Sie sind auf Seite 1von 21

The 6th International Malaysian Studies Conference (MSC6)

Engaging Malaysian Modernity


50 Years and Beyond

5-7 August 2008 | Crowne Plaza Riverside Hotel, Kuching

CHILD PROTECTION LAWS IN MALAYSIA:


THE CHANGING TREND

Author JAL ZABDI MOHD YUSOFF

Title & Position LECTURER

Institution UNIVERSITY OF MALAYA, KUALA LUMPUR

PRINCIPAL CONVERNOR:
Malaysian Social Science Association (PSSM)

CO-CONVERNER & HOST:


The Faculty of Social Sciences
Universiti Malaysia Sarawak (UNIMAS)

CO-CONVERNER:
Institute of Malaysian & International Studies (IKMAS)
Institute of Occidental Studies (IKON)
Universiti Kebangsaan Malaysia (UKM)

1
CHILD PROTECTION LAWS IN MALAYSIA: THE CHANGING TREND

Jal Zabdi Mohd Yusoff

ABSTRACT

Child abuse and neglect is a social problem that has been recognized by
most of the countries in the world. Various laws, regulations and policies
have been passed to address the issue of child abuse and neglect which
generally focuses on an act and omission by the parents or guardians.
Similar situations have occurred in Malaysia where there were several
general and specific laws passed back in the early 20th century. The more
specific laws were introduced in 1947 and gradually repealed and replaced
by a specific law enacted in 1991 and the latest in 2002. However, the
question is whether the development of child protection laws in Malaysia
from 1947 to 2002 at tandem with the ‘wave’ created by the international
communities? Are the current child protection laws in Malaysia prepared
to accommodate the changes not only domestically but also
internationally? Thus, in this article, the writer attempts to discuss the
above mentioned issue, with special emphasis on child protection laws
passed in 1947, 1991 and 2002.

Jal Zabdi Mohd Yusoff


Faculty of Law
University of Malaya
KUALA LUMPUR
jalzabdi@um.edu.my

2
CHILD PROTECTION LAWS IN MALAYSIA: THE CHANGING TREND

Jal Zabdi Mohd Yusoff

A. Introduction

Child abuse and neglect is recognized as a social problem which exists in most countries
regardless of status, ethnic, religion or level of education.1 The history of child abuse and
neglect can be traced back to many centuries.2 Unfortunately, child abuse and neglect did
not get due recognition as to the seriousness of its effect on the children, family and
society. This is because child abuse and neglect is often perceived as ‘family matters’,
‘children as property of their father’ or the need to give them stern discipline as children
were naturally ‘inclined to evil’ or ‘perverted’.3 In the 1960’s, the issue of child abuse
and neglect was brought to the next level when Dr. Henry Kempe and his team found
that the number of deaths involving children were increasing and suspected such deaths
may be non accidental.4 Dr. Kempe’s team also found that doctors during that time did
not believe that parents or guardians can inflict serious injuries on their children.5 These
findings have led to several initiatives to overcome this problem.6 However, this does not
mean that formal protection was only available to victim of child abuse and neglect in the
1960’s. For instance, in England, specific laws to protect children were enacted as early
as in 1889 via the Prevention of Cruelty to Children Act or commonly known as

1
See Henry C. Kempe, “The Battered Child Syndrome”, (1985) 9 Child Abuse & Neglect, 143-154. This
article was originally published in the Journal of American Medical Association 181: 17-24, July 7, 1962.
2
See Lloyd deMause, The History of Child Abuse. Retrieved June 28, 2008 from
http://www.psychohistory.com/htm/05_history.html. See also Samuel X. Radbill, “A History of Child
Abuse and Infanticide”, The Battered Child, Eds., Henry Kempe, 2nd Edition, (Chicago, The University of
Chicago, 1974), 3 – 21, at page 3. According to Sander J. Breiner:
Actually, infanticide and child abuse predate our civilization by centuries. They are ancient
problems, often more apparent in the great civilizations of our past then they are now. We have
been killing, maiming, and abusing our children for as long as our history has been recorded.
See Sander J. Breiner, Slaughter of the Innocents: Child Abuse Through the Ages and Today, (Plenum
Press, New York, 1990) at page 1.
3
See also Cindy L. Miller-Perrin & Robin D. Perrin, Child Maltreatment: An Introduction, (Sage
Publication: Thousand Oaks, California, 1999) at page11. See also Samuel X. Radbill, note 2.
4
See Henry C. Kempe, note 1.
5
Ibid.
6
See the discussions on pages 8-9 in this paper.

3
‘Children’s Charter’. Today, most of the countries in the world have its specific laws to
protect children from becoming the victims of abuse and neglect.7

Children in Malaysia are also ‘protected’ by either general or specific legislations as early
as in 1889. The development of child protection laws in Malaysia can be seen in several
stages up to the latest statute that was passed in 2002, the Child Act 2001.8 At the same
time, there are major developments at the international arena on issues of child’s right
especially with the introduction of the Convention on the Rights of Child (CRC) which
includes among other things the right of the children to be protected from harm and
suffering. At home, issues of child abuse and neglect developed to another level where
the legal framework of child protection laws has progressed since the introduction of the
CRC. In this paper, the writer attempts to discuss whether the current child protection
laws in Malaysia are ready to accommodate changes locally and internationally.

B. The Developments in Malaysia


1. First Phase of Child Protection Laws in Malaysia
The Malaysian legal system is heavily influenced by English law. The British occupation
via Penang in 1786 has caused English law to be introduced in the then Malay Peninsular.
As a result, several Charters were introduced in Penang, Singapore and Malacca. After
the incorporation of the Straits Settlements (which comprises of Penang, Malacca and
Singapore) statutes related to children were introduced. These include the introduction of
Apprentice Ordinance and later Children Ordinance, to assist the government to address
child abuse and neglect cases. Children Ordinance 1922 was a specific statute and later
replaced by Children Ordinance 1937, Children Ordinance 1939 and Children Ordinance
1946.

7
In Singapore, the statute is known as the Children and Young Persons Act 2000, in Thailand, it is known
as the Child Protection Act 2003, The Protection of Children and Juveniles Ordinance in Hong Kong, The
Children Act 2001 in Ireland and The Law for Punishing Acts Related to Child Prostitution and Child
Pornography, and for Protecting Children in Japan.
8
Beside specific statutes that focus on child protection, there are several statutes which also provide
protection to children in Malaysia such as the Penal Code, the Criminal Procedure Code and Law Reform
Act (Marriage and Divorce) Act 1976.

4
In 1947, the Children and Young Persons Act was introduced.9 This Act was passed with
the objective to protect two groups of people that have been mentioned specifically in the
Act i.e. ‘children’10 and ‘young persons’.11 Generally, the relevant provision that is
relevant to the issue of preventing child abuse and neglect is section 3 that provides:

3(1) If any person over the age of fourteen years, who has the custody, charge or
care of any child, or any person over the age of eighteen years who has the
custody, charge or care of any young person, wilfully assaults, ill-treats,
neglects, abandons or exposes such child or young person to be assaulted, ill-
treated, neglected, abandoned or exposed, in a manner likely to cause such child
or young person unnecessary suffering or injury to his health (including
injury to or loss of sight, or hearing, or limb, or organ of the body, and any
mental derangement), that person shall, on conviction, be liable to
imprisonment for a term not exceeding two years, or to a fine not exceeding five
thousand ringgit,12 or to both, and for the purposes of this section a parent or
other person legally liable to maintain a child or young person shall be deemed
to have neglected him in a manner likely to cause injury to his health, if he
wilfully neglects to provide adequate food, clothing, medical aid, or lodging for
the child or young person.

Section 3 of Act 232 is in pari materia with section 1 of the Children and Young Persons
Act 1933 (U.K).13 Section 1 of The Children and Young Persons Act 1933 ( U.K) was
enacted based on the common law defence that a child can be subject to corporal

9
Via Government Gazette 3525/47. Based on section 1(2), this Act only applies in West Malaysia and the
Federal Territory of Kuala Lumpur and Labuan. This Act was repealed when the Child Protection Act 1991
was enforced.
10
‘Child’ is defined as those under the age of 14 years old. See section 2(1) of Act 232.
11
‘Young Person’ is defined as those who has attained the age of 14 but below the age of 18 years old. See
section 2(1) of Act 232.
12
The maximum fine has been increased from RM1, 000.00 to RM5, 000.00 starting from 15 July 1981 via
Act A519/81.
13
Section 1 of the Children and Young Persons Act 1933 (U.K) provides:
1) If any person who has attained the age of sixteen years and has the custody, charge, or care of any
child or young person under that age wilfully assaults, ill-treats, neglects, abandons, or exposes him,
or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner
likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight
hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a
misdemeanour, and shall be liable—
(a) on conviction on indictment, to a fine not exceeding one hundred pounds, or alternatively ... or in
addition thereto, to imprisonment for any term not exceeding two years;
(b) on summary conviction, to a fine not exceeding one hundred pounds, or alternatively, ... or in
addition thereto, to imprisonment for any term not exceeding six months.

5
punishment14 provided it was done for reasonable purposes.15 This right was given to
any person who has the legal custody over the child.

The Children and Young Persons Act 1947 was later amended in 198116 to increase the
punishment for the offence of child abuse and neglect to a fine not exceeding $ 5000.00
or imprisonment not exceeding 2 years or both.17 However, the amendment took more
than 40 years to materialize. Such undue delay may be as a result of the perception that
child abuse and neglect is less serious when compared to other offences.

2. Second Phase of Child Protection Laws in Malaysia


In the second phase, the Child Protection Act 1991 (Act 468) was introduced to replace
the Children and Young Persons Act 1947. The Child Protection Act 1991 was passed as
the government realizes that the current law is inadequate to address the problem.18 The
developments around the globe were also the contributing factor for the introduction of
the new statute.19 In the new Child Protection Act 1991, the punishment for child abuse
and neglect has been increased to fine not exceeding RM 10,000.00 or imprisonment not
exceeding 5 years or both.20

The Children and Young Persons Act 1947 emphasized on punishment and that the duty
to protect children should be shouldered by the government, whereas in the Child
Protection Act 1991, the duty to protect children is shared by various government
agencies and groups. For example, the establishment of the Co-ordinating Council for the
14
‘Corporal punishment’ is defined by Murray A. Straus as the use of physical force with the intention of
causing a child to experience pain, but not injury, for the purpose of correction or control of the child’s
behaviour. See Murray A. Strauss, “Corporal Punishment and Primary Prevention of Physical Abuse”,
(2001) 24 Child Abuse & Neglect 1109-1114 at page 1110.
15
In the case of R v Hopley (175 ER 1024 at page 1026), Cockburn CJ said:
By the law of England, a parent may for the purpose of correcting what is evil in the child, inflict
moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate
and reasonable
16
Via The Children and Young Persons (Amendment) Act 1981 (Act A519).
17
See section 3 of the Children and Young Persons (Amendment) Act 1981 (Act A519).
18
One of the cases that sparked the anger of the Malaysian society was the case of a toddler, S.
Balasundram who died because of physical abuse. See Parliamentary debate
http://www.parlimen.gov.my/hindex/pdf/DN-07-08-1991.pdf
19
See sub paragraph ‘Development at the International Arena’ in this paper.
20
See section 26 of the Child Protection Act 1991.

6
Protection of Children where it comprises representatives from various government
agencies and also professional groups.21 The introduction of mandatory reporting22 on
doctors23 and the establishment of Child Protection Teams and also Child Activities
Centers24 also reflect the new trend in preventing child abuse and neglect. At this stage,
the Malaysian legal framework could be said to be on the right track by bringing in more
pro active preventive mechanisms.

3. Third Phase of the Child Protection Laws in Malaysia


In 1999, there were three specific laws in Malaysia relating to children which were Child
Protection Act 1991, the Juvenile Court Act 1947 (Act 90) and the Women and Girls
Protection Act 1973 (Act 106).25 The Child Protection Act 1991 emphasised on child
abuse and neglect cases,26 the Juvenile Court Act 1947 deals with children involved with
crime and procedure of Juvenile Court27 and the Women and Girls Protection Act 1973
focuses on women and children who are involved in immoral activities. The Child Act
2001 (Act 611), passed in 2002 repealed the above three pieces of legislations. The Child
Act 2001 (Act 611) is comprehensive and covers all areas of law relating to children as
opposed with the three Acts that were repealed.28

21
Members of the Council to include representatives from Ministry of Health, Ministry of Education,
Ministry of Human Resource, Ministry of Information, Attorney General Chambers, Police, Welfare
Services representing Sabah and Sarawak and also lay person with appropriate knowledge and expertise
about welfare and development of children. See section 10 of the Child Protection Act 1991.
22
Mandatory reporting in this situation means a doctor has a duty to report cases which they has reasonable
ground to believe a child has been abuse or neglect. Failure to do so is an offence.
23
Section 19 of the Child Protection Act 1991.
24
At the Child Activity Centre, children in that area will have a place an activities organize for them such
as games, tuition and sports to occupy their time to avoid them loafing around.
25
The Domestic Violence Act 1994 (Act 521) is another statute that also provides for protection and
remedies to the victims of domestic violence. Based on the definition of ‘domestic violence’ in section 2 of
the Act, clearly children are also protected under the Act. However, since the remedies available are more
suitable for adults especially battered wives or husbands, the writer will not discuss the Act in detail in this
paper.
26
The preamble of the Child Protection Act 1991 provides:
An Act to make provision for the care and protection of children who are in need of protection,
and for matters incidental thereto or connected therewith.
27
The preamble of the Juvenile Court Act 1947 provides:
An Act to provide for the care and protection of children and young persons and the establishment
of Juvenile Courts.
28
Act 611 was enforced on August 1, 2002 via PU(B) 229/2002).

7
The Child Act 2001 clearly reflects the commitment of the government to protect
children. This is evident from the preamble to the Act which states:

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.

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 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:

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:

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:

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:

With the introduction of the Child Act 2001, all areas that were initially covered by
different statutes mentioned above are now under the Act. For example, Part IV, VII, IX
and X of Act 611 deals with matters relating to Courts for Children, Child Beyond
Control, Institutions and also procedures in Court.29 Part V deals with ‘Children in Need
of Care and Protection’30 and Part VI deals with ‘Children in Need of Protection and

29
These Parts of the Child Act 2001 were originally covered by the Juvenile Court Act 1947.
30
Part V of the Child Act 2001 deals with cases of child abuse and neglect. This part was originally
covered by the Child Protection Act 1991.

