to conform to the State in obeying the law and maintaining peace in society (Cohen & Scull, 1983). A child policy, and in this study, the MCA 2001 is a reflection of the role of government in forging a direction for establishing a country with a civilized society. The concerns of the State for future Malaysian generations and the future of the country perpetuate the development of policies that address contemporary issues and needs. The Act directly defines the unacceptable behaviour of a child, the legal guardian and the role of society in the process of forming Malaysian civil society. It is not only about the objectives of the State in the policy, but also the social and physical environment that initiates the action of the government and the reasons behind the State‘s actions and reactions.

Governments and the rationale behind political decisions are discussed thoroughly by Foucault and his supporters. I have examined other approaches, especially on the nation-state in political theory, but I prefer the flexibility of Foucault, allowing more space to study and research a local topic or subject based on the context. Foucault has not only opened the subjectivity in studying government in political theory, but managed to encapsulate the various philosophical bases of government action and reaction in a particular context (Brown, 2000; Burchell, Gordon, & Miller, 1991). When looked at in context the study of social policy is not only about the State, but also the holistic interrelationship among actors, factors and environment. The criminal justice system is a very significant part of the MCA 2001. Two thirds of the provision focus on offending children and criminal procedures in dealing with children and offences committed against children.

In the MCA 2001, corrective justice refers to measures and procedures in addressing

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juvenile offenders, family members and individuals who commit crimes against children. Part VI and Part VII of the Act focus on the rehabilitation of children participating in delinquency, criminal activity and immoral behaviour. The remedial and corrective focus is attuned with the Act that focuses on risk and crisis management attending children either in maltreatment cases or offenders. The focus of the MCA 2001 to shape a child in accordance with the preamble of the Act is reflected throughout the document. Consolidation of previous laws on juvenile delinquency and protecting girls from immoral behaviour shaped the main ideas behind the MCA 2001 and supported the main goal of social policy in Malaysia.

Part VI of the MCA 2001 replaces the law on the protection and rehabilitation of women and young girls from ‗immoral behaviour‘ in the Malaysian Women and Girls Protection Act (1973) (Act 106). While previous legislation only covered girls and young women, the new Act now includes boys and young men below the age of 18 years. In MCA 2001, the immoral behaviour of a child is not defined according to universal concepts, but is a reflection of the local norms. Protection and rehabilitation in Part VI of MCA 2001 reflect the ongoing commitment by the State to retain provisions from the Women and Girls Protection Act (1973). The focus of this part is mainly to protect children from ‗immoral‘ behaviours that are not compatible with Malaysian culture, and Islamic teachings in particular. It demonstrates the change from protecting only girls and young women to all children without discrimination and bias to only one particular gender. However, a pre-occupation those young girls are considered more likely to engage in immoral behaviour and need more supervision from the State is implicit in MCA 2001. For example, pregnancy out of wedlock will be a sign that a female child is ‗out of control‘ and engaging in ‗inappropriate‘ sexual conduct.

Section 41 Children in urgent need of protection.

(1)Any child who is in urgent need of protection may on his own application in the prescribed form be received by the Protector into a place of refuge if the Protector is satisfied that the child is in urgent need of protection.

(2)A child is in urgent need of protection if there is reasonable cause to believe that

(a) the child is being threatened or intimidated for purposes of prostitution or for purposes of having sexual intercourse with another or for any immoral purpose;

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(b) the child is to be confined or detained by another in contravention of this Part;

(d )if the child is a female, that she is pregnant out of wedlock (Act 611, p.50-51).

The State would take over the roles of parents as a social regulation agent in a child's life if this happened. There is no clause in the Act that puts a young man in a similar position if he were to impregnate someone out of wedlock.

Based on the view of children as innocent individuals, a child is viewed as incompetent to make moral judgments of any kind in various situations. A child engaging in sexual activities is not permitted under the age of 15 years.

Section 38 Meaning of child in need of protection and rehabilitation.

A child is in need of protection and rehabilitation if the child –

(a)is being induced to perform any sexual act, or is in any physical or social environment which may lead to the performance of such act;

(b)lives in or frequents any brothel or place of assignation; or

©is habitually in the company or under the control of brother-keepers or procurers or persons employed or directly interested in the business carried on in brothels or in connection with prostitution (Act 611, p.46).

As mentioned in the Parliamentary debates on the Child Bill (1999) and of the 8MP, the MCA 2001 is an attempt by the government to address the increasing cases of child abuse and neglect in Malaysia. Apart from the awareness of this compounding social problem, the State also agrees to formalise and be on an equal footing with global developments in the rights of a child. As a child policy, the Act was designed to fulfil the needs of Malaysian children and the contemporary Malaysian family. The ongoing report on the increase of child abuse and neglect mentally, physically, emotionally and sexually within the current environment provides conducive reasons for the State to formulate this new legislation (Siti Hajar, 2007).

In order to minimize risk under the MCA 2001, a child who is at high risk will be moved to relatives, a place of safety or foster care during the preparation of the case report and while the case is pending. Meanwhile, any treatment - if needed - will

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proceed according to the advice of a certified medical doctor. In case the family fails to exercise control or regulate social behaviour expected by the State, an explicit section of the MCA 2001 is located under the criminal procedure and beyond control subsection. There are not many changes in regards to juvenile delinquency in the Act from the Malaysian Juvenile Court (1947).

In addition, the sexual activity of a child is not permitted under the age of 15 years with or without consent. Based on the moral values of the general population, young women are believed to be more likely to engage in immoral activities in comparison with young men. Furthermore, young women are held responsible if they get pregnant out of wedlock and induce more problems for society.

Beyond Control

‗Beyond parental control‘ under the Malaysian Juvenile Court (1947) is one of the most important features of British policy retained after the Japanese invasion of the Malay States. The main purpose of establishing the status of beyond parental control in the Juvenile Court (1947) was to solve the problems of children and adolescents involved in crime during and after the brief Japanese occupation in the Malay States (Triantafillou & Moreira, 2002). During the short reign of Japanese expansion in the Malay States, all law and order founded by the colonial office was abolished. 'Beyond Control' procedure was enacted by the British to contain and solve the problem of children involved in crime among children after they regained the Malay States from the Japanese (Jones, 1958; Shaffie, 2006).

‗Beyond control‘ children and young offenders in the MCA 2001 are grouped together under criminal procedures by the Court for Children. With the focus on producing a civil Malaysian, the Act began to present corrective measures for children who are beyond control and for children committing offences under the Malaysian penal code. Correction or remedial action begins to take place after the Court for Children decides that there is a need for rehabilitation and a ‗refresher‘ course for a child to get them back onto the right path. The State with the power of the Court and the designated officers will play significant roles in making decisions on behalf of children and their families.

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The role of Malaysian government, especially through the Court for Children, for cases under ‗Beyond Control‘ is similar to cases for children who are involved in crime and immoral conduct. The distinction between the two groups is the different provision or section under the MCA 2001. Social policy from the colonial period places great emphasis on the ability of parents or guardians in socialising children into becoming the useful citizens of the future. Although there is no valid policy, the role of parents in socialising their children is considered a natural responsibility. The colonial office took appropriate measures if crimes were committed and law and order was disturbed.

Beyond parental control provisions in the MCA 2001 are retained in Sections 37 and 37A of the old Malaysian Juvenile Court Act (1947). In the MCA 2001, beyond control provisions comes under Section 46.

Section 46 Children beyond control.

(1) If the parent or guardian of a child requests the Court For Children in writing to detain a child in an approved school, place of refuge, probation hostel or centre on the ground that the parent or guardian is unable to exercise proper control over the child, the Court For Children – (a) shall immediately inquire into the circumstances of the child‘s case; (b) shall direct the probation officer to submit a probation report to the court for children for the Court to determine whether an order under subsection (2) may be made in respect of the child; and (c) may order the child to be temporarily detained in an approved school, place of refuge, probation hostel or centre if it deems it necessary to do so.

(2) If after considering the report referred to in paragraph (1)(b) the Court For Children is satisfied that –

(a)it is expedient so to deal with the child; and

(b) the parent or guardian understands the results which will follow from and consents to the making of the order,

the Court For Children may, on the recommendation of the probation officer, order that the child –

(aa) be sent to an approved school, place of refuge, probation hostel or centre, as may be appropriate; or

(bb) be placed for such period not exceeding three years under the supervision of–

(i) a probation officer; or

(ii) some other person appointed for the purpose by the Court,

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and any such order may require the child to reside for a period not exceeding twelve months in a probation hostel (Act 611, p.57)

Children who are beyond parental control have the potential to become involved in crime. Before other problems arise from this private matter of family, the Malaysian government through the MCA 2001 must take decisive action. Private matters will eventually influence the creation of public and social problems. Application by parents or guardians for the government to intervene in the care of their children reflects the parent's willingness to abide by any decisions made by the court. Court decisions in matters like this are quite general compared to the criminal court procedure for children. MCA 2001 is not very detailed and the results are not as profound as under the previous Acts. However, if the court deems it necessary, the child will be placed in a care institution for a period not exceeding three years. The State‘s role is very significant in a child's life in these circumstances.

However, what is in the current policy should be more reflective of the development of knowledge, especially in regards to the needs of children and approaches that are effective in dealing with this situation. Social policy such as the MCA in 2001 should take into account the knowledge and practice that can cater to problems beyond local control. An effective and practical approach could have a positive impact on the issue even within different contexts. Parents who could not afford good care of their children will be stripped of their power in the decision-making of their child's life. Therefore, beyond control policies are formulated to locate the role of government in addressing the problem of parents and guardians who cannot properly control over children.

Inappropriate Sexual Conduct

In contemporary Malaysia, even with equal rights and the feminist movement around the world, gender has less emphasis in mainstream discussion. Issues of ethnicity, on the other hand, remain significant in the post-colonial period, and influence the disparity, inequality and discrimination in the current environment (Vasil, 1980; Weiss, 2009).

MCA 2011 reflects the beginning of a new agenda in Malaysian child law that not only assumes the universal language in the welfare of a child, but in addition includes

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Islamic law and the local norms of the expected behaviour of a child that is not subjected to gender-specific normative behaviour regarding inappropriate sexual conduct, commonly known in Malaysia as immoral conduct or activities. In Malaysia generally and in the MCA 2001, gender or sex role behaviour is interpreted from two binary lenses: cultural perception and biological determinants. In Malaysia, gender- based behaviour has changed over time through the influences of local and global forces, especially in civil society development and Islamist movements (Abidin, 2010).

The traditional assumption of gender roles and behaviour is embedded within a population with many cultural and religious beliefs. Gender role socialisation relies upon cultural socialisation and at the same time is modelled by religious practices and rituals within various multiethnic groups (Hamzah, 2009; Haque, 2003). Furthermore, in Malaysia‘s political realm, gender roles and behaviour are compounded within the dominant status of the Malays, Islam and the authority of stakeholders that is behind social policy formulation (Crouch, 1993; Hamayotsu, 2002).

What differentiates the MCA 2001 from other child laws in the West is the focus given to inappropriate sexual behaviour and sexual exploitation among children (Part VI of the Act) as a part of the juvenile justice system. Children are considered breaking the law if they are involved in activities which are ‗not right‘ when they are too young. In both contexts, these behaviours are considered breaking the law and required stern action and intervention by the State (Freeman, 1983). An immoral activities offence in Malaysia involving children will have a similar punishment and sometimes attract more attention in comparison with children committing other crimes.

Commonly juvenile justice systems focus on young offenders committing crimes but not on their involvement in inappropriate sexual conduct and activities (Pyne, 2010; Romig, Cleland, & Romig, 1989; Schaffner et al., 1996). As such, the distinctive feature of the MCA 2001 is the provision dealing with immoral activities involving children of both sexes. Gender role expectations culturally, religiously and socially have changed rapidly with the new wave of modernisation and development in Malaysia. Referring to the old laws for children before the formulation of the Act, gender-specific laws were imposed to cater for specific ideas about female children and young adults, (the Malaysian Women and Girls Protection Act (1973)). It was a special law providing

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special measures to ensure young women follow the norms expected in society and to protect them from being exploited and manipulated for sexual purposes.

Taking history into account and especially the status of Islam in Malaysia, gender-based corrective justice for young females involved in immoral sexual behaviour is a special feature of Malaysia‘s juvenile justice system. According to Hadi Zakaria (1995), the British colonial policy introduced gender-based laws specifically to address inappropriate sexual conduct involving minor or young women as a result of British immigration policy. This law concerning the standards of normal sexual conduct specifically targeted only at females was perceived by society to involve such activities either voluntarily or by force (Shaffie, 2006). This perception conforms to traditional norms and conservative perceptions on women and their moral judgments, especially in regards to sexual behaviour. Females are subjected to discrimination and will easily be sexually exploited.

The beginning of ordinances and laws for protecting young girls and women began after re-settlement of Chinese migrants in the Malay States (Nagaraj & Siti Rohani, 1995). It was a policy of the British colonial administration in 1786 that encouraged the Chinese to settle in Malaya (Purcell, 1948). The Msui Tsui system (brothel system) was transplanted by the Chinese settlers into Malaya to fulfil the demands of Chinese settlers in Malaya. With the British extending its Straits Settlement and throughout Malaya, the Chinese were welcomed to provide labour to the new industries established by the colonists. The imbalance between Chinese men and women in the settlement had created a new problem for the migrant community prostitution (Fong, 1984). According to Purcell (1948), prostitution was allowed in Malaya by the British to fulfil the demands of the Chinese migrants. However, the brothel system was abolished by the British in the 1930s. The statutes enacted throughout the Malay States were only to prevent the trafficking of women and girls in Malaya (Ngaraj & Siti Rohani, 1995).

The earliest gender specific statute was enacted by the British administration in the Strait Settlement. In December 1870, the Contagious Diseases Ordinance was officially enacted in Singapore. The Ordinance was implemented in stages. A part of Singapore was covered on 2 September 1870 and the remaining part was implemented after two months on 1 November 1870 (Zakaria, 1995). On the Island of Penang, the

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Ordinance was in place in December 1872. On 10 January 1872, the Ordinance began to cover certain boundaries of Malacca town. Port Wellesley was the last to implement the Ordinance on 15 July 1874 (Zakaria, 1995).

The Contagious Diseases Ordinance was amended in 1875 and was replaced by the Women and Girls Protection Ordinance in 1888. It was then amended three times in 1890, 1891 and 1894 (Yen, 1986). The Ordinance was then extended to the Malay Federated States, in particular focusing on the state of Perak. It was an official measure to denounce prostitution in the mining community in the state (Lim, 1998). The influx of male Chinese migrants in the mining sector created the growth of prostitution and the exploitation of Chinese women. In 1895 the Ordinance was modified and enacted as the Women and Protection Ordinance. In this Ordinance, women and girls could be removed to a place of safety if they were in immoral danger or brought to the state for immoral purposes (by purchasing, fraud or any other false pretence) (Lim, 1998).

The provision for protecting women and girls developed separately within the political entities of Malaya (Zakaria, 1995). The Straits Settlement of the Malay States was based in Singapore and the Malay Federated States were developed by the state of Perak (Emerson, 1964). Further amendment of the Ordinance was crucial to protect women and girls below the age of sixteen. The rapid growth of Chinese migration in urban areas and mining sectors forced the British to designate a statute for the all of the Malay Federated States.

In the early 1900s, the statutes developed rapidly to deal with the increasing problems of Chinese migrants in the Malay Federated States and in the Straits Settlement. In 1914, The Women and Girls Protection Enactment and Ordinance were established by both governments respectively (Lim, 1998). Both statutes broadened the jurisdiction of the previous statutes in terms of the government‘s power in removing girls suspected of being linked or related to a person involved in prostitution or immoral activities. Both statutes dealt with girls aged 16 years and under. The age for a girl to be officially independent to make a her own sexual decisions is 19 years of age.

In modern Malaysia, gender role interpretation remains closely engaged with national and global dominant discourses. Radical feminist movements make a political

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statement as a reflection of asserting their rights as women (Fong, 1984; Ong & Peletz, 1995). This has also provided an avenue for Muslim woman around the world to make independent choices without being dominated by their male counterparts. Despite modernisation and the development of human rights globally, interpretation of gender roles remains closely based on traditions and religious understanding (Nagaraj & Siti Rohani, 1995).

Despite the development of human rights, gender equality and the dominant discourse on women's rights, it is only applicable for those who are exposed to the international discourse (construction of knowledge). I strongly support the quest for knowledge that reflects peoples' awareness, sensitivity and empathy towards others, especially the rights of women to have equal rights either as citizens or within the family. Therefore, gender- or sex-specific behaviour expected by the State in the MCA 2001 may not be a total reflection of the general population. As such, the Act only incorporates selected dominant discourses and voices informing policy makers‘ and stakeholders‘ views and ideas. The most dominant are those of the Malay elite as reflected in the Malaysian Syariah Law (Hamayotsu, 2002; Haque, 2003; Harper, 1999).

Before the enactment of the MCA 2001, gender-specific child laws were used to address deviance among Malaysian children, especially in the Malaya Colonial period (Yunus, 2006; Zakaria, 1995). Boys and girls were subjected to laws according to two different types of delinquency, crime and inappropriate sexual conduct. However, due to social needs and colonial policy, laws and policies addressing inappropriate sexual conduct were focused only on women and young girls.

The British in Colonial Malaya enacted two significant laws concerning children: the Malaysian Juvenile Court (1947) and the Malaysian Women and Young Girls Protection Act (1973). Deviant behaviour among boys and young men in Malaya after Japan‘s brief occupation introduced the formulation of the Juvenile Court Act (1947). An article by Triantafillou and Moreira (2002) recaps the historical moment of Japanese occupation in the Malay States that introduced the beginning of federal law for children.

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When the British managed to reclaim Malaya in 1946, they observed that the Japanese15 had failed to control deviance among the children of Malaya especially the boys, and likewise failed to maintain the social order that had once been in place under the British colonial system.

On the other hand, the Malaysian Women and Young Girls Protection Act (1973) was a result of a series of ordinances introduced by the British to control the exploitation of women and young girls especially after the large settlements of male Chinese migrants during the Colonial Malaya period. Women and young girls, especially from mainland China, were lured into prostitution and involved in illegal trading for sexual activities (Yen, 1986). The British began to develop social policy not only to address social problems, but also as an instrument to mould and shape citizens into law-abiding individuals. From this stage, childhood was identified as the right period to influence an individual‘s way of thinking, attitude and behaviour.

According to Zakaria (1995), both of the statutes remained unchanged from 1914 until 1930 when the age for removal of girls increased to 18 years and the duration of temporary detention was extended from 2 months to 6 months. The Women and Girls Protection Ordinance (Cap.33 of 1930) for the Straits Settlement, the Women and Girls Protection Enactment (Cap.156 of 1931) for the Federated Malay States and the Women and Girls Protection Enactments of the Unfederated Malay States were still in use up to 1973 when they were repealed and replaced after Independence by the Women and Girls Protection Act (1973) in Peninsular Malaysia (Zakaria (1995) .

The enforcement of the Women and Girls Protection Act (1973) in Sabah and Sarawak happened later. Sabah at that time was still governed by the Women and Girls Protection Ordinance (Cap 159 of 1951). The Women and Girls Protection Act (1973) came into force in Sabah in 1981. In Sarawak, the Ordinance was enacted in 1927, the Women and Girls Protection Ordinance (Cap. 65 of 1927), was still in force until it was replaced in March 1983 (Zakaria, 1995). The development of legislation for the protection of women and girls began with the objective of preventing the illegal

15 Japan‘s brief occupation of Malaya was from 1945 to 1946.

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trafficking of women and girls from China to the Malay States. Until the 1930s, the British administration believed that Msui Tsui system would help to solve the Chinese settlement‘s social problems in Malaya.

MCA 2001 continues to address gender-specific problems according to local context and expectations. This localised value about gender role expectations is continued in Section 38 of MCA 2001. Based on Malay customary law and Islamic teaching, MCA 2001 introduces ‗sweetening‘ concepts that are more acceptable and up to date in the current environment (Beckett, 2006, p.171). Nonetheless in MCA 2001, the provision in section 38 applies to both sexes16. These changes in MCA 2001 make the current Act compatible and adaptive to the universal standards of protection and control. According to social constructionists, gender roles and issues are culturally bound and constructed within a particular time and context (Ong & Peletz, 1995).

The construction of gender roles in Malaysia is not as dynamic as in contemporary Western discourses on gender attribution and gender roles. In the local context, genders are commonly used in mainstream discussion to differentiate between the social roles of a man and woman. There are conflicting and competing expectations of gender roles and functions derived from secular law and religious and local norms.

Ong & Peletz (1995) provided an overview of the impact on society, economics and politics of the nation in the construction of modern Malay women in Malaysia. In Malaysia, genders are rarely highlighted as a structural dimension of inequality, discrimination or negative labelling of individuals in social, political and economic aspects; as opposed to the movement of feminism, women‘s rights and women's liberation in Western society (Fong, 1984). The local construction of gender roles in social policy is strongly influenced by religious beliefs and the norms of the Malaysian population, especially with the influence of Islam as the official religion. With the Malays dominating Malaysian politics, Malay customary laws and Islamic teachings exert major influence on the sex role differences and sex role expectations of the nation and in the ‗normalisation‘ of female behaviour (Andaya & Andaya, 1982; Bastin &

16 In the Qur‘an, the sex of an individual is either female or male, but it can be both: khunsa.

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Winks, 1979; Emerson, 1964; Hooker & Othman, 2003).

The provision in the MCA 2001 relating to genders in general can be analysed through a language lens, looking at both implicit messages/connotations and explicit provisions. Children and young persons are treated differently based on societal expectations which generally silence or deny their rights and voices. Men are acknowledged to be superior to women in all circumstances, despite the strong association with the universality of human rights to address Malaysian cultural diversity. Women have been silenced and denied their rights to be treated equally in society (Ong & Peletz, 1995). This reflects the historical location of males as a threat to society and females as always being in need of moral protection since the beginning of the Chinese migrant influx during the Malaya Colonial period (Fong, 1984). MCA 2001 continues to reassert the perception of young women as being more likely to be involved in immoral activities and in need of constant control by their families. The family should keep the problems of young women's immoral behaviour within the family‘s private affairs unless they are beyond control or a threat to others.

To preserve this idea, in the MCA 2001 the family is still predominantly responsible for caring for and protecting children according to these two assumptions, that a male is a threat and a female is in need of moral protection. The socialisation of males and females in society predominantly remains a private affair with a strong influence from religious leaders. With the current emerging issues of young women rebelling against gender role expectations, MCA 2001 and the nation in general are not yet ready to give equal rights to females, especially children. Within the spirit of universality of human rights, the preamble below captures the ideas of one of the drafting committees on children‘s need to be protected irrespective of social attributes.

RECOGNIZING 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 (Preamble of MCA 2001)

Gender in this document is acknowledged as a potential source of discrimination for a child in the local environment. From the above preamble, gender is highlighted to represent the document as a ‗gender-neutral‘ law for all Malaysians. It was highlighted

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by Binti Abdul Majid (2002) that regardless of gender, children can be involved in all types of deviance or social problems - both criminal and immoral activities. Binti Abdul Majid, as a member of one of the drafting committees for MCA 2001, asserts that it was the right moment for the country to formulate a law that will protect children from all of these deviances and prevent further damage in a child's life.

In this research and in MCA 2001, how gender is defined universally is not totally congruent with Malaysia‘s definition. For a knowledgeable outsider, gender will reflect a broader coverage of roles, characteristics and functions of either males or females in the society. For me as a Muslim Malay woman, gender does not depict the general interpretation of male and female characteristics in Malaysia. Our world-view relies upon individual construction of knowledge and what we choose and select to become our frame of reference. In Malaysia, the influences of religion and traditional views have significant influence on the State and on policies. Furthermore, in the Malay language, there are no specific gender connotations.

In the above preamble, it was clearly mentioned that a child - despite their gender or ‗jantina‘ - is entitled to protection and assistance, firstly by the family and then by the State. Family in general including parents, siblings and relatives are expected by the Act to provide care and protection for children to produce law abiding Malaysian citizens. Children are expected to play roles according to their ‗jantina‘. It is important and significant in the document to understand the construction of gender roles that reflect the current and the past history of the Malaysian population. In Malaysia or any Asian country indeed, universal gender roles are not applicable as the sex of a person is more relevant to differentiate the roles and responsibilities in society (Rimmer & Allen, 1990).

In the preamble of MCA 2001, it states that the well being and the needs of children will be protected and fulfilled, irrespective of their gender. Nonetheless, MCA 2001 reserves special provision to locate a specific gender in a few parts of the document. These gender–specific principles reflect the historical and current concerns of the country.

Gender-specific principles affect firstly, the selection of advisers for the Court for

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Children in Section 11 (3); secondly the provision of protection and rehabilitation in Section 41 (20 (d); thirdly the whipping execution in Section 92; and finally in examining a child with warrant in Section 111 (4). In the first provision, the Court For Children, similar to the Court for the Malaysian Juvenile Court Act (1947), consists of a Magistrate (first class) and two court advisers who are local residents. The advisers‘ roles are to inform and advise the decision of the Court of Children.

Sect. 11 (2) A Court For Children shall consist of a magistrate who, in the exercise of his functions as a Court For Children except when making an order under subsection 39 (4), 42 (4), 84 (3) and 86 (1), as the case may require, shall be assisted by two advisers to be appointed by the Minister from a panel of persons resident of the State

(3)One of the two advisers mentioned in subsection (2) shall be a woman.

(4)The functions of the advisers are—

(a) to inform and advise the Court For Children with respect to any consideration affecting the order made upon finding guilt and/or related treatment of any child brought before it; and

(b) if necessary, to advise the parent or guardian of the child (Act 611, p.23-24)

The role of both advisors is to inform and advise the Court for Children before any decision is made. As mentioned in the above section, a female advisor in the court proceeding is required according to the drafting committee of MCA 2001 because having a woman as one of the advisors would give a better understanding of the realities of life, especially of a child and its family. Women as mothers would have a more ‗innate instinct‘ on what is going on in a child‘s life that needs to be considered before any decision is made (Participant 4). Furthermore, a woman with her intuition would have different world-views from her male counterpart. This is to ensure a balanced and holistic perspective from both sexes to achieve a better decision for the child and family.

The second gender-specific provision in the MCA 2001 is under Part VI (Children in Need of Protection and Rehabilitation). This part in general replaces the provision under the Malaysian Women and Young Girls Protection Act (1973), but without the specific focus on young girls. This is in line with the general objective of the MCA 2001 to protect all Malaysian children regardless of their gender. However, young girls are mentioned specifically in Section 41 (2) (d) whereby they will be under the

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protection and rehabilitation of the State if they are pregnant out of wedlock. In contrast, for a boy, if he is sexually active and there is no evidence of his immoral activities, he is not considered as someone in need of protection and rehabilitation. Clearly, this section reinforces negative labelling of young women in contrast to boys who are involved in sexual activities under 18 years old. The boys - unlike young women - are not required to be sent to Taman Seri Puteri (institutions for young girls who are under Section 38 for rehabilitation). All Participants have strong opinions regarding the impact of lowering the age of a child in reference to young women in the current Malaysian environment. Participants 5 and 7 reflect on their work with MCA 2001, especially in relation to the immoral conduct of young women:

‗Most fresh high school leavers tend to seek jobs after having completed their education and are prone to be exploited into immoral activities‘ (Participant 5).

‗The social illness among young girls is increasing. They are influenced by the Western life style‘ (Participant 7).

The need for young women and girls to be protected and socialised along gender specific lines is expressed in the media, interviews and in the MCA 2001. In the Act gender role expectations are translated into both official languages and the legal process. Under the Malaysian Penal Code, Section 376, a sexual relationship with or without the consent of a young girl under the age of 16 years carries a charge of statutory rape. In 1994, the Malaysian public was shocked by the alleged sexual misconduct of a UMNO Youth Leader with a 15-year old school girl (Sadiq, 1994). The case was highly publicised and attracted not only local media, but also foreign correspondents. Due to the politically high profile of the alleged rapist, it created a clash between the political and Malaysian judiciary systems. However, before the case was brought to the court, it was dismissed due to a lack of evidence. Interestingly, during the investigation the case took a different twist as the media shifted their focus towards the victim, digging into her personal character and life instead of the perpetrator‘s misconduct. The report of the media was loaded with negative images of the girl‘s immoral behaviour. This public judgment was expressed precisely by Forrest (1997, p.26)

Conventional gender expectations, when applied to girls who are victims of sexual

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abuse, result in considerable sympathy for those who fit the preconceptions of passivity and weaknesses, who are therefore viewed as understandably tearful victims. However, abused girls who breach conventional expectations, and who are perceived as being in some way either sexually provocative or precocious, may be blamed in much the same way as some adult victims of rape are, being described as a ‗slag‘ or ‗asked for it‘.

Furthermore, gender socialisation and expectations are also used as tools to assume control of individuals.

Along with expectations about sexuality, which are usually assumed after the identification of biological sex, gender is a powerful source of control (Roach Anleu, 2006, p.126)

The idea of ‗sex-specific‘ deviant behaviour has been rooted in the collective Malaysian psyche since the British administration in Colonial Malaya. Boys were associated with crime, and young girls were perceived as more prone to be exploited and involved in immoral behaviour (Fong, 1984; Triantafillou & Moreira, 2002; Zakaria, 1995).

This idea was also supported by the Malay-dominated customary law and the interpretation of Islamic teaching on sex role expectations. There is a tendency for men to be acknowledged as superior to women in Malaysia (Hooker &Othman, 2003), especially in decision-making in civil and Syariah laws. Expectations about males and females are constructed differently in the MCA 2001. For example, one of the eight orders of the Court for Children to address the offence of a ‗young man‘ (a child above 14-years) is to be whipped with not more than ten strokes of a light cane once proven guilty of a criminal offence. However, there is no such whipping order that can be imposed on female young offenders.

Section 91 (g) order the child, if a male, to be whipped with not more than ten strokes of light cane- (i) within the court premises; and (ii) in the presence, if he desires to be present, of the parents or guardian of the child

This third gender-specific provision in the MCA 2001 is only applicable if a child is a male and over 14 years. The order is similar to the punishment for an adult offender in Part VI Section 43 (k) (bb).

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In the case of an offence under paragraph (i) or (j), be liable to a fine not exceeding fifty thousand ringgit 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, p.55).

The Act implies that a young male is considered to have sufficient physical strength to endure this whipping punishment in comparison with a young woman of the same age. Girls and boys will always be subjected to gender role expectations directly or indirectly by society. In Malaysia‘s gender socialisation, men are expected to endure rough treatment and girls are in need of protection due to their inability to make right decisions. Boys and girls are socialised to fit the gender role expectations of Malaysian society, but also found in many societies worldwide. Not only is this role expectation the norm, but it is acknowledged and recognised legally and in public documents such as in the MCA 2001.

Finally, a gender-specific provision is applied in dealing with children who have associations with crime and immoral activities. In special recognition of Islamic law in Malaysia, a female child who is pregnant out of wedlock before she reaches 18 years is considered in need of care, protection and rehabilitation. There is also a strict provision to protect the decency of children under MCA 2001.

Section 41 (2) (d) if the child is a female, that she is pregnant out of wedlock (Act 611, p. 51)

Section 111 Search by warrant A female person shall not be searched under this section or section 110 except by another female person and a male person shall not be searched except by another male person and such search shall be carried out with strict regard to decency (Act 611, p.102).

