Laporan Kajian JKM
Navigating Malaysian civil law and maqasid al-shariah in the best interest of children beyond control: a case study in Penang.
Since the inception of the United Nations’ Universal Declaration of Human Rights (United Nations, 1948) there has been an all persuasive push towards a universal construction of children and childhood under a Western centric, secular, human rights doctrine, that challenges cultural, historical and religious beliefs (Reynaert, Bouverne-De Bie & Vandervelde, 2009). Push-back against the ‘human rights industry’ by Muslim states has been coordinated by the Organisation of Islamic Cooperation, who have released a number of Islamic human rights documents that declare Allah and al-Shariah as being central to rights and the development of Islamic society (1987, 1990, 2005, 2005a, 2005b and 2008). The key Organisation of Islamic Cooperation document for children is the Covenant on the Rights of the Child in Islam (2005a) which articulates a vision of a safe, healthy and protected Islamic childhood. Regardless of this document, the dominance of the United Nations Convention of the Rights of the Child (United Nations, 1989) in global public discourse and policy development at the Nation State level remains. A Muslim child in need of protection in Malaysia is split between two systems and seen quite differently. The Malaysian Civil Law decision making mechanism processes the child as a neutral Malaysian citizen under 18 years of age, with an itemised individual concern, that is addressed by a single statute and resolved with State authority and intervention in the family unit. Syariah Courts see the child as a Muslim, with inherent social and moral rights and obligations, who lives in a family and community with an established holistic system of life, defined and determined by al-Shariah, built on ancient values and expectations. Within these synoptic descriptions, it needs to be acknowledged in both justice systems children do come to harm, are abused and need protection. The cultural and protective efficacy of either process to address these, or the combination of both, in the best interest of the child, is an area of inquiry that is lacking. The focus of this research is Muslim children determined to be ‘beyond control’ under the authority of the Child Act, 2001 which is regulated by the Malaysian Court for Children under civil legal authority. Their journey into and out of custodial probation hostels and Sekolah Tunas Bakti (approved schools) is based on human assessments and judgements by parents, the child, Department of Social Welfare, Court for Children, hostel and school staff. Decisions made along this journey are pivotal, because they either place, or keep the child in custodial conditions. A fundamental consideration in the decision making continuum is the best interest of the child. This principle is consistent with both civil and Islamic juristic principles; namely they want them to be safe and to have full and healthy lives (Malaysia, 2001 & 1996; Malaysia, Ministry of Women, Family and Community Development and UNICEF, 2013). How this is achieved, who is involved, and if consideration of Islamic religion and culturally appropriate support mechanisms are utilised, are significant elements in practice and decision making.
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