8
Rehabilitation’.31 One of the main features in the Child Act 2001 is that the Act stresses
on the concept of ‘the best interest of the child’ before any decision involving the child is
made.32

In the Child Act 2001, the punishment for child abuse and neglect has been increased to a
fine not exceeding RM 20,000.00 or 10 years imprisonment or both. This is a double
jump from the maximum punishment provided under the Child Protection Act 1991. At
the same time, since there are instances where the incident of child abuse and neglect that
occurred might be within the knowledge of certain groups, the mandatory duty to report
has been extended to family members and child care providers.33 Under the Child
Protection Act 1991, the punishment was only a fine not exceeding RM 1,000.00,
whereas the Child Act 2001 has increased the fine to not exceeding RM 5,000.00 or
imprisonment not exceeding 2 years or both. This reflected the government’s seriousness
to get the involvement of various group to assist in preventing the problem.

Another important feature of the Child Act 2001 is that the Act recognizes that a family is
an important component in a child’s development. Thus, if a child is placed in a place of
safety or in an educational institution, the parent or guardian can be compelled by the
court to visit their children.34

C. Development at the International Arena


As mentioned earlier, child abuse and neglect has been occurring for a very long time
ago. Thus, laws to protect children from abuse and neglect also have been passed a long
time ago.35 It is also interesting to note that, though laws pertaining to child abuse and
neglect were already enforced but the problem has not received due attention until the
article entitled ‘The Battered Child Syndrome’ was published. This article has sparked

31
Part VI of the Child Act 2001 deals with cases of children involved in immoral activities. This part was
originally covered by the Women and Girls Protection Act 1973.
32
See section 18, 30, 35 and 37 of the Child Act 2001.
33
Doctors are still the mandated reporter in the Child Act 2001. See sections 27, 28 and 29 of the Child Act
2001 pertaining to the duty to report cases of child abuse and neglect.
34
See section 30(8) of the Child Act 2001.
35
For example, the law to protect children from becoming victims of child abuse has been passed in
England since 1889.

9
the sentiment about the serious consequences of child abuse and neglect.36 Thus,
mandatory reporting of child abuse and neglect was later incorporated in child protection
laws in the United States of America.37

1. The Convention on the Rights of Child (CRC)


Since child abuse and neglect is of ‘universal’ nature, certain quarters have advocated
that there is a need for an international action to address the problem. Thus, various
efforts were undertaken by the international community which materialized in 1989 when
the Convention on the Rights of Child (CRC) was passed and ratified by almost all the
countries worldwide with the exception of the United States of America and Somalia.38
This Convention recorded among the highest in term of the number of participating states
that ratified any international convention.39 The CRC was formulated to protect the rights
of children be it civil, cultural, economic, political and social. There are several articles
specifically related to child abuse and neglect. Among the articles is Article 19 which
provides:

States Parties shall take all appropriate legislative, administrative, social and
educational measures to protect the child from all forms of physical or mental
violence, injury or abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the care of parent(s), legal
guardian(s) or any other person who has the care of the child.

and Article 34 which provides:

States Parties undertake to protect the child from all forms of sexual exploitation
and sexual abuse. For these purposes, States Parties shall in particular take all
appropriate national, bilateral and multilateral measures to prevent:

36
See Cindy L. Miller-Perrin & Robin D. Perrin, note 3 at page 12.
37
California was the first state in the United States of America which introduced mandatory reporting in
their child protection laws in 1963. Other states in the United States of America followed since 1967. See
Donna M. Pence and Charles A. Wilson, “Reporting and Investigating Child Sexual Abuse”, The Future of
Children, Volume 4 No. 2, 1994, 70-83 at page 71.
38
See http://www.unicef.org/publications/files/Child_Protection_Information_Sheets.pdf. Retrieved June
28, 2008.
39
Ibid.

10
(a) The inducement or coercion of a child to engage in any unlawful
sexual activity;

(b) The exploitative use of children in prostitution or other unlawful


sexual practices;

(c) The exploitative use of children in pornographic performances and


materials.

World Health Organization in their 2006 report opined that incorporating the CRC into
the domestic laws is among the recommended strategies to address the problem of child
abuse.40

2. Integrated Prevention Mechanisms

In 2005, the International Society of Prevention of Child Abuse and Neglect (IPSCAN)
observed that there are positive developments around the globe concerning the effort to
combat child abuse and neglect. Among the positive development is by using holistic
approach to address the issue of child abuse and neglect.41 On the same note, the World
Health Organization (WHO) in their Guide suggested that countries should include the
involvement of various bodies in assisting the government to prevent child abuse and
neglect.42 Thus, it is a trend at the international level to promote child abuse and neglect
preventive activities. This includes the focus on preventive activities at the primary level
such as disseminating knowledge and information to the society at large about child
abuse and neglect with the objectives to prevent its occurrence.43

40
The Malaysian government has ratified the Convention on 28 December 1994.
41
See The Link (official newsletter of the International Society of Prevention of Child Abuse and Neglect
(IPSCAN) with focus topic titled Review of Current Global Trends in Child Protection Policy and
Legislation. Retrieved 25 June 2008 from
http://www.ispcan.org/documents/LINK/Link.13.3-14.1.English.pdf.
42
Preventing Child Abuse and Neglect: A Guide to Taking Action and Generating Evidence, World Health
Organization and International Society for Prevention of Child Abuse and Neglect, 2006, France. Retrieved
June 27, 2008 from http://whqlibdoc.who.int/publications/2006/9241594365_eng.pdf.
43
Child abuse and neglect prevention activities/programs can be classified into three categories. First is
primary prevention which focuses on the community. Secondary prevention focuses on those high risk of
becoming the perpetrator or victim and tertiary prevention which focuses on those already became the
victim or perpetrator. See Liz Poole & Adam Tomison, Preventing Child Abuse in Australia: Some
Preliminary Findings from a National Audit of Prevention Programs. Paper presented at the 7th Australian

11
D. Child Abuse and Neglect Cases in Malaysia – Current Scenario
The statistics on child abuse canvassed the current scenario of child abuse and neglect in
Malaysia. In 2004, reports by the Department of Social Welfare show an increase in the
number of child abuse and neglect cases, in particular child neglect44 and sexual abuse. In
2005, there were 601 reported cases of child neglect, followed by 566 cases of sexual
abuse, 431 cases of physical abuse, 77 cases of emotional abuse, 68 cases of abandoned
babies and 57 cases of incest. 45

The current child protection laws have also been going through several amendments to
suit the changes in the current scenario on child abuse. Under the Child Act 2001, the
punishment for child abuse and neglect is severe. Later, when cases of incest rose to an
alarming rate, the government introduced a specific section to cater for the problem.46
The provision on incest was amended twice in 2004 and 2006 and both amendments were
intended to increase the punishment.47

Besides punishment, the authorities acknowledge the importance of public participation


in addressing the child abuse and neglect as the offences are often committed behind
closed doors. Para 15.34 of the Ninth Malaysia Plan stated as follow:48

Community participation will continue to be a major strategy in the prevention


and rehabilitation programmes for children during the Plan period. The role of
child protection teams, child welfare committees, and court advisors for Court for
Children will be enhanced through capacity building efforts that facilitate their
effective functioning in helping to protect the best interest of the child and

Institute of Family Studies Conference Sydney, 24-26 July 2000. Retrieved June 27, 2008 from
http://www.aifs.gov.au/institute/afrc7/poole.html
44
Similarly in United States of America where in 2006, the number of substantiated neglect cases has
increased. See David Finkelhor and Lisa Jones, Updated Trends in Child Maltreatment, 2006. Retrieved 25
June 2008 from
http://www.unh.edu/ccrc/pdf/Updated%20Trends%20in%20Child%20Maltreatment%20bulletin_FINAL_4
-15-08.pdf
45
See Statistical Profile, Malaysian Social Welfare Department, 2005.
46
See section 376A of the Penal Code.
47
In the Penal Code (Amendment) Act 2003 (Act A1210), the punishment for incest was increased to
minimum 15 years imprisonment and 30 years maximum imprisonment. However, later the minimum
punishment was reduced to 8 years imprisonment in the Penal Code (Amendment) Act 2006 (Act A1273).
48
See Chapter 15 of the Ninth Malaysia Plan.

12
undertake preventive and rehabilitative programmes to curb the many social
problems of children.

1. Child Neglect
Cases of child neglect have been recorded as the highest in number of reported cases
when compared to other types of abuse.49 Nevertheless, there are certain quarters in the
society who perceive child neglect as less serious when compared to other types of
abuse.50 This perception is obviously not true as the implications of child neglect are as
serious as any other type of abuse.51 Thus, this is an area which the Malaysian
government especially the related agencies should focus especially by educating the
public as to its consequences and effect on the children, their families and the country as
a whole.

2. Sexual Abuse
It is not surprising if one were to read about child sexual abuse cases that appear often in
the newspapers. Reports titled for example, ‘Rapist dad: I used condoms’,52 ‘Charged
with sexual abuse of daughters’,53 Stepfather gets 15 years' jail for raping daughter’,54 ’12
years jail and rotan for incest’,55 ‘Judge ticks off rapist dad, uphold jail sentence’,56 ‘Man
charged with incest’,57 ‘He finally admit raping daughter’,58 Most of the reported cases
on incest showed that it was committed by persons who were close to the children
including fathers, step fathers, grandfathers, siblings, uncles or other relatives.