The binary systems of law and a binary gender system serve as a social control mechanism in society (Abidin, 2010; Ahmad, 1987; Andaya & Andaya, 1982; Aun, 1999; Azizan Haji, 1994; Bastin & Winks, 1979; Siti Hajar, 2007). The binary system of Syariah Law and civil law provides a formal sanction to shape and mould behaviours

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of individuals based on their gender. Inevitably, the binary gender system reinforces these legal gender role expectations of males and females in Malaysian society. Binary gender roles inculcate ideas that men should present themselves as masculine and females as feminine (Bretell & Sargent, 2005). MCA 2001, reflects globally expected norms around masculinity and femininity as well as locally and are expected where gender will influence an individual‘s personality and attributes. Gender also frames the way in which they construct the world around them and how formal and informal decisions are made based on sexes by the general population and in social policy.

The traditional norms and religious teachings, especially Islamic jurisprudence, remain a significant influence and are given a special status in the Malaysian federal constitution (Ahmad, 1987; Andaya & Andaya, 1982; Aun, 1999). As the majority of Malaysian stakeholders in social services are the Malays and Muslims, views on gender roles are closely related to Malay customary laws and Islamic teachings, even with the global evolution of binary gender roles (Ahmad, 1987). Based on the State‘s and the Malays‘ construction of binary gender roles, social policy remains a tool to uphold Malay and Islamic values. Furthermore, as the Malaysian government actively participates in the OIC (Organisation of Islamic Conference) and openly declares the country as an Islamic state, there is a strong demand to take into account Islamic values in the government administration, especially in State policy.

Criminal Procedure for the Court For Children

Criminal procedure in the MCA 2001 replaces the Juvenile Court in the Malaysian Juvenile Court Act (1947). Replacement of this part is very important because it will have an impact on the overall administration of criminal cases of children under the age of 18. Several changes have been made and some of them are still preserved in accordance with the present need to accommodate greater goals towards the welfare of children. However, the principle of the previous juvenile justice system is still applicable to ensure crime among children can be prevented and solved effectively.

Criminal procedure in the MCA 2001 only affects children who have not reached the age of majority, according to the Malaysian Penal Code. The age of majority in the Act is referred to in Section 82 of the Malaysian Penal Code.

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Section 82 Nothing is an offence which is done by a child under ten years of age.

However, it will also refer to the age of the child as stipulated in the MCA 2001 that a child or adolescent will be in the charge of the Court For Children up to the age of 18. Both of these conditions will determine under which court a trial will take place, and what the penalties for a crime are.

Section 83 Trials of children to be in conformity with this Act.

(1) Notwithstanding anything contained in any written law relating to the arrest, detention and trial of persons committing any offence but subject to subsections (3) and (4), a child who is alleged to have committed an offence shall not be arrested, detained or tried except in accordance with this Act.

(2) When a child is charged with an offence before a Court For Children and during the pendency before a Court For Children and during the pendency of the case he attains the age of eighteen years the Court For Children shall, notwithstanding any provisions of this Act, continue to hear the charge against the child and may –

(a) exercise the power under section 76;

(b) exercise the power under paragraph 91(1)(a), (b), (c), (d) or (g); or

(c) if the offence is punishable with imprisonment, impose any term of imprisonment which could be awarded by a Sessions Court (Act 611, p.77-78)

The category of a reported case will influence the decision of the court and a number of categories may overlap. However, a decision is made according to the court decision after receiving the advice of two court advisors and a report by the caseworker. This section retains the procedure in the Juvenile Court (1947). The management and procedure of juvenile offenders are relocated from the Juvenile Court (1947) to Criminal Procedure under Sections 83 to 117. The Court for Children will then make the decision based on the situation and on the risk involved either to the child or most importantly to the general population.

The most important outcome of the decision is the effect on the child's life; either they are returned back to the family or they are located in one of the designated institutions under the MCA 2001. In the case of offending children, the MCA 2001 will grant the government more power and authority to make decisions as the family fails to exercise

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control over a child's behaviour and thus increases the risk of a child committing a crime in future.

 Private matters

The case may be closed if the Court for Children finds a child is not at risk, and the child is considered safe. A child is then returned to the family or parents.

 Potential at-risk situation

This is the beginning of the probation term under MCA 2001. The child will be placed under the supervision of welfare officers. A child is returned to the family, but the Court for Children will ensure the family or parents is accountable to the Court with a bond or attending a special workshop to avoid another episode of maltreatment or offending behaviour in the child‘s life. Highlighted from the interviews was the establishment of Interactive Workshops, and a higher bond to assign more responsibility to parents and family regarding a child‘s well being.

 At-risk situation

In cases where parents or guardians are considered not fit to exercise care, protection and control over a child, the court will order the removal of a child to foster care, an appropriate person or – the last option – a place of safety and refuge.

Child Offender

Children under the jurisdiction of the MCA 2001 are either involved in maltreatment such as abuse or neglect or committing an offence, which is either immoral sexual conduct, crime or both. In all circumstances, MCA 2001 pursues a standard goal to protect a child‘s welfare and safety (Jal Zabdi, Siti Hajar & Weatherley, 2008; Binti Jamaludin, Talib & Mohd Yusoff, 2002). However, protection of children comes in different forms, from minimal intervention from the State to the State getting more closely involved if a child is at risk in their current social and physical environment (Baumrind, 1994; Spratt & Callan, 2004). The Court for Children will have the final

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decision on a child‘s life with its family once a case is reported. After the decision is made by the court, it will choose the best option from the list provided in the MCA 2001. Decisions mostly depend on the age of the child.

MCA 2001 provides a list of provisions in the form of services to families, including supervision by welfare officers and foster care, with institutional care as the last option. A very significant move has been the establishment of Interactive Workshops for parents who need support in providing care and protection for a child (Section 93 of MCA 2001). All of these options depend on the decisions made by the Court for Children as to which category the child should be covered in MCA 2001.

Foster care in the MCA 2001 is not a common option used in protective cases. The preference for cases involving children in need of protection is to seek to make this the family‘s responsibility. This relates closely to the general definition of family in MCA 2001 (see Chapter 4). The family includes parents, grandparents and siblings who will distribute and share the responsibilities before the State takes over the function to provide permanency for children in need of care and protection.

Table 4 : Institution for Children Under MCA 2001 [(Place of Safety) Regulations (2007)]

Institutions Cases Objectives Age Time Frame

Place of Safety* Abuse, neglect and Care and protection 2 years or until 18-years beyond control old

Place of Refuge Immoral sexual behaviour Care, protection and Maximum of 3 years or

and beyond control rehabilitation until 18-years old

Place of Detention Beyond control and child Temporary placement offenders

Probation Hostels Beyond control Care and rehabilitation Above 10 Maximum of 2 years

years

Approved School Beyond control, offenders Care and rehabilitation Above 10 1 to 3 years or before 21-

years years old

Henry Gurney School Offender punishable Care and rehabilitation Above 14 2 years or before 21-years imprisonment years old

* Place of Safety includes the State institutions, family or foster care

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There are not many changes in the MCA 2001 from the previous laws on children when it comes to the institutionalisation of a child, if the family fails to protect or regulate the social behaviour of their child. Thus, institutions in the Act provide three main functions: protection, containment and education. According to MCA 2001, institutions play an important role as the last solution to replace the family. Foster families and adoption are not considered as the best options to deliver protection and control for children. The Act is preoccupied with the notion that, if the family fails, there is no other option suitable except the institutions set up by the State to replace the function of the family. Part IX of the MCA 2001 describes five types of institutions that are structured in accordance with the decisions made by the Court. These are a ‗Place of Safety‘, ‗Place of Refuge‘, ‗Place of Detention‘, ‗Probation Hostels‘, ‗Approved Schools‘ and ‗Henry Gurney Schools‘. All of these gazetted institutions provide different purposes according to the circumstances surrounding the child who is either in need of protection or control.

Inevitably, institutions remain a significant option for children under the MCA 2001. Based on the age of a child and the category of the case, the Court for Children will select from the list of institutions available. However the above table reflects the focus of MCA 2001 as a document that places emphasis on social control over a child‘s behaviour with six out of seven institutions established since 1947 catering for juvenile delinquency. Care and protection and caring for children are still considered private matters in social policy (Foley et al., 2001).

Offending Adults

Under the provisions of the MCA 2001 adult offenders will get a lighter sentence than the sentence or criminal offense under the Penal Code of Malaysia. The punishment for adult offenders under this Act starts from a fine not exceeding 50,000 Ringgits, imprisonment from three to five years and six to ten lashes for male offenders. According to one Social Welfare Officer during an informal discussion in a conference organised by the Faculty of Social Sciences, Social Work Programme, adult offenders will get a lighter sentence in comparison if the offence is tried in ordinary courts. He

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said in reference to a case involving child trade, most adult offenders will try to resolve their crime under the Court for Children to get a lighter sentence.

Changes also incurred in the sentencing of an offending adult in the MCA 2001. It is different from the previous three Acts in terms of penalties involved. The penalties are more severe under the MCA 2001, but not equal to the penalties in the ordinary courts under the Penal Code. Therefore, it is still not enough to ensure that the crimes involving children and adolescents are perceived as significant by society except in cases of death.

In the MCA 2001, there is a list of offences and punishments based on the types of abuse and neglect, and severity of the offences.

Section 31 Maltreatment, neglect, abandonment or exposure of children.

(1)Any person who, being a person having the care of a child –

(a)Abuses, neglects, abandons or exposes the child in a manner likely to cause him physical or emotional injury or causes or permits him to be so abused, neglected, abandoned or exposed; or

(b)Sexually abuses the child or causes or permits him to be so abused,

commits an offence and shall on conviction be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding ten years or to both.

(2)The court –

(a)Shall, in addition to any punishment specified in subsection (1), order the person convicted of an offence under that subsection to execute a bond with sureties to be of good behaviour for such period as the court thinks fit; and

(b)May include in the bond executed under paragraph (a) such conditions as the court thinks fit.

(3)If a person who is ordered to execute a bond to be of good behaviour under subsection (2) fails to comply with any of the conditions of such bond, he shall be liable to a further fine not exceeding ten thousand ringgit or to a further imprisonment for a term not exceeding five years or to both.

(4)A parent or guardian or other person legally liable to maintain a child shall be deemed to have neglected him in a manner likely to cause him physical or emotional injury if, being able to so provide from his own resources, he fails to provide adequate food, clothing, medical or dental treatment, lodging or care for the child.

(5)A person may be convicted of an offence against this section notwithstanding that –

(a)Suffering or injury to the health of the child in question or the likelihood of suffering or injury to the health of the child in question was avoided by the action of another person; or (b)The child in question has died (Act 611, p. 39-40).

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Nonetheless, MCA 2001 has missed significant steps in crisis management and prevention - a national register of offenders and their rehabilitation. In most cases around the world, adult offenders are related to a child either by blood or by close proximity (Corby, 2000). There is no clause that gives offenders the opportunity to rehabilitate appropriately to prevent similar crimes being committed in the future. In 2009, it was recorded by the Malaysian Welfare Department that only 6.3% of abuse cases involved strangers and that the other perpetrators were familiar to the child (Laporan Statistik 2009, Jabatan Kebajikan Masyarakat). Malaysia has not yet reached a stage where corrective justice involves rehabilitation for the offenders and victims in a preventative management system. Ideas and principles of the UNCRC have not yet adapted fully to ensure effective measures are in place in social policy for the welfare of children in the public and private spheres.

Only after a recent series of media reports on the increasing number of cases of abandoned babies, has the minister in charge of Malaysian Ministry of Women and Family Development (Dato‘ Seri Shahrizat Jalil) announced to the public that the State is planning to establish a database recording child abuse offenders. It is important to have this database to check the background of applications seeking to work in child- related professions. This is critical to avoid the repetition of abuse and neglect. The report from the Malaysia Welfare Department gives a clear reflection on the situation of the welfare of a child, especially within the family and the community.

Even though offenders under MCA 2001 will face heavier sentencing, the impact has not yet been evaluated to ensure whether this will be enough of a preventive measure. Offenders under care and protection, depending on the offence and severity of maltreatment of a child, will be fined 5,000 thousand ringgit to ten 10, 000 Ringgit or imprisonment from two to five years, or both.

Section 33 Offence to leave child without reasonable supervision. Any person who, being a parent or a guardian or a person for the time being having the care of a child, leaves that child –

(a)Without making reasonable provisions for the supervision and care of the child;

(b)For a period which is unreasonable having regard to all the circumstances; or

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©Under conditions which are unreasonable having regard to all the circumstances,

commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both (Act 611, p.41).

For offences that are more severe such as involvement in trafficking, immoral activities and criminal association, the punishment becomes heavier. The offender will be fined not more than 50,000 Ringgit and will be whipped from six to ten strokes. It is very critical to evaluate the effectiveness of the MCA 2001 in sentencing the perpetrators involved in the welfare of a child.

Conclusion

Corrective justice is the main focus of the MCA 2001, especially when dealing with child offenders. While the main goal of the Act is to protect the rights and well being of a child, ensuring that a child will not be a threat to the peace and harmony of a country is still explicit in the Act. MCA 2001 promotes universality and particularity throughout the document to accommodate the needs of children and their families as the paramount interest and the agenda of the State. However, the circumstances that impinge on children and family are not fully accommodated, and corrective justice in the best interest of a child is not ensured by the MCA 2001. Children and families not only vary in religion, but also other factors such as culture, tradition and access to social services.

The role of corrective justice in Malaysia, especially in addressing juvenile offenders, is very important not only for the welfare of the child but also in attaining developed- nation status. Furthermore, with the aim of protecting and securing the welfare of the child as the main goal, the corrective justice system needs to accommodate children‘s personal and social circumstances especially within Malaysia‘s multicultural population. It is essential that the paramount interest of a child should not be the second priority in Malaysian social policy, even though all policies should support the country‘s agenda in economics, social policy and politics.

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CHAPTER SIX THE PROTECTION AGENDA: LOOKING AFTER CHILDREN IN-NEED

Introduction

In many aspects, policy reflects political, social and economic changes in the local and global sphere. Some changes only solve some of the conflicts in economic or other national interests, but will eventually benefit all in society (Land et al., 1975). Several influential discussions of social policy suggested that welfare policy is promulgated not only from humanitarian concerns, but also as a response to social unrest (Hill, 1980, p.2). There are variables in social policy development that will influence the changes and the production of social policy: consensus, conflict and needs in the society (Land et al., 1975).

In the recent development of social policy on children, the focus on the rights of a child is now replacing the protection and welfare of children in social policy. The rights of a child to be protected and cared for are not only open to subjective and unofficial norms within the local context, but are also now considered as a universal and lawful right (Gillies, 2008). The establishment of the UNCRC has entailed the development of the Rights of a Child that strongly promotes the best interest of the child as a paramount agenda in social policy (Burman, 2003; Connolly et al., 2006; David, 2002; de Winter, 1997).

Thus, this chapter will discuss the second important component of the MCA 2001 in ensuring the welfare of children. Protection of children from abuse, involvement in immoral behaviour and crime are issues that have always been a concern with social policy. With the development of knowledge about child development in science and social science, the welfare of children can be achieved in better ways. Protection in

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MCA 2001 is very important because it focuses on the risk management of children in unsafe situations who are threatened by adults. In order to replace the Malaysian Child Protection Act (1991), Parts V, VI, VII, VII and IX (Sections 54-57) were created in the MCA 2001 to address children in need of care and protection.

Protection of a Child from Abuse, Crimes and Immoral Sexual Activities

The construct of childhood has impacted on the position and relationship between relevant parties in children‘s lives especially the State, parents or families and the children themselves. Despite the modern construct of childhood, children are still located as dependent on others for their survival and for making good decisions. With this in mind, power and authority of an adult, especially the State will dictate decision- making in the welfare of a child and their family, especially for those who are under the State‘s care. Children and childhood under the MCA 2001 jurisdiction mainly relate to groups who are at risk of maltreatment and involvement in crime and immoral sexual behaviour. According to Jal Zabidi et al. (2008, p.28), in MCA 2001, process and procedures rely upon risk assessment and risk factors in protection of children and regulation of children's behaviour. However, the social construct of abuse, neglect and juvenile delinquency encompasses larger issues than the physical, emotional and mental aspects. They also affect a nation-state‘s situation within global structures and systems.

A social problem goes beyond what a few, or even many individuals feel privately; a social problem is a social construct (Nelson, 1984, p.5).

The emergence of child abuse in the modern world and the redefinition of abuse in the current context incorporate various implications (Parton, 1997). The socially constructed problems mainly induced by the media, politics and the public as a social problem have constantly invited substantial attention from the State (Sznaider, 1997; Thomas, 2000; Thomson, 1991; Tilbury, 2004; Tisdall & Hill, 2010; Van Kricken, 2005). In Malaysia, the 1980s saw children's issues and problems increasingly becoming the focus of the public domain, especially in the media and this put pressure on the State to prevent and address the issues. The concern was further supported by the establishment of the Universal Declaration of Human Rights and the beginning of

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the UNCRC. Child welfare became the core issue that was perceived as a reflection of the condition of the general population and how the State needed to play an important role in safeguarding the interest of the future generation of Malaysia.

Protection in the MCA 2001 incorporates new paradigms in child welfare and nation- state goals in the social policy agenda. Even though it is not a new agenda in social policy, the approaches and the language used reflect the shift from problem-solving approaches to the welfare of the child. Welfare and the rights of children became the paramount interest of social policy with family continuing to assume the primary roles as the natural provider of the needs of a child (Gillies, 2008; Henricson, 2008; Hill, 2006; Huntington, 2008).

On behalf of the State, the MCA 2001 responds to children‘s need at three levels:

1. To detect maltreatment or association with criminal behaviour,

2. To protect a child and

3. To provide appropriate support and assistance to a child with the fundamental responsibilities of the family and the best interest of a child in mind.

The above responses seek to stop and prevent abuse, neglect, inappropriate sexual behaviour and crime among children taking place. For young offenders, the State with its authority and power will endeavour to ensure that a child will not be associated with or carry out any criminal activity if they can be rehabilitated within the system in place.

RECOGNIZING 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, emotional disabilities or any other status (Preamble of MCA 2001).

Furthermore, the preamble above also in general made a strong assertion on the care and protection of a child as universal goals. There is also a significant statement in the Act that goes above and beyond the local issues of ethnicity, religion and other personal attributes that contribute to a child's personal identity. The provision of the universal

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well being of a child is noted clearly in Article 2 of the UNCRC:

All children have these rights no matter who they are, where they live, what their parents do, what language they speak, what their religion is, whether they are a boy or girl, what their culture is, whether they have a disability, whether they are rich or poor. No child should be treated unfairly on any basis.

MCA 2001 focuses on ‗risk management assessment‘ where a child from the forensic lens is assessed either for care and protection from abuse, neglect, or for delinquent behaviour or crimes (Jal Zabdi, Siti Hajar, & Weatherley, 2008). Part V of the Act deals with the notion of children in need of care and protection from abuse and neglect. It is about responding and preventing further damage to a child‘s well being. This section considers a child to be in need of protection if their physical, emotional, or mental welfare is at risk. This section is also concerned about the concept with care and protection in cases of abuse and neglect, but in situations where parents or guardians fail to deliver their roles according to the State and the UNCRC in Article 9:

You have the right to live with your parent(s) unless it is bad for you. You have the right to live with a family who cares for you.

In Section 17, MCA 2001 gives a clear description of a child in need of care and protection from the State, especially from parents or guardians who are unfit to deliver in their roles.

Section 17 Meaning of a child in need of care and protection.

A child is in need of care and protection if—

(a) the child has been or there is substantial risk that the child will be physically injured or emotionally injured or sexually abused by his parent or guardian or member of his extended family (Act 611, p.27-28).

And it is translated in the Act for example in at-risk situations within this particular context:

Section 17 (c) the parent or guardian of a child is unfit, or has neglected, or is unable, to exercise proper supervision and control over a child and the child is falling into bad associations.

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A list of preventive measures and the responses in the case of detected abuse and neglect of a child is itemised in Part V, Section 17 of the Act. Abuse and neglect of a child in Section 17 covers a list of descriptions that involves the detection of at-risk situations and detection of observable physical, emotional, and sexual injuries. Section 17 (2) continues with emotional and sexual abuse of a child in different contexts:

(b) emotionally injured if there is substantial and observable impairment of a child‘s mental or emotional functioning that is evidenced by, amongst other things, a mental or behaviour disorder, including anxiety, depression, withdrawal, aggression or delayed development;

(c) sexually abused if he has taken part, whether as participants or an observer, in any activity which is sexual in nature for the purpose of-

(i) any pornographic, obscene or indecent material, photograph, recording, film, videotape or performance; or

(ii) sexual exploitation by any person for that person‘s or another person‘s sexual gratification.

In Section 17 (k) of the MCA 2001, a unique representation of the current reality of children in the society is provided which may invite various interpretations. Children in Malaysia are still at- risk of being exploited by adults or their own family in social activities that may not relevant in developed states.

Sect. 17 (k) the child is allowed to be on any street, premises or place for the purposes of-

(i) begging or receiving alms, whether or not there is any pretence of singing, playing, performing or offering anything for sale; or

(ii) carrying out illegal hawking, illegal lotteries, gambling or other illegal activities detrimental to the health and welfare of the child (Act 611, p.29).

Proclaimed as an Islamic state by the previous Malaysian Prime Minister, Abdullah Ahmad Badawi, the above statement may invite negative impressions of the State and the official religion. In Islam, failure of the family to care for their young ones reflects the failure of the State to provide for the needs of their citizens. In Islamic teaching one instruction forbids the devout Moslem to sleep in peace if at sundown there exists one

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hungry person within the range of vision (Livingstone, 1969, p.1).

In reality, Malaysian social, political and economic conditions cannot be compared with developed nations, especially in the Western Societies. Assimilation and adoption of various external measures to address abuse, neglect and crime among children and youth will not suffice if there is no effort from the State to do a ‗reality check‘ on the local resources and issues. Child welfare policy such as the MCA 2001 includes so many explicit and implicit agendas that it may not be able to achieve its main goal as a law of care and protection for children.

We cannot begin to understand child abuse without an analysis of the nature of the category and how this has been constructed and recognized as a social problem requiring State intervention (Parton, 1985a, p.5)

In rural and remote areas in Malaysia, child abuse and neglect is not defined and observed as above. In Borneo, for example, children who are known as ‗stateless children‘ are entangled with more significant issues in their life. The nation-state system provides less empathy for those children. Born to illegal residents of Malaysia and being children without power or authority to fight for their own rights and welfare, children‘s rights are not officially recognised by the State. This situation commonly occurs in particular Malaysian states bordering the Philippines, Thailand and Indonesia. Societal or structural abuse and neglect are not even addressed because they are products of mainstream policies, whether by the State or internationally (Pelton, 1985).

Children are abused and their development tends to be stunted as a result of a broad range of perfectly legitimate social policies and public practices which cause, permit and perpetuate poverty, inadequate nutrition, physical and mental ill-health, unemployment, substandard housing and neighbourhoods, polluted and dangerous environments, schooling devoid of meaningful education, wide-spread lack of opportunities and despair and similar problems. This massive abuse and destruction of children is a by-product of the normal workings of our economic and cultural institutions (p.294).

‗They have to go on the street to sell a pack of tissues to survive. They do not have any official identity. Sometimes their official identity is kept by their parents – they do not have rights under the Act or any Acts in Malaysia. They are not Malaysian citizens.

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What is their future in this world? No country will accept them‘(Participant 9).

The MCA 2001 is directed at children who are already in need of care and protection from the State. However, the level of care and protection is decided by welfare officers after reports are made. In Section 38 of the Act, for example, a child is protected from involvement in inappropriate sexual conduct. After a report is received by a ‗protector‘ (sometimes commonly referred to as the case worker) or welfare officers, an assessment is made as to whether there is sufficient information for further investigation. Another step under this section is to produce a case for the Court for Children. In the case of neglect and abuse, reported cases will be based on the list of descriptions in the MCA 2001.

In the case of a child in need of urgent protection or at risk of committing a crime, a protector will have the authority to move a child into temporary custody for their best interest. However, within 24 hours (excluding the time of the journey), a protector will have to produce sufficient evidence that a child is abused or neglected and produce a report to the Court for Children for further investigation. Nonetheless, if within 24 hours a Court for Children report is not available, a magistrate will have the authority to decide the child‘s temporary placement.

In Section 46 of the MCA 2001, the State begins to intervene in family life to protect children from ‗bad associations‘ that may eventually lead to crime and breaking the law.

Section 46 Children beyond control.

(1) If the parent or guardian of a child requests the court for children in writing to detain a child in an approved school, place of refuge, probation hostel or centre on the ground that the parent or guardian is unable to exercise proper control over the child, the court for children –

(a)Shall immediately inquire into the circumstances of the child‘s case;

(b)Shall direct the probation officer to submit a probation report to the court for children for the court to determine whether an order under subsection (2) may be made in respect of the child; and

©May order the child to be temporarily detained in an approved school, place of refuge, probation hostel or centre if it deems it necessary to do so (Act 611, p.57).

The State's role in protection and care for Malaysian children was summed up in a

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speech on Malaysian social welfare in 2003. In the first ASEAN (Association of Southeast Asian Nations) and Japan High Level Officials Meeting on Caring Societies (4-7 November 2003), Malaysian representatives forged the idea of welfare as a joint responsibility between the State and all parties in the community.

The participation of all levels of the community, government agencies, private/corporate sector and non-governmental organizations (NGOs) focus on a smart partnership and align to call for ―Welfare Is Joint Responsibility‖… Social welfare not only fulfils its roles in giving assistance, but to provide the means and the environment to result in a caring society.

For example, from when a case is reported until a decision is made, children and their families are protected from any media. Publication of any information that is relevant to identify a child is prohibited to be publicised (p.4).

Section 15 Restrictions on media reporting and publication.

1) Notwithstanding any written law to the contrary, any mass media report regarding –

(a) any step taken against a child concerned or purportedly concerned in any criminal act or omission, be it at the pre-trial, trial or post-trial stage; (b) any child in respect of whom custody is taken under part V; (c) any child in respect of whom any of the offences specified in the First Schedule has been or is suspected to have been committed; or (d)any proceedings under Part VI, shall not reveal the name, address or educational institution, or include any particulars calculated to lead to the identification of any child so concerned either as being the person against or in respect of whom action is taken or as being a witness to the action.

(2) A picture of – (a) Any child concerned in any of the matters mentioned in subsection (1); or (b) Any other person, place or thing which may lead to the identification of any child so concerned, shall not be published in any newspaper or magazine or transmitted through any electronic medium.

(3) The Court For Children, in any case – (a)May, if the court for children is satisfied that it is in the interest of justice to do so; and (b)Shall, in the case of an application by or with the authority of a protector dispense with the requirements of this section to such an extent as the Court may deem expedient. (4)Any person who contravenes subsection (1) or (2) commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment

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for a term not exceeding five years or to both. (3) For the purpose of this section, ―transmit‖ includes broadcast by radio or television. (Act 611, p. 25-26).

Protection and care for children in MCA 2001 is reflected in Section 17. The State will begin to intervene or exercise its power if the family fails to deliver the ‗minimum‘ of protection and control over its children (Sect. 38).

MCA 2001, like other laws in general, only applies after reports are made (mandatory reporting in Sections 27, 28 and 29 of MCA 2001) to the police or appointed protection members. The document requires parents, family members, child care providers and doctors who suspect a child is abused or neglected to report this situation to designated welfare officers or police. From this stage onwards, a child‘s and family‘s life will be under State supervision and control according to all the procedures set forth in the MCA 2001. The Act provides three parts that focus on three different areas that were covered in the previous three Acts: prevent and address maltreatment of children (Part V of the MCA 2001); children involved in immoral sexual activities (Part VI of the MCA 2001); and juvenile delinquents (Part VII of the MCA 2001).

Court procedures are similar in all cases tried under MCA 2001. The welfare office or protector will investigate a reported incident within a particular time period, according to the Court for Children, depending on the types of neglect, abuse or offences. The protector will prepare a report that will be used in the Court for Children as a part of court procedure before a final decision is made. Parents may be involved if the case is at a low or medium risk level and the parents are available during the time of the review. Two appointed advisors including one female advisor will be involved in the court procedure before the magistrate makes the final decision.

Protection of a child in the MCA 2001 comes in various forms. One of the important features of protection, which hinges on the construct of childhood, is Section 85. In the criminal procedure in the Court for Children, a child is protected from adult offenders throughout a court procedure and protected from the media. Nonetheless, the State has not yet prosecuted or enacted this section since the enactment of the MCA 2001, even though there have been a number of media reports that clearly infringe this order.

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Section 85 Separation of child from an adult in police stations or courts.

Appropriate arrangements shall be made –

(a)To prevent a child while – (i)Being detained in a police station; (ii)Being conveyed to or from any court; or (iii)Waiting before or after attendance in any court, From associating with an adult who is charged with an offence; (a)To ensure that a child, if a girl, while being so detained or conveyed, or waiting, is under the care of a woman; and (b)to prevent the picture of a child while – (i)Being detained in a police station; (ii)Being conveyed to or from any court; or (iii)waiting before or after attendance in any Court from being recorded in any manner on tape or film or by any electronic medium (Act 611, p. 78-79).

In the 1980s, more Malaysian children were reported as having been involved in criminal activities at a younger age compared to previous years (Jones, 1990). These incidents required Malaysian stakeholders in social services to consider new ideas on the relationship between age and criminal behaviour; age and maturity; and age and an effective rehabilitation for the country‘s juvenile crime-related problems (Jaafar, 1999). Thus, the age of a child in the UNCRC provides a suitable standard that is appropriate to reflect the shorter span of the childhood period in Malaysia during the 1990s (Binti Abdul Majid, 2002).

Before the enactment of the MCA 2001, child laws were specific in addressing crimes and moral disruptions among children and young persons. Each law had its own definitions of a child. Even with the enactment of the Malaysian Child Protection Act (1991), a child‘s age is inconsistent with the Malaysian binary judiciary system, in the forms of age of consent, marriageable age, and age of majority. Furthermore, children were also divided into young children and young persons in particular laws, but not in others. According to participants 3 and 6 these create overlapping difficulties in the implementation of law and order, especially with the age of majority in the Malaysian penal code. However, the Court For Children with advice from a Protector or the Board

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of Visitors can extend the time a child remains in an institution until they reach the age of 21.

Section 14 Court For Children may order detention, etc. to extend beyond the date the child attains the age of eighteen years. (1) Notwithstanding anything in this Act or any written law or any rule of law, a Court For Children may, if the Court finds that circumstances warrant it, make an order relating to – (a) the detention of a child in a place of detention, probation hostel, approved school or Henry Gurney School, approved institution or centre; (b) the supervision of a child by a Social Welfare Officer or probation officer, as the case may be; or (c) any probation period,

which has the effect of extending the period of such detention, supervision or probation beyond the date on which the child attains the age of eighteen years.

(2) The order referred to in subsection (1) shall be complied with by the child and all parties to whom the order relates so long as the order remains in force and has effect (Act 611, P. 25)

With the formulation of this Act in the late 1990s, not only is a child‘s age consistent in care, protection, and punishment policies of the State, but in other relevant laws in Malaysia‘s judiciary system. In Malaysia, various laws define the age of majority differently. For example in the Adult Age Act (1971), the age of majority is 18 years, and in the Child and Young Person Act (Employment) Act (1966), a child is below 14- years old. In these Acts including the Juvenile Court Act (1947), there are two categories of a child: a child and a young person. A child is under 14-years old, and a young person is between 14-18 years. For the Young Person (Employment) Act (1966), a young person is between 14-16 years. Table 5 illustrates the age of a child in various Malaysian laws (please see next page).

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Table 5 : Age of a Child in Various Laws

Malaysian Laws A Child A Young Person

The Adult Age Act (1971) 18

The Child and Young Person Act (Employment)(1966) 14 and below 14-16

The Juvenile Court (1947) 14 and below 14-18

Custom and Excise Act (1961) 18

Voting age in Malaysian Federal Constitution 21

The Road and Safety Ordinance (1958): Driving licence 17

The Road and Safety Ordinance (1958): Motorcycle licence 16

The Women and Young Girls Protection Act (1973) 21

The Child Care Act (1961) Muslim 18

The Child Care Act (1961) non-Muslim 21

Civil Law (marriageable age) 16*

Civil Law (marriageable age) 18**

Civil Law (marriageable age) 21 * with the head of the state consent **with parental consent

Other Acts that have a substantial impact on individual rights as Malaysians are the Custom and Excise Act 1961 (18 years), Federal Constitution (21 years for voting), and Road and Safety Ordinance 1958 (Driving licence at the age of 17 years and motorcycle at the age of 16 years). In the Child Care Act (1961), a person is considered an adult at the age of 18 years for a Muslim and 21 years for non-Muslims. In terms of the right to get married and start a family, in the civil law a non-Muslim has the right to do so at 18 years, but with parental consent. When a person reaches 21 years, he or she can get married without parental consent. However, a female can decide to start a family with the consent of the Head of the State as early as 16 years. Under the Women and Girls Protection Act (1973), a woman can be protected from moral danger if she is less than 21-years old. All of these definitions of a child vary across different laws, and it is especially difficult when it comes to individuals who also covered under Syariah law.

In the early 1990s there was an increase in the portrayal of delinquent and ‗Westernised‘

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behaviour of Malaysian children by local media. This behaviour was far from the norms expected by the State and the public (Binti Jamaludin, Talib & Mohd Yusoff, 2002). At the same time the Malaysian government and Malaysian stakeholders in social services began to revise the suitable age to define a child after signing the UNCRC in 1985 (‗Everyone under 18 has these rights‘, Article 1 in the UNCRC). In Malaysia, a child can be under the age of 16, 18 or 21 years (age of consent, age of majority and marriageable age) in various public policies. Binti Abdul Majid (2002) illustrated that the State chose to make 18 the consistent age for a child in all public policies and to be on an equal footing with global standards in the protection and care of Malaysian children. Thus, this also represents the basis of the rights as a Malaysian citizen and the rights of children globally and in return will shape the definition of childhood based on the current local environment.

After clarifying a child‘s age, social problems associated with children and childhood are easily defined and addressed by the Act. In most situations, social problems in childhood are not only confined to national boundaries, but are found around the world (Roach Anleau, 2006, p.19). Response and reaction to these social problems or deviance is already made available with universal policy, especially the UNCRC. Through MCA 2001, conformity, social problems and social control are presented to contain and prevent further disruption of society‘s peace and harmony. MCA 2001 imposes implicitly the views of children as potentially capable of crime and inappropriate sexual behaviour if they are not cared for and protected as early as possible. Children are cared for and protected so that they will not jeopardise the country‘s economic, social and political future (de Winter, 1997). The social construct of childhood is a part of social engineering of the State to mould and shape the citizens to become a civilized ‗Bangsa Malaysia‘. Furthermore, the shorter period of childhood will lessen the dependency of individuals and families on the State. An adult will have to be responsible for their own behaviour in civil law (Connolly et al., 2006). In the preamble below, MCA 2001 constructs a child in their physical, cognitive, social and emotional ability in comparison with an ideal adult in a Malaysian civil society.

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Malaysian society (Preamble of MCA 2001).

Children in the MCA 2001 are expected by the country‘s law to contribute to the continued existence of Malaysia as a nation. In the situation where a child‘s age is not clear from their Malaysian Birth Certificate, and other official documents (for example, Malaysian National Identity Card), a medical evaluation by a certified general physician is needed by the Court For Children before any decision is made in court proceedings (MCA 2001, p.33).

In the MCA 2001‘s criminal procedure, children are divided into two categories. The first category is the age of majority (age of criminal responsibility) where a child can be reprimanded with severe punishment by the State after proven guilty. In the second category a child under the age of ten will not be sent to gazetted institutions under this Act such as probation hostels, approved schools for rehabilitation, or the Henry Gurney Schools for child offenders ‗punishable with imprisonment‘. These institutions were already established under previous Acts for children (please refer to Chapter 3, on the British in Colonial Malaya).

Section 62 Children under 10 years of age not to be sent to the probation hostel

A Court For Children shall not make an order requiring a child under the age of ten years to send to a probation hostel (Act 611, p.66).

Section 66 Child under 10 years of age not to be sent to an approved school

A Court For Children shall not make an order requiring a child under the age of ten years to be sent to an approved school (Act 611, p.66)

For a child offender above the age of 14 years who is guilty and found ‗punishable with imprisonment‘ (Section 75 [1] [a]), and where the Court For Children decides that there is no other option ‗to his reformation and the repression of crime‘ (Section 75 [1] [c]), the child will be placed in the last option of institutions under MCA 2001 for punishment and rehabilitation – the Henry Gurney Schools (Act 611, p.72). A child can be placed in this institution for no more than three years, and must leave before they reach 18 years of age.

The second category of younger children in MCA 2001 is the stage of where chidren are

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symbolically cherished without having to be responsible for any direct association with crime and delinquency. In this category, a child will not be inflicted with severe punishment or placed in a gazetted institution like adult criminals. According to the MCA 2001 children at this age are incapable of differentiating between right and wrong behaviour (Binti Jamaludin, Talib & Mohd Yusoff, 2002). Thus, children under ten years of age will not have to go through rehabilitation and punishment.

Section 83 Nothing is an offence which is done by a child above ten years of age and under twelve, who has not attained sufficient maturity of understanding to judge of nature and consequences of his conduct on that occasion (Malaysian Penal Code, 2006, p.14)

Like Western countries, Malaysia uses age as the standard measurement to differentiate between children and adults. Based on these definitions of a child and a child offender, MCA 2001 began to construct a child in the Malaysian population, and their needs for care and protection from their family, society and State. The decision on the age of a child influences the social constructs of Malaysian law and societal interaction as a whole. In Malaysia, two major approaches that influence the nation's decision on the age of a child are those of Islam and secular, Anglo-centric ideas. Since the beginning of Malaya‘s colonial period, according to Rau & Sampathkumar (2006)), both resources of laws have taken their place directly in the Malaysian judiciary system.

As age is an important factor to differentiate a child from an adult in the UNCRC, it is important in this Act to put forward a suitable definition of the age of a child that is consistent with other Malaysian laws and accepted globally. In Malaysia it is complex as the MCA 2001 will have to be in line with Malaysia‘s binary legal systems, and furthermore provide a standard age of a child in other Malaysian public policies.

In the civil rights movements around the world, especially in Western countries, the age of a child signifies the beginning of an individual‘s self-determination and their rights as citizens of the State (Fortin, 2003). Self-determination is the ability of an individual to make choices and to act according to their own judgment of what is right or wrong (Ronen, 2004; Ronfani, 2001). As citizens of a country, individuals will have their rights protected by the State‘s constitution in civil, political and social provisions (Ronen, 2004). The American Civil Rights Movement in the 1960s and 1970s initiated

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this global human rights movement. This movement focuses on minority groups such as women, the elderly, indigenous peoples, homosexuals and children. During the emergence of the ideas of civil society, a precise definition of the age of a child was an important factor in children‘s rights and liberation. The civil rights movement focused not only on the right of self-determination, but also the right of a child to be protected and cared for as a citizen of the State (Healy, 1998a; Ronen, 2004).

It is important to decide on the precise age of a child because certain behaviour is deemed ‗wrong‘ for a child but acceptable for an adult. For example, in Australia, a person has a legal right to engage in sexual activity once they reach 16 years of age and consume alcohol once they turn 18, but not before those ages (Alford & Muir, 2004; Healy, 1998a).

It is difficult for any discussion of age in Malaysia to conform to ideas in the Western Societies. While a definition of age is essential, it must be compatible with Syariah law. That will influence the implementation of the MCA 2001 for a child and their family in the local context. It is essential that Malaysian public policies do not offend any religion, particularly Islam, because of its supremacy in Malaysia‘ federal constitution.

In Malaysia, especially for Muslims, sexual activities between a man and a woman without the formalisation of marriage are strictly forbidden under Syariah law even after one reaches adulthood. Alcohol consumption is strictly forbidden for all Muslims in Malaysia under Syariah law, but non–Muslims are permitted to imbibe alcohol after 18 years of age.

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Figure 3: Reported Cases under Protection and Rehabilitation

Even though the definition of a child in MCA 2001 is not in conflict with Islam or any cultural or religious beliefs, most participants interviewed view the changes as creating a different issue in practice and social reality. For example, if the goal of the Act is to protect an individual from immoral behaviour, lowering the age only protects girls up to the age of 18, whereas previously, care and protection covered girls up to the age of 21. For those Participants, the critical age for young girls is from 18 to 21. At age 18, they will leave school and begin looking for work outside the family boundaries. MCA 2001 should be able to address contemporary social problems, especially the ‗immoral conduct‘ of young women in Malaysia. Two participants in the interviews encapsulate the impact of MCA 2001 in protecting young women in the current environment.

‗This Act covers young girls under 21 years old and this has created a problem for the department as most cases involve young girls between ages 18 to 21. This age group are high school leavers seeking jobs, and get sexually exploited at particular times and context. As this age category is not included in the Act, it is a problem for the department and the country‘ (Participant 11).

‗It is a problem for the age group above 18 that is not under the Act. There is no Act that will cover this age. Most of the cases of moral danger involved girls after Form

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Five which is between 18 to 21 old‘ (Participant 3).

Adapted from Malaysian Social Welfare Department Report

Figure 4: Reported Cases under Protection and Rehabilitation (Female and Male)

From the above figures published by the Malaysian Welfare Department, the trend of children and young persons needing protection and rehabilitation from inappropriate sexual behaviour has been decreasing since the enactment of the MCA 2001 in 2002. However, by lowering the age, the Act does not cover the critical age for young women when they are most likely to be involved in immoral behaviour after finishing secondary school (Participants 6 and 7).

In the local context, the focus on controlling and shaping the younger generation endeavours to adapt to what is appropriate according to Western ideas and universal standards, which draw upon the idea that the younger the child, the easier to rehabilitate (Romig, Cleland, & Romig,1989; Schaffner, Shich, & Stein,1996)). In reality, 18 years old are still considered young and incapable of making sound decisions, especially in matters relating to sexual conduct. Sexual relationships between a man and a woman are only acceptable after getting official recognition from civil and Syariah law. Even in

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contemporary Malaysia, sexual behaviour out of wedlock which is strictly forbidden under Islamic teachings and ‗culturally inappropriate‘ to most Malaysian is also ‗not right‘ according to the majority of participants (Zakaria, 1995). The age definition of a child in the MCA 2001 has created disagreement between social reality and the expectations of the law.

Adapted from Malaysian Social Welfare Department Report

Figure 5: Numbers of Children in Institutions under MCA 2001

From the Malaysian Government's perspective, by lowering the age of a child , individual maturity begins earlier, and the scope of the State‘s responsibilities for a child lessens (M. Hill & Aldgate, 1996). The age of maturity of an individual is lower as the maturity of the individual appears to occur more quickly throughout the world, especially in developed countries, and this was accepted in discourses on the rights of a child globally (Mnookin & Weisberg, 2005). Furthermore, as the State moves towards more liberal laws, lowering the age of a child means that the State is responsible for the care and protection of a small number of children and families (Koffman, 2008; Monahan & Young, 2008). Families and children will have to rely more on their own ability to cope with Malaysia‘s ongoing development challenges with minimum support from the State (The 8MP). Also, this is based on the belief that the younger a child is shaped by the State, the fewer problems will occur when they grow older.

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The issues of lowering the age of majority in Malaysia, according to Kamariah is significant as other countries such as Singapore have lowered the age of majority to 17- years old (Binti Abdul Majid, 2002). This may be too young for some, but when the age becomes lower, the chances for a child to change become more feasible. As expressed in a famous Malay proverb;

Melentur Buluh biarlah dari Rebung

(Bend a bamboo while it's still a shoot)

From this perspective, the State will not have to attempt to cure and solve the problems committed by adults unless it impacts upon others. It is better to intervene and control children within their family in comparison with intervention during adulthood, where parents and family are not responsible for an adult‘s behaviour (Romig, Cleland, & Romig, 1989). And because a child now matures faster than before, earlier intervention is more effective according to one of the participants (Participant 4).

However, there are different opinions concerning personal development and maturity or when a child has the capacity to think and behave as an adult. The most prominent views espoused by liberationists argue that children ‗should be allowed to be children‘ (Goonesekere, 1994; Fortin, 2003). Regardless of their differences, both views agree that children have the right to care and protection. And for those in favour of child liberation, children should be able to have the right to self-determination and have the same rights as adults under state law, especially in making decisions about their own lives. Law on children will not only reflect the current reality but the past and the ongoing changes and development of human knowledge across various fields of study (Bowes, 2004).

Childhood‘s special status is reflected in the laws and policies which have been formulated overtime, the changes which have been made in these, and the debates surrounding these changes and attempted changes (Harding, 1997, p.3).

The age selection in the MCA 2001 reflects various ideas on children's rights, family responsibilities and the State‘s roles in children's lives (Burman, 2003; Hoyano & Keenan, 2007). For this Act to have an impact, age will be the first important yardstick

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to assess whether a person comes under its provision. In MCA 2001, the age of a child is defined by Malaysian stakeholders in social services who believe that the universal construct of a child is applicable in Malaysia. Furthermore, ideas help to deliver care and protection by the government in all policies. Age selection to measure an individual‘s maturity and to differentiate between a child and an adult is not new (Stainton, 2001; Zhao, 2011). It is universally accepted, and generally easy to decide when it comes to chronological age. Despite the various factors that may not be reflected in age, for example disability and illness, age is selected in the MCA 2001 as a tool to define the maturity of individuals.

The MCA 2001 has adopted the spirit of the UNCRC throughout the document. According to Kamariah, as children mature earlier, the age of a child should be lowered accordingly (Binti Abdul Majid, 2002). Her view was influenced by the international changes in child development in regards to the way of looking at the maturity of a child, mainly in physical terms. This was supported by her counterpart in the drafting committee of the Act in late 1997:

‗We chose 18 years because children these days mature earlier than before. In Singapore for example, the age is 17 years‘ (Participant 5).

‗Eighteen now, we took eighteen, the magic age. Above eighteen years, we cannot control the young women anymore…‘ (Participant 6).

In summary, the fundamental changes in this Act were to lower the age of a child, from 21 to 18 years, particularly in the context of criminal responsibilities. Thus, the Act will only cover a child less than 18 years for protection, care and rehabilitation. The Act has also eliminated the concept of Young Person as seen in Act 90. The age of criminal responsibility is maintained at 10 years as stated in the three previous Acts and in Section 82 of the Malaysian Penal Code.

From the Islamic perspective, there is no exact age for an individual to be considered a child. The only way to differentiate a child from an adult is when individuals reach puberty – biological maturity. Using this marker, an individual will no longer be

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considered a child once they biologically mature to have children of their own. Furthermore, in Islam there is no adolescent stage in an individual‘s development. There is a significant difference between a child and an adult from the Islamic perspective. As one reaches adulthood, adult responsibilities are imposed. For example, as a Muslim, praying five times a day and fasting in the months of Ramadhan are compulsory (Al Qur‘an 2:183). A child and an adult will have different roles and responsibilities as individuals in relation to other human beings and the Creator. Children in Islam are not responsible for their sins, as the parents are required to care for and protect their children from committing wrong doings. A child is expected to make mistakes and learn from these mistakes with the guidance of adults. A child is very precious in Islam and the care and protection of a child is the responsibility of the parents and the community that will be carried into the Day of Judgment. Conversely, adult Muslims are responsible for their own decisions and behaviour, and have clear responsibilities to others, both to their family and society.

And those who believed and whose descendants followed them in faith – We will join with them their descendants, and We will not deprive them of anything of their deeds. Every person, for what he earned, is retained... (Al Qur‘an 52:21).

The Quran and Al Hadith as the of Islamic jurisprudence implicitly reflect the responsibility of parents and guardians in providing for the needs of a child emotionally, spiritually and physically. Various chapters in the Quran and the Hadiths specifically focus on mainstream issues in child care, protection, and the roles of parents and society in making sure the welfare of a child is cared for and protected (Al Qur‘an 32: 13-19). Furthermore, the family is also the core of societal development and or destruction.

Protection Approaches

Protection of children in the MCA 2001 includes not only protecting them from abuse and neglect, but also providing opportunities for children to be rehabilitated. This has been the gist of child laws since the British colonisation of the Malay States. With the enactment of the Act, this essential feature was expanded and promoted to ensure all children are protected as well as rehabilitated in any circumstances. Two previous laws, the Children Protection Act (1991) and the Women and Girls Protection Act (1973),

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were replaced by Part V and Part VI of the MCA 2001. These two parts explain in detail the consequences of violations of the law (MCA 2001). These are prescribed in these sections:

Section 17 Meaning of a child in need of care and protection

Section 38 Meaning of child in need of protection and rehabilitation

Section 46 Children beyond control

Section 83 Criminal Procedure in Court for Children

The use of the word ‗protection‘ in the MCA 2001 is intended for the purpose of protection and/or rehabilitation. Children are not totally responsible for their actions. It is the responsibilities of adults, parents, and extended family to ensure their needs are met. MCA 2001 asserts that parents and guardians will assume the primary roles to protect and regulate the behaviour of a child accordingly. Parents or guardians have the task of meeting the needs of children but the State will intervene if these needs are not delivered properly to the child. While there is no ‗to-do list‘ for parents or guardians in the Act, their failure to meet physical, educational, social and emotional needs of the child will mean they are violating the law. Meeting the needs of children is still the responsibility of parents and guardians, without intervention from the State.

Descriptions of children who are in need of protection and care allow the MCA 2001 to provide clear guidance to those involved in a case. With the development of knowledge, especially in identifying early signs of abuse and neglect, laws such as MCA 2001 will be more effective. However, the physical and emotional effects that can be measured by a qualified medical practitioner also have a very important role in this Act. Protection of children from abuse and neglect is often influenced by international social policy. Care and protection measures in the MCA 2001 rely upon previous child laws and the available examples from developed countries, especially the UK and the United States (US). Thus, the MCA 2001 mirrors previous language and ideas from a selection of laws that policy makers believe are applicable to Malaysia. Approaches are selected with the local situation in mind, so as not to be in conflict with the culture and religious affiliation in the federal constitution – implicit and explicit.

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With UNCRC as the universal language in the care and protection of a child, MCA 2001 is a product of various historical accounts and current influences of politics, social policy and economics, locally and globally. Writers on public policy such as Howlett and Ramesh (1995) agreed that:

It is often shaped by earlier policies and is frequently linked closely with other seemingly unrelated decisions (1995, p.7).

MCA 2001 reflects dominant discourses in its approaches and aspects in social policy focusing on child welfare. However, the most profound approach presented in MCA 2001 is the significant value of empirical evidence as the major component and focus of the Act (the State, family and child) in its formulation and implementation.

Empirical Evidence: A Thick Description17

Before any intervention can occur in the life of a family, there must be clear evidence to indicate that such intervention is warranted. With the development of technology, including forensic science, investigation of abuse and neglect has become significantly improved. Types of physical and non-physical evidence are listed in the MCA 2001 to locate and categorise cases before decisions are made on a child's life by the Court for Children). Despite profound and comprehensive understanding and descriptions of child abuse and neglect under the heading of protection and care in policies, inevitably sometimes these manuals fail in transferring policy into the reality. Parton (1997b) argues that even the modern British child policy is not well enough developed to effectively address all abuse cases in the population. One of the reasons behind this failure is the insufficient resources in the system to fully deliver the enacted child policy. Nelson (1984, p.6) also agrees and adds other reasons for inefficient child policy:

17Wikipedia defines a thick description of human behaviour as one that explains not just the behaviour, but its context as well, such that the behaviour becomes meaningful to an outsider. The term was used by the anthropologist Clifford Geertz in his The Interpretation of Cultures (1973) to describe his own method of doing ethnography.

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To bring a problem to light requires leadership to create the groups necessary to act, and cultural willingness to accept the problem as defined.

It is easy to define abuse, neglect and a child in need of protection, but the implementation and the notion of a child‘s rights are subject to other overarching policies in the nation-state‘s system. It is not enough to have one child law to ensure the rights of a child are secure and protected. Other basic issues also need a ‗child friendly policy‘. For example, the rights of a child in UNCRC Article 26 are not confirmed if a child is not recognised as a citizen of a State. Institutionalisation of the rights of child will not be just without formal identification.

Article 26

You have the right to help from the government if you are poor or in need.

Article 8 of the CRC also suggests:

You have the right to an identity – an official record of who you are. No one should take this from you.

Children without an official identity will have no rights to protect their well being, even in the UNCRC. In Malaysia, children born out of wedlock, without birth certificates or proper documentation are not protected by the State under social policy, including the MCA 2001. Stateless children in remote or border areas, especially in Sabah and Sarawak, will not have rights covered by the State. Even though this may not be a problem globally, in Malaysia where social norms and problems are constructed from various dominant values and beliefs, a child's identity is very important in securing and protecting their rights as a lawful citizen of the State around the world.

Empirical evidence that can clearly detect maltreatment and other potential dangers for a child depends heavily on medical assessment. More than 50 percent of referrals concerning care and protection cases came from government hospitals (1506 from 2789 cases in 200918). Comprehensive information and established mechanisms in medicine

18 Extract from the latest statistical report from the Malaysia Welfare Department.

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provide evidence to justify the State action in the MCA 2001. The definition of abuse and neglect, as presented in Section 17 of the Act, provides comprehensive procedures for investigating cases associated with abuse, neglect, crime or sexual encounters. In addition, the understanding of what is an at-risk child in the MCA 2001 is clarified, and consequently describes the response required of the public and relevant agencies in protecting a child‘s well being (Nelson,1984; Parton, 1985a).

In the United States, for example, the definition of abuse shapes the overall child policy that drives State‘s actions to prevent and solve problems. Nelson (1984) argues that early child policy in the Western Societies ignored the definition of neglect to blur the connection between poverty and maltreatment with a child‘s well being. Various social circumstances have not yet been considered important in preventing child abuse around the world. The policy in the US cannot be compared to what is reflected in the MCA 2001. The role of the State in the MCA 2001 is less significant in ensuring the prevention of child abuse, neglect and crimes. With the notion of the State's role in family life as a non-welfare state, the government continues to strengthen and assert the roles of traditional family to ensure a child‘s well being with limited access to State support. With urbanisation and globalisation, abuse and neglect receive attention as universal problems, despite the ideas of stakeholders in blaming poverty and unconventional family forms as the sources of problems associated with children. Protection of children by the State and in this case under the provision of the MCA 2001 occurs only after a child is considered at-risk.

Based on both definitions of abuse and neglect, a child will be taken into temporary custody if he or she is at- risk. Under Part V a child will have to go through a similar process to that for a child who commits an offence. Under Section 17 a child shall be brought before the Court for Children unless the child needs medical examination and treatment (MCA 2001, p.31). The idea behind this section is the notion of moving a child from an at-risk situation and securing their well being. The significant role of the State is to detect the symptoms of abuse and neglect in children (Morris & Barnes, 2008). In medical procedures a child will be categorised as to suffering physical abuse and neglect, sexual abuse or psychological maltreatment. Neglect or maltreatment in retains the least amount of coverage in the MCA 2001. Furthermore, the State has put the rights of a child to education, health and citizenship under different Acts to adapt to

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the ruling government‘s approach to social policy.

‗We proposed a holistic child Act that would cover their citizenship, right to education, health and other benefits. The Attorney General opposed it because if these provisions are not delivered, the public and lawyers will have an upper hand in litigating a case against the government. This situation will cause a ripple effect and create conflict between ministries that deal will child act, resulting a bigger further complex situation‘ (Participant 6).

The description of child abuse in the Act reflects the universal definition of child abuse based on objective and subjective measures. According to Parton (1985), the description of child abuse is not as important as its sources. When seeking to prevent child abuse or other social problems, addressing factors that cause such behaviour is far more significant. Simply describing what constitutes child abuse is not enough to neither prevent abuse nor protect a child from abusive conditions in earlier stages. A family environment with an ability to care for and protect a child is essential to avoid abuse. All policies should be formulated to support the philosophy of the MCA 2001 to ensure families can fulfil their duties according to universal standards and to provide the best environment for a child.

Abuse and juvenile delinquency are now on the rise. Despite the advancement of science and the humanities in developing detection and investigation into the cause and effect of child abuse, cases reported across the country are increasing. The definition of abuse and the response to abuse are now becoming more ‗forensic‘ in nature (Baumrind, 1994; Corby, 2000; Hosley, Gensheimer, & Yang, 2003; Hoyano & Keenan, 2007). The role of the State in providing evidence to support the decision made in classifying a child or individual under the Act's jurisdiction has changed with the advancement of science and technology. It is similar to the case of Australian Aboriginals, whose child protection system did not achieve substantial changes for many years. According to Parton et al. (1997), the only change is the way of dealing with evidence in identifying abuse and neglect, but not the final objective of lessening the incidence of harm and injury to children.

In Malaysia, the power and authority to investigate and produce substantial evidence is now officially under the State‘s jurisdiction. Due to this provision, the MCA 2001 has

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also stated in Part V that it will make a decision on behalf of a child if the child has no parent or guardian or other suitable individual to care for and protect it (Part V Section 17). Care and Protection of the child remains the focus of the State if the State needs to choose between the parents‘ natural rights and the child‘s well being. Consequently, legal duties prescribed by the Act will give the State and the Court for Children the right to make decisions for the well being of a child with or without parental consent.

The Family versus the State versus the Child

Undoubtedly, family policy including child welfare policy revolves around the role of the State in family private life and the discourses on children‘s rights and freedom, and parental rights and responsibilities (Hoyano & Keenan, 2007). The compounding argument involves the rights of the family, the rights of a child and the role of the State to secure the overall well being of the population and the survival of the nation. By and large the MCA 2001 derived its spirit from the universal discourse on child rights and liberation. This focuses mainly on the rights of the child and only considers family as adults who are responsible for providing for the needs of a child under their biological and legal relationship.

In addition, family policy in political literature provides different views. In political science, family policy is evaluated in terms of the nation-state context (Skevik, 2003). For example, for the best interest of a child in accordance with the conservative or progressive policy perspective on family and children, the State will deliver its role in accordance with the legal duties prescribed in the MCA 2001 (Chilton & Scaffner, 2002);Scanzoni 1991; Such and Walker 2005). The family policy will also indicate the role of the State in protecting the rights of other citizens and maintaining social, political and economic equilibrium within the nation.

To ensure children will develop according to their potential, Malaysia has engaged actively in the standard of universal knowledge and practice in child welfare. The principles of the universal rights of a child and liberation were taken as the basis for situating a child in a wider context within a family, society and country (Scanzoni 1991; Skevik 2003; Spratt and Callan 2004). In 1985 the government, with the active participation of local NGOs, began to comply with universal standards in care and

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protection and the rights of individuals, including the welfare of a child. The two significant universal standards referred to in this Act are the Human Rights Declaration and the UNCRC.

‗Actually, Malaysia Child Act (2001) is not that much different from Malaysian Children Protection Act (1991). The spirit of UNCRC was already adopted back then‘ (Participant 5).

In Britain and other developed Western societies, the ‗Third Way‘ of protecting children is a new way of child care policy (Baumrind, 1994; Bellingham, 1986; Ben-Arieh, 2009; Bowes, 2004; Burden, 1998; Burman, 2003). In Australia, child care policy reflects societal change in looking at crime committed by children ( Healy, 1998a, 2005b;). In Malaysia, the changes in child care policy are not as clear as they are in Australia, the UK or the US. For example, the process and reasons behind the 2001 were not documented to provide insights into history, the assessment of previous laws and the implications of the practices before the formation of a new law that supposedly effectively addresses the current needs of Malaysia children (Jal Zabdi, Siti Hajar & Weatherley, 2008; Binti Jamaludin, Talib & Mohd Yusoff, 2002).

The enactment of MCA 2001 also continues to maintain a strong commitment by the State to prevent and control the influence of Western culture on the population, especially on children. Social policy has been used by government to deliver local values and norms perceived appropriate to the local culture. Defining inappropriate sexual conduct in Part VI of the MCA 2001 under protection and rehabilitation extends the role of the State and the family to ensure that children will not be involved in sexual activities with or without their consent before they reach 15 years of age.. However, in certain circumstances, marriage with consent from parents or the head of the State is lawful under the strict supervision of the Court.

The communal spirit of traditional Malaysian life is changing due to the changes in structure and location of the population. Throughout the years after Independence and modernisation, community-based support systems have declined rapidly. The old tradition of a child being the responsibility of the village is no longer relevant. Individualism is now replacing community-based care. Because of urbanisation and migration, community spirit is replaced by individual welfare and well being.

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The other reason for the enactment of the MCA 2001 was to be on an equal footing with the global standards of the rights of a child that were initiated by the Vienna Declaration and more recently by the UNCRC. The Act was also a significant move by the government to participate actively with the global commitment to the Universal Declaration of Human Rights. In the late 1990s, the government suggested that the time was right for Malaysia to follow the guidelines of the UNCRC to fulfil the needs of the current Malaysian population. As discussed in the Parliament, families are faced with uncertainty in the current context of Malaysia‘s stage of development. In order to deal with social problems, the government is obliged to use and adopt the established body of knowledge of care and protection of children. In this context, the Universal Declaration of Human Rights and the UNCRC are the standards in formulating the appropriate policy for Malaysian families and children. And according to the minister in charge of Malaysia ministry of family and community development (Datuk Seri Dr Siti Zaharah Sulaiman), with Vision 2020, MCA 2001 will have a new approach to addressing child welfare in Malaysia. Children are now not only the responsibility of the family, but also the general population.

‗Parallel with Vision 2020, it is a must that we have a new law. This law will take into account all parties involved including individuals, parents and families and also community members to ensure a child is protected and secure and developed‘ (Hansard: DR20.10.1999).

Family, according to the policy makers and officials, is changing from an extended, heterosexual, two-parent family into single-parent, working-parents and blended families. The traditional Malaysian family is replaced by the changing complexities of intimate relationships and life events that will occur throughout the family cycle. There is no longer a clear division of roles between husband and wife, especially when it comes to work and homemaker roles.

‗Family system for example family structure, forms and function are challenged by the influence of external culture introduced by the media. Unstable and single parent family have an impact on the pattern and style of family, especially in terms of care and education‘ (Hansard, DR.20.10.1999).

Emphasis on family and children has become the centre of social policy, which started

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in the late 1980s. One of the significant developments in family-centred approaches in child welfare was the formulation of the New Zealand Family Group Conference, based on New Zealand‘s indigenous community, the Maori (Ernst, 2001; Yan & Cheung, 2006). This new approach extends the family-centred approach into the ‗extended family‘ approach. Other Western countries began to change their family approach from focusing only on parents to including other significant people in a child's life. Following the Family Group Conference, child policy around the world began to introduce changes in child welfare. The definition of family not only consists of parents and siblings but also family members who have important roles in a child's life directly or indirectly.

