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©New
Straits Times (Used by permission)
by Shazeera Ahmad Zawawi, Human Rights Education and Promotion Officer,
Suhakam
The Convention on the Rights of the Child (CRC) was adopted by the United
Nations General Assembly on 20th November 1989. It was considered as one of the
most widely ratified international treaties since 193 countries ratified it with
the exception of USA and Somalia.
Malaysia ratified the Convention in 1995 with seven
reservations. Reservations were made to Article 2, 7, 13, 14, 15, 28 (1) (a) and
37. These articles deal with diverse issues affecting a child’s rights such as
non-discrimination, right to a name and nationality, freedom of expression,
conscience, thought and religion, compulsory and free education for all children
and the right to be protected from torture and deprivation of liberty.
As one of Suhakam's fundamental role is to increase public awareness through
human rights education , Suhakam has been conducting workshop and awareness
session on CRC for stakeholders and the public since 2002. As of 2008, Suhakam
has reached out to various groups such as government officials, teachers
trainees, non-governmental organizations and also young people, totalling to
around 800 beneficiaries.
In 2007, Suhakam started a new round of CRC awareness
programme, this time, concentrating on religious groups and schools around the
country. Suhakam‘s latest effort is driven by the realization that it is crucial
for Suhakam to engage religious groups or educational institutions as part of
its mission to reconcile both human rights and Islamic teachings as a way
forward for a more harmonious plural society in Malaysia. In addition to that,
few incidents involving students being physically injured or bullied in the
religious schools reflected the need for teachers and administrators of the
religious schools to also be exposed to human rights perspectives and the legal
framework on child protection.
For a start, Suhakam had organized three regional workshops for Islamic school
teachers from the East Coast, Northern and Southern Zone. The biggest impact
experienced by Suhakam, during these workshops are the diversity of views hold
by the “Ustaz” and “Ustazah” who attended the workshops. The debate on human
rights and cultural relativism were very lively as both human rights and Islam
have a personal influence to each individual. To be fair, not everybody who
attended the workshops felt that human rights in general or CRC in particular is
a Western product that is incompatible with the local customs and religious
teachings. In fact, quite a number of them are of the view that better
understanding of the CRC will greatly benefit the teachers and students.
From the views submitted, three common negative views were voiced by the Islamic
teachers and they can be summed up as follows:
1. The CRC is incompatible with the local customs and Syariah. Furthermore,
Syariah law is already a complete system that can guide the Muslims; hence there
is no need to adopt human rights principle as part of our way of life.
2. The CRC only focuses on children and ignore the rights and authorities of
parents or guardians in the life of the child.
3. The CRC allows too much freedom for children and there is a concern that
children may not be able to exercise their freedom wisely due to their
immaturity.
This article hopes to address these common perspectives by referring to the CRC
provisions and also Suhakam’s hands on experiences with children themselves. It
is also important to note that in examining the so-called “controversial
articles” in the Convention, the exercise must not be done in isolation of the
legislative history of the Convention and also historical facts that lead to the
creation of the Convention. This is because it is important for the debate on
CRC compatibility with local norms, customs and religious practices to be kept
alive and informed by various arguments and substantial resources from time to
time. This is in order to ensure that the Convention will stay relevant and
essential to the survival, protection, development and participation of our
children in the society.
Is the CRC really incompatible with local custom and Syariah law?
One of the common issues raised in relation to the Articles in the CRC is on
freedom of thought, conscience and religion enshrined in Article 14 of the
Convention. The participants that attended the workshop for example, were quick
to draw the conclusion that Article 14 contravenes Syariah principles.
According to Syariah Law, it is a crime for a Muslim to leave his or her
religion (apostasy) and the sentence for such crime is as agreed by many Islamic
jurists, is death sentence .
The problem with such contention is that the allegation was made without having
a thorough read of the Article first. Article 14 has also listed conditions that
must be observed by parents and the State in exercising the right (the
conditions can be found in the clauses of Article 14) and secondly, it is also
important for the public to have due recognition and understanding of the
historical background on how the provision was enacted in order to understand
the challenges of creating universal standards amid diverse national values and
practices.
On the first factor, freedom of thought, conscience and religion is not an
absolute but a qualified right. Clause (2) of the Article states the role of
parents to provide guidance to the child in the exercise of his or her right.
In dispensing their role, parents must do so in a manner consistent with his or
her evolving capacities. In addition, the right under Article 14 may be subject
to legal limitations in view of protecting public safety, order, health, morals
or the fundamental freedoms or rights of others. These conditions suggest that a
child’s right to exercise his or her religion should be supported by proper
guidance from his or her parents and can be subject to limitations in law if it
falls within any of the categories stipulated by Clause (3) of the Article.
Furthermore, it is important to realize that although Article 14 of the
Convention was not the most difficult Article to work on, (Article 1 which is on
the definition of a child was the most contentious of all) , it was still not
easy for the Working Group on Drafting of the CRC to reconcile on what should be
the content of this particular provision.
According to the travaux preparatoires of the CRC, the country representatives
involved in the drafting were divided on what should be incorporated into the
final version of Article 14.
Multiple drafts were prