THE High Court judgment by Justice Noorin Badaruddin acknowledges what the Child Act 2001 has been saying all these decades: that all children – including non-citizen children – in Malaysia are covered under the Act and deserve our protection.  

It is good that the government chose not to contest this ruling. Also welcome are reforms to laws protecting children in court, the recent move to appoint an independent children’s commissioner, and drafting a special bill to support this appointment. This demonstrates that Malaysia prioritises children’s rights and wellbeing. 

The Child Act 2001 applies to all government departments and ministries that deal with children. In its preamble, it recognises that “every child is entitled to protection and assistance in all circumstances without regard to distinction of any kind, such as race, colour, sex, language, religion, social origin or physical, mental or emotional disabilities or any other status”.  

However, many departments are not operating in accordance with the Child Act and have standard operating procedures that conflict with it. Let’s highlight some areas that require urgent change; these are not exhaustive in scope.   

Department of Social Welfare  

Under the Child Act, officers in this department are designated by law as “child protectors”. Hence, they should take a lead role in ensuring the rights of all children in Malaysia are enforced. Unfortunately, many read the Child Act as dealing only with abuse situations and relating only to families.  

In many circumstances, the department’s officers fail to proactively intervene when it comes to migrants, refugees, or stateless children. They often say, “not covered in their job scope”. There exists a failure to see the full scope of duties under the Act. 

It is also vital to point out that this department suffers from a lack of staff.  

Ministry of Health 

We have long denied migrant, refugee and stateless children their basic rights to healthcare, as enshrined in the Convention on the Rights of the Child that our government acceded to over 30 years ago. 

While the Child Act does not explicitly cover the provision of primary healthcare, it does make very clear that we have a legal responsibility to all children who are ill and fail to get appropriate care. Section 17(1)(f) states that: “A child is in need of care and protection if… the child needs to be examined, investigated or treated for the purpose of restoring or preserving his health; and his parent or guardian neglects or refuses to have him so examined, investigated or treated.”  

Daily, in the Ministry of Health (MOH) hospitals, and in the private health service, we have children whose parents choose not to follow medical advice and at times discharge the children against medical advice – “at own risk” (AOR) discharge.  

At times, these decisions result in the child becoming disabled or dying. All medical officers, working in tandem with welfare officers, have a legal responsibility to protect all children when parents make decisions that may be harmful to the health of their child.  

Welfare officers are empowered under the Child Act to authorise medical treatment under Section 24. MOH needs to remove circulars that support the AOR discharge or refusal of treatment of children – as these go against the provisions of the Child Act.  

Migrant, refugee and stateless children have great difficulty accessing healthcare or hospitalisation when they are ill. While admission is possible for life-threatening illnesses, guardians must pay high fees for hospitalisation, procedures and medication, putting such healthcare out of the reach of the majority.  

Some who are admitted are denied discharge until their bills can be settled. Others are reported to the Immigration Department and transferred to detention facilities. In line with the Convention on the Rights of the Child, and our Child Act, we need legal provisions that guarantee all children living in Malaysia the right to health care, regardless of their legal status.  

Ministry of Education 

While the Child Act does not spell out the specific duties of the Ministry of Education, the Act is built on the principles of the Convention on the Rights of the Child. Hence, the Child Act recognises that “every child is entitled to protection and assistance in all circumstances without regard to distinction of any kind”.  

The Education Ministry should introduce and enforce the implementation of a mandatory universal education access policy for all children regardless of their status.  

Police, Immigration, and Other Enforcement Authorities 

All government enforcement agencies need to meet their obligations under the Child Act and ensure that they operate within the legal boundaries stipulated there. The detention, handcuffing, and processing of children, whether Malaysian or migrants, refugees or stateless, must be in line with the provisions of the Child Act.  

Detention of children is inappropriate and harmful, as is separation of children from their parents (Sections 83 and 84 of the Child Act). 

Malaysia, as a joint signatory to the Convention on the Rights of the Child, and having ratified it, has international obligations to protect and uphold the rights of all children in Malaysia. – April 10, 2023.

This letter carries the following signatures of child advocates and civil society organisations:

1.     Dr Amar-Singh HSS, Consultant Paediatrician, Child-disability Activist, Adviser, National Early Childhood Intervention Council

2.     Cathryn Anila, Founder Vanguards4Change

3.     Dr Hartini Zainudin, Child Activist

4.     MIRM – Make It Right Movement

5.     Yap Sook Yee, Disability Rights Advocate

6.     Srividhya Ganapathy, Co-Chairman CRIB Foundation

7.     Irene Xavier, Persatuan Sahabat Wanita Selangor

8.     Siti Aishah Hassan Hasri, SPOT Community Project

9.     Anisa Ahmad, Persatuan Pengasuhan dan Perkembangan Awal Kanak2 Berdaftar Malaysia

10.  Cikgu Rahayu, Child Activist

11.  Protect and Save the Children

12.  Malaysian Council of Child Welfare

13.  END CSEC Malaysia

14.  Pam Guneratnam, HumanKind

15.  Ananti Rajasingam, Yayasan Chow Kit

16.  Asha Singh, Diploma in Social Work student

17.  Buku Jalanan Chow Kit

18.  RD Ramesh Patel, Chairman Pertubuhan Kebajikan Vivekananda Rembau Negeri Sembilan

19.  Family Frontiers

20.  Sarawak Women for Women Society

21.  Prof Noor Aziah Mohd Awal, Suhakam Commissioner

22.  Jeannie Low, Play Unlimited

23.  Yuenwah San, The OKU Rights Matter Project

24.  Kasthuri Krishnan Child Rights Advocate

25.  PH Wong Childline Foundation

26.  Rabia Bazeer, Child Activist

27.  Sabah Women’s Action Resource group

28.  Chee Yoke Ling, Executive Director, Third World Network

29.  Health Equity Initiatives

30.  Dr Sharuna Verghis

31.  Margaret Loy, Community Transformation Initiative Bhd

32.  Women’s Centre for Change, Penang

33.  Malaysian Rare Disorders Society

34.  Montessori Association Malaysia

35.  Ajeet Kaur, Co-Chairman CRIB Foundation

36.  Reproductive Health Association Kelantan

37.  People’s Health Forum

38.  Agora Society Malaysia

39.  Toy Libraries Malaysia

40.  Azira Aziz, Lawyer

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.