The family-centred approach in social policy reflects a change of focus in addressing social issues, especially concerning children. Focusing on family welfare will inevitably ensure child welfare will be better addressed. Family-centred and child- centred approaches cannot be analysed independently, although some authors argue that child welfare should not be located within the context of a family. Family welfare as a whole does not represent the needs of each member of a family. However a family is a natural provider for an individual, especially a child‘s basic needs, therefore a family- centred approach is considered to include a child-centred approach.

The formation of the MCA 2001 reflected the move to officially recognise the roles of family and members of society in addressing children. From human development theoretical perspectives and learning theory, MCA 2001 adapted the notion of family, child and community centre principles. There are two significant changes in the Act according to the participants – more responsibility given to parents/family for the care and protection of a child, and the establishment of the Interactive Workshops. This was a significant reflection of increasing family participation in a child's life.

Section 30 [8] (a) that the parent or guardian of the child accompanied by the child shall attend interactive workshops organized at designated centres established for such purpose;

Participant 6, recognised this as an important value in Malaysian Child Act (2001),

‗There are differences in the Child Act. Firstly in terms of a child‘s age, and secondly

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participation of family towards the welfare of a child. After a child is taken under the responsibility of the welfare department, the family will normally not want to involve in the life of a child. In a worst case scenario, a child will be under the care/responsibility of the Court for Children and be sent to a Henry Gurney School. However, in MCA 2001, the Court for Children can impose a bond to force parents to be accountable for their child's behaviour even if the child is under the State care. Only when this happens, can the Court for Children make parents responsible for the welfare and behaviour of a child. In some cases, both parent and child are required to attend counseling sessions. While in the institution, parents are required to visit their child. Thirdly, parents, family and society must play an important role in child protection‘ (Participant 6).

In the 9MP, this value will strengthen the agenda for development.

In this regard, efforts towards strengthening the family unit, enhancing community participation and increasing the role of civil societies and non-government organizations towards cultivating a more tolerant and caring society will be undertaken (The 9MP (2006-2010), p.307).

In the 9MP, family and community are expected to be fully involved in the care and protection of children. In the introduction to the section on Fostering Family and Community Development (The 9MP), the goal of the State is stated as implementing the civil society approach to ensure the provision of welfare in the community. However, in the 10MP (Malaysia Tenth National Plan) , the focus on children and family is dissolved under various economic, social and political agendas. The move according to the plan ensures that family and children will participate actively in all developmental agendas.

If a child is under the State‘s care, the parents contribute to the rehabilitation process and also put up a good behaviour bond, ensuring their participation. According to Participants 2, 3, 4, 5 and 9, the MCA 2001 provides a space for the Court for Children to force parents' participation in a child's life in an institution or at home. Nonetheless, this notion of family participation was not new. In the Place of Safety Act (1991)19,

19 I have been involved in a small research on residential child care in Sarawak. This research focuses on the participation of family during their children‘s stay in a State institution. The institution

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family participation was compulsory for children in residential care. Parents or guardians are involved in a child's education and future plan. It is not a new directive, but revisiting an old law in a different document. However there has not yet been any evidence that reflects the implementation and success of family participation in the previous law. Under the Child (Places of Safety) Regulations Act (2007), participation of family has become less apparent,

Section 60 Involvement of parents and guardians

The Principles of a place of safety shall as far as possible keep constantly in touch with the parents or guardians of every child to ensure their understanding and cooperation with regard to welfare, health, education or training, behaviour and progress of their child (Act 14, PU [A]368/2007)

For the Malaysian government, the idea was for family and community development to regulate itself to generate a society that will naturally care for and protect themselves with minimum intervention from the State. This is the way in which social development goals of developing countries pursue modernisation and social development at the same time. In addition, the Malaysian Child Act (2001) was recognised as a piece of legislation that promotes community participation. In addressing crime and violence in the community, both families and relevant State agencies are responsible. However, members of society are also officially recognised as playing a role:

Various efforts were undertaken to address the issue of violence against children including strengthening community participation in implementing prevention and rehabilitation programmes. (The 9MP [2006-2010], p.309)

in this research was established to care for and protect children under the Place of Safety (1991). A preliminary research finding was published in Fulcher, L.C. & Mas‘ud, F. (2001). Residential Child and Youth Care in Malaysia. Journal of Child and Youth Care. 14 (2), 9-22 and Fulcher, L.C. & Mas‘ud F. (2000). Residential Child and Youth Care in Malaysia. Jurnal Kebajikan Masyarakat. 22 (2), 7-23.

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There was an increased financial allocation for family development and welfare services from the 8MP to the 9MP ( p.320). Funds allocated to the Social Welfare Department to deliver the Act were 0.03% less than the government‘s expenditure in 2006 (Welfare Department Statistic Profile 2006, p.39).

The position of family in a child‘s life in the MCA 2001 will provide a basis for the Act to achieve ‗Malaysianisation‘ or a Malaysian child welfare policy that fulfils children‘s needs. Family interpretation in the Act provides a general overview of the role and function of a family in Malaysian social policy, particularly the role expected by the State and the country.

In the MCA 2001, the changes in Malaysian social policy suggest that the function of family is a unit that is responsible for the future civilised Malaysian population. Along with a focus on nation-building and national unity, the family is responsible for shaping children into civilised Malaysian citizens who deliver the State‘s objectives (Swee-Hock & Kesavapany 2006). Failure of the family to provide the environment and necessities to regulate social behaviour will impact the future of Malaysia as a nation.

This idea is similar to the movement of civil society in Western countries. In civil society, the well being of individuals is the responsibility of the nation, and the State should be able to regulate resources appropriately and maintain peace and harmony (Persell, Green & Gurevich, 2001). Individuals, family and community are responsible for achieving a certain standard of living. In civil society, family carries the role of the social regulator and, by complying with the State laws and policies, strives to achieve the wider goals of the country. However, within the Malaysian democracy and civil society underpinning MCA 2001, family becomes the agent of the State in shaping its future citizens. For children to survive and achieve their full potential in adulthood, family as a legal entity assumes the role of protector, caretaker, rehabilitator and social agent. The unique feature of family in Malaysian social policy is also intended to manage the similar task in economic and political development, especially in relation to the survival of the country. Under the 9MP, the State continues to promote nation- building as its core objective in forging the unity of the diverse population of the country. This ongoing objective reflects the move from focusing on economic development to social development that acknowledges the family as the significant part

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of the country‘s developmental agenda.

…foster greater unity and integrations among Malaysians to ensure social stability (The 9MP [2001-2006], p.307).

The role of family as a socialisation agent was a focus in the previous government policy. However, since the late 1980s beginning with the Malaysian Child Protection Act (1991), the family has become an integral part in nation-building and a social regulator for future generations. With the increased focus on nation-building, family is also expected to participate actively in the process. Looking at multicultural population as a problem of unity, it became a tool to strengthen unity and integrity. Culturally diverse families, especially from Borneo, would be united to achieve the goal of protecting and caring for a child as a citizen of the State, and at the same time building a nation. At this time, geographical and historical segregations were not relevant in implementing and achieving goals.

In the UK‘s child policy, the Labour government adopted the ‗Third Way‘ approach that balances the rights of an individual, family and community in protecting and caring for a child (Koffman, 2008). The responsibilities of a child‘s well being are shared among all parties involved, directly or indirectly. Parents and the State are not only accountable to restore a child‘s well being, but the whole notion of establishing a civil society as a big family in a child's life (Axford, 2009). The community is responsible for providing appropriate values and role models for the younger members of the community. Individuals are a part of a system: a family, society and a nation. Nonetheless, Roberts (2001, p.63) argues that the Third Way is not easy to implement. The complex issues of child care policy and the ongoing divisions of the rights of a child and preserving family/parents and government roles remain controversial.

The ongoing reliance on professional measurements and tools to define and identify child abuse and neglect, indicate only a particular method of parenting to fulfil the needs of a child for all families, despite their social, physical and economic associations. Children and family are constantly defined in social policy according to specific standards which may not represent the reality of their life and context. Jack (1997), in his views on child protection discourse around the world, points out the tendency to professionalise child protection without taking into account personal

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meaning-making. The social constructions of ‗deviance‘, ‗rights‘ and ‗well being‘ are not definite and are based on particular contexts and times.

The child protection discourse can therefore be seen to have shaped the development of systems which are inefficient at identifying the small minority of children who are likely to be harmed within their own families. As a result, these systems tend to draw ever increasing numbers of families into their net, often on the basis of moral judgments about family lifestyles, rather than evidence of actual injury (p.662).

Conclusion

The MCA 2001 has a significant role in addressing and catering for the assumption of minimum rights and needs of a child when it comes to protection and safety. Protection of a child in social policy as presented in the Act as either a right or a need. The rights of a child are shadowed by the nation-state‘s aims to secure the survival of the nation. Furthermore, the right or need of a child to be protected is only relevant for a child if a family fails to deliver in their natural roles as providers of a child‘s need. There is no evidence that the MCA 2001 addresses children as individuals who can participate in decision-making, especially in their own best interest. Despite the move by the State to establish a preventive law, in reality the Act only addresses and manages at-risk children. The State's agenda to address at-risk children and youth is still the main theme in MCA 2001.

Protection of a child from an at-risk situation relies heavily on empirical evidence. Therefore, MCA 2001 is formulated to address a child in need. It is not about protection as a right but a need, when the risk occurs in a child's life and if a child is a threat to society. Furthermore, the focus on the family and the child is less apparent within the concentration on empirical evidence to detect maltreatment and offending children. The focus of the State is in terms of the function it assumes ‗to look after at- risk children‘.

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CHAPTER SEVEN CONCLUSION: PAST, CURRENT AND FUTURE SOCIAL POLICY FOR MALAYSIA

Introduction

RECOGNIZING that a child is not only a crucial component of such a society but also the key to its survival, development and prosperity (Preamble of MCA 2001)

The focus on ‘Malaysianisation’ of Malaysian Social Policy Development: A Study of Malaysia Child Act (2001) was selected to illustrate the process of social policy formulation in Malaysia, that requires analysis of context and understanding about the country's history and the current local and global context. The formulation process of the MCA 2001 revolved around the State's aspiration to establish a universally accepted identity in child welfare policy while acknowledging the undercurrent of local issues of nation-building and ethnic unrest, especially between the Malays and other ethnic groups. MCA 2001 not only reflects the development of child policy but manifests the country‘s social, economic and political development and the quest of the State to be accepted as a developed country in the global setting.

MCA 2001 is a watershed document that accepts the wider knowledge about child welfare while at the same time is rooted in the reality of the local environment and the State's agenda. In addition, the colonial legacy in race relations policy continues to be adopted by the State as the nation remains fragile around issues relating to minimum rights, especially as to the recognition of special rights given by the State to Malays and the Bumiputera to enable them to participate and compete more effectively in the country economically, politically and educationally. Furthermore, the special position of Syariah law in the Malaysian federal constitution adds to the existing tension in the population, especially in urban areas (Muhammed Jawhar, 1995; Rau & Sampathkumar, 2006).

Since the beginning of the late 1980s, Malaysian Government has begun to change its focus from social development and economic agenda to social policy designed to

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improve the welfare of the population. The State began to take the role of the family as the core of the country's holistic development seriously. The macro focus on the economic development of the State was shifted to the micro level where family is acknowledged as the main actor in ensuring that the country's economic agenda is achieved. The State now includes family and children as a central tenet of the country's development agenda. Children are now perceived as central to the Malaysia‘s survival but also a possible threat if they were not furnished with the right care during their developmental years.

The focus on family in Malaysia has developed from a generic reproduction unit with various functional domains, reflecting various discourses of the nation-state, and in recent years, in human development and international social policy agendas. The family as an entity has been considered as an institution, a unit and a system with various interpretations around the structure and functions of the family in relation to its members, society and the State. Nonetheless, the study of the family is involved in all fields of study as the family is recognised as a significant unit that influences society and the prosperity of a country.

Social policy involving children and family has developed significantly from simply addressing the needs of a child and its family into the developmental care approach which addresses contemporary social issues (Spratt & Callan, 2004). Knowledge and understanding of children from diverse perspectives are taken into consideration to inform social policy, especially regarding the welfare and rights of a child (Axford, 2009). In the formulation of child social policy, internal political, social and economic factors are juxtaposed with global demands, especially the universal policy requirement to come up with the best law to fulfil and address children‘s changing needs.

In this research, the MCA 2001 is a very significant document in the history of Malaysia, for three key reasons:

1. It defines Malaysia as a developed State and moves from a broader policy to a child and family specific policy. 2. It shows a shift in the emphasis from a long standing preoccupation with ethnic

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tension, and the need to address the Malay and Chinese tension in particular, to now reflecting a new determination to build a national identity in Malaysia.

3. It reflects the need to address problems associated with modernisation and urbanisation in Malaysia, the breakdown of some traditional family patterns and the role of the State in what was previously a private arena of the family.

MCA 2001 continues to give more power and authority to the State while strengthening and legalising family roles as natural providers. Parents and family member roles are explicitly reflected in the Act to support and facilitate the current understanding of childhood as the stage of dependency.

Not only does the MCA 2001 seeks to address some of this tension, but it also reflects the ongoing tension in the areas which are emphasised, and on the issues that are left implicit. For social policy in Malaysia, the local tension and the need to be recognised as a developed nation remain strong in providing ideas to formulate MCA 2001.

MCA 2001 differs from the previous laws as it also merges protection and regulation into one document. Firstly, it accepts the goal of protection and regulation of children. This move was to avoid overlap with other laws and reflects the goal of the State to support the UNCRC and to be on an equal footing with other developed nations. It is important to acknowledge these explicit and implicit changes as an inspiration of the State to universalise the welfare of children. Thus, these steps also support nation- building and strive to unite the diverse Malaysian population.

Secondly, the change of focus on the family as the agent of the State becomes implicit in securing and protecting children as citizens of the nation. The partnership between the State and the family in protecting children and regulating their behaviour is interpreted officially to ensure parents and family members will be held responsible for their children‘s well being and behaviour. However, the focus on family in MCA 2001 is only relevant to families and children in–need or at-risk. MCA 2001 cannot be compared with Western child laws as it only focuses on at-risk families and children. Family matters that were previously private sphere in Malaysia‘s traditional community became one of the agendas of the State‘s social policy if the law is broken. The care and protection of children that was commonly shouldered by parents, family and community

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becomes a State matter, if laws are broken and family problems cannot be solved within the family. Furthermore, MCA 2001 formalised the role of parents and society, protecting and regulating behaviour in accordance with what is believed to be beneficial to the government.

Finally, MCA 2001 not only secures the best interest of a child but does so with the aim of ‗Malaysianisation‘ achievements in nation-building. The construct of childhood by Aries (1962) provides significant opportunities for instilling selected values and norms in Malaysian children. As a feature of Malaysian social policy, MCA 2001 remains an instrument that delivers the wider goals of the State aimed at uniting a diverse multicultural nation. It is through the critical stage of childhood that allows the State to shape and ensure the survival of the nation.

Social policy reflects not only the State's objectives but also the country‘s social, political and economic development. It is formulated and shaped according to the policy makers and the stakeholders who have their own interpretations based on local and global influences (Wiseman, 1979). There are many changes needed in the general role of social policy in Malaysia. The goal of dealing with everything within the law without overlapping or confusion is admirable, but more work is needed to achieve the intended social policy objectives. A policy that is formulated to address only immediate issues and accommodate too many goals leads to confusion, especially around social policy aims.

Challenges

MCA 2001 is the continuation of the State‘s role in the care and protection of Malaysian children since the beginning of British involvement in the Malay States. There are not many substantial changes in the State‘s provision for caring for and protecting Malaysian children in Malaysia. The Act was formulated not only because of paramount interest in a child‘s well being, but in order to shape and mould Malaysia‘s younger generation into civilised Malaysian citizens. This goal was a continuation of British colonial policy that utilised social policy to control the Malay States. With the enactment of MCA 2001, the government retains the existence of binary law systems (civil and Syariah law), which acknowledges that Syariah law holds a similar status

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with MCA 2001 in the Malaysian legal system.

MCA 2001 not only requires the State to attend to current challenges in securing and protecting the best interests of a child, but also to ensure children will not threaten the peace and harmony of the nation. Taking into account Malaysia‘s historical experiences and the needs of a contemporary society made up of culturally diverse backgrounds, the goal of achieving a universal standard of protection and care for every child within one policy is a difficult and challenging process. Cultural diversity in Malaysia, in particular social stratification, is a controversial issue which includes difficulties and complexities relating to citizenship rights, discrimination and cultural supremacy (Andaya & Andaya 1982; Ahmad 1987; Siti Hajar, 2007). Furthermore, Malaysian social policy has been challenged by ethnic groups who are dissatisfied with an affirmative public policy that facilitates the dominance of particular ethnicities in the fields of social, economic and political development (Hooker & Othman, 2003).

Social policy in Malaysia continues to uphold and ensure peace and harmony among the multicultural population in every law, programme and policy of the State (Vasil, 1980; Verma, 2002; Vlieland, 1932; Wah Yun & Yusof, 1991; Wan Ramli, 1993). The Malay and Bumiputera welfare is still the primary focus of the State after various economic policies failed to reduce the economic gap between the Malays and the Chinese. Social policy should be formulated not only to ensure social welfare is provided by the State but also to ensure a continued focus on economic and political objectives (Siti Hajar, 2007).

With a largely multicultural population, the State faces continuous challenges to unite and integrate the heterogeneous members of the population, maintain racial harmony and forge the country's development (Vasil, 1980; Verma, 2002; Vlieland, 1932). By using MCA 2001, the State directly manages to unite the nation in the general objectives of care and protection for Malaysian children. Indirectly, the State shapes and moulds the younger generation by formalising the roles of parents and society to help them be positive agents of nation-building (Walton, 1993). Political power and authority of each state in Malaysia has also been transferred to the federal administration in Kuala Lumpur. Major decisions on family and children are directly controlled by centralising government. Using the Universal Declaration of Human

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Rights and standards in child welfare, the State considered it was justified in setting up the MCA 2001 to maintain its political power. The Universal Declaration of Human Rights and the UNCRC gave a flexible opportunity to the Malaysian government to formulate a suitable child law according to local contexts. However, with the majority of the population occupying remote areas with little interaction with government agencies, the States remain in control of information transmission outside of Malaysia‘s boundaries.

As a law reflecting the country‘s progress towards becoming a developed nation, MCA 2001 does not simply emerge from contemporary ideas relating to child welfare. Rather, its framework, structure and ideology had its roots in the British colonial period. The undercurrent of ideas and practice in child protection and care remain closely attached to cultural conceptualisation of deviance and the management of children and family by the State within the social policy realm (Jack, 1997). With the power and the authority of the State, the Act emerged at the beginning of the 21st Century to locate children and family welfare in a different paradigm which encompasses the universal standards in child policy and social justice systems in one law. The research findings can be summarised into three significant conclusions based on the study of MCA 2001 as Malaysian social policy.

As a public policy, MCA 2001 is enacted for various reasons and purposes. Some policies are enacted to solve significant problems, but others are formulated and established to address current and future issues in society and prevent further impairment to that society. The State‘s aims of formulating MCA 2001 addressed contemporary issues and facilitated nation-building. The family was recognised as the socialisation agent for children as citizens of Malaysia. MCA 2001 made families the agent of the State that ensures the peace and stability of the country are protected for the benefit of Malaysia‘s overall development. MCA 2001 thus illuminates Foucault‘s idea of ‗govermentality‘ by regulating the social behaviour of children in Malaysia through social policy.

The Future

At present, there is a critical need to revisit the explicit and implicit goals of social

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policy and its priorities in Malaysia. To formulate social policy for children and families, the main objectives need to be clear and applicable in the current environment. Therefore, available knowledge and practices should not only be compatible with universal objectives, but they should also address local needs and circumstances. The processes and procedures, with the support of other laws and programmes, should ensure the success of social policy, especially related to children who have to rely upon the State and their families to protect and secure their well being.

Experiences from developed countries confirm that social policy for children and family requires considerable detail and ongoing evaluation to ensure the best law and policy for the welfare of children in a given country (Carling, Duncan, & Edwards, 2002). Risk management is observed differently or taken further from what is in MCA 2001. Preventative and developmental approaches in social policy may require the State to intervene in family life before a child is exposed to uncertain situations in the family. Decision making related to the well being of a child is determined earlier by the State to avoid at-risk situations. Although the CRC provides the universal standards, how the standards are applied will depend on each country. There are not many details in the UNCRC on how child laws should be formulated and implemented to achieve the objectives.

Aiming to achieve the status of a developed nation requires endless review and formulation of social policy that should be able to develop alongside economic and political agendas. ‗Malaysianisation‘ of social policy, in particular child welfare policy, requires continuous efforts by the State to formulate the best policies to fulfil the needs of children and the people in general. Despite the dynamics of multiculturalism, social policy should be able to address and reflect the particularities within universality to secure and protect children in various circumstances. Meaning making is socially constructed and changes according to time, place and people. Therefore, all laws, policies, and programmes will change to make way for new knowledge and practices, especially relevant to the welfare of a child (Moinian, 2009).

MCA 2001 is the beginning of a new social policy approach in Malaysia, with a strong commitment to secure and protect the welfare of Malaysian children and their families. Despite various formulations and implementation of what are considered ‗religion-free‘

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laws and the introduction of universality via the Universal Declaration of Human Rights and the UNCRC, there are still various aspects to consider in delivering universal services in a local context. In the MCA 2001 itself, the tension is increased by various provisions that take into consideration Islamic teachings in the sections on age, gender, and immoral behaviour. Even though there is no objection from other religions, these provisions are specifically included so as not to be in conflict with Syariah law.

The most important achievement of the MCA 2001 is the government's determination to change the direction of social policy from previously separating control and protection laws for children and combining them into one law for the welfare of children. However, this goal is not always clear because the Act emphasises at-risk situations and the role of government is not apparent in the lives of other children who are not deemed to be at- risk. Social policy must intervene before problems occur as a result of family conflict or the changes that occur in the family institution today. Children need more support and assistance from the government because they are not able to meet their own needs. Parents and caregivers should be monitored and fully supported to ensure children are not neglected and can achieve their full potential.

Social policy involving children needs constant review and amendment to fulfil the ever-changing needs of children. Challenges faced by families in urban, rural and remote areas in Malaysia differ, but it is critical to have a law that will provide opportunities for all relevant issues to be addressed. In the 10MP (2010-2015), the focus on family is diluted in other development agendas. The future of Malaysian children and their families is at-risk of once again being shadowed by the community agenda and the quest of the State to achieve developed-nation status. The focus on children and family in Malaysia in Malaysia‘s 10MP is becoming implicit in other policies initiated by the State. Political agendas and social transformation in macro systems have replaced the micro approaches to social policy that needs continuous support from society. Family and children will once again lose their place in social policy as citizens of the State.

Malaysia under the new regime has moved from engaging with micro issues to focusing on developmental issues that are believed to solve family and individual issues and problems indirectly.

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Recommendation

Although MCA 2001 reflects a paradigm shift in looking after Malaysian children, the most important things to consider are the implementation and the support from the State to ensure the goals of this child law are fulfilled. The shift away from the fragmented child protection and juvenile justice systems manifests a positive move to signify the position of a child in social policy and in the state agenda. However, one Act is not sufficient if the other State‘s policies and programmes illustrate a different agenda and are inconsistent with other parts of social policy.

By and large, it is critical to ensure that there is a system of evaluation of social policy to ensure that is it kept up to date and that improvements are made in a timely fashion. A monitoring and evaluation structure should be put in place by the State to guarantee all policies, laws and programmes are cost effective and are able to achieve their intended goals. To be recognised as a developed nation, Malaysia not only needs to become a signatory of international policy but also needs to construct social policy which is practical and efficient in addressing the population‘s current needs. Inevitably, a developmental agenda in social policy will support the State and the country in becoming part of ‗a world-class group‘ for implementing the best policy and practice in the interest of the child.

Changes in social policy today depend heavily on the language used and the thoroughness of legal provisions. Developments in science and technology have greatly influenced changes in a more robust way, especially in detecting changes in the physical, emotional and mental health of children. Based on these research findings and in this context, it is highly recommended that various actions take place to ensure laws, policy and programmes relevant to children are effective and address the complexity of children's lives and their families in Malaysia‘s multicultural population.

Malaysian academics, with the State‘s support, are urged to carry out further research into the effectiveness of the MCA 2001. This will not only identify its strengths but also its weaknesses to ensure that future social policies will better respond to current and future children‘s issues. Research on Malaysia‘s social policy, in particular child welfare policy, will contribute to international knowledge and will create a better

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understanding of Malaysia in general. Information about Malaysian social policy will attract feedback from scholars in child welfare to help and support the development of Malaysian social policy relating to family and children.

The impact of dominant groups has been discussed in detail through reference to ‗knowledge communities‘, and how knowledge is mainly controlled by particular people from specific geographical locations. Well-funded research on social policy in Malaysia might contribute to hegemonic mêlée between north and south. In the early stages of this research, child welfare policy in Malaysia was examined with respect to its mandate of solving problems in a residual model evolving towards a prevention and protection model. This was supported by the limited literature and information on the formulation process and the State‘s agenda in the MCA 2001. However, my view was challenged as I continued reading the document and comparing it with other child laws from developing countries, especially as related to the meaning of prevention and problem-solving in social policy. Although one cannot compare one country to another in every respect, the philosophy, ideas and themes reflected by the MCA 2001 were not congruent with what was publicised by the media and stakeholders. The Act is still based on a residual and minimalist approach to addressing the welfare of a child and the regulation of a child's behaviour.

It is very critical for policy makers to understand the reasons behind social policy formulation including the philosophy, procedures and implementation before a policy is created. It is not sufficient to mix and match available laws and adopt them for the local context. Philosophy, ideas, and aims should go hand in hand with the process and procedures in the law and practice.

It is vitally important that the specific aims of social policy be monitored and evaluated to ensure best possible performance. Although MCA 2001 was initially publicised as a preventive and protective measure for children, the reality was not so. There should be clear and transparent justifications for the objective and the means to achieve the aims of social policy. There is no basis for the specific aim to prevent the maltreatment, crime and immoral behaviour of a child, if the Act actually only deals with risk management. Furthermore, the well being of a child only becomes the State‘s responsibility if they are abused, neglected, or involved in crime or inappropriate sexual

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conduct.

In conclusion, this social policy research represents a fledgling research agenda in the knowledge community of Malaysia. It requires substantial input from research communities, especially from local experts who are privy to and understand the dynamics of local communities and their social fabrication. But there can be no doubt about it; social policy research is directly relevant to the country's nation-building agenda. The MCA 2001 requires special attention as it deals with the most vulnerable children and young people in the population. By and large, social policy research requires participation from local scholars and support from the State to achieve good governance, another focal issue in the current political environment, and for the future survival of the nation.

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226

APPENDIX (THE MALAYSIAN CHILD ACT (2001))

227

Child

LAWS OF MALAYSIA

Reprint

Act 611

Child act 2001 Incorporating all amendments up to 1 January 2006

Published by The Commissioner of Law revision, Malaysia Under the Authority of the Revision of Laws Act 1968 in Collaboration with Percetakan Nasional Malaysia Bhd 2006

Child Act 2001

Date of Royal Assent ... … … … ...... 5 February 2001

Date of publication in the Gazette … ... March 2001

Previous Reprint

First Reprint ...... 2002 LAWS OF MALAYSIA

Act 611

CHILD ACT 2001

ARRANGEMENT OF SECTIONS

Part I

PRELIMINARY

Section . short title, application and commencement . interpretation

Part II

CO-ORDINATING COUNCIL FOR THE PROTECTION OF CHILDREN

. establishment of the Co-ordinating Council for the Protection of Children 4. membership of Council 5. meeting of Council 6. establishment of committees 7. establishment of Child Protection Teams

Part III

APPOINTMENT OF PROTECTOR, ETC.

8. appointment and powers of Protectors 9. appointment of Registrar General and Registrar 0. appointment of probation officers Laws of Malaysia Act 611

Part IV

COURTS FOR CHILDREN

Section . Constitution and jurisdiction of Court For Children . place of sitting and persons who may be present in Court For Children . period specified in any order made by Court For Children not to extend beyond the date child attains the age of eighteen years 4. Court For Children may order detention, etc., to extend beyond the date child attains the age of eighteen years 5. Restrictions on media reporting and publication 6. presumption as to age

Part V

CHILDREN IN NEED OF CARE AND PROTECTION

Chapter 1

GENERAL

7. meaning of child in need of care and protection

Chapter 2

TEMPORARY CUSTODY AND MEDICAL EXAMINATION AND TREATMENT

8. taking a child into temporary custody 9. production before Court For Children 0. Child in need of medical examination or treatment . medical examination and treatment . authorization of hospitalization . Control over hospitalized children 4. authorization of medical treatment 5. steps to be taken after medical examination or treatment 6. no liability incurred for giving authorization 7. duty of medical officer or medical practitioner 8. duty of member of the family Child

Section 9. duty of child care provider 0. powers of Court For Children

Chapter 3

OFFENCES IN RELATION TO THE HEALTH AND WELFARE OF CHILDREN

. ill-treatment, neglect, abandonment or exposure of children . Children not to be used for begging, etc. . offence to leave child without reasonable supervision

Chapter 4

NOTIFICATION ON TAKING A CHILD INTO CARE, CUSTODY OR CONTROL

4. application and interpretation 5. notification of taking a child into care, custody or control 6. subsequent obligations 7. power of Protector to require child to be produced before him

Part VI

CHILDREN IN NEED OF PROTECTION AND REHABILITATION

Chapter 1

GENERAL

8. meaning of child in need of protection and rehabilitation 9. Removal of a child to place of refuge 40. orders upon completion of an inquiry 41. Children in urgent need of protection 42. inquiries and detention of a child who has been bought or acquired under false pretences, etc.

Chapter 2

OFFENCES

43. offences Laws of Malaysia Act 611

Section 44. presumptions relating to section 43 45. detention pending proceedings

Part VII

BEYOND CONTROL

46. Children beyond control 47. supervision by probation officer

Part VIII

TRAFFICKING IN AND ABDUCTION OF CHILDREN

48. unlawful transfer of possession, custody or control of child 49. importation of child by false pretences 50. examination of child and person in charge 51. protector may require security 52. offence of taking or sending out a child without appropriate consent of person having lawful custody 53. Recovery order

Part IX

INSTITUTIONS

Chapter 1

PLACES OF SAFETY AND PLACES OF REFUGE

54. places of safety 55. places of refuge 56. Child who escapes or is removed from place of safety or place of refuge 57. offence of removing or helping a child to escape from place of safety or place of refuge

Chapter 2

PLACES OF DETENTION

58. places of detention Child

Section 59. Child who escapes or is removed from place of detention 60. offence of removing or helping a child to escape from place of detention

Chapter 3

PROBATION HOSTELS

61. probation hostels 62. Child under ten years of age not to be sent to probation hostel 63. Child who escapes or is removed from probation hostel 64. offence of removing or helping a child to escape from probation hostel

Chapter 4

APPROVED SCHOOLS

65. approved schools 66. Child under ten years of age not to be sent to approved school 67. when a child can be sent to approved school 68. approved school order to be delivered to the authority, etc., who conveys child to the school 69. further detention in approved school beyond period of order 70. aftercare of child released from approved school 71. escape from approved school, etc., or failure to return to approved school after expiry of leave, etc. 72. offence of removing or helping a child to escape from approved school

Chapter 5

HENRY GURNEY SCHOOLS

73. henry Gurney Schools 74. Child under fourteen years of age not to be sent to Henry Gurney School 75. when a child can be sent to Henry Gurney School Laws of Malaysia Act 611

Section Chapter 6

SPECIAL PROVISIONS IN RELATION TO PLACES OF SAFETY, PLACES OF REFUGE, APPROVED SCHOOLS AND HENRY GURNEY SCHOOLS

76. power in respect of persons of eighteen years but under twenty-one years of age 77. power of Minister to remove person undergoing imprisonment to Henry Gurney School 78. power of Minister to remove child undergoing imprisonment to approved school or Henry Gurney School 79. power to substitute term of detention to term of imprisonment 80. transfer of child from one place of safety or place of refuge to another place of safety or place of refuge

Chapter 7

MISCELLANEOUS

81. Child or person detained to be subject to regulations 82. board of Visitors

Part X

CRIMINAL PROCEDURE IN COURT FOR CHILDREN

Chapter 1

CHARGE, BAIL, ETC.