49
See discussions on page 11 in this paper.
50
See Jal Zabdi Mohd Yusoff and Sridevi Thambapillay, Neglecting Child Neglect: Selected Legal Issues
Encountered in Malaysia, paper presented at the ALIN International Law Conference, Bangkok, 5-6
December 2007.
51
See Cynthia Crosson – Tower, Understanding Child Abuse and Neglect, 4th Edition, (Boston, Allyn and
Bacon, 1999) at page 72.
52
News Strait Times dated June 20, 2008.
53
News Strait Times dated June 4, 2008.
54
News Strait Times dated May 17, 2008.
55
News Strait Times dated May 16, 2008.
56
News Strait Times dated May 10, 2008.
57
News Strait Times dated April 19, 2008.
58
News Strait Times dated March 5, 2008.

13
Table 1
Incest Cases by Family Relationship, 2000-2007
Cases reported to the Police

Family Relationship 2000 2001 2002 2003 2004 2005 2006 200759

Father 67 77 77 72 99 87 100 47
Uncle 34 42 65 42 61 53 60 38
Elder brother 13 15 29 22 24 17 25 18
Younger Brother 1 0 2 0 1 0 1 1
Grandfather 4 5 13 5 7 1 7 1
Granduncle 2 1 1 3 0 0 3 1
Cousin 8 11 27 26 33 22 33 22
Close Relatives 7 7 6 7 8 9 5 6
Step Father 41 52 40 42 58 45 70 30
Brother- in-law 26 23 22 20 21 29 19 22
Step brother 1 4 10 6 9 6 5 0
Adopted Father 3 7 9 5 7 16 11 6
Father-in-law 0 1 0 0 2 2 0 1
Adopted brother 3 0 1 0 0 4 4 2
Step grandfather 3 0 2 3 3 1 1 0
Step Son 0 1 0 0 0 2 0 0
Son 0 0 2 1 0 1 2 0
Nephew 0 0 0 0 2 1 0 0
Total 213 246 306 254 335 296 346 195
60
Source: Royal Malaysian Police, Bukit Aman.

Cases of incest also involved elderly men as the perpetrators. Thus, the legislature has
amended the Criminal Procedure Code to punish those over the age of 50 to be whipped

59
As at June 2007.
60
Retrieved June 25, 2008 from
http://www.kpwkm.gov.my/BI/Upload/20080623_070619_17003_t9.3b.pdf

14
if they were found guilty of committing such offence.61 For the offence of incest, the
maximum punishment that may be imposed is imprisonment not less than 6 years and not
more than 20 years.62

3. Support for Community Involvement


It is paramount to educate the public on child abuse and neglect by publicizing positive
parenting techniques, potential problems with parental aggression and the atrocities of
child maltreatment.63 At the same time, cultures and values that promote violence must
be condemned. Once the public becomes aware of the consequences and implications of
certain acts or omissions that amount to child abuse or neglect and condemn any values
and cultures that promote violence, it is hoped that these will eventually reduce the
number of child abuse and neglect cases.

It is important to obtain information about child abuse and neglect before formal
intervention by the authorities can be made. The information about the incident is needed
as soon as possible. The earlier the information is received by the authorities, the faster
the action to protect the victim and other children in the family can be taken. However, as
child abuse often occurs within the secrecy of a household, it is almost impossible for the
authorities to act without information. Thus, members of the public such as neighbours,
can play a vital role in providing such information.

Currently, the legal framework in Malaysia provides for the community’s involvement in
protecting a child. The Child Act 2001 for example, imposes a duty on family members64

61
Before the amendment, there was a restriction in section 289 of the Criminal Procedure Code where
certain categories of people were spared from being whipped because of health or age factor. However with
the amendment, those who have been convicted with the offences under section 376, 377C, 377CA or 377E
of the Penal Code will not be spared from being whipped even if they are above the age of 50 years old.
See section 25 of the Criminal Procedure Code (Amendment) Act 2006 (Act A1274).
62
The Penal Code (Amendment) Act 2006 (Act A1273), the punishment for incest has been increased to
minimum 8 years imprisonment and not exceeding 30 years. See also note 47.
63
See Cindy L. Miller-Perrin & Robin D. Perrin, note 3 at page 253.
64
‘Family members’ 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. See section 2 of the Child Act 2001.

15
and child care providers65 to inform the authorities if they have reasons to believe that a
child has been abused.66 The recent amendment to the Criminal Procedure Code has also
imposed on the public a duty to report to the authorities if they have reason to believe that
a serious crime has been committed.67 Though, this provision is not per se meant to
combat child abuse cases but at least it is a beginning towards involving the community
at large in crime prevention. This approach i.e. by getting the community to be involved
is welcomed as they are more familiar with their residential area as compared to the
authorities.

