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Contributed by the Human Rights Committee
The Committee refers to The Star’s reports on 8 May 2008 “Family wants to know
why” and “Fever forces quarantine at Semanggol NS camp”.
The death of Too Hui Min (picture) at the Geo Kosmo National Service Training Camp at
Kuala Kubu Baru continues the alarming trend of unacceptable incidents which has
been occurring in National Service (“NS”) camps since the programme commenced in
2004. It is reported that there have been 16 deaths, and this number averages 4
incidents per year.
The quarantine in the Semanggol NS camp, after at least 10 of its 300 trainees
were warded in hospital while 80 others treated for a yet-to-be-identified
fever, is the latest in the string of concerns surrounding the NS programme
which have even included allegations of sexual abuse and rape.
Our response sets out several matters about the NS programme which require
consideration, and our position on the same.
National Service Training Act 2003 (“Act”)
Under section 3 of the Act, the Yang di-Pertuan Agong may from time to time, by
proclamation, direct that every person, who has attained a certain age (not
being less than 16 years) but has not attained a certain age (not being more
than 35 years) and is a citizen or permanent resident of Malaysia, shall be
liable to undergo NS training under the Act.
NS training is defined in section 2 as “the training which persons liable under
this Act have to undergo having the aim particularly of preparing Malaysian
youths for national service under the National Service Act 1952 and generally of
creating a nation which is patriotic and resilient and imbued with the spirit of
volunteerism guided by the principles of the Rukun Negara”.
Convention on the Rights of the Child 1989 (“CRC”)
The spirit and vision of the CRC is to ensure that Governments will promote the
survival, harmonious development and best interests of the child (defined as
every person below 18 years old unless under the law applicable to the child,
majority is attained earlier). As such, four principles of children’s right
theory are found within the framework of the CRC as follows:
• the participation of children in decisions which affect their own destiny;
• the protection of children against discrimination and all forms of neglect and
exploitation;
• the prevention of harm to children; and,
• the provision of assistance for children’s basic needs
(see Melinda Jones,
http://www.aifs.gov.au/institute/afrc6papers/jones.html,
quoting Geraldine Van Bueren)
Malaysia has signed and ratified the CRC, subject to several reservations.
Following this, our Government has accepted the following provisions and is
obliged to implement the same:
Article 3
1. In all actions concerning children, whether undertaken by public or private
social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary
consideration.
2. States Parties undertake to ensure the child such protection and care as is
necessary for his or her well-being, taking into account the rights and duties
of his or her parents, legal guardians, or other individuals legally responsible
for him or her, and, to this end, shall take all appropriate legislative and
administrative measures.
3. States Parties shall ensure that the institutions, services and facilities
responsible for the care or protection of children shall conform with the
standards established by competent authorities, particularly in the areas of
safety, health, in the number and suitability of their staff, as well as
competent supervision.
Article 12
1. States Parties shall assure to the child who is capable of forming his or her
own views the right to express those views freely in all matters affecting the
child, the views of the child being given due weight in accordance with the age
and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity
to be heard in any judicial and administrative proceedings affecting the child,
either directly, or through a representative or an appropriate body, in a manner
consistent with the procedural rules of national law.
Article 19
1. 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.
2. Such protective measures should, as appropriate, include effective procedures
for the establishment of social programmes to provide necessary support for the
child and for those who have the care of the child, as well as for other forms
of prevention and for identification, reporting, referral, investigation,
treatment and follow-up of instances of child maltreatment described heretofore,
and, as appropriate, for judicial involvement.
Article 24
1. States Parties recognize the right of the child to the enjoyment of the
highest attainable standard of health and to facilities for the treatment of
illness and rehabilitation of health. States Parties shall strive to ensure that
no child is deprived of his or her right of access to such health care services.
Our concerns
Apart from the question whether the NS programme (which imposes a mandatory,
temporary separation of parent from child) is legally valid in international
human rights law, the Committee is of the view that children who are selected
for the programme should be consulted and given the right to be heard to express
their views freely on their participation in the programme. This process of
consultation is important, and requires the administrators of the programme to
take into consideration the views of those selected, as well as an opportunity
to provide full information on the programme to the children and their parents.
It is ideal if the participation of the child is genuinely voluntary, carried
out with the informed consent of the child's parents or legal guardians and the
child is fully informed of their duties and responsibilities, in addition to the
activities involved in the programme. It appears that this process of
consultation is currently lacking, and it is an apparent violation of the
Government’s obligations under Article 12 of the CRC.