83. trials of children to be in conformity with this Act 84. bail 85. separation of child from adult in police stations or Courts 86. Custody of child not discharged on bail after arrest 87. submission of information by police officer after arrest

Chapter 2

TRIALS

88. parent or guardian required to attend 89. parents or guardian may be required to withdraw 90. procedure in Court For Children Child

Chapter 3

POWERS OF THE COURT FOR CHILDREN AT THE CONCLUSION OF THE TRIAL

Section 91. powers of Court For Children on proof of offence 92. manner of executing whipping 93. parent or guardian to execute bond 94. power to order parent or guardian to pay fine, etc., instead of child 95. appeals 96. Restrictions on order of imprisonment 97. death

Chapter 4

PROBATION

98. when probation may be ordered 99. failure to comply with probation order 00. Commission of further offence 01. effects of probation 02. amendment of probation order 03. discharge of probation order 04. Court to give copies of amending or discharging order to probation officer

Part XI

IN THE CARE OF FIT AND PROPER PERSON

05. Child placed in the care of fit and proper person 06. Child who escapes or is removed from the care of fit and proper person 07. offence of removing or helping a child to escape from the care of fit and proper person

Part XII

CONTRIBUTION ORDERS

08. Contribution by parent or guardian or other person 10 Laws of Malaysia Act 611

Part XIII

INVESTIGATION, ARREST, SEARCH, SEIZURE, ETC.

Section 09. power of investigation 0. power to arrest without warrant . search by warrant . search without warrant . power to examine person 4. inspection 5. obstruction 6. protection of informers

Part XIV

MISCELLANEOUS

7. power of Court For Children conferred on High Court 8. Register 9. Contents of Register 0. access to Register . offence in respect of Register . Certificate of Registrar to be evidence . protection against suit and legal proceedings 4. public servant 5. General penalty 6. institution and conduct of prosecution 7. service of document 8. power to make regulations

Part XV

SAVINGS AND TRANSITIONAL PROVISIONS

9. interpretation 0. Repeal . References to Juvenile Court, etc. Child 11

Section . Continuance of Council, etc. . Continuance of rules, etc. 4. institutions established or appointed 5. prevention of anomalies

First Schedule

second Schedule 12 Laws of Malaysia Act 611 Child 13 LAWS OF MALAYSIA

Act 611

CHILD ACT 2001

An Act to consolidate and amend the laws relating to the care, protection and rehabilitation of children and to provide for matters connected therewith and incidental thereto.

[1 August 2002, P.U. (B) 229/2002]

RECOGNIZING that the country’s vision of a fully developed nation is one where social justice and moral, ethical and spiritual developments are just as important as economic development in creating a civil Malaysian society which is united, progressive, peaceful, caring, just and humane:

RECOGNIZING that a child is not only a crucial component of such a society but also the key to its survival, development and prosperity:

ACKNOWLEDGING the family as the fundamental group in society which provides the natural environment for the growth, support and well-being of all its members, particularly children, so that they may develop in an environment of peace, happiness, love and understanding in order to attain the full confidence, dignity and worth of the human person:

Part I PRELIMINARY

Short title, application and commencement

1. (1) this Act may be cited as the Child Act 2001.

(2) this Act applies throughout Malaysia.

(3) this Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.

Interpretation

2. (1) in this Act, unless the context otherwise requires—

“member of the family” includes a parent or a guardian, or a member of the extended family, who is a household member;

“household member” means a person who ordinarily resides in the same household as the child;

“probation hostel” means a hostel established or appointed under section 61 as a place of residence for children required to reside there under Part X;

“Register” means the Register kept and maintained under section 118;

“prescribed” means prescribed by regulations made under section 128;

“hospital” means any Government hospital or any teaching hospital of a University;

“foster parent” means a person, not being a parent or a relative of a child— (a) to whom the care, custody and control of a child has been given by order of a Court under paragraph 30(1)(e); or Child 15 (b) permitted by the Protector under section 35 or 37, as the case may be, to receive a child into his care, custody and control;

“Child Welfare Committee”, in relation to a State, means a Committee appointed by the Minister to oversee the welfare of persons coming within the purview of Part X and to assist the probation officer in any district or area;

“grave crime” includes— (a) the offences of murder, culpable homicide not amounting to murder or attempted murder; (b) all offences under the Firearms (Increased Penalties) Act 1971 [Act 37]; (c) all offences under the Internal Security Act 1960 [Act 82] punishable with imprisonment for life or with death; (d) all offences under the Dangerous Drugs Act 1952 [Act 234] punishable with imprisonment for more than five years or with death; and (e) all offences under the Kidnapping Act 1961 [Act 365];

“child”— (a) means a person under the age of eighteen years; and (b) in relation to criminal proceedings, means a person who has attained the age of criminal responsibility as prescribed in section 82 of the Penal Code [Act 574];

“probationer” means a child for the time being under supervision by virtue of a probation order;

“extended family”, in relation to a person, means persons related by consanguinity, affinity or adoption to that person;

“Director General” means the Director General of Social Welfare;

“probation report” means a report prepared by a probation officer under subsection 90(13); 16 Laws of Malaysia Act 611 “Board of Visiting Justices” means the Board of Visiting Justices appointed under section 64 of the Prison Act 1995 [Act 537];

“Board of Visitors” means the Board of Visitors appointed by the Minister under section 82;

“Court” means the Court For Children or any other Court, as the case may require;

“Court For Children” means the Court For Children constituted under section 11;

“Magistrate’s Court” means a Court of a Magistrate of the First Class;

“Supervising Court” means the Court For Children for the district or area in which a probationer is required to reside;

“Magistrate” means a Magistrate of the First Class;

“Council” means the Co-ordinating Council for the Protection of Children established under section 3;

“Minister” means the Minister or Ministers for the time being charged with the responsibility for the matter or matters in connection with which the reference to the “Minister” is made, acting individually or jointly or in consultation, as the case may require;

“Child Protection Team” means a team established by the Council under section 7;

“probation officer” means a probation officer appointed under section 10;

“senior police officer” has the same meaning as in the Police Act 1967 [Act 344];

“Social Welfare Officer” means any Social Welfare Officer in the Ministry or Department responsible for welfare services and includes any Assistant Social Welfare Officer;

“medical officer” means a registered medical practitioner in the service of the Government and includes a registered medical practitioner in any teaching hospital of a University; Child 17 “police officer” has the same meaning as in the Police Act 1967;

“prostitution” means the act of a person offering that person’s body for sexual gratification for hire whether in money or in kind; and “prostitute” shall be construed accordingly;

“Protector” means— (a) the Director General; (b) the Deputy Director General; (c) a Divisional Director of Social Welfare, Department of Social Welfare; (d) the State Director of Social Welfare of each of the States; (e) any Social Welfare Officer appointed under section 8;

“owner”— (a) in relation to any place— (i) means the registered proprietor of the place; (ii) the lessee, including a sublessee, of the place whether registered or otherwise; or (iii) the agent or trustee of any of the persons described in subparagraphs (i) and (ii); and

(b) in relation to any conveyance, means the registered owner of the conveyance;

“Registrar” means the Registrar of Children in Need of Protection appointed under subsection 9(2) and includes the Registrar General;

“Registrar General” means the Registrar General of Children in Need of Protection appointed under subsection 9(1);

“registered medical practitioner” means a medical practitioner registered under the Medical Act 1971 [Act 50]; 18 Laws of Malaysia Act 611 “conveyance” includes an aircraft, a ship, a boat or a vessel whether afloat or not, and any vehicle;

“child care provider” means a person who looks after one or more children for valuable consideration for any period of time;

“occupier”— (a) means a person in occupation or control of any place; and (b) in relation to places different parts of which are occupied by different persons, means the respective person in occupation or control of each part;

“guardian”, in relation to a child, includes any person who, in the opinion of the Court For Children having cognizance of any case in relation to the child or in which the child is concerned, has for the time being the charge of or control over the child;

“probation order” means a probation order made under section 98;

“Henry Gurney School order” means an order made by a Court For Children sending a child aged fourteen years or above to a Henry Gurney School;

“approved school order” means an order made by a Court For Children sending a child to an approved school;

“contribution order” means a contribution order made under section 108;

“centre” means a privately-owned shelter or institution approved by the Minister, set up for the care, protection and rehabilitation of children;

“brothel” means any place occupied or used by any two or more persons whether at the same time or at different times for the purpose of prostitution; Child 19 “Henry Gurney School” means a school— (a) established or appointed under section 73; and (b) under the direction and control of the Director General of Prisons and approved by the Minister for the education, training and detention of persons to be sent there in pursuance of Part X;

“approved school” means a school established or appointed under section 65 and includes a centre;

“place” includes any building, house, office, shop, flat, room or cubicle or part thereof, any open or enclosed space, and any conveyance;

“place of assignation” means any place where communication is established with any child either directly or through intermediary for purposes of prostitution;

“place of refuge” means any place of refuge established or appointed under section 55;

“place of safety” means any place of safety established or appointed under section 54;

“place of detention”— (a) means any place of detention established or appointed under section 58; and (b) includes accommodation in a police station, police cell or lock-up, separate or apart from adult offenders;

“probation period” means the period for which a probationer is placed under supervision by a probation order;

“Deputy Director General” means the Deputy Director General of Social Welfare.

(2) In this Act, unless the context otherwise requires, the Federal Territory of Kuala Lumpur and the Federal Territory of Labuan shall each be regarded as a State. 20 Laws of Malaysia Act 611

Part II

CO-ORDINATING COUNCIL FOR THE PROTECTION OF CHILDREN

Establishment of the Co-ordinating Council for the Protection of Children

3. (1) there shall be established a Council which shall be known as the “Co-ordinating Council for the Protection of Children”.

(2) The Council shall— (a) be responsible for advising the Minister on all aspects of child protection; (b) design an efficient and effective management system throughout Malaysia incorporating information channels for reporting cases of children in need of protection; (c) recommend services that are specifically oriented to meet the needs of persons, children and families in need of child protection services; (d) co-ordinate the various resources of any Government Department which is involved with child protection; (e) develop programmes to educate the public in the prevention of child abuse and neglect; (f) advise on the management, operation and practice of Child Protection Teams throughout Malaysia; (g) advise on the development of training programmes for members of Child Protection Teams throughout Malaysia; (h) resolve any conflict that may arise within Child Protection Teams; and (i) perform such other functions as may be prescribed by regulations made under this Act.

Membership of Council

4. (1) The Council shall consist of the following members: (a) the Director General who shall be the Chairman; Child 21 (b) the Deputy Director General who shall be the Deputy Chairman; (c) a representative from the Ministry responsible for child protection; (d) a representative from the Ministry responsible for health; (e) a representative from the Ministry responsible for education; (f) a representative from the Ministry responsible for human resources; (g) a representative from the Ministry responsible for information; (h) a representative of the Attorney General; (i) a representative of the Inspector General of Police; (j) a representative from the Prison Department; (k) two representatives from the Department of Social Welfare; (l) a representative from the ministry, in the State of Sabah, charged with the responsibility for welfare services; (m) a representative from the ministry, in the State of Sarawak, charged with the responsibility for welfare services; (n) not more than seven persons with appropriate experience, knowledge and expertise on matters relating to the welfare and development of children including any person qualified to advise on relevant indigenous, ethnic, cultural or religious factors, to be appointed by the Minister; and (o) a Registrar who shall be the Secretary.

(2) each member of the Council appointed under paragraph (1)(m) shall, unless he sooner resigns, hold office for a period not exceeding three years and is eligible for reappointment. 22 Laws of Malaysia Act 611 Meeting of Council

5. (1) the Council shall meet at least four times in a year at such time and place as the Chairman may determine.

(2) Every meeting of the Council shall be presided over— (a) by the Chairman; (b) in the absence of the Chairman, by the Deputy Chairman; or (c) in the absence of the Chairman and Deputy Chairman, by a member elected by the members present from amongst themselves.

(3) seven members of the Council shall form a quorum at any meeting of the Council.

(4) if on any question to be determined there is an equality of votes, the Chairman, or the Deputy Chairman or the member referred to in paragraph (2)(c) if he is presiding over the meeting, shall have a casting vote in addition to his deliberative vote.

(5) subject to this Act, the Council may determine its own procedure.

Establishment of committees

6. (1) the Council may establish such committees as it deems necessary or expedient to assist it in the performance of its functions under this Act.

(2) a committee established under subsection (1)— (a) shall be chaired by a member of the Council; (b) shall conform to and act in accordance with any direction given to it by the Council; and (c) may determine its own procedure.

(3) members of the committees established under subsection (1) may be appointed from amongst members of the Council or such other persons as the Council thinks fit. Child 23 (4) a member of a committee shall hold office for such term as may be specified in his letter of appointment and is eligible for reappointment.

(5) the Council may revoke the appointment of any member of a committee without assigning any reason therefor.

(6) a member of a committee may, at any time, resign by giving notice in writing to the chairman of the committee.

(7) the Council may, at any time, discontinue or alter the constitution of a committee.

(8) a committee shall hold its meetings at such times and places as the chairman of the committee may determine.

(9) a committee may invite any person to attend a meeting of the committee for the purpose of advising it on any matter under discussion but that person shall not be entitled to vote at the meeting.

Establishment of Child Protection Teams

7. (1) the Council shall establish throughout Malaysia groups of persons, each group to be known as a “Child Protection Team”, for the purpose of co-ordinating locally-based services to families and children if children are or are suspected of being in need of protection.

(2) a Child Protection Team shall consist of the following members: (a) a Protector to be named by the Council on the advice of the Director General, who shall be the chairman; (b) a medical officer; and (c) a senior police officer.

(3) a Child Protection Team shall have the authority to co- opt from time to time such other persons as it may reasonably require to assist it in the performance of its functions and duties or as the circumstances of each case may require, including any person qualified to advise on relevant indigenous, ethnic, cultural or religious factors. 24 Laws of Malaysia Act 611

Part III

APPOINTMENT OF PROTECTOR, ETC.

Appointment and powers of Protectors

8. (1) the Minister may, by notification in the Gazette, appoint such number of Social Welfare Officers to exercise the powers and perform the duties of a Protector under this Act subject to such conditions as may be specified in the notification.

(2) a Protector— (a) shall have the power of a Magistrate in respect of the taking of evidence at any inquiry held by him under this Act; (b) shall furnish to the Court a copy of the notes of such evidence when called upon to do so by order of the Court; and (c) shall not be compellable in any judicial proceedings to answer any question as to the grounds of his decision or belief— (i) in any case dealt with by him under this Act; or (ii) as to anything which came to his knowledge in any inquiry made by him as Protector.

(3) Every order or summons purporting to be issued by and under the hand and seal of the Protector in pursuance of this Act shall be received in evidence in any Court without further proof and shall be prima facie evidence of the facts stated in such order or summons.

(4) All acts done in pursuance of any order or summons referred to in subsection (3) shall be deemed to have been authorized by law.

Appointment of Registrar General and Registrar

9. (1) the Minister may appoint a Social Welfare Officer to be the Registrar General of Children in Need of Protection for the purposes of this Act. Child 25 (2) The Minister may appoint such number of public officers as he deems necessary by name or by office to be Registrars of Children in Need of Protection.

(3) The Registrar General shall have the general supervision and control of— (a) Registrars appointed under subsection (2); and (b) the registration of children in need of protection under this Act.

Appointment of probation officers

10. (1) the Minister may, by notification in the Gazette, appoint such number of Social Welfare Officers as he deems necessary to be probation officers throughout Malaysia or any part of Malaysia.

(2) a probation officer when acting under a probation order shall be subject to the control of the Supervising Court.

(3) in this section, “Social Welfare Officers” includes Social Welfare Assistants.

Part IV

COURTS FOR CHILDREN

Constitution and jurisdiction of Court For Children

11. (1) Courts constituted in accordance with this Act and sitting for the purpose of— (a) hearing, determining or disposing of any charge against a child; or (b) exercising any other jurisdiction conferred or to be conferred on Courts For Children by or under this Act or by any other written law,

shall be known as the “Courts For Children”. 26 Laws of Malaysia Act 611 (2) a Court For Children shall consist of a Magistrate who, in the exercise of his functions as a Court For Children except when making an order under subsection 39(4), 42(4), 84(3) or 86(1), as the case may require, shall be assisted by two advisers to be appointed by the Minister from a panel of persons resident in the State.

(3) one of the two advisers mentioned in subsection (2) shall be a woman.

(4) the functions of the advisers are— (a) to inform and advise the Court For Children with respect to any consideration affecting the order made upon a finding of guilt or other related treatment of any child brought before it; and (b) if necessary, to advise the parent or guardian of the child.

(5) a Court For Children shall have jurisdiction to try all offences except offences punishable with death.

(6) except as modified or extended by this Part, the Criminal Procedure Code [Act 593] shall apply to Courts For Children as if Courts For Children were Magistrates’ Courts.

Place of sitting and persons who may be present in Court For Children

12. (1) a Court For Children shall, if practicable, sit— (a) either in a different building or room from that in which sittings of Courts other than Courts For Children are held; or (b) on different days from those on which sittings of those other Courts are held.

(2) if a Court For Children sits in the same building as other Courts, the Court For Children shall have a different entrance and exit from those of the other Courts to enable children to be brought to and from the Court For Children with privacy. Child 27 (3) no person shall be present at any sitting of a Court For Children except— (a) members and officers of the Court; (b) the children who are parties to the case before the Court, their parents, guardians, advocates and witnesses, and other persons directly concerned in that case; and (c) such other responsible persons as may be determined by the Court.

Period specified in any order made by Court For Children not to extend beyond the date child attains the age of eighteen years

13. except as specified in this Act, any period specified in any order made by a Court For Children under this Act shall not extend beyond the date on which the child to whom the order relates attains the age of eighteen years.

Court For Children may order detention, etc., to extend beyond the date child attains the age of eighteen years

14. (1) notwithstanding anything in this Act or any written law or any rule of law, a Court For Children may, if the Court finds that circumstances warrant it, make an order relating to— (a) the detention of a child in a place of detention, probation hostel, approved school or Henry Gurney School, approved institution or centre; (b) the supervision of a child by a Social Welfare Officer or probation officer, as the case may be; or (c) any probation period,

which has the effect of extending the period of such detention, supervision or probation beyond the date on which the child attains the age of eighteen years.

(2) the order referred to in subsection (1) shall be complied with by the child and all parties to whom the order relates so long as the order remains in force and have effect. 28 Laws of Malaysia Act 611 Restrictions on media reporting and publication

15. (1) notwithstanding any written law to the contrary, any mass media report regarding— (a) any step taken against a child concerned or purportedly concerned in any criminal act or omission, be it at the pre-trial, trial or post-trial stage; (b) any child in respect of whom custody is taken under Part V; (c) any child in respect of whom any of the offences specified in the First Schedule has been or is suspected to have been committed; or (d) any proceedings under Part VI, shall not reveal the name, address or educational institution, or include any particulars calculated to lead to the identification of any child so concerned either as being the person against or in respect of whom action is taken or as being a witness to the action.

(2) a picture of— (a) any child concerned in any of the matters mentioned in subsection (1); or (b) any other person, place or thing which may lead to the identification of any child so concerned, shall not be published in any newspaper or magazine or transmitted through any electronic medium.

(3) the Court For Children, in any case— (a) may, if the Court For Children is satisfied that it is in the interest of justice to do so; and (b) shall, in the case of an application by or with the authority of a Protector, dispense with the requirements of this section to such an extent as the Court may deem expedient.

(4) any person who contravenes subsection (1) or (2) commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both. Child 29 (5) for the purposes of this section, “transmit” includes broadcast by radio or television.

Presumption as to age

16. (1) if in a charge for an offence triable under this Act— (a) it is alleged that the person who committed the offence was under or had attained any specified age; and (b) that person appears to the Court For Children to have been at the date of the commission of the alleged offence under or to have attained the specified age, as the case may be, he shall, for the purposes of this Act, be presumed at that date to have been under or to have attained that age, as the case may be, and any order made therein shall not be invalidated by any subsequent proof that the age has been incorrectly stated.

(2) if the Court For Children is in doubt as to the exact age of the person who is alleged to have committed an offence, the certificate of a medical officer to the effect that, in his opinion, the person has or has not attained a specified age may be given in evidence, and the Court For Children shall declare that person’s age for the purposes of this Act.

(3) the age so declared by the Court For Children under subsection (2) shall be deemed to be the true age of that person, unless and until the contrary is proved.

Part V CHILDREN IN NEED OF CARE AND PROTECTION

Chapter 1 GENERAL

Meaning of child in need of care and protection

17. (1) a child is in need of care and protection if— (a) the child has been or there is substantial risk that the child will be physically injured or emotionally injured or 30 Laws of Malaysia Act 611 sexually abused by his parent or guardian or a member of his extended family; (b) the child has been or there is substantial risk that the child will be physically injured or emotionally injured or sexually abused and his parent or guardian, knowing of such injury or abuse or risk, has not protected or is unlikely to protect the child from such injury or abuse; (c) the parent or guardian of the child is unfit, or has neglected, or is unable, to exercise proper supervision and control over the child and the child is falling into bad association; (d) the parent or guardian of the child has neglected or is unwilling to provide for him adequate care, food, clothing and shelter; (e) the child— (i) has no parent or guardian; or (ii) has been abandoned by his parent or guardian and after reasonable inquiries the parent or guardian cannot be found,

and no other suitable person is willing and able to care for the child;

(f) the child needs to be examined, investigated or treated— (i) for the purpose of restoring or preserving his health; and (ii) his parent or guardian neglects or refuses to have him so examined, investigated or treated;

(g) the child behaves in a manner that is, or is likely to be, harmful to himself or to any other person and his parent or guardian is unable or unwilling to take necessary measures to remedy the situation or the remedial measures taken by the parent or guardian fail; Child 31 (h) there is such a conflict between the child and his parent or guardian, or between his parents or guardians, that family relationships are seriously disrupted, thereby causing him emotional injury; (i) the child is a person in respect of whom any of the offences specified in the First Schedule or any offence of the nature described in sections 31, 32 and 33 has been or is suspected to have been committed and his parent or guardian— (i) is the person who committed such offence or is suspected to have committed such offence; or (ii) has not protected or is unlikely to protect him from such offence;

(j) the child is— (i) a member of the same household as the child referred to in paragraph (i); or (ii) a member of the same household as the person who has been convicted of the offence referred to in paragraph (i),

and appears to be in danger of the commission upon or in respect of him of a similar offence and his parent or guardian— (aa) is the person who committed or is suspected to have committed the offence; (bb) is the person who is convicted of such offence; or (cc) is unable or unwilling to protect him from such offence;

(k) the child is allowed to be on any street, premises or place for the purposes of— (i) begging or receiving alms, whether or not there is any pretence of singing, playing, performing or offering anything for sale; or (ii) carrying out illegal hawking, illegal lotteries, gambling or other illegal activities detrimental to the health and welfare of the child. 32 Laws of Malaysia Act 611 (2) for the purposes of this Part, a child is— (a) physically injured if there is substantial and observable injury to any part of the child’s body as a result of the non-accidental application of force or an agent to the child’s body that is evidenced by, amongst other things, a laceration, a contusion, an abrasion, a scar, a fracture or other bone injury, a dislocation, a sprain, haemorrhaging, the rupture of a viscus, a burn, a scald, the loss or alteration of consciousness or physiological functioning or the loss of hair or teeth; (b) emotionally injured if there is substantial and observable impairment of the child’s mental or emotional functioning that is evidenced by, amongst other things, a mental or behavioural disorder, including anxiety, depression, withdrawal, aggression or delayed development; (c) sexually abused if he has taken part, whether as a participant or an observer, in any activity which is sexual in nature for the purposes of— (i) any pornographic, obscene or indecent material, photograph, recording, film, videotape or performance; or (ii) sexual exploitation by any person for that person’s or another person’s sexual gratification.

Chapter 2

TEMPORARY CUSTODY AND MEDICAL EXAMINATION AND TREATMENT

Taking a child into temporary custody

18. any Protector or police officer who is satisfied on reasonable grounds that a child is in need of care and protection may take the child into temporary custody, unless the Protector or police officer is satisfied that— (a) the taking of proceedings in relation to the child is undesirable in the best interests of the child; or (b) the proceedings are about to be taken by some other person. Child 33 Production before Court For Children

19. (1) subject to section 20, every child who is taken into temporary custody under section 18 shall be brought before a Court For Children within twenty-four hours exclusive of the time necessary for the journey from the place the child was so taken into custody to the Court For Children.

(2) if it is not possible to bring a child before a Court For Children within the time specified in subsection (1), the child shall be brought before a Magistrate who may direct that the child be placed in— (a) a place of safety; or (b) the care of a fit and proper person,

until such time as the child can be brought before a Court For Children.

(3) if a child is placed in a place of safety or in the care of a fit and proper person under subsection (2)— (a) the person in charge of the place of safety or such fit and proper person shall have the like control over, and responsibility for the maintenance of, the child as the parent of the child would have had; and (b) the child shall continue in the care of the person referred to in paragraph (a) notwithstanding that the child is claimed by his parent or guardian or any other person.

(4) a Protector who takes a child into temporary custody under this section shall, immediately upon such taking, cause the parent or guardian of the child to be notified of such taking.

(5) a police officer who takes a child into temporary custody under this section shall, immediately upon such taking, notify the Protector of such taking.

Child in need of medical examination or treatment

20. (1) if a Protector or police officer who takes a child into temporary custody under section 18 is of the opinion that the child is in need of medical examination or treatment, the Protector or 34 Laws of Malaysia Act 611 police officer may, instead of bringing the child before a Court For Children or Magistrate, as the case may be, present the child before a medical officer.

(2) if at the time of being taken into custody a child is a patient in a hospital, the Protector or police officer who takes the child into custody may leave the child in the hospital.

(3) if a Protector or police officer does not take a child into temporary custody under section 18 but he is satisfied on reasonable grounds that the child is in need of medical examination or treatment, he may direct in writing the person who appears to him to have the care of the child for the time being to immediately take the child to a medical officer.

(4) if the person referred to in subsection (3) fails to comply within forty-eight hours with a direction made under that subsection, a Protector or police officer may take the child into temporary custody for the purpose of presenting the child before a medical officer.

Medical examination and treatment

21. a medical officer before whom a child is presented under subsection 20(1) or (4)— (a) shall conduct or cause to be conducted an examination of the child; (b) may, in examining the child and if so authorized by a Protector or police officer, administer or cause to be administered such procedures and tests as may be necessary to diagnose the child’s condition; and (c) may provide or cause to be provided such treatment as he considers necessary as a result of the diagnosis.

Authorization of hospitalization

22. if the medical officer who examines a child under section 21 is of the opinion that the hospitalization of the child is necessary for the purposes of medical care or treatment, a Protector or police officer may authorize the child to be hospitalized. Child 35 Control over hospitalized children

23. if a child is hospitalized under section 22, the Director General shall have the like control over, and responsibility for the maintenance of, that child as a person in charge of a place of safety would have had if the child had been placed in that place of safety.

Authorization of medical treatment

24. (1) if, in the opinion of a medical officer, the child referred to in section 21 requires treatment for a minor illness, injury or condition, a Protector or police officer may authorize such treatment.

(2) if, in the opinion of a medical officer, the child referred to in section 21 is suffering from a serious illness, injury or condition or requires surgery or psychiatric treatment, a Protector or police officer— (a) shall immediately notify or take reasonable steps to notify and consult the parent or guardian of the child or any person having authority to consent to such treatment; and (b) may, with the written consent of the parent or guardian or such person, authorize such medical or surgical or psychiatric treatment as may be considered necessary by a medical officer.

(3) if a medical officer has certified in writing that there is immediate risk to the health of a child, a Protector may authorize, without obtaining the consent referred to in subsection (2), such medical or surgical or psychiatric treatment as may be considered necessary by the medical officer but only under any of the following circumstances: (a) that the parent or guardian of the child or any person having authority to consent to such treatment has unreasonably refused to give, or abstained from giving, consent to such treatment; (b) that the parent or guardian or the person referred to in paragraph (a) is not available or cannot be found within a reasonable time; or 36 Laws of Malaysia Act 611 (c) the Protector believes on reasonable grounds that the parent or guardian or the person referred to in paragraph (a) has ill-treated, neglected, abandoned or exposed, or sexually abused, the child.

Steps to be taken after medical examination or treatment

25. (1) a child who is taken into custody under section 18 and is medically examined or treated under section 21 shall be brought before a Court For Children within twenty-four hours— (a) of the completion of such examination or treatment; or (b) if the child is hospitalized, of his discharge from the hospital.

(2) if it is not possible to bring the child before a Court For Children within the time specified in subsection (1), the child shall be brought before a Magistrate who may direct that the child be placed in— (a) a place of safety; or (b) the care of a fit and proper person, until such time as the child can be brought before a Court For Children.

(3) a child who— (a) is taken into custody under subsection 20(4); and (b) subsequently undergoes medical examination or treatment, shall be returned to the person from whose care the child was taken— (aa) upon the completion of such examination or treatment; or (bb) if the child is hospitalized, upon his discharge from the hospital.

No liability incurred for giving authorization

26. (1) if a child is examined or treated pursuant to section 21 or 24— (a) the Protector or police officer who authorizes such examination or treatment; Child 37 (b) the medical officer who examines or treats the child; and (c) all persons acting in aid of the medical officer,

shall not incur any liability at law by reason only that a child is examined or treated pursuant to that section.

(2) nothing contained in subsection (1) relieves a medical officer from liability in respect of the examination or treatment of a child which liability he would have been subject to had the examination or treatment been carried out or administered with the consent of the parent or guardian of the child or person having authority to consent to the examination or treatment.

Duty of medical officer or medical practitioner

27. (1) if a medical officer or a registered medical practitioner believes on reasonable grounds that a child he is examining or treating is physically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, or is sexually abused, he shall immediately inform a Protector.

(2) any medical officer or registered medical practitioner who fails to comply with subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both.

(3) if the registered medical practitioner referred to in subsection (1) is a medical officer, he may take the child referred to in that subsection into temporary custody until such time as the temporary custody of the child is assumed by a Protector or police officer.

Duty of member of the family

28. (1) if any member of the family of a child believes on reasonable grounds that the child is physically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, or is sexually abused, he shall immediately inform a Protector. 38 Laws of Malaysia Act 611 (2) any member of the family who fails to comply with subsection (1) commits an offence and shall on conviction be released on a bond on conditions to be determined by the Court.