65
‘Child care provider’ is defined as person who looks after one or more children for valuable
consideration for any period of time. See section 2 of the Child Act 2001.
66
Section 28 and 29 of the Child Act 2001 provides as follows:
28. Duty of member of the family.
(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.
(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.

29. Duty of child care provider.


(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.
67
13. Public to give information of certain matters.
(1) Every person aware-
(a) of the commission of or the intention of any other person to commit any offence punishable
under the following sections of the Penal Code: 121, 121A, 121B, 121C, 122, 123, 124, 125, 126,
130, 143, 144, 145, 147, 148, 302, 304, 307, 308, 363, 364, 365, 366, 367, 368, 369, 372, 372A,
372B, 376, 376B, 377C, 377CA, 377E, 382, 384, 385, 386, 387, 388, 389, 392, 393, 394, 395,
396, 397, 399, 402, 435, 436, 449, 450, 456, 457, 458, 459 and 460; or
(b) of any sudden or unnatural death or death by violence or of any death under suspicious
circumstances, or of the body of any person being found dead without its being known how that
person came by death,

shall in the absence of reasonable excuse, the burden of proving which shall lie upon the person so aware,
immediately give information to the officer in charge of the nearest police station or to a police officer or
the nearest penghulu of the commission or intention or of the sudden, unnatural or violent death or of the
finding of the dead body, as the case may be.

16
E. Discussion
Based on the discussion in all three phases, it can be concluded that the development of
child abuse and neglect from phase one to phase two is at the lowest pace as it took more
than 40 years for the Parliament to come out with a new statute. In phase one also, the
trend was that the government shouldered the responsibility to protect the children and
played an active role as the paren patriae to its citizens.

In phase two, the Child Protection Act 1991 was enforced for a decade before being
replaced by the Child Act 2001. It is noted that at this stage there were major
developments in the international arena especially with the introduction of the
Convention on the Rights of Child. When Malaysia ratified the said Convention, the duty
is on the government to implement the CRC. Thus, we can see that the Malaysian child
protection laws have taken another leap. For example, the Child Protection Act 1991
allowed active involvement and participation from the professional in preventive
activities especially with the establishment of the Co-ordinating Council for the
Protection of Children, mandatory reporting imposed on doctors and the establishment of
Child Protection Team whose members are not only restricted to police, welfare and
medical officers but also the general public. On the other hand, the rights of children have
also been acknowledge by the court. In the case of Tan Tek Seng v Suruhanjaya
Perkhidmatan Pendidikan & Anor,68 Justice Gopal Sri Ram cited the case of Bandhua
Mukti Morcha69 which defined ‘life’ in article 21 of the India Constitution as:70

It is the fundamental right of every one in this country, assured under the
interpretation given to Article 21 by this Court in Francis Mullin’s case (AIR 1980
SC 849) to live with human dignity, free from exploitation.

The right to live with human dignity enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy and particularly clauses (e) and (f) of
Article 39, 41 and 42 and at the least, therefore, it must include protection of the
health and strength of workers, men and women, and of the tender age of
children against abuse, opportunities and facilities, just and human conditions of
work and maternity relief.

68
[1996] 1 MLJ 261.
69
[1984] SC 802.
70
In pari materia with article 5 of the Malaysian Federal Constitution.

17
According to Justice Gopal Sri Ram, the word ‘life’ in the article 5(1) of the Malaysian
Federal Constitution not only refer to the existence of human being but to cover all
important aspects of human life which includes matters related to quality of life.

Based on the discussion in this paper, it is no doubt that the legislators believe in the
punishment as one of the important mechanisms to prevent children from being victims
of abuse and neglect. This is evident in the increase of the maximum penalty that can be
imposed on parent or guardian who has committed the offence. However, the number of
child abuse and neglect cases that have been reported has increased over the years.71
What is important to note is that child abuse and neglect occur in the secrecy of a family,
unlike any other type of crime which sometimes can be prevented by way of crime
patrolling by the police. Thus, it is submitted that it is a good move that the Child Act
2001 has incorporated the involvement of the community in preventing child abuse and
neglect via the mandatory reporting requirement involving family members and child
care providers.72

As discussed earlier, primary prevention is the way forward in preventing child abuse and
neglect. This is the trend at the international level where primary prevention is promoted
as a strategy to overcome the problem. However, it is observed that the primary
prevention component is still lacking in the current Malaysian legal framework. In the
Child Act 2001, for example, section 3 provides that it is the duty of the Co-ordinating
Council for the Protection of Children to develop programmes to educate the public about
child abuse and neglect.73 At the same time, the Child Protection Teams are also given
the task to develop programmes to educate the public about child abuse and neglect. It is
submitted that the Child Act 2001 should provide more specific and positive provisions
on primary prevention. For example, in New Zealand, section 7.2(ba) Children and
Young Persons Act 1989 (New Zealand) focuses on several issues. First, is to educate the
public. Second, to create awareness within the society about child abuse and neglect and

71
See http://www.kpwkm.gov.my/BM/Upload/20080623_064826_2509_j9.8.pdf
72
This also has been supported by the amendment to Criminal Procedure Code especially sexual abuse
cases. See discussions on page 15 in this paper.
73
See section 3(2) (e) of the Child Act 2001.