Further, we are gravely concerned that that the best interests of the NS
trainees in the camps does not appear to be given primary consideration
particularly in the area of their health, treatment, protection and care in
violation of Articles 3, 19 and 24 of the CRC.
In particular, health is a fundamental human right on par with the right to
life. Every person is entitled to the enjoyment of the highest attainable
standard of health conducive to living a life in dignity. Article 25(1) of the
Universal Declaration of Human Rights 1948 states as follows:
Everyone has the right to a standard of living adequate for
the health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services, and the right
to security in the event of unemployment, sickness, disability, widowhood, old
age or other lack of livelihood in circumstances beyond his control.
Article 12(1) of the International Covenant on Economic, Social and Cultural
Rights 1966 recognises the right of every person to the enjoyment of the highest
attainable standard of physical and mental health. The United Nations Committee
on Economic, Social and Cultural Rights in its General Comment No. 14 (2000)
extrapolates this clause as follows:
The right to health is closely related to and dependent upon the realization of
other human rights, as contained in the International Bill of Rights, including
the rights to food, housing, work, education, human dignity, life,
non-discrimination, equality, the prohibition against torture, privacy, access
to information, and the freedoms of association, assembly and movement. These
and other rights and freedoms address integral components of the right to
health. …
… the reference in article 12.1 of the Covenant to "the highest attainable
standard of physical and mental health" is not confined to the right to health
care. On the contrary, the drafting history and the express wording of article
12.2 acknowledge that the right to health embraces a wide range of
socio-economic factors that promote conditions in which people can lead a
healthy life, and extends to the underlying determinants of health, such as food
and nutrition, housing, access to safe and potable water and adequate
sanitation, safe and healthy working conditions, and a healthy environment. …
The right to health is not to be understood as a right to be healthy. The right
to health contains both freedoms and entitlements. The freedoms include the
right to control one's health and body, including sexual and reproductive
freedom, and the right to be free from interference, such as the right to be
free from torture, non-consensual medical treatment and experimentation. By
contrast, the entitlements include the right to a system of health protection
which provides equality of opportunity for people to enjoy the highest
attainable level of health. …
The Committee interprets the right to health, as defined in article 12.1, as an
inclusive right extending not only to timely and appropriate health care but
also to the underlying determinants of health, such as access to safe and
potable water and adequate sanitation, an adequate supply of safe food,
nutrition and housing, healthy occupational and environmental conditions, and
access to health-related education and information, including on sexual and
reproductive health. A further important aspect is the participation of the
population in all health-related decision-making at the community, national and
international levels. …
The right to health, like all human rights, imposes three types or levels of
obligations on States parties: the obligations to respect, protect and fulfil.
In turn, the obligation to fulfil contains obligations to facilitate, provide
and promote. The obligation to respect requires States to refrain from
interfering directly or indirectly with the enjoyment of the right to health.
The obligation to protect requires States to take measures that prevent third
parties from interfering with article 12 guarantees. Finally, the obligation to
fulfil requires States to adopt appropriate legislative, administrative,
budgetary, judicial, promotional and other measures towards the full realization
of the right to health.
Given this, Governments are obliged to ensure that within
their jurisdictions, every person’s right to health is fully protected and free
from threat.
The parents of those selected, compelled by law to send their children to the NS
camps, are in no position to fully control the destiny and lives of their
children. It is incumbent on the administrators of the camps to ensure that the
trainees are well-cared for, and will return safe and healthy as the day they
arrived. It is a heavy and compelling responsibility which, thus far, has not
been discharged satisfactorily. The recent reports add to the growing list of
concerns which necessitate a second look at the NS programme.
Recommendations
The Committee calls for a Royal Commission of Inquiry to be immediately
established to expeditiously investigate all deaths at the NS camps, and the NS
programme itself. In the meantime, the programme must be suspended or
terminated. The Government should offer and pay compensation to the families of
the victims who have died or suffered at the NS camps without having the
families resort to the vagaries of litigation. It is however noted that money
will never be able to off-set the loss of a loved one, especially the loss of a
child.
The young people of our nation are our country’s hope for the future and they
cannot be lost in the way we have witnessed through deaths at the NS camps. The
Government must take stock of these incidents and feel the anguish of the
parents. Prima facie, the NS programme is regrettably doing more harm than good.
Dated this 16th day of May 2008
Human Rights Committee
Bar Council
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