(3) any member of the family who fails to comply with any of the conditions of the bond provided for in subsection (2) commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Duty of child care provider

29. (1) if a child care provider believes on reasonable grounds that a child is physically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, or is sexually abused, he shall immediately inform a Protector.

(2) any child care provider who fails to comply with subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Powers of Court For Children

30. (1) if a Court For Children is satisfied that any child brought before it under section 19 or 25 is a child in need of care and protection, the Court For Children may— (a) order his parent or guardian to execute a bond to exercise proper care and guardianship for a period specified by the Court For Children; (b) make an order placing the child in the custody of a fit and proper person for a period specified by the Court For Children; (c) without making any other order or in addition to an order made under paragraph (a) or (b), make an order placing the child under the supervision of— (i) a Protector; or (ii) some other person appointed for the purpose by the Court For Children,

for a period specified by the Court For Children; Child 39 (d) make an order placing the child in a place of safety for a period of three years from the date of the order or until he attains the age of eighteen years, whichever is the shorter; or (e) in the case of a child who has no parent or guardian or who has been abandoned as described in paragraph 17(1)(e), make an order placing the child in the care, custody and control of a foster parent found to be suitable by the Director General for a period of two years or until he attains the age of eighteen years, whichever is the shorter, and pending that, place the child in a place of safety.

(2) if the Court For Children makes an order under paragraph (1)(e), the Director General shall, in order to give effect to the order, immediately endeavour to place the child in the care, custody and control of a foster parent.

(3) if at any subsequent time the foster parent intends to return the child who has been placed in his care, custody and control under paragraph (1)(e), he shall report in person to the Protector and bring the child before the Protector, and the Protector shall place the child in a place of safety.

(4) if during the period mentioned in paragraph (1)(e) the parent or guardian of the child concerned has not claimed the child or made any appearance, the Court For Children may— (a) at the expiry of that period; and (b) if the Court is satisfied that reasonable steps have been taken by the Protector to trace the parent or guardian of the child,

make an order placing the child for adoption by the foster parent or any person who wishes to adopt the child and in any such case— (aa) the parent’s or guardian’s consent for the adoption of the child shall be dispensed with; and (bb) the Adoption Act 1952 [Act 257] (in the case of a child not professing the religion of Islam), the Registration of Adoptions Act 1952 [Act 253], Sabah Adoption Ordinance 1960 and Sarawak Adoption Ordinance [Cap 91] shall be construed accordingly. 40 Laws of Malaysia Act 611 (5) in determining what order to be made under subsection (1), the Court For Children shall treat the best interests of a child as the paramount consideration.

(6) before making an order under subsection (1) or (4), the Court For Children shall consider and take into account any report prepared by the Protector which— (a) shall contain such information as to the family background, general conduct, home surrounding, school record and medical history of a child as may enable the Court For Children to deal with the case in the best interests of the child; and (b) may 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.

(7) in order to enable the Protector to prepare and submit the report referred to in subsection (6), the Court For Children may— (a) from time to time, adjourn the case for such periods not exceeding two months at a time; and (b) make in respect of the child, as an interim order having effect only during the period of adjournment, any order which the Court For Children could have made under subsection (1).

(8) a Court For Children may, in making any order under subsection (1), impose such conditions or give such directions as the Court may deem fit for the purpose of ensuring the safety and well-being of the child in respect of whom such order is made, and such conditions or directions may include the following: (a) that the parent or guardian of the child accompanied by the child shall attend interactive workshops organized at designated centres established for such purpose; Child 41 (b) if the child is placed at a place of safety, that the parent or guardian shall visit the child on a regular basis as determined by the Court For Children; or (c) if the child is in an educational institution, that the parent or guardian shall consult with the child’s teacher and head teacher or principal once a month.

(9) any parent or guardian who fails to comply with any of the conditions imposed or directions given under subsection (8) commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit.

(10) an order under subsection (1) shall not be made without giving the parent or guardian of the child an opportunity to attend and be heard.

(11) notwithstanding subsection (10), an order under subsection (1) may be made if the Court For Children is satisfied on information given by a Protector that the parent or guardian of the child, having been required to attend, has failed to do so, or is not available or cannot be found within a reasonable time.

(12) if the Court For Children is not satisfied that a child brought before it under section 19 or 25 is in need of care and protection, the Court For Children shall order the child to be returned to the care and custody of his parent or guardian.

(13) a Court For Children may, on the application of— (a) a Protector; (b) the person in charge of a place of safety; or (c) the parent or guardian of a child,

amend, vary or revoke any order made under this section— (aa) if the Court For Children is satisfied that it is in the best interests of the child to do so; or (bb) upon proof that the circumstances under which the order was made have changed after the making of the order. 42 Laws of Malaysia Act 611

Chapter 3

OFFENCES IN RELATION TO THE HEALTH AND WELFARE OF CHILDREN

Ill-treatment, neglect, abandonment or exposure of children

31. (1) any person who, being a person having the care of a child— (a) abuses, neglects, abandons or exposes the child in a manner likely to cause him physical or emotional injury or causes or permits him to be so abused, neglected, abandoned or exposed; or (b) sexually abuses the child or causes or permits him to be so abused, commits an offence and shall on conviction be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding ten years or to both.

(2) the Court— (a) shall, in addition to any punishment specified in subsection (1), order the person convicted of an offence under that subsection to execute a bond with sureties to be of good behaviour for such period as the Court thinks fit; and (b) may include in the bond executed under paragraph (a) such conditions as the Court thinks fit.

(3) if a person who is ordered to execute a bond to be of good behaviour under subsection (2) fails to comply with any of the conditions of such bond, he shall be liable to a further fine not exceeding ten thousand ringgit or to a further imprisonment for a term not exceeding five years or to both.

(4) a parent or guardian or other person legally liable to maintain a child shall be deemed to have neglected him in a manner likely to cause him physical or emotional injury if, being able to so provide from his own resources, he fails to provide adequate food, clothing, medical or dental treatment, lodging or care for the child. Child 43 (5) a person may be convicted of an offence against this section notwithstanding that— (a) suffering or injury to the health of the child in question or the likelihood of suffering or injury to the health of the child in question was avoided by the action of another person; or (b) the child in question has died.

Children not to be used for begging, etc.

32. Any person who causes or procures any child or, being a person having the care of a child, allows that child to be on any street, premises or place for the purposes of— (a) begging, receiving alms, whether or not there is any pretence of singing, playing, performing or offering anything for sale; or (b) carrying out illegal hawking, illegal lotteries, gambling or other illegal activities detrimental to the health and welfare of the child,

commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Offence to leave child without reasonable supervision

33. Any person who, being a parent or a guardian or a person for the time being having the care of a child, leaves that child— (a) without making reasonable provision for the supervision and care of the child; (b) for a period which is unreasonable having regard to all the circumstances; or (c) under conditions which are unreasonable having regard to all the circumstances,

commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both. 44 Laws of Malaysia Act 611

Chapter 4

NOTIFICATION ON TAKING A CHILD INTO CARE, CUSTODY OR CONTROL

Application and interpretation

34. (1) this Chapter shall not apply to the taking of a child— (a) into the care, custody or control of any person— (i) in pursuance of an order of a Court of competent jurisdiction; or (ii) by any Protector or police officer acting under this Act;

(b) as an inmate of a place of safety or of an orphanage, hospital, institution or centre— (i) maintained by the Federal Government or by any of the State Governments; or (ii) approved by the Minister;

(c) as a boarder at an educational institution registered under any written law relating to education; and (d) who is regularly attending an educational institution registered under any written law relating to education into the custody of a friend or relative of his parent or guardian with the consent of his parent or guardian.

(2) in this Chapter, “guardian” of a child means a person— (a) lawfully appointed by deed or will or by the order of a competent Court to be the guardian of the child; or (b) who has lawfully adopted the child.

Notification of taking a child into care, custody or control

35. (1) if a person takes a child into his care, custody or control— (a) that person; and Child 45 (b) the person in whose care the child was at the time of such taking,

shall, not later than one week thereafter, notify the Protector of such taking.

(2) on receiving any notification under subsection (1), the Protector shall make such inquiry as he thinks fit as to— (a) the circumstances and the reasons for the taking; and (b) the suitability for that purpose of the person who has taken the child into his care, custody or control.

(3) if, after the inquiry referred to in subsection (2), the Protector deems it expedient to do so in the best interests of the child, he may either— (a) order that the child be returned to the care, custody or control of his parent or guardian or the person in whose care he was at the time of such taking; or (b) permit the taking of the child on such terms and conditions as the Protector may require.

(4) if the taking of a child by any person has been permitted under paragraph (3)(b) subject to any term or condition and default is made in complying with such term or condition, the Protector may by warrant under his hand order that the child— (a) be taken out of the care, custody or control of such person; and (b) be placed in a place of safety or in the custody of a relative or other fit and proper person on such terms and conditions as the Protector may require until the child attains the age of eighteen years or for any shorter period.

(5) for the purposes of this section, a “person” includes an institution or a centre— (a) not maintained by the Federal Government or by any of the State Governments; or (b) not approved by the Minister. 46 Laws of Malaysia Act 611 (6) a Protector shall, on receiving any notification under this section, record the particulars of such notification in a register in such form as may be prescribed.

(7) any person who fails to comply with subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Subsequent obligations

36. (1) if the taking of a child has been notified to and permitted by a Protector under section 35, the person who has taken the child shall, if at any subsequent time— (a) he intends to return the child to the care, custody or control of the parent or guardian of the child or any other person from whom the child was taken; or (b) without his knowledge or consent, the child has left his care, custody or control, report in person to the Protector and shall, whenever practicable, bring or cause to be brought before the Protector the child and the parent or guardian of the child or any other person from whom the child was taken.

(2) on receiving a report under subsection (1), the Protector shall make a note of the report and shall if— (a) the child and the parent or guardian of the child or any other person from whom the child was taken are present at the time such report is received, return the child to his parent or guardian or such person, as the case may be; or (b) the parent or guardian of the child or any other person from whom the child was taken is not present at the time such report is received— (i) take the child into temporary custody until he can be returned to his parent or guardian or such person; and Child 47 (ii) immediately send written information to the last known place of residence of his parent or guardian or of such person.

(3) any person who fails to comply with subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Power of Protector to require child to be produced before him

37. (1) if a Protector has reason to believe that there is, within the area or the State within which he exercises jurisdiction, a child in respect of whose taking no notification has been made pursuant to section 35, he may, by summons under his hand addressed to the person who has or is believed to have the care, custody or control of the child, require that person to appear and to produce the child before him at the time and place specified in the summons for the purposes of an inquiry under subsection (4).

(2) if a person on whom a summons has been served under subsection (1) fails to produce the child at the time and place specified in the summons, the Protector may apply to a Magistrate for a search warrant under section 111 to be issued to search for the child and to produce him before the Protector.

(3) any child named or described in such warrant may be temporarily— (a) detained in a place of safety; or (b) placed in the custody of a relative or other fit and proper person on such terms and conditions as the Protector may require,

until the Protector has completed his inquiry under this Chapter.

(4) the Protector shall make such inquiry as he thinks fit as to— (a) the circumstances and the reasons for the taking of the child referred to in subsection (1); and 48 Laws of Malaysia Act 611 (b) the suitability of the person who has taken the child into his care, custody or control.

(5) if, after the inquiry mentioned in subsection (4), the Protector deems it expedient in the best interests of the child, he may— (a) order that the child be returned to the care, custody or control of his parent or guardian or the person in whose care he was at the time of such taking; or (b) permit the taking of the child on such terms and conditions as the Protector may require.

(6) if the taking of a child by any person has been permitted under paragraph (5)(b) subject to any term or condition and default is made in complying with such term or condition, the Protector may by warrant under his hand order that the child— (a) be taken out of the care, custody or control of such person; and (b) be placed in a place of safety or in the custody of a relative or other fit and proper person on such terms and conditions as the Protector may require until the child attains the age of eighteen years or for any shorter period.

Part Vi

CHILDREN IN NEED OF PROTECTION AND REHABILITATION

Chapter 1

GENERAL

Meaning of child in need of protection and rehabilitation

38. A child is in need of protection and rehabilitation if the child— (a) is being induced to perform any sexual act, or is in any physical or social environment which may lead to the performance of such act; Child 49 (b) lives in or frequents any brothel or place of assignation; or (c) is habitually in the company or under the control of brothel-keepers or procurers or persons employed or directly interested in the business carried on in brothels or in connection with prostitution.

Removal of a child to place of refuge

39. (1) any Protector or police officer who is satisfied on reasonable grounds that a child is in need of protection and rehabilitation may order the child to be removed to a place of refuge and the child shall be temporarily detained in such place of refuge.

(2) every child who is temporarily detained under subsection (1) shall be brought before a Court For Children within twenty- four hours exclusive of the time necessary for the journey from the place where the child was so removed to the Court For Children.

(3) if it is not possible to bring a child before a Court For Children within the time specified in subsection (1), the child shall be brought before a Magistrate who may direct that the child be placed in a place of refuge until such time as the child can be brought before a Court For Children.

(4) if the Court For Children is satisfied that a child brought before it is in need of protection and rehabilitation, the Court For Children may order the child to be detained in a place of refuge until— (a) an inquiry under section 40 to inquire into the circumstances of the child’s case has been completed; and (b) a report of the inquiry has been submitted to the Court For Children by the Protector under subsection 40(2).

(5) if the Court For Children is not satisfied that a child brought before it is in need of protection and rehabilitation, the Court For Children shall order the child to be returned to the care and custody of his parent or guardian. 50 Laws of Malaysia Act 611 Orders upon completion of an inquiry

40. (1) an inquiry mentioned in subsection 39(4) shall be made by a Protector.

(2) a Protector shall complete the inquiry and submit the report of the inquiry to the Court For Children within a period not exceeding one month from the date of the admission of a child to a place of refuge under subsection 39(1).

(3) if after considering the report submitted under subsection (2) the Court For Children is satisfied that any child brought before it is a child in need of protection and rehabilitation the Court may, subject to the other provisions in this section— (a) order the child to be detained in a place of refuge for a period of three years from the date of the admission of the child into a place of refuge under subsection 39(1) and the order shall be an authority for his detention in a place of refuge; (b) make an order placing the child for such period not exceeding three years from the date of the order in the care of a person whether a relative or not who is willing and whom the Court For Children considers to be a fit and proper person to undertake the care of such child; (c) 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; or (d) make an order placing the child under the supervision of a Social Welfare Officer appointed for the purpose by the Court For Children, subject to such conditions as the Court thinks fit and for such period not exceeding three years from the date of the order.

(4) the order made under paragraph (3)(a) or (d) may have the effect of extending the period of such detention or supervision, as the case may be, beyond the date on which the child attains the age of eighteen years. Child 51 (5) In determining what order to be made under subsection (3), the Court For Children shall treat the best interests of a child as the paramount consideration.

(6) Notwithstanding paragraph (3)(a), the Board of Visitors of the place of refuge in which a child is being detained may reduce the period of detention of the child but no reduction shall be made which will have the effect of enabling the child to be released from the place of refuge within twelve months from the date of his admission into the place of refuge as specified in that paragraph, except by the authority of the Minister.

(7) The Court For Children shall, when making an order under paragraph (3)(a) or (d), order the parent or guardian of a child to execute a bond for the duration of the order with such conditions which may include— (a) in the case of paragraph (3)(a), regular visits to the place of refuge where the child is placed; and (b) in the case of paragraph (3)(d), ensuring that the child remains indoors within stipulated times.

(8) Any person who— (a) is ordered to execute a bond under subsection (3) or (7), as the case may be; and (b) fails to comply with any of the conditions of such bond, commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit.

(9) Any child sent to a place of refuge for detention under paragraph (3)(a) shall, on the expiration of the period of his detention whether by— (a) effluxion of time; or (b) reason of any reduction made pursuant to subsection (6), be placed under the supervision of a Social Welfare Officer or other person appointed by the Protector for such purpose.

(10) The period of supervision for the purpose of subsection (9) shall be determined by the Board of Visitors of the place of refuge on the recommendation of the Protector but shall not in any case exceed one year from the date of expiration of the period of detention of the child. 52 Laws of Malaysia Act 611 (11) The Minister may on the application of the child or his parent or guardian exempt the child from the application of subsection (9) if he is satisfied that the case warrants such exemption.

(12) Without prejudice to the powers of the Board of Visitors pursuant to subsection (6) the Court For Children may, on the application in writing made by— (a) a Protector; (b) the parent or guardian of the child to whom an order made under this section relates; or (c) the child, amend, vary or revoke any order made under this section— (aa) if the Court For Children is satisfied that it is in the best interests of the child to do so; and (bb) upon proof that the circumstances under which the order was made have changed after the making of the order.

(13) An order under subsection (3) shall not be made without giving the parent or guardian of the child an opportunity to attend and be heard.

(14) Notwithstanding subsection (13), an order under subsection (3) may be made if the Court For Children is satisfied on information given by a Protector that the parent or guardian of the child, having been required to attend, has failed to do so, or is not available or cannot be found within a reasonable time.

Children in urgent need of protection

41. (1) Any child who is in urgent need of protection may on his own application in the prescribed form be received by the Protector into a place of refuge if the Protector is satisfied that the child is in urgent need of protection.

(2) A child is in urgent need of protection if there is reasonable cause to believe that— (a) the child is being threatened or intimidated for purposes of prostitution or for purposes of having sexual intercourse with another or for any immoral purpose; Child 53 (b) the child is to be confined or detained by another in contravention of this Part; (c) an offence against this Part is being or likely to be committed in respect of the child; or (d) if the child is a female, that she is pregnant out of wedlock.

(3) Subject to subsections (4) and (5), and if circumstances warrant it, the person in charge of any place of refuge may receive into the place of refuge any child who— (a) is in urgent need of protection; and (b) makes an application under this section to the person in charge.

(4) If the person in charge of a place of refuge receives any child under subsection (3), that child shall be brought before a Protector within twenty-four hours of his admission into the place of refuge with a full report of the circumstances.

(5) A child admitted under this section is permitted to reside in the place of refuge only so long as the Protector is satisfied that the child is in urgent need of protection under this section.

(6) The Protector— (a) who receives a child under subsection (1); or (b) before whom a child is brought under subsection (4),

shall immediately inform the Court For Children of such admission with a full report of the circumstances and shall in the like manner inform the Court of his departure.

Inquiries and detention of a child who has been bought or acquired under false pretences, etc.

42. (1) If the Protector has reasonable cause to believe that a child— (a) has been brought into or is to be sent out of Malaysia and the custody of the child has been acquired either— (i) after having been purchased; or 54 Laws of Malaysia Act 611 (ii) by fraud, false representation or false pretence,

whether or not for the purpose of prostitution;

(b) has been procured either within or outside Malaysia for the purpose of being used, trained or disposed of as a prostitute; or (c) is being detained against his will for the purposes of— (i) prostitution or for immoral purposes; or (ii) being sent out of Malaysia for the purposes of prostitution or for immoral purposes, the Protector may order the child to be removed to a place of refuge and the child shall be temporarily detained in such place of refuge.

(2) Every child who is temporarily detained under subsection (1) shall be brought before a Court For Children within twenty- four hours exclusive of the time necessary for the journey from the place where the child was so removed to the Court For Children.

(3) If it is not possible to bring a child before a Court For Children within the time specified in subsection (1), the child shall be brought before a Magistrate who may direct that the child be placed in a place of refuge until such time as the child can be brought before a Court For Children.

(4) The Court For Children before whom a child is brought shall order the child to be detained in a place of refuge until— (a) an inquiry into the circumstances of the child’s case has been completed; and (b) a report of the inquiry has been submitted to the Court For Children by the Protector under subsection (6).

(5) An inquiry referred to in paragraph (4)(a) shall be made by a Protector.

(6) The Protector shall complete the inquiry and submit the report of the inquiry to the Court For Children within a period not exceeding one month from the date of the admission of the child to the place of refuge. Child 55 (7) If after considering the report submitted under subsection (6) the Court For Children is satisfied that a child brought before it is in need of protection and rehabilitation, the Court may— (a) order the child to be detained in a place of refuge for such period not exceeding three years from the date of the order as the Court may in the best interests of the child deem fit; or (b) make an order placing the child under the supervision of a Social Welfare Officer appointed by the Court for such period not exceeding three years from the date of the order as the Court may in the interest of such child deem fit.

(8) The order made under subsection (7) may have the effect of extending the period of such detention or supervision, as the case may be, beyond the date on which the child attains the age of eighteen years.

(9) Subsections 40(12) to (14) shall apply in respect of any order made under subsection (7) as they apply to an order made under section 40.

(10) If the Court For Children is not satisfied that the child brought before it is in need of protection and rehabilitation, the Court For Children shall order the child to be returned to the care and custody of his parent or guardian.

Chapter 2

OFFENCES

Offences

43. (1) Any person who— (a) sells, lets for hire or otherwise disposes of, or buys or hires or otherwise obtains possession of, a child with intent that the child is to be employed or used for the purpose of prostitution, either within or outside Malaysia, or knowing or having reason to believe that the child will be so employed or used; 56 Laws of Malaysia Act 611 (b) procures a child for purposes of prostitution or for the purposes of having sexual intercourse with any other person, either within or outside Malaysia; (c) by or under any false pretence, false representation, or fraudulent or deceitful means made or used, either within or outside Malaysia, brings or assists in bringing into, or takes out of or assists in taking out of, Malaysia, a child with intent that the child is to be employed or used for purposes of prostitution, either within or outside Malaysia, or knowing or having reason to believe that the child will be so employed or used; (d) brings into Malaysia, receives or harbours a child knowing or having reason to believe that the child has been procured for purposes of prostitution or for the purposes of having sexual intercourse with any other person, either within or outside Malaysia, and with intent to aid such purpose; (e) knowing or having reason to believe that a child has been brought into Malaysia in the circumstances as set out in paragraph (c) or has been sold, let for hire, or hired or purchased in the circumstances as set out in paragraph (a), or in contravention of any other written law receives or harbours the child with intent that he is to be employed or used for purposes of prostitution either within or outside Malaysia; (f) detains a child in a brothel against the child’s will; (g) detains a child in any place against the child’s will with intent that the child is to be employed or used for purposes of prostitution or for any unlawful or immoral purpose; (h) by means of any advertisement or other notice published in any manner or displayed in any place offers a child for purposes of prostitution or seeks information for that purpose or accepts such advertisement or notice for publication or display; (i) acts as an intermediary on behalf of a child or exercises control or influence over the movements of a child in such a manner as to show that the person is aiding or abetting or controlling the prostitution of that child; Child 57 (j) engages or hires, for any valuable consideration, a child to provide services for that person’s sexual gratification; (k) attempts to do any act in contravention of this section,

commits an offence and shall on conviction— (aa) in the case of offences under paragraphs (a) to (h) or paragraph (k), be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding fifteen years or to both; and (bb) in the case of an offence under paragraph (i) or (j), be liable to a fine not exceeding fifty thousand ringgit 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.

(2) Any person who is convicted of a second or subsequent offence— (a) under paragraphs (1)(a) to (g) or paragraph (1)(k), shall be liable to whipping of not more than ten strokes; and (b) under paragraphs (1)(i) or (j), shall be punished with whipping of not less than six strokes but not more than ten strokes, in addition to any term of imprisonment imposed in relation to such offence.

(3) Sections 173a and 294 of the Criminal Procedure Code shall not apply in respect of offences under paragraphs (1)(i) and (j).

Presumptions relating to section 43

44. For the purposes of section 43, it shall be presumed until the contrary is proved that a person— (a) who takes or causes to be taken into a brothel a child has disposed of the child with the intent or knowledge mentioned in paragraph 43(1)(a); (b) who receives a child into a brothel or harbours a child in a brothel has obtained possession of the child with the intent or knowledge mentioned in paragraph 43(1)(a); 58 Laws of Malaysia Act 611 (c) has detained a child in any brothel or in any place against the child’s will if, with intent to compel or induce him to remain in the brothel or the place, that person— (i) withholds from the child any wearing apparel or any other property belonging to the child or any wearing apparel commonly or last used by the child; (ii) threatens the child with legal proceedings if the child takes away any wearing apparel or any other property which has been lent or hired out or supplied to the child; (iii) threatens the child with legal proceedings for the recovery of any debt or alleged debt or uses any other threat; or (iv) without any lawful authority detains the child’s identity card issued under the law relating to national registration or the child’s passport.

Detention pending proceedings

45. (1) Any Court inquiring into or trying any offence specified in the Second Schedule (in this Act referred to as “scheduled offence”) may order a child— (a) with respect to whom a scheduled offence is alleged to have been committed; and (b) whom the Court considers to be in need of protection, to be detained temporarily in a place of safety until the determination of the proceedings against the person charged but the detention shall not extend beyond the date on which the child attains the age of eighteen years.

(2) Notwithstanding the determination of the proceedings, the Court may, on an application made by the Protector and if the Court is satisfied that a child is in need of protection, order the detention of the child in a place of safety in accordance with paragraph 30(1)(d). Child 59

Part VII

BEYOND CONTROL

Children beyond control

46. (1) If the parent or guardian of a child requests the Court For Children in writing to detain a child in an approved school, place of refuge, probation hostel or centre on the ground that the parent or guardian is unable to exercise proper control over the child, the Court For Children— (a) shall immediately inquire into the circumstances of the child’s case; (b) shall direct the probation officer to submit a probation report to the Court For Children for the Court to determine whether an order under subsection (2) may be made in respect of the child; and (c) may order the child to be temporarily detained in an approved school, place of refuge, probation hostel or centre if it deems it necessary to do so.

(2) If after considering the report referred to in paragraph (1)(b) the Court For Children is satisfied that— (a) it is expedient so to deal with the child; and (b) the parent or guardian understands the results which will follow from and consents to the making of the order,

the Court For Children may, on the recommendation of the probation officer, order that the child— (aa) be sent to an approved school, place of refuge, probation hostel or centre, as may be appropriate; or (bb) be placed for such period not exceeding three years under the supervision of— (i) a probation officer; or (ii) some other person appointed for the purpose by the Court,

and any such order may require the child to reside for a period not exceeding twelve months in a probation hostel. 60 Laws of Malaysia Act 611 Supervision by probation officer

47. (1) If a Court For Children makes an order under paragraph 46(2)(bb) placing a child under the supervision of a probation officer or of some other person, that officer or other person— (a) shall, while the order remains in force, visit, advise and befriend the child; and (b) may, if it appears necessary to do so, at any time while the order remains in force, bring the child before the Supervising Court.

(2) The Supervising Court before whom a child is brought under paragraph (1)(b) may, if it deems it expedient to do so, amend the order made under section 46 and— (a) send the child, subject to the consent of the child’s parent or guardian, to an approved school, place of refuge or centre, whichever is appropriate; or (b) place the child in the care of a fit and proper person, whether a relative or not, who is willing to undertake the care of the child, for the unexpired period of the order.

Part VIII

TRAFFICKING IN AND ABDUCTION OF CHILDREN

Unlawful transfer of possession, custody or control of child

48. (1) Any person who takes part in any transaction the object or one of the objects of which is to transfer or confer, wholly or partly, temporarily or permanently, the possession, custody or control of a child for any valuable consideration commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

(2) Any person who without lawful authority or excuse harbours or has in his possession, custody or control a child with respect to whom the temporary or permanent possession, custody or control has been transferred or conferred for valuable consideration by Child 61 any other person within or outside Malaysia commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

(3) For the purposes of subsection (2), if any person harbours or has in his possession, custody or control a child without lawful authority or excuse, the child shall, until the contrary is proved, be presumed to be a child with respect to whom the temporary or permanent possession, custody or control has been transferred or conferred for valuable consideration.

(4) It shall be a defence in any prosecution under this section to prove that— (a) the transfer took place in contemplation of or pursuant to a bona fide marriage or adoption; and (b) at least one of the natural parents of the child or the guardian of the child was a consenting party to the marriage or to the adoption by the adopting party,

and had expressly consented to the particular marriage or adoption.

Importation of child by false pretences

49. Any person who— (a) by or under any false pretence or representation made; or (b) by fraudulent or deceitful means used,

either within or outside Malaysia, brings or assists in bringing a child into Malaysia commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Examination of child and person in charge

50. A Protector or any person authorized in writing by a Protector may require— (a) a child who has entered or been brought into Malaysia; and 62 Laws of Malaysia Act 611 (b) any person who may appear to have the custody or control of such child, to appear before him, at any reasonable time and at any convenient place, to be examined pursuant to section 113.

Protector may require security

51. If a Protector has reasonable cause to believe that a child— (a) has been brought into Malaysia either— (i) after having been transferred for valuable consideration; or (ii) by fraud, misrepresentation or any false pretence;

(b) has been transferred to the custody or control of any person for valuable consideration either within or outside Malaysia; or (c) is being detained against his will by some person other than his parent or guardian, the Protector may— (aa) require any person in whose custody or under whose control the child appears to be— (i) to furnish him with copies of the child’s and that person’s own photographs; and (ii) to furnish security to the satisfaction of the Protector that the child— (A) will not leave the area or the State in which he then is without the prior written consent of the Protector; (B) will not be transferred to the care or custody of any other person without the prior written consent of the Protector; and (C) will be produced before the Protector whenever the Protector requires; or Child 63 (bb) in the first instance, or if default be made in complying with any order made under paragraph (aa), make an order that— (i) the child be taken out of the custody of the person in whose care, custody or control the child is and placed the child in a place of safety; or (ii) on such security and on such conditions as the Protector may require, the child be placed in the custody of a relative or other fit and proper person,

until the child attains the age of eighteen years or for any shorter period.

Offence of taking or sending out a child without appropriate consent of person having lawful custody

52. (1) Any parent or guardian who— (a) does not have the lawful custody of a child; and (b) takes or sends out a child, whether within or outside Malaysia,

without the consent of the person who has the lawful custody of the child commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

(2) A person has lawful custody of a child under this section if he has been conferred custody of the child by virtue of any written law or by an order of a Court, including a Syariah Court.

(3) It shall be a defence under this section if a parent or guardian takes or sends a child away without the consent of the person having lawful custody of the child if— (a) the parent or guardian— (i) does it in the belief that the other person consented, or would have consented, if he was aware of all the relevant circumstances; or 64 Laws of Malaysia Act 611 (ii) has taken all reasonable steps to communicate with the other person but has been unable to communicate with him;

(b) the parent or guardian has reasonable grounds to believe that the child is being abused, neglected, abandoned or exposed in a manner likely to cause the child physical or emotional injury; or (c) the other person has unreasonably refused to consent although he was aware of all the relevant circumstances.

Recovery order

53. (1) If it appears to the Court that there is reason to believe that a child had been taken or sent away without the consent of the person who has lawful custody of the child as described in section 52, the Court may make a recovery order.

(2) A recovery order may be made by the Court on application being made by or on behalf of any person who has the lawful custody of the child.

(3) For the purposes of this section, a “recovery order” may— (a) direct any person who is in a position to do so to produce the child on request to any authorized person; (b) authorize the removal of the child by any authorized person; (c) require any person who has information as to the child’s whereabouts to disclose that information to the authorized person; (d) authorize any police officer to enter into any premises specified in the order and search for the child, using reasonable force if necessary.

(4) Any person who intentionally obstructs an authorized person from exercising the powers under subsection (3) commits an offence and shall on conviction be liable to imprisonment for a term not exceeding three years and to whipping not exceeding six strokes. Child 65

Part IX

INSTITUTIONS

Chapter 1

PLACES OF SAFETY AND PLACES OF REFUGE

Places of safety

54. (1) The Minister may, by notification in the Gazette, establish or appoint any place, institution or centre to be a place of safety for the care and protection of children.