18
that it should be avoided. Third, how to make a report if they suspected that child abuse
or neglect occurred. Fourth, it stresses on promotion and publicity on issues pertaining to
child abuse and neglect.

At the same time, currently it is not mandatory for all couples who plan to get married to
attend premarital courses except for Muslim couples, who are required to attend
premarital courses before they are given permission to get married. It is submitted that
future parents should be exposed to issues pertaining to the development of children and
parenting skills. Thus, it should be mandatory for all couples who plans to get married to
attend premarital courses regardless of their religion.

F. Conclusion
The discussion in this paper shows that, there have been changing trends in the legal
framework with regards to protecting children from abuse and neglect in Malaysia from
1947 until 2001. It can be concluded that the Malaysian legislators still perceive
punishment as one of the main mechanism to address the problem. However, in the recent
years the trend of focusing on punishment as the sole mechanism to address the problem
has slowly changed. Primary prevention has slowly seeped got into the system, especially
the fact about educating the public (which includes potential perpetrators and victims)
about child abuse and neglect. Educating the public and potential perpetrators/victims as
to the issues of child abuse and neglect will also help to address the problem. The public,
potential perpetrators/victims need to be educated as to the seriousness of child abuse and
neglect, how they can participate in assisting the authorities to combat the problem and
also to condemn cultures and values that promote violence. When the public in Malaysia
have been instilled with this knowledge, the prevention activities will be smoother and
hopefully will reduce the number of child abuse and neglect in Malaysia. We have to
concur that community involvement in child abuse and neglect prevention is the way
forward as facts and data show that relying solely on the police or the Welfare
Department to address the problem is not the solution. The duty to protect children
though could be argued is with the government as paren patriae, but the government also
has its limitation. Thus, those around the child should assist in protecting the children

19
whom they suspect is a victim of abuse or neglect. Child abuse and neglect is a crime as
the consequences of the act is as serious as if the same act was committed by a stranger.
Child abuse and neglect is also not a family affair because if the society still perceives it
as a family or private affair, then there is a possibility of more children becoming victims.
So, let us come together to make the world a better place for children.

20
LIST OF REFERENCES

Cindy L. Miller-Perrin & Robin D. Perrin, Child Maltreatment: An Introduction, (Sage


Publication: Thousand Oaks, California, 1999)
Cynthia Crosson – Tower, Understanding Child Abuse and Neglect, 4th Edition, (Boston,
Allyn and Bacon, 1999)
David Finkelhor and Lisa Jones, Updated Trends in Child Maltreatment, 2006. Retrieved
25 June 2008 from
http://www.unh.edu/ccrc/pdf/Updated%20Trends%20in%20Child%20Maltreatme
nt%20bulletin_FINAL_4-15-08.pdf
Donna M. Pence and Charles A. Wilson, “Reporting and Investigating Child Sexual
Abuse”, The Future of Children, Volume 4 No. 2, 1994, 70-83
Henry C. Kempe, “The Battered Child Syndrome”, (1985) 9 Child Abuse & Neglect, 143-
154.
Jal Zabdi Mohd Yusoff and Sridevi Thambapillay, Neglecting Child Neglect: Selected
Legal Issues Encountered in Malaysia, paper presented at the ALIN International
Law Conference, Bangkok, 5-6 December 2007.
Liz Poole & Adam Tomison, Preventing Child Abuse in Australia: Some Preliminary
Findings from a National Audit of Prevention Programs. Paper presented at the
7th Australian Institute of Family Studies Conference Sydney, 24-26 July 2000.
Retrieved June 27, 2008 from http://www.aifs.gov.au/institute/afrc7/poole.html
Murray A. Strauss, “Corporal Punishment and Primary Prevention of Physical Abuse”,
(2001) 24 Child Abuse & Neglect 1109-1114
Preventing Child Abuse and Neglect: A Guide to Taking Action and Generating
Evidence, World Health Organization and International Society for Prevention of
Child Abuse and Neglect, 2006, France. Retrieved June 27, 2008 from
http://whqlibdoc.who.int/publications/2006/9241594365_eng.pdf.
Samuel X. Radbill, “A History of Child Abuse and Infanticide”, The Battered Child,
Eds., Henry Kempe, 2nd Edition, (Chicago, The University of Chicago, 1974), 3 –
21
Sander J. Breiner, Slaughter of the Innocents: Child Abuse Through the Ages and Today,
(Plenum Press, New York, 1990)

21