KUALA LUMPUR, April 8 — A child rights group has welcomed a High Court ruling saying Malaysian laws also protected non-citizen children, and urged the government to stop viewing minors as security threats but to instead recognise their vulnerability.
Sharmila Sekaran, the chair of the Voice of the Children (VoC) advocacy group, also welcomed the Malaysian government and Immigration authorities’ recent decision to drop their appeal against the High Court ruling.
The Malaysian government’s April 4 withdrawal of its appeal against the decision last November meant the ruling from judge Datuk Noorin Badaruddin stood.
In her watershed ruling, the judge found that the Immigration Department was wrong to arrest and detain three young stateless Selangor-born children for 28 days without presenting them in court, saying that the Child Act 2001 protects “every child” — even those without Malaysian citizenship — by requiring them to be brought to a Court for Children within 24 hours of their arrest.
Sharmila said she hoped the government now “appreciates and understands that all children in Malaysia (regardless of their citizenship, and especially when they have none) need protection”.
“The Preamble of the Child Act 2001 recognises that every child is entitled to protection and assistance in all circumstances without regard to distinction of any kind,” Sharmila, who is also a lawyer, told Malay Mail when contacted.
Sharmila said that as Malaysia was a signatory to the United Nations Convention on the Rights of the Child (CRC) and has the Child Act, all its authorities and agencies should act in accordance with these and not in ways that were incompatible with either.
Sharmila said it was disingenuous of the government’s lawyers to have attempted to argue that the detention of the three children did not amount to arrest, adding that the High Court judge “was wise in recognising that a detention could not happen without first an arrest”.
In that case, the government had argued that the Child Act’s Section 84 — which requires children to be brought to a Court for Children within 24 hours of their arrest — did not apply as the three children were not charged, but the judge said there was no dispute that they had been arrested.
“As such, it is right that Section 84 of the Child Act should have been applied in this case. It is imperative that policies and procedures are put in place immediately to ensure that the safety, protection and rights of children are no longer violated,” Sharmila said.
“In fact, the officers who fail to ensure the safety and protection of children, and who violate the rights of children should be held personally liable, as with any other perpetrator, because their actions go against the foundational tenets of the Child Act 2001 and the CRC.”
Another argument the Attorney-General’s Chambers had attempted was that the Child Act did not apply to the three minors as they were not citizens, which meant they were only required to be brought before a magistrate within 14 days of their arrest.
While the judge said even this legal requirement was not met, as the three children had only been presented in court 28 days after their detention, she ultimately decided that the Child Act applied to all children regardless of nationality, meaning they must be brought to court within 24 hours of arrest.
Child-friendly approach needed
Sharmila also advocated for the Malaysian government to adopt child-friendly approaches when dealing with minors, especially in areas of arrest and detention.
“We need to stop looking at children as criminals and a security threat,” she said.
“Non-citizen children, whether migrants, refugees, undocumented, or stateless, are disproportionately vulnerable to violence, abuse, exploitation, trafficking and detention. All the more so if they are unaccompanied.”
Asked for recommendations on what the Immigration Department could do in future cases involving children, Sharmila said it could emulate the police which has a dedicated division called “D11” handling cases relating to women and children.
“Immigration should set up a team of officers trained in handling children, similar to D11 of the police; as soon as a child is arrested and/or detained the child should be handed over to officers in this child-friendly unit, and JKM needs to be informed,” she said, referring to the Social Welfare Department by its Malay initials JKM.
“The child should be with his/her parents/family; if unaccompanied, to be placed in the care of JKM under alternative to detention solutions.
“The child needs to be brought before the Court for Children within 24 hours of arrest/detention and at all times, the best interest of the child must be of primary consideration,” she said.
“We need an integrated child protection system to be established (hopefully under the newly created Children’s Department) which puts children at the forefront and centre, connecting the multi-sectoral departments, ministries and other actors e.g. civil society, so as to facilitate the coordination of the different proceedings in which children may be involved
“In line with the Child Act and CRC, all children, regardless of their status, should be afforded protection granted by our laws and systems,” she concluded.
Read here for a summary of the case involving the three stateless children and their stateless Johor-born mother, as well as a summary of what the High Court judge decided.
The young stateless family were last November finally released from more than four months of detention in an immigration detention centre, following the High Court’s ruling which found the Immigration Department to have unlawfully detained the four individuals.
Malay Mail understands that the four are currently pursuing the Malaysian government’s recognition of them as citizens under the Federal Constitution, as the stateless mother was actually entitled to citizenship as she was born to a mother with Malaysian permanent resident status.
The Malaysian government had initially appealed the High Court’s decision directly to the Federal Court (as the case is a habeas corpus case or a challenge by the family against unlawful detention), but have since withdrawn its appeal.
What is the conditions at immigration detention centres and what the govt is doing
Sharmila, fellow lawyers Goh Siu Lin, Louise Azmi and Denise Lim were acting as amicus curiae or friends of the court at the appeal stage for VoC, Buku Jalanan Chow Kit, Yayasan Chow Kit and the Association of Women Lawyers (AWL).
Goh told Malay Mail that the High Court’s decision was “groundbreaking” as it upheld the rights of arrested or detained children.
She said it made “crystal clear” that all children including non-Malaysian citizens must be brought before a Court for Children within 24 hours of their arrest, and that this ensures the protection of children as they would come under the supervisory purview of the Court for Children comprising a magistrate and two advisors.
She said the Court for Children also provides other protections under the Child Act which can be applied to the specific facts of each child’s case: “For example, the Court may appoint a Protector to inquire into the circumstances of that child, to direct for the child to be placed in a refuge or to be released on a bond under Section 84(3) of the Child Act.”
“This decision also breathes life to Malaysia’s international commitment under the Convention on the Rights of the Child,” the past president of AWL said.
The lawyers had wanted to assist the Federal Court by highlighting various matters, including the Human Rights Commission of Malaysia’s (Suhakam) previous annual reports in 2016 and 2019 stating that children — regardless of their citizenship status — should not be placed in immigration detention centres.
Suhakam had in 2019 visited immigration detention centres in Malaysia and listed concerns in its 2019 annual report over these centres’ conditions being unsuitable for children, such as overcrowding; building maintenance issues; frequent water supply cuts; detainees suffering from scabies; lack of medical personnel; lack of mattresses, blankets or slippers; and lack of personal hygiene necessities such as soap, laundry detergent, toothbrush and toothpaste.
As of July 12, 2022, there were 1,764 children (namely 996 boys and 768 girls) out of 17,703 detainees in immigration detention centres throughout Malaysia.
Last September 2022, representatives from 69 civil society groups had in a public statement said the conditions in immigration detention centres are extremely poor, with no access to education, play, development and with severely limited access to health, nutrition and protection.
Home Minister Datuk Seri Saifuddin Nasution Ismail had in February said the Home Ministry will soon shift child detainees from immigration detention centres and place them under the care of child welfare groups, and that the profile and numbers and detention centres of these children have already been identified.
On March 22, Saifuddin said the Home Ministry was scrutinising the groundwork for the plans to remove children from immigration detention centres, and that the ministry is identifying the actual number of children detained before passing them to non-governmental organisations specialising in children’s welfare.