(2) The Minister may at any time direct the closing of any place of safety established or appointed under subsection (1).

Places of refuge

55. (1) The Minister may, by notification in the Gazette, establish or appoint any place, institution or centre to be a place of refuge for the care and rehabilitation of children.

(2) The Minister may at any time direct the closing of any place of refuge established or appointed under subsection (1).

Child who escapes or is removed from place of safety or place of refuge

56. Any child who escapes or is removed from a place of safety or place of refuge without lawful authority— (a) may be arrested without a warrant by any Protector or police officer and shall be brought back to the place of safety or place of refuge; and (b) shall be detained— (i) in the case of a place of safety, for such period which is equal to the unexpired residue of his stay under the order originally made by the Court For Children; and 66 Laws of Malaysia Act 611 (ii) in the case of a place of refuge, for such period which is equal to the period during which he was unlawfully at large and for the unexpired residue of his term of detention under the order originally made by the Court For Children.

Offence of removing or helping a child to escape from place of safety or place of refuge

57. Any person who— (a) removes a child from a place of safety or place of refuge without lawful authority; (b) knowingly assists or induces, directly or indirectly, a child to escape from a place of safety or a place of refuge; or (c) knowingly harbours or conceals a child who has so escaped, or prevents him from returning to the place of safety or place of refuge, commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Chapter 2

PLACES OF DETENTION

Places of detention

58. (1) The Minister may, by notification in the Gazette, establish or appoint such places of detention as may be required for the purposes of this Act.

(2) A child shall ordinarily be remanded in custody in a place of detention established or appointed under this Act and situated in the same State in which is situated the Court For Children by which the child is remanded. Child 67 (3) The order or judgment in pursuance of which a child is committed to custody in a place of detention shall be— (a) delivered with the child to the person in charge of the place of detention; and (b) an authority for his detention in the place of detention in accordance with the terms of the order or judgment.

(4) A child while being detained and while being conveyed to and from the place of detention shall be deemed to be in lawful custody.

(5) The Minister— (a) shall cause places of detention to be inspected; and (b) may make regulations— (i) as to the classification, treatment, employment and control of children detained in such places of detention; and (ii) to provide for the appointment of fit and proper persons to visit periodically children detained in such places of detention.

Child who escapes or is removed from place of detention

59. Any child who escapes or is removed from a place of detention without lawful authority— (a) may be arrested without a warrant by any Protector or police officer and be brought back to the place of detention; and (b) shall be detained in the place of detention for the unexpired residue of his term of detention under the order originally issued by the Court For Children.

Offence of removing or helping a child to escape from place of detention

60. Any person who— (a) removes a child from a place of detention without lawful authority; 68 Laws of Malaysia Act 611 (b) knowingly assists or induces, directly or indirectly, a child to escape from a place of detention; or (c) knowingly harbours or conceals a child who has so escaped, or prevents him from returning to the place of detention, commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Chapter 3

PROBATION HOSTELS

Probation hostels

61. (1) The Minister may, by notification in the Gazette, establish or appoint such probation hostels as may be required for the purposes of this Act.

(2) The Minister may make regulations for the regulation, management and inspection of probation hostels.

Child under ten years of age not to be sent to probation hostel

62. A Court For Children shall not make an order requiring a child under the age of ten years to be sent to a probation hostel.

Child who escapes or is removed from probation hostel

63. Any child who escapes or is removed from a probation hostel without lawful authority— (a) may be arrested without a warrant by any probation officer or police officer; and (b) be brought back to that hostel or before the Supervising Court, and the Supervising Court may deal with him for the offence for which he was sent to the probation hostel in the same manner in which the Supervising Court could deal with him if it had just found him guilty of that offence. Child 69 Offence of removing or helping a child to escape from probation hostel

64. Any person who— (a) removes a child from a probation hostel without lawful authority; (b) knowingly assists or induces, directly or indirectly, a child to escape from a probation hostel; or (c) knowingly harbours or conceals a child who has so escaped, or prevents him from returning to the probation hostel,

commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Chapter 4

APPROVED SCHOOLS

Approved schools

65. (1) The Minister may, by notification in the Gazette, establish or appoint such approved schools as may be required for the education, training and detention of children to be sent there in pursuance of this Act.

(2) The Minister may classify such approved schools— (a) according to the ages of the persons for whom they are intended; and (b) in such other ways as he may think fit so as to ensure that a child sent to an approved school is sent to a school appropriate to his case.

Child under ten years of age not to be sent to approved school

66. A Court For Children shall not make an order requiring a child under the age of ten years to be sent to an approved school. 70 Laws of Malaysia Act 611 When a child can be sent to approved school

67. (1) If— (a) a child is found guilty of any offence; (b) the probation report submitted to the Court For Children shows that— (i) the parents or guardian of the child can no longer exercise or is incapable of exercising any proper, control over him; and (ii) the child is in need of institutional rehabilitation; and

(c) it appears to the Court For Children that although the offence committed is not serious in nature but it is expedient that the child be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation, the Court For Children shall, on the recommendation of the probation officer, send the child to an approved school.

(2) If a Court For Children orders a child to be sent to an approved school, the order shall be an authority for his detention in that approved school for a period of three years from the date of the order.

(3) Notwithstanding subsection (2) the Board of Visitors of the approved school to which a child is sent may, in their discretion— (a) shorten the period of detention for reasons which appear to them to be sufficient; or (b) permit any such child to be released for such period and upon such conditions as they may deem fit to impose.

(4) A child shall not be permitted to be released from an approved school under paragraph (3)(b) during the first twelve months of the period of detention without the consent in writing of the Minister. Child 71 Approved school order to be delivered to the authority, etc., who conveys child to the school

68. (1) The Court For Children which makes an approved school order shall cause it to be delivered to the authority or person responsible for conveying the child to the school, and the authority or person who conveys the child to the school shall deliver the approved school order to the person for the time being in charge of the school.

(2) The Court For Children which makes an approved school order shall cause all such information in the possession of the Court with respect to a child as is in the opinion of the Court should be known by the person for the time being in charge of the school, to be transmitted to the person for the time being in charge of the school.

(3) If a child has been ordered to be sent to an approved school, any person who knowingly harbours or conceals him after the time has come for him to go to the school commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

(4) If a person authorized to take a child to an approved school is, when the time has come for him to go to the school, unable to— (a) find the child; or (b) obtain possession of the child,

the Court For Children may, if satisfied by information on oath or affirmation that there is reasonable ground for believing that some person named in the information can produce the child, issue a summons requiring the person so named to attend at the Court on such day as may be specified in the summons and produce the child.

(5) If the person referred to in subsection (4) fails to comply with the requisition under that subsection without reasonable excuse he shall, in addition to any other liability to which he may be subject to under this Act, on conviction be liable to a fine not exceeding ten thousand ringgit. 72 Laws of Malaysia Act 611 Further detention in approved school beyond period of order

69. If the person for the time being in charge of an approved school is satisfied that a child— (a) whose period of detention in the approved school is about to expire needs further care or training; and (b) cannot be placed in suitable employment without such further care or training, he may, if the Board of Visitors of the approved school consent, detain him for a further period not exceeding six months but any such period shall not extend beyond the date the child attains the age of eighteen years.

Aftercare of child released from approved school

70. If a child is sent to an approved school, the Court For Children making the order shall, at the same time, make an order that after the expiration of the period of his detention he shall, for a period of one year, be under the supervision of— (a) a probation officer; or (b) such other person as the Child Welfare Committee may appoint.

Escape from approved school, etc., or failure to return to approved school after expiry of leave, etc.

71. (1) Any child who— (a) escapes from the approved school in which he is detained, or from any hospital, home or place in which he is receiving medical attention; (b) being absent from the approved school on temporary leave of absence or with permission— (i) runs away from the person in whose charge he is; or (ii) fails to return to the approved school upon the expiration of his leave, or upon the revocation of such permission; or Child 73 (c) being absent from the approved school under supervision, fails to return to the approved school upon being recalled,

may be arrested without a warrant and be brought before the Court For Children where the child is found or the approved school is situated.

(2) If a child brought before a Court For Children under subsection (1) is under the age of fourteen years, the Court For Children shall order the child to be brought back to the approved school or to be sent to another approved school for— (a) a period which is equal to the period during which he was unlawfully at large; (b) the remainder of his period of detention; and (c) such period not exceeding six months as the Court may direct, in addition to the periods mentioned in paragraphs (a) and (b).

(3) If a child brought before the Court For Children under subsection (1) has attained the age of fourteen years, the Court For Children may order the child— (a) to be brought back to the approved school or to be sent to another approved school for— (i) a period equal to the period during which he was unlawfully at large; (ii) the remainder of his period of detention; and (iii) such further period not exceeding six months as the Court may direct; or

(b) if circumstances warrant it and on the recommendation of the probation officer the Court thinks it necessary to do so, to be sent to a Henry Gurney School for such period as the Court may direct.

Offence of removing or helping a child to escape from approved school

72. Any person who— (a) removes a child from an approved school without lawful authority; 74 Laws of Malaysia Act 611 (b) knowingly assists or induces, directly or indirectly, a child to escape from an approved school; or (c) knowingly harbours or conceals a child who has so escaped, or prevents him from returning to the approved school, commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Chapter 5

HENRY GURNEY SCHOOLS

Henry Gurney Schools

73. The Minister may, by notification in the Gazette, establish or appoint such Henry Gurney Schools as may be required for the purposes of this Act.

Child under fourteen years of age not to be sent to Henry Gurney School

74. A Court For Children shall not make an order requiring a child under the age of fourteen years to be sent to a Henry Gurney School.

When a child can be sent to Henry Gurney School

75. (1) If— (a) a child is found guilty of any offence punishable with imprisonment; (b) the probation report submitted to the Court For Children shows that— (i) the parents or guardian of the child can no longer exercise or is incapable of exercising any proper control over him; (ii) the child is habitually in the company of persons of bad character; and Child 75 (iii) the child is not suitable to be rehabilitated in an approved school; and

(c) it appears to the Court For Children— (i) that the offence committed is serious in nature; and (ii) by reason of the nature of the child’s criminal habits and tendencies it is expedient that the child be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime, the Court For Children shall, on the recommendation of the probation officer, send the child to a Henry Gurney School.

(2) If a Court For Children orders a child aged fourteen years or above to be sent to a Henry Gurney School— (a) the order shall be— (i) an authority for his detention for a period of three years from the date of the order; and (ii) valid for his detention up to but not after he has attained the age of twenty-one years; and

(b) sections 68 to 72 shall apply with the following modifications: (i) for the words “approved school” wherever appearing there shall be substituted the words “Henry Gurney School”; and (ii) in section 69, for the words “the Board of Visitors of the approved school consent” there shall be substituted the words “the Director General of Prisons in the case of a Henry Gurney School consents” and the age referred to in that section shall be increased by three years.

(3) Notwithstanding subsection (2), the Director General of Prisons may, in his discretion— (a) shorten the period of detention of a child in a Henry Gurney School for reasons which appear to him to be sufficient; or 76 Laws of Malaysia Act 611 (b) release any such child with permission for such period and upon such conditions as he may deem fit to impose.

Chapter 6

SPECIAL PROVISIONS IN RELATION TO PLACES OF SAFETY, PLACES OF REFUGE, APPROVED SCHOOLS AND HENRY GURNEY SCHOOLS

Power in respect of persons of eighteen years but under twenty-one years of age

76. Notwithstanding anything in this Act, the High Court, a Sessions Court and a Magistrate’s Court shall have the power to order the detention, in a Henry Gurney School, up to but not after he has attained the age of twenty-one years, of any person who has attained the age of eighteen years but has not attained the age of twenty-one years at the date of making such order.

Power of Minister to remove person undergoing imprisonment to Henry Gurney School

77. (1) The Minister may, by warrant under his hand, direct any person who— (a) has attained the age of eighteen years but has not attained the age of twenty-one years; and (b) is in prison under a sentence of imprisonment, to be removed to a Henry Gurney School.

(2) If a warrant is made under subsection (1)— (a) the unexpired residue of that person’s prison sentence shall be deemed to be cancelled; and (b) such warrant shall be an authority for the detention of that person in the Henry Gurney School under this Act until the date when his sentence, less any remission for good conduct earned while serving his sentence in prison, would, but for this section, have expired.

(3) A warrant under subsection (1) shall not be made unless the age of the person and the unexpired residue of his sentence Child 77 of imprisonment permit him to be detained in the Henry Gurney School for not less than two years.

Power of Minister to remove child undergoing imprisonment to approved school or Henry Gurney School

78. (1) The Minister may, by warrant under his hand, direct a child who is in prison under an order of imprisonment to be removed to an approved school or a Henry Gurney School.

(2) If a warrant is made under subsection (1)— (a) the unexpired residue of that child’s prison order shall be deemed to be cancelled; and (b) such warrant shall be an authority for the detention of that child in the approved school or the Henry Gurney School, as the case may be, under this Act until the date when his prison order, less any remission for good conduct earned while serving his term of imprisonment, would, but for this section, have expired.

(3) The Minister may, at any time for reasons which appear to him to be sufficient, by order in writing direct the removal of any child from— (a) an approved school to any other approved school or to a Henry Gurney School; or (b) a Henry Gurney School to any other Henry Gurney School or to an approved school,

as may be specified in the order.

Power to substitute term of detention to term of imprisonment

79. If it is made to appear to any Court For Children upon the application of the person in charge of any approved school or Henry Gurney School that any child detained in the approved school or Henry Gurney School under this Act— (a) has been guilty of a serious and wilful breach of the rules of the approved school or Henry Gurney School; 78 Laws of Malaysia Act 611 (b) has been guilty of inciting other inmates of the approved school or Henry Gurney School to such a breach; or (c) is incorrigible or exercising a bad influence on the other inmates of the approved school or Henry Gurney School, the Court For Children may substitute for the unexpired residue of the term of detention of that child such term of imprisonment not exceeding the unexpired residue as the Court may determine.

Transfer of child from one place of safety or place of refuge to another place of safety or place of refuge

80. Without prejudice to any written law relating to immigration, whenever an order has been made under this Act for the detention of a child in a place of safety or place of refuge and it appears to the Director General that in the best interests of the child it is expedient that he be transferred from that place of safety or place of refuge to another place of safety or place of refuge within Malaysia, it shall be lawful for the Director General to issue an order that the child shall be so transferred.

Chapter 7

MISCELLANEOUS

Child or person detained to be subject to regulations

81. Every child detained in any place of safety or place of refuge, place of detention, probation hostel, approved school or Henry Gurney School, or every person detained in a Henry Gurney School under this Act shall during the period of the child’s or person’s detention, be subject to such regulations as may be prescribed.

Board of Visitors

82. The Minister may appoint for each place of safety, place of refuge and approved school a Board of Visitors to perform such duties and functions as the Minister may prescribe. Child 79

Part X

CRIMINAL PROCEDURE IN COURT FOR CHILDREN

Chapter 1

CHARGE, BAIL, ETC.

Trials of children to be in conformity with this Act

83. (1) Notwithstanding anything contained in any written law relating to the arrest, detention and trial of persons committing any offence but subject to subsections (3) and (4), a child who is alleged to have committed an offence shall not be arrested, detained or tried except in accordance with this Act.

(2) When a child is charged with an offence before a Court For Children and during the pendency of the case he attains the age of eighteen years the Court For Children shall, notwithstanding any provisions of this Act, continue to hear the charge against the child and may— (a) exercise the power under section 76; (b) exercise the power under paragraph 91(1)(a), (b), (c), (d) or (g); or (c) if the offence is punishable with imprisonment, impose any term of imprisonment which could be awarded by a Sessions Court.

(3) When an offence is committed by a child but a charge in respect of that offence is made against the child after he has attained the age of eighteen years, the charge shall be heard by a Court other than a Court For Children and that other Court may exercise the power mentioned in paragraph (2)(a), (b) or (c).

(4) A charge made jointly against a child and a person who has attained the age of eighteen years shall be heard by a Court other than a Court For Children and that other Court shall— (a) exercise in respect of the child all the powers which may be exercised under this Act by a Court For Children; and 80 Laws of Malaysia Act 611 (b) before exercising the powers referred to in paragraph (a), consider the probation report.

Bail

84. (1) If a child is arrested with or without a warrant, the child shall be brought before a Court For Children within twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Court For Children.

(2) If it is not possible to bring a child before a Court For Children within the time specified in subsection (1), the child shall be brought before a Magistrate who may direct that the child be remanded in a place of detention until such time as the child can be brought before the Court For Children.

(3) The Court For Children before whom a child is brought shall inquire into the case and unless— (a) the charge is one of murder or other grave crime; (b) it is necessary in the best interests of the child arrested to remove him from association with any undesirable person; or (c) the Court For Children has reason to believe that the release of the child would defeat the ends of justice, the Court For Children shall release the child on a bond, with or without sureties, for such amount as will, in the opinion of the Court For Children, secure the attendance of that child upon the hearing of the charge, being executed by his parent or guardian or other responsible person.

(4) Nothing in this section shall be deemed to affect the powers of a police officer to release the child arrested on bail in accordance with the Criminal Procedure Code.

Separation of child from adult in police stations or Courts

85. Appropriate arrangements shall be made— (a) to prevent a child while— (i) being detained in a police station; Child 81 (ii) being conveyed to or from any Court; or (iii) waiting before or after attendance in any Court,

from associating with an adult who is charged with an offence;

(b) to ensure that a child, if a girl, while being so detained or conveyed, or waiting, is under the care of a woman; and (c) to prevent the picture of a child while— (i) being detained in a police station; (ii) being conveyed to or from any Court; or (iii) waiting before or after attendance in any Court,

from being recorded in any manner on tape or film or by any electronic medium.

Custody of child not discharged on bail after arrest

86. (1) If a child having been arrested and while awaiting trial before a Court For Children is not released under section 84, the Court For Children before whom the child is brought shall cause him to be detained in a place of detention provided under this Act until he can be brought before the Court having jurisdiction unless the Court For Children certifies that— (a) it is impracticable to do so; (b) he is of so unruly or depraved a character that he cannot be safely so detained; or (c) by reason of his state of health or of his mental or bodily condition it is inadvisable so to detain him.

(2) Under the circumstances referred to in paragraph (1)(a), (b) or (c), the Court For Children shall have the power to order the child to be detained— (a) in a police station, police cell or police lock-up, separate or apart from adult offenders; or (b) in a mental hospital,

as the case may require. 82 Laws of Malaysia Act 611 (3) If an order for detention in a mental hospital is made under subsection (2), Chapter XXXIII of the Criminal Procedure Code shall apply with such modifications as may be necessary.

Submission of information by police officer after arrest

87. After the arrest of a child, the police officer or other person making the arrest shall— (a) immediately inform a probation officer and the child’s parent or guardian of the arrest; and (b) if the child is charged with any offence, cause to be transmitted to the probation officer a copy of the charge and other information necessary to enable the probation officer to take such action as may be necessary to prepare or obtain, as the case may be, a probation report.

Chapter 2

TRIALS

Parent or guardian required to attend

88. (1) If a child is charged with any offence, the Court For Children shall require the child’s parents or guardian to attend at the Court For Children before which the case is heard or determined during all the stages of the proceedings, unless the Court For Children is satisfied that it would be unreasonable to require the attendance of the parents or guardian.

(2) Any parent or guardian of a child who fails to attend the Court For Children when required to do so under subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Parents or guardian may be required to withdraw

89. If in any case the Court For Children considers it necessary in the best interests of the child, the Court may require his parents or guardian, as the case may be, to withdraw from the Court. Child 83 Procedure in Court For Children

90. (1) If a child is brought before a Court For Children for any offence, it shall be the duty of the Court to explain to him in simple language suitable to his age, maturity and understanding the substance of the alleged offence.

(2) The duty referred to in subsection (1) may be undertaken, under the supervision of the Court by— (a) the defence counsel acting for the child; or (b) any other responsible person as determined by the Court.

(3) After the substance of the alleged offence has been explained to the child, the Court shall ask the child whether he admits the facts constituting the offence.

(4) If the child admits the facts constituting the offence, the Court shall— (a) ascertain that the child understands the nature and consequences of his admission; and (b) record a finding of guilt.

(5) If the child does not admit the facts constituting the offence, the Court shall then hear the evidence of the witnesses in support thereof.

(6) At the close of the evidence in chief of each witness, the witness may be cross-examined by or on behalf of the child.

(7) The Court For Children shall, except if the child is legally represented, allow the child’s parents or guardian or any relative or other responsible person to assist him in conducting his defence.

(8) If in any case where the child is not legally represented or assisted in his defence as provided for in subsection (7), the child, instead of asking questions by way of cross-examination, makes assertions, the Court For Children— (a) 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 84 Laws of Malaysia Act 611 (b) shall then put to the witness such questions as the Court thinks necessary on behalf of the child.

(9) If it appears to the Court that a prima facie case is made out— (a) the Court shall explain to the child the substance of the evidence against him and, in particular, any points in the evidence which specially tell against him or require his explanation; (b) the child shall be allowed to— (i) give evidence upon oath or affirmation; or (ii) make any statement if he so desires; and

(10) If the Court For Children finds the child is not guilty, the Court shall record an order of acquittal.

(11) If— (a) a finding of guilt has been recorded; or (b) the Court is satisfied that the offence is proved, the child and the child’s parent or guardian or other responsible person, if present, shall then be asked if they desire to say anything in extenuation or mitigation of the penalty or otherwise.

(12) The Court For Children shall, before deciding how to deal with the child, consider the probation report.

(13) A probation report referred to in subsection (12) shall be prepared by a probation officer and the report— (a) shall contain such information as to the child’s general conduct, home surroundings, school record and medical history as may enable the Court For Children to deal with the case in the best interests of the child; and may put to him any question arising out of the probation report; and (b) may include any written report of a Social Welfare Officer, Child 85 a registered medical practitioner or any other person whom the Court For Children thinks fit to provide a report on the child.

(14) For the purpose of obtaining a probation report, the Court For Children may from time to time release the child on bail or remand him in a place of detention.

(15) If the Court For Children has considered the probation report, the Court shall explain to— (a) the child the substance of any part of the report bearing on his character or conduct which the Court considers to be material to the manner in which he should be dealt with; and (b) the parent or guardian, if present, the substance of any part of the report which the Court considers to be material to the manner in which the child should be dealt with and which has reference to the character, conduct, home surroundings, or health of the child.

(16) If the child or his parent or guardian, having been explained the substance of any part of any such probation report under subsection (15), desires to produce information with respect to the report, the Court shall, if it thinks that the information is material— (a) adjourn the hearing for the production of further information; and (b) if necessary, require the person who made the report to attend the hearing when it resumes.

(17) Before deciding on the order to be imposed, the Court shall ascertain from each of the advisers his opinion and all such opinions shall be recorded.

(18) After having recorded and considered the opinions of the advisers, the Court shall decide on the order to be imposed, but in so doing the Court— (a) shall not be bound to conform to the opinions of the advisers or either of them; and (b) shall record its reasons for dissenting from such opinions. 86 Laws of Malaysia Act 611

Chapter 3

POWERS OF THE COURT FOR CHILDREN AT THE CONCLUSION OF THE TRIAL

Powers of Court For Children on proof of offence

91. (1) If a Court For Children is satisfied that an offence has been proved the Court shall, in addition to any other powers exercisable by virtue of this Act, have power to— (a) admonish and discharge the child; (b) discharge the child upon his executing a bond to be of good behaviour and to comply with such conditions as may be imposed by the Court; (c) order the child to be placed in the care of a relative or other fit and proper person— (i) for such period to be specified by the Court; and (ii) with such conditions as may be imposed by the Court;

(d) order the child to pay a fine, compensation or costs; (e) make a probation order under section 98; (f) order the child to be sent to an approved school or a Henry Gurney School; (g) order the child, if a male, to be whipped with not more than ten strokes of a light cane— (i) within the Court premises; and (ii) in the presence, if he desires to be present, of the parent or guardian of the child;

(h) impose on the child, if he is aged fourteen years and above and the offence is punishable with imprisonment and subject to subsection 96(2), any term of imprisonment which could be awarded by a Sessions Court.

(2) The words “conviction” and “sentence” shall not be used in relation to a child dealt with by the Court For Children and any Child 87 reference in any written law to a person convicted, a conviction and a sentence shall, in the case of a child, be construed as a child found guilty, a finding of guilt and an order made upon a finding of guilt respectively.

(3) A finding of guilt of a child shall be disregarded for the purposes of any written law which— (a) imposes any disqualification or disability upon a convicted person; or (b) authorizes or requires the imposition of any such disqualification or disability.

Manner of executing whipping

92. The following provisions shall be followed when executing the order of whipping: (a) before executing the whipping, the child shall be examined by a medical officer to certify that the child is in a fit state of health to undergo the whipping; (b) the person shall use a light cane with 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 on any part of the body except the face, head, stomach, chest or private parts; (e) the child shall wear clothes; and (f) if during the execution of the whipping the medical officer certifies that the child is not in a fit state of health to undergo the remainder of the whipping, the whipping shall be finally stopped.

Parent or guardian to execute bond

93. (1) The Court For Children shall, in addition to exercising any of the powers provided for in subsection 91(1), order the 88 Laws of Malaysia Act 611 parent or guardian of the child to execute a bond for the child’s good behaviour with or without security and with one or more of the following conditions: (a) that the parent or guardian accompanied by the child shall report at regular intervals to be determined by the Court, at the welfare department or police station situated nearest to the parent’s or guardian’s place of residence; (b) that the parent or guardian accompanied by the child shall attend interactive workshops organized at designated centres established for such purpose; (c) if the child is in an educational institution, that the parent or guardian shall consult with the child’s teacher and head teacher or principal once a month for the duration of the bond; (d) if the child is sent to an approved school or a Henry Gurney School, that the parent or guardian shall visit the child on a regular basis to be determined by the Court; or (e) any other condition as the Court thinks fit.

(2) If any parent or guardian fails to comply with any of the conditions of the bond referred to in subsection (1)— (a) the parent or guardian commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit; and (b) the Court may order the security, if any, to be forfeited; and the provisions of the Criminal Procedure Code relating to the forfeiture of bonds shall apply in relation to the security.

(3) An order under subsection (1) shall not be made against a parent or guardian without giving the parent or guardian an opportunity to be heard.

(4) Notwithstanding subsection (3), an order under subsection (1) may be made if the Court For Children is satisfied on information given by a probation officer that the parent or guardian of the child, having been required to attend, has failed to do so, or is not available or cannot be found within a reasonable time. Child 89 Power to order parent or guardian to pay fine, etc., instead of child

94. (1) If— (a) a child is charged before a Court For Children with any offence for the commission of which— (i) a fine may be imposed; and (ii) compensation or costs or both compensation and costs may be awarded; and

(b) the Court is of the opinion that the case would be best met by the imposition of all or any of those penalties, whether with or without any other punishment,

the Court shall order that the fine imposed and compensation or costs awarded be paid by the parent or guardian of the child instead of by the child, unless the Court is satisfied that the parent or guardian— (aa) is not available or cannot be found within a reasonable time; or (bb) has not conduced to the commission of the offence by neglecting to exercise due care of the child.

(2) If— (a) a Court For Children thinks that a charge against a child is proved; or (b) a child admits the facts constituting the offence in the charge,

the Court may make an order requiring the parent or guardian— (aa) to pay compensation or costs; or (bb) to give security for the good behaviour of the child,

without proceeding to record a finding of guilt against the child.

(3) When the Court requires the parent or guardian to give security for the good behaviour of a child under subsection (2), one or more of the conditions mentioned in subsection 93(1) shall be imposed on the parent or guardian. 90 Laws of Malaysia Act 611 (4) If the parent or guardian fails to comply with the conditions of the security, the Court may order the security to be forfeited.

(5) An order under this section shall not be made against the parent or guardian of the child without giving the parent or guardian an opportunity to be heard.

(6) Notwithstanding subsection (4), an order under this section may be made if the Court For Children is satisfied on information given by a probation officer that the parent or guardian of the child, having been required to attend, has failed to do so or is not available or cannot be found within a reasonable time.

(7) Any sum imposed and ordered to be paid by a parent or guardian of a child under this section or on forfeiture of any such security may be recovered from the parent or guardian in the manner provided by the Criminal Procedure Code in like manner as if the order had been made on the conviction of the parent or guardian of the offence with which the child was charged.

Appeals

95. (1) The Public Prosecutor or any child or his parent or guardian, if aggrieved by any finding or order of a Court For Children, may appeal to the High Court against such finding or order in accordance with the provisions of the Criminal Procedure Code relating to criminal appeals to the High Court from Magistrate’s Court.

(2) Except in the case of whipping, the execution of which shall be stayed pending appeal, no appeal shall operate as a stay of execution, but the Court For Children may stay execution on any judgment or order pending appeal, on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in such judgment or order as the Court For Children may deem reasonable.

(3) The High Court shall, in all criminal appeals originating from a Court For Children, make its final decision within twelve months after the notice of appeal has been filed.

(4) Any appeal under this section shall, notwithstanding any other written law, be intituled “Appeal By Children” and in dealing Child 91 with any such appeal, sections 12 and 15 shall apply, with such modifications as may be necessary, to the High Court.

Restrictions on order of imprisonment

96. (1) A child under the age of fourteen years shall not— (a) be ordered to be imprisoned for any offence; or (b) be committed to prison in default of payment of a fine, compensation or costs.

(2) 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 whether by probation, or fine, or being sent to a place of detention or an approved school, or a Henry Gurney School, or otherwise.

(3) A child aged fourteen years or above shall not, if ordered to be imprisoned, be allowed to associate with adult prisoners.

Death

97. (1) A sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was a child.

(2) In lieu of a sentence of death, the Court shall order a person convicted of an offence to be detained in a prison during the pleasure of— (a) the Yang di-Pertuan Agong if the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or (b) the Ruler or the Yang di-Pertua Negeri, if the offence was committed in the State.

(3) If the Court makes an order under subsection (2), that person shall, notwithstanding anything in this Act— (a) be liable to be detained in such prison and under such conditions as the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may direct; and 92 Laws of Malaysia Act 611 (b) while so detained, be deemed to be in lawful custody.

(4) If a person is ordered to be detained at a prison under subsection (2), the Board of Visiting Justices for that prison— (a) shall review that person’s case at least once a year; and (b) may recommend to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri on the early release or further detention of that person, and the Yang di-Pertuan Agong or the Ruler or the Yang di- Pertua Negeri may thereupon order him to be released or further detained, as the case may be.

Chapter 4

PROBATION

When probation may be ordered

98. (1) If a Court For Children by or before which a child is found guilty of an offence other than— (a) any grave crime; (b) voluntarily causing grievous hurt, rape, incest or outraging modesty; or

(c) an offence under section 377b, 377c, 377d or 377E of the Penal Code, is of opinion that having regard to the circumstances, including the nature of the offence and the character of the child, it is appropriate to do so, the Court For Children may make a probation order.

(2) Before making the probation order under subsection (1), the Court For Children shall explain to the child in simple language suitable to his age, maturity and understanding— (a) the effect of the order; and (b) that if he— (i) fails to comply with the probation order; or Child 93 (ii) commits another offence,

he shall be liable to be dealt with for the original offence as well as for the other offence.

(3) A probation order shall have effect for such period not less than one year and not more than three years from the date of the order as may be specified in the probation order.

(4) For the purposes of securing the good conduct and supervision of the probationer or preventing a repetition by him of the same offence or the commission of other offences, a probation order shall— (a) require the probationer to submit during that period to the supervision of a probation officer; (b) specify that the probationer is not to commit any offence during the probation order; and (c) contain such other requirements, as the Court having regard to the circumstances of the case considers necessary including any one or more of the following: (i) that the probationer shall reside at a probation hostel, at the home of his parent or guardian or relative or at some other place; (ii) that the probationer shall attend an educational institution to be recommended by the probation officer; (iii) that the probationer shall remain indoors at his place of residence, be it at the probation hostel or at a home, during hours to be specified.

(5) Without prejudice to the powers of the Court to make an order under section 91, the payment of sums by way of damages for injury or compensation for loss shall not be included amongst the requirements of a probation order.

(6) Before making a probation order containing requirements as to residence, the Court— (a) shall consider the home surroundings of a child; and (b) if the order requires a child to reside in a probation hostel, shall specify in the order the period for which he is 94 Laws of Malaysia Act 611 so required to reside, but that period shall not extend beyond twelve months from the date of the order.

(7) The Court For Children which makes a probation order shall— (a) immediately give a copy of the order— (i) to the probationer; (ii) to the probation officer or other person under whose supervision the probationer is placed; and (iii) to the person in charge of the probation hostel or other place in which the probationer is required by the order to reside; and

(b) except if it is itself the Supervising Court, send to the Court For Children for the district or area named in the order in which the probationer is required to reside during the probation period a copy of the order together with such documents and information relating to the case as it considers likely to be of assistance to that Court.

(8) A Court For Children on making a probation order may, if it thinks it is expedient for the reformation of the probationer, give the probationer to the charge of any person who consents to accept the probationer, on that person’s giving security for the good behaviour of the probationer; and the provisions of the Criminal Procedure Code on forfeiture of bonds shall apply in relation to the security.

Failure to comply with probation order

99. (1) If at any time during the probation period it appears to a Supervising Court that a probationer has failed to comply with any of the requirements of the probation order under paragraph 98(4)(a) or (c), the Supervising Court may issue— (a) a summons requiring the probationer to appear at the place and time specified in the summons; or (b) a warrant for his arrest. Child 95 (2) A warrant under subsection (1) shall not be issued except on information in writing and on oath submitted by the probation officer.

(3) A summons or warrant issued under this section shall direct the probationer to appear or be brought before the Supervising Court.

(4) A probationer when arrested under subsection (1) may, if not brought immediately before the Supervising Court under subsection (3)— (a) be detained in a place of detention; or (b) be released on bail, with or without sureties,

until such time as he can be brought before the Supervising Court.

(5) If it is proved to the satisfaction of the Supervising Court that a probationer has failed to comply with any of the requirements of the probation order under paragraph 98(4)(a) or (c) the Court may, without prejudice to the continuance of the probation order— (a) impose on him a fine not exceeding five thousand ringgit; or (b) deal with the probationer for the offence in respect of which the probation order was made in any manner in which the Court could deal with him if the Court had just found him guilty of that offence.

(6) A fine imposed under this section for failing to comply with any of the requirements of a probation order shall be— (a) deemed for the purpose of any written law to be a sum adjudged to be paid on a conviction; and (b) taken into account in making any subsequent order upon the probationer under this section or section 100.

(7) For the purposes of paragraph (6)(a), “a sum adjudged to be paid on a conviction” includes any costs, damages or compensation adjudged to be paid on a conviction, of which the amount is ascertained by the conviction.

(8) A probationer who fails to comply with paragraph 98(4)(b) shall be dealt with under section 100. 96 Laws of Malaysia Act 611 Commission of further offence

100. (1) If it appears to the Supervising Court that— (a) a probationer has been found guilty by a Court of an offence committed during the probation period; and (b) the probationer has been dealt with in respect of that offence, the Supervising Court may issue— (aa) a summons requiring the probationer to appear at the place and time specified in the summons; or (bb) a warrant for his arrest.

(2) A warrant under subsection (1) shall not be issued except on information in writing and on oath submitted by the probation officer.

(3) A summons or warrant issued under this section shall direct the probationer to appear or to be brought before the Supervising Court.

(4) If it is proved to the satisfaction of the Supervising Court that a probationer in whose case the order was made has been found guilty and dealt with in respect of an offence committed during the probation period, the Court may deal with him for the offence for which the order was made in any manner in which the Court could deal with him if the Court had just found him guilty of that offence.

Effects of probation

101. (1) The finding of guilt for an offence for which an order is made under this Chapter placing the offender on probation shall be deemed not to be a conviction for any purpose other than for the purposes of— (a) the proceedings in which the order is made; and (b) any subsequent proceedings which may be taken against a child under this Chapter. Child 97 (2) Subsection (1) shall not affect— (a) the right of any such child— (i) to appeal against a finding of guilt; or (ii) to rely on a finding of guilt in bar of any subsequent proceedings for the same offence; or

(b) the revesting or restoration of any property in consequence of the finding of guilt of any such child.

Amendment of probation order

102. (1) If the Supervising Court is satisfied that a probationer proposes to change or has changed his residence from the district or area named in the probation order to another district or area, the Court may, and if an application on that behalf is made by the probation officer, shall, by order amend the probation order by substituting for the district or area named therein the district or area where the probationer proposes to reside or is residing.

(2) If the probation order contains requirements which, in the opinion of the Supervising Court, cannot be complied with unless the probationer continues to reside in the district or area named in the order, the Supervising Court shall not amend the order except in accordance with subsection (4).

(3) If a probation order is amended under subsection (1), the Supervising Court shall send to the Court For Children for the new district or area named in the order a copy of the order together with such documents and information relating to the case as it considers likely to be of assistance to the Court For Children.

(4) Without prejudice to subsections (1) and (3) the Supervising Court may, on an application made by the probation officer or by the probationer, by order amend the probation order by— (a) revoking any of the requirements in the probation order; or (b) inserting in the probation order, either in addition to or in substitution for any such requirement, any requirement which could be included in the order if the order were then being made by the Court in accordance with section 98. 98 Laws of Malaysia Act 611 (5) The Supervising Court shall not amend a probation order under subsection (4) by— (a) reducing the probation period; or (b) extending that period such that the probation period becomes more than three years.

Discharge of probation order

103. (1) The Court For Children by which a probation order was made or the Supervising Court may, on an application made by the probation officer, the parent or guardian of the probationer or the probationer, discharge the probation order.

(2) The Court For Children shall not deal with an application under subsection (1) without summoning the probationer unless the application is made by the probation officer.

(3) If— (a) the Court discharges a probation order under subsection (1); or (b) a probationer is dealt with under section 99 or 100 for the offence for which he was placed on probation, the probation order shall cease to have effect.

Court to give copies of amending or discharging order to probation officer

104. On the making of an order amending or discharging a probation order under section 102 or 103 respectively— (a) the Court shall forthwith give sufficient copies of the amending or discharging order to the probation officer; and (b) the probation officer shall give a copy of the amending or discharging order to— (i) the probationer; and (ii) the person in charge of the probation hostel or place in which the probationer is or was required by the order to reside. Child 99

Part XI

IN THE CARE OF FIT AND PROPER PERSON

Child placed in the care of fit and proper person

105. (1) This section shall apply in relation to an order made under this Act placing a child in the care of a fit and proper person.

(2) An order placing a child in the care of a fit and proper person may be varied or revoked by the Court For Children or the Supervising Court on an application made by— (a) the parent or guardian of the child; (b) the Protector; or (c) the probation officer,

as the case may be.

(3) If— (a) on an application made by the parent or guardian or any near relative of a child ordered to be placed in the care of a fit and proper person under subsection (1); and (b) the Court For Children or the Supervising Court having power to vary or revoke the order is satisfied that the child is not being brought up in accordance with his religion as decided by his parent or guardian,

the Court For Children or the Supervising Court, as the case may be, shall, unless a satisfactory undertaking is given by the person in whose care the child has been placed, either revoke the order or vary the order in such manner as the Court thinks best to secure that the child is from that time onwards brought up in accordance with that religion.

Child who escapes or is removed from the care of fit and proper person

106. (1) A child who escapes from a person in whose care he has been placed under this Act may be— (a) arrested without a warrant; and 100 Laws of Malaysia Act 611 (b) brought before the Court For Children by which the order was made or before the Supervising Court.

(2) The Court For Children or the Supervising Court before which a child is brought under subsection (1) shall immediately inquire into the case and after taking into account the recommendation of the Protector or probation officer, as the case may be— (a) order the child to be brought back to that person, if he is willing to receive the child; or (b) make an order which the Court could have made if the child had been brought before the Court as being a child having no parent or guardian.

Offence of removing or helping a child to escape from the care of fit and proper person

107. (1) Any person who— (a) removes a child from the care of a fit and proper person without lawful authority; (b) knowingly assists or induces, directly or indirectly, a child to escape from the person in whose care he has been placed; or (c) knowingly harbours or conceals a child who has so escaped, or prevents him from returning to the care of such person, commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Part XII

CONTRIBUTION ORDERS

Contribution by parent or guardian or other person

108. (1) If an order is made— (a) placing a child in the care of a fit and proper person; Child 101 (b) sending a child to a probation hostel, an approved school, a Henry Gurney School, or an approved institution or centre; or (c) placing a child in a place of refuge,

the Court For Children making the order may, at the same time or subsequently, make a contribution order requiring the parent or guardian or other person having custody of the child— (aa) at the time of the commission of the offence resulting in the order; (bb) prior to an order made under subsection (1); or (cc) immediately before the commencement of any proceedings,

to make such contribution or monthly contributions in such manner as the Court thinks fit, having regard to the means of the parent or guardian or the other person.

(2) A Court For Children shall not make any contribution order under subsection (1) if the Court considers that it would not be just for the contribution order to be made having regard to the circumstances and means of the parent or guardian or the other person.

(3) If a contribution order is made pursuant to subsection (1), it shall be the duty of the parent or guardian or the other person against whom the contribution order is made to comply with the contribution order.

(4) All sums payable under a contribution order shall be paid into such Court or to such authority as the Court making the order shall direct.

(5) The Court For Children making any such contribution order may, from time to time, on an application made by— (a) the parent or guardian or the other person against whom the contribution order is made; (b) the Protector; or (c) the probation officer, 102 Laws of Malaysia Act 611 rescind, make anew or vary the order as the Court deems fit on proof of change in circumstances of the person against whom the order is made or for other good cause being shown to the satisfaction of the Court.

(6) An order under subsection (1) shall not be made without giving the parent or guardian of the child or the other person having custody of the child an opportunity to be heard.

(7) Notwithstanding subsection (6), an order under subsection (1) may be made if the Court is satisfied on information given by a Protector or probation officer, as the case may be, that the parent or guardian or the other person, having been required to attend, has failed to do so, or is not available or cannot be found within a reasonable time.

(8) A contribution order shall remain in force— (a) in the case of a child ordered to be placed in the care of a fit and proper person, so long as the order is in force; and (b) in the case of a child ordered to be sent to a place of refuge, a probation hostel, an approved school, a Henry Gurney School, or an approved institution or centre, until he ceases to be under the care of the person in charge for the time being of the place of refuge, probation hostel, approved school, Henry Gurney School, or approved institution or centre.

(9) A contribution is not payable under a contribution order in respect of any period during which— (a) a child ordered to be sent to an approved school or a Henry Gurney School is out with permission or under the supervision of a probation officer; or (b) a child ordered to be sent to a place of refuge is on leave of absence from the place of refuge or from being under the supervision of a Social Welfare Officer.

(10) If any person wilfully neglects to comply with a contribution order, a Magistrate may, for every breach of the order— (a) by warrant, direct the amount due to be levied in the manner by law provided for levying fines imposed by a Magistrate; or Child 103 (b) sentence the person to imprisonment for a term not exceeding one month for each month’s contribution remaining unpaid.

(11) The term of imprisonment imposed under paragraph (10)(b) shall terminate when the amount of contribution due is paid.

Part XIII

INVESTIGATION, ARREST, SEARCH, SEIZURE, ETC.

Power of investigation

109. (1) A Protector or police officer may investigate the commission of any offence under this Act.

(2) A Protector when acting under this Part shall, on demand, declare his office to the person against whom he is acting or from whom he seeks any information.

(3) Every person required by a Protector or police officer to give information or produce any document or other things relating to the commission of any offence which is in that person’s power to give shall be legally bound to give the information or produce the document or other things.

Power to arrest without warrant

110. (1) Any police officer may arrest without a warrant any person whom he reasonably believes— (a) has committed or attempted to commit; or (b) employed or aided any other person to commit or abet the commission of, an offence against this Act, and may search any person so arrested.

(2) Any person arrested under subsection (1) shall, after the arrest, be dealt with as provided for by the Criminal Procedure Code. 104 Laws of Malaysia Act 611 Search by warrant

111. (1) If it appears to a Magistrate upon written information on oath that there is reasonable cause to believe that in any premises there is any evidence of— (a) a child who is in need of protection; (b) a child who is being concealed, confined or detained in contravention of this Act; or (c) the commission of an offence against this Act, the Magistrate may issue a search warrant authorizing a Protector or police officer to whom it is directed, at any reasonable time by day or night and with or without assistance, to— (aa) enter and search the premises; (bb) inspect, make copies of, or take extracts from, any book, record or document; (cc) search any person who is in or on the premises, and for the purposes of that search detain the person and remove him to any place as may be necessary to facilitate the search, and seize and detain any article found on that person; and (dd) search and remove the child— (i) who is in need of protection; (ii) who is being concealed, confined or detained in contravention of this Act; or (iii) in respect of whom an offence against this Act has been committed,

to a place of safety or place of refuge.

(2) If a child has been placed in a place of safety pursuant to paragraph (1)(dd), the Protector shall, as soon as practicable, inform the parent or guardian who has lawful custody of the child the whereabouts of the child.

(3) Whenever it is necessary to do so, a Protector or police officer exercising any power under subsection (1) may— (a) break open any outer or inner door or window of any premises in order to effect entry into the premises; Child 105 (b) forcibly enter any premises and any part of the premises; (c) remove by force any obstruction to entry, search, seizure, detention or removal as he is empowered to effect under subsection (2); (d) detain any person found in or on any premises searched under subsection (1) until the search is completed.

(4) A female person shall not be searched under this section or section 110 except by another female person and a male person shall not be searched except by another male person and such search shall be carried out with strict regard to decency.

(5) A person who by force, restraint, threats, inducement or other means causes any child who is in need of protection to conceal himself in or to leave any premises being searched or about to be searched by a Protector or a police officer under this section, with the intent that the search by such Protector or police officer may be evaded or obstructed, commits an offence.

(6) It shall be the duty of the owner or occupier of any premises searched under this section and any person found in or on the premises to— (a) provide the Protector or police officer with all such facilities and assistance as he may reasonably require; and (b) give the Protector or police officer all reasonable information required by him.

Search without warrant

112. If a Protector or police officer has reasonable cause to believe that by reason of delay in obtaining a search warrant under section 111— (a) the investigation would be adversely affected; or (b) the object of the entry is likely to be frustrated, he may exercise in, and in respect of, the premises all the powers referred to in that section in as full and ample a manner as if he was authorized to do so by a warrant issued under that section. 106 Laws of Malaysia Act 611 Power to examine person

113. (1) A Protector or police officer investigating an offence under this Act may order any person— (a) acquainted with the facts and circumstances of an offence to attend before him to be examined orally in relation to any matter which may assist in the investigation into the offence; or (b) to produce any child or any book, article or document which may assist in the investigation into the offence.

(2) A person to whom an order has been given under paragraph (1)(a)— (a) shall attend in accordance with the terms of the order to be examined; and (b) during such examination— (i) shall disclose all information which is within his knowledge or which is available to him in respect of the matter in relation to which he is being examined; (ii) shall answer any question put to him truthfully and to the best of his knowledge and belief; and (iii) shall not refuse to answer any question on the ground that it tends to incriminate him.

(3) A person to whom an order has been given under paragraph (1)(b)— (a) shall produce the child unless it can be shown to the satisfaction of the Protector that the child— (i) is no longer under the custody or control of that person; and (ii) that the whereabouts of the child are not known to that person; and

(b) shall not conceal, destroy, alter or dispose of any book, article or document specified in the order. Child 107 (4) A person to whom an order is given under subsection (1) shall comply with the order and with subsections (2) and (3) notwithstanding any written law or rule of law to the contrary.

(5) A Protector examining a person under paragraph (1)(a) shall record in writing any statement made by the person so examined and the statement so recorded shall be signed by the person making it or affixed with his thumb-print, as the case may be, after— (a) it has been read to him in the language in which he made it; and (b) he has been given an opportunity to make any correction he may wish.

(6) If a person examined under this section refuses to sign or affix his thumb-print on the statement, the Protector shall endorse on the record under his hand the fact of such refusal and the reason for it, if any, stated by the person examined.

(7) Notwithstanding any written law or rule of law to the contrary, the record of an examination under paragraph (1)(a) and any book, article or document produced under paragraph (1)(b) shall be admissible in evidence in any proceedings in any Court for or in relation to an offence under this Act, regardless of whether such proceedings are against— (a) the person who was examined; (b) the person who produced the book, article or document; or (c) any other person.

(8) Any person who contravenes this section commits an offence.

Inspection

114. If an order is made placing a child in the care of a fit and proper person or requiring the parent or guardian of the child to exercise proper care and guardianship over him, the Protector 108 Laws of Malaysia Act 611 or probation officer or any Social Welfare Officer authorized in writing by the Protector or probation officer may, so long as the order is in effect— (a) at any time visit and inspect the place where such child in respect of whom the order is made lives or is believed to live or to be; and (b) inquire into the conditions and circumstances of the child, and for the purposes of such inquiry, may require any person to answer any question as he may think proper to ask and such person shall be legally bound to answer such question truthfully to the best of his knowledge or belief.

Obstruction

115. Any person who— (a) refuses the Protector or Social Welfare Officer access to any premises, or fails to submit to a search by a person authorized to search him under this Act; (b) assaults, obstructs, hinders, delays or attempts to assault, obstruct, hinder or delay the Protector or Social Welfare Officer in the execution of his duty under this Act; (c) fails to comply with any lawful demand, order or requirement of a Protector or Social Welfare Officer in the execution of his duty under this Act; (d) omits, refuses or neglects to give to a Protector or Social Welfare Officer any information which may be reasonably required of him and which he is empowered to give; (e) fails to produce to, or conceals or attempts to conceal from, a Protector or Social Welfare Officer, any child or any book, article or document in relation to which the Protector or Social Welfare Officer has reasonable grounds for believing that an offence under this Act has been or is being committed; (f) rescues or endeavours to rescue or causes to be rescued any thing which has been duly seized; or (g) destroys any thing to prevent the seizure of the thing, or the securing of the thing, Child 109 commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Protection of informers

116. (1) Any person who gives any information that a child is in need of protection shall not incur any liability for defamation or otherwise in respect of the giving of such information.

(2) The giving of any information that a child is in need of protection shall not, in any proceedings before any Court or in any other respect, be held to constitute— (a) a breach of professional etiquette or ethics; or (b) a departure from accepted standards of professional conduct.

(3) Except as provided in subsections (4) and (6), a witness in any civil or criminal proceedings shall not be obliged or permitted to disclose the name and address of an informer or the substance of the information received from him or to state any matter which might lead to his discovery.

(4) If any book, record or document which is in evidence or liable to inspection in any civil or criminal proceedings contains any entry in which any informer is named or described or which might lead to his discovery, the Court shall cause all such passages to be concealed from view or to be obliterated so far as may be necessary to protect the informer from discovery.

(5) This section shall apply to a registered medical practitioner, any member of the family or a child care provider who gives information under section 27, 28 or 29 respectively in the same manner as they apply to a person who gives information that a child is in need of protection.

(6) If during the trial for any offence against this Act, the Court after full inquiry into the case believes that the informer wilfully made in his complaint a material statement which he knew or believed to be false or did not believe to be true, or if in any other proceedings the Court is of the opinion that justice 110 Laws of Malaysia Act 611 cannot be fully done between the parties in that proceedings without the discovery of the informer, it shall be lawful for the Court to require the production of the original complaint, if in writing, and permit inquiry and require full disclosure concerning the informer.

Part XIV

MISCELLANEOUS

Power of Court For Children conferred on High Court

117. Nothing in this Act other than sections 96 and 97 shall affect the powers of the High Court and all the powers which may be exercised under this Act by a Court For Children in respect of a child may in like manner be exercised by the High Court.

118. The Registrar shall cause to be kept and maintained, in such form as may be prescribed, a register to be known as the “Register of Children in Need of Protection”.

Contents of Register

119. The Register shall contain— (a) details of every case or suspected case of a child in need of protection; and (b) such other matters in relation to such case or suspected case as the Director General may from time to time determine.

Access to Register

120. (1) Details contained in the Register shall be furnished to— (a) any Court when there is before the Court any proceedings concerning a child in need of protection; (b) any Court when so requested by the Court; and Child 111 (c) the Director General, a Protector, any police officer or any member of a Child Protection Team or Child Welfare Committee when any of them requires such details for the purposes of any proceedings under this Act or for the purposes of taking action in respect of, or providing assistance to, a child in need of protection.

(2) Details contained in the Register may be furnished to— (a) persons engaged in bona fide research whose access to the Register is authorized by the Director General for that purpose; or (b) persons or classes of persons authorized by the Director General to have access to the Register on the grounds that their access to the Register will promote the protection of a child or children.

(3) Details furnished under this section shall not include any information which discloses or likely to lead to the disclosure of the identity of any person who has given any information that a child is in need of protection.

Offence in respect of Register

121. Any person who furnishes to any other person any details contained in the Register other than pursuant to section 120 commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Certificate of Registrar to be evidence

122. A certificate purporting to be under the hand of the Registrar as to any entry in the Register, or as to any matter or thing which he is authorized by this Act or any regulation made under this Act to do or to make shall, until the contrary is proved, be admitted in evidence as proof of the facts stated therein as at the date of the certificate. 112 Laws of Malaysia Act 611 Protection against suit and legal proceedings

123. An action shall not lie and prosecution shall not be brought, instituted or maintained in any Court against the Government, Minister, Director General, Protector, Social Welfare Officer, probation officer, police officer or medical officer for anything done or omitted to be done under this Act— (a) in good faith; (b) in the reasonable belief that it was necessary for the purpose intended to be served thereby; or (c) for carrying into effect the provisions of this Act.

Public servant

124. All officers appointed or authorized under this Act shall be deemed to be public servants within the meaning of the Penal Code.

General penalty

125. If no penalty is expressly provided for an offence under this Act, a person who commits such offence shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Institution and conduct of prosecution

126. (1) A prosecution in respect of an offence under this Act shall not be instituted except by or with the consent in writing of the Public Prosecutor.

(2) Notwithstanding that he has been authorized under the Criminal Procedure Code to prosecute, a person who is the investigating officer of an offence under this Act shall not prosecute the case in respect of that offence.

Service of document

127. (1) Service of document on any person shall be effected by— (a) delivering the document to that person or by delivering the document at the last known place of residence of that person to an adult member of his family; Child 113 (b) leaving the document at the usual or last known place of residence or business of that person in a cover addressed to that person; or (c) forwarding the document by registered post in a prepaid letter addressed to that person at his usual or last known place of residence or business.

(2) If a document is served by prepaid registered post it shall be deemed to have been served on the day succeeding the day on which the document would have been received in the ordinary course of post.

Power to make regulations

128. (1) The Minister may make such regulations as appears to him to be necessary or expedient for carrying out the provisions of this Act.

(2) Without prejudice to the generality of the powers conferred by subsection (1), the Minister may make regulations for all or any of the following purposes: (a) to prescribe the conduct, management, discipline and control of approved schools, Henry Gurney Schools, probation hostels or centres; (b) to provide for the maintenance, discipline, treatment and education, vocational or otherwise, of the children or other persons detained in approved schools or Henry Gurney Schools including— (i) the powers, duties and functions of the Board of Visitors; (ii) the grant of leave of absence to children and other persons detained; (iii) visits to, and inspections of, the schools by persons or bodies of persons appointed by the Minister from time to time for any area or areas; and (iv) the order or punishment for breaches of discipline of children or other persons detained; 114 Laws of Malaysia Act 611 (c) to prescribe the duties and responsibilities of probation officers; (d) to prescribe the constitution and duties of Child Welfare Committees; (e) to prescribe the qualifications, duties and training of advisers; (f) to provide for the care, control, detention, discipline, admission, discharge and aftercare, temporary absence, maintenance, education and training of children placed in places of safety and places of refuge; (g) to regulate the management, administration, visitation and inspection of places of safety and places of refuge; (h) to provide for— (i) the care, maintenance and education of children placed in the care, custody or control of any fit and proper person under the provisions of this Act; and (ii) the duties of such fit and proper person in taking care of the child;

(i) to prescribe the selection and qualifications of fit and proper persons with whom a child in need of care and protection may be placed; (j) to require the persons in charge of places of safety and places of refuge to submit to the Director General returns, reports and information in respect of children placed therein; (k) to prescribe the duties and responsibilities of foster parents; (l) to prescribe the composition, duties, functions and procedures of conducting the business of Boards of Visitors; (m) to prescribe the procedures and practice of Child Protection Teams; (n) to prescribe the particulars, photographs or other means of identification to be furnished in relation to a child in need of protection; Child 115 (o) to require the furnishing of information as to changes of address of every child in need of protection and of the persons having custody of the child, and the transfer of records and registers in such cases; (p) to prescribe the records to be kept in respect of every child in need of protection and the manner in which the records shall be kept; (q) to prescribe the keeping and maintenance of Registers; (r) to prescribe the forms to be used and information to be furnished for any of the purposes of this Act; (s) to prescribe the form of notices, orders, warrants, summonses and bonds under this Act and the manner of service thereof; (t) to prescribe the functions, powers and duties of officers and persons conferred with powers under this Act and the manner and conditions in and under which the powers conferred by this Act shall be exercised by the officers or persons; (u) to prescribe any other matter required or permitted to be prescribed under this Act; and (v) to provide for any other matter which the Minister deems expedient or necessary for the purposes of this Act.

(3) Regulations made under subsection (1) may provide that the contravention of any provision in the regulations is an offence and that the person who commits the offence is punishable on conviction with a fine or a term of imprisonment or both but may not provide for the fine to exceed five thousand ringgit or the term of imprisonment to exceed two years.

Part XV

SAVINGS AND TRANSITIONAL PROVISIONS

Interpretation

129. In this Part— “repealed Acts” means the Juvenile Courts Act 1947 [Act 90], the Women and Girls Protection Act 1973 [Act 106] and the Child Protection Act 1991 [Act 468] repealed under this Act; 116 Laws of Malaysia Act 611 “Juvenile Court” means the Juvenile Court established under the Juvenile Courts Act 1947;

“appointed date” means the date on which this Act comes into operation.

Repeal

130. The Juvenile Courts Act 1947, the Women and Girls Protection Act 1973 and the Child Protection Act 1991 are repealed.

References to Juvenile Court, etc.

131. (1) All references to the Juvenile Court in any written law, or in any judgment, sentence, order, ruling or decision made under the repealed Acts and subsisting immediately before the appointed date shall, on the appointed date, be construed as references to the Court For Children established under this Act.

(2) The judgment, sentence, order, ruling or decision of the Juvenile Court, Supervising Court, High Court, Sessions Court or Magistrate’s Court under the repealed Acts shall on the appointed date be deemed to have been made under this Act and continue to be in force and have effect.

(3) Any inquiry, trial or proceedings done, taken or commenced in or before the Courts referred to in subsection (2) before the appointed date in so far as it relates to a person under the age of eighteen years shall be deemed to have been done, taken or commenced in or before the Court For Children, Supervising Court, High Court, Sessions Court or Magistrate’s Court under this Act and may accordingly be continued and concluded on and after the appointed date.

(4) Any inquiry, trial or proceedings done, taken or commenced under the Women and Girls Protection Act 1973 before the appointed date and are still pending shall, in so far as it relates to a female person aged eighteen years and above and any offence under the same Act, be continued and concluded under the same Act and for this purpose it shall be treated as if that Act had not been repealed. Child 117 Continuance of Council, etc.

132. (1) The Co-ordinating Council for the Protection of Children, Child Protection Teams, Juvenile Welfare Committees, Boards of Visitors and committees established, and officers and persons appointed, under the repealed Acts shall, on the appointed date, be deemed to have been established or appointed under this Act and shall have the powers, rights, privileges, liabilities, duties and obligations conferred on the Council, Child Protection Teams, Child Welfare Committees, Boards of Visitors and committees established under this Act.

(2) The members of the Council, Teams, Committees, Boards and committees established under the repealed Acts and any officers and persons appointed under the repealed Acts holding office on the day preceding the appointed date shall continue to hold office under this Act until their terms of appointment expire or they resign or their appointments are revoked in accordance with this Act and shall have the same powers, rights, privileges, liabilities, duties and obligations as if they had been appointed under this Act.

(3) Every act or thing done, taken or commenced by the members of the Council, Teams, Committees, Boards, committees officers and persons referred to subsections (1) and (2), and the Board of Visiting Justices, under the repealed Acts before the appointed date shall, on and after the appointed date, be deemed to have been done, taken or commenced under this Act.

Continuance of rules, etc.

133. All rules, regulations, orders, notices, forms, directions and authorization letters made, issued or given under the repealed Acts shall, in so far as they are consistent with this Act, continue in force until revoked or replaced by this Act.

Institutions established or appointed

134. All approved schools, Henry Gurney Schools, places of detention, probation hostels, places of safety, places of refuge and other institutions or centres established or appointed under the repealed Acts shall on the appointed date be deemed to have been established or appointed under this Act. 118 Laws of Malaysia Act 611 Prevention of anomalies

135. (1) The Minister may, whenever it appears to him necessary or expedient to do so, whether for the purpose of removing difficulties or preventing anomalies in consequence of the enactment of this Act, by order published in the Gazette make such modifications to any provision in this Act as he thinks fit but the Minister shall not exercise the powers conferred by this section after the expiration of two years from the appointed date.

(2) In this section, “modifications” includes amendments, additions, deletions, substitutions, adaptations, variations, alterations and non-application of any provision of this Act. Child 119

First Schedule

[Paragraphs 15(1)(c) and 17(1)(i)]

Offences under sections 299 to 301, 304 to 304A, 305 to 309A, 312 to 319, 321 to 322, 324, 326 to 340, 345 to 351, 353 to 358, 360 to 362, 364 to 373A, 374 to 375, 377, 377A, 377C to 377E of the Penal Code.

Second Schedule

[Section 45]

1. Offences punishable under Part VI of this Act.

2. Offences—

(a) punishable under sections 309, 312 to 313, 354, 370 to 373, 373A, 376 to 377 of the Penal Code; or (b) involving any acts or matters defined in sections 321 to 322, 339 to 340, 350 to 351, 360 to 362 of the Penal Code. 120 Laws of Malaysia Act 611 LAWS OF MALAYSIA

Act 611

CHILD ACT 2001

LIST OF AMENDMENTS

Amending law Short title In force from

P.U. (A) 7/2003 Child (Modification) 01-08-2002 Order 2003 Child 121 LAWS OF MALAYSIA

Act 611

CHILD ACT 2001

LIST OF SECTIONS AMENDED

Section Amending authority In force from

30 P.U. (A) 7/2003 01-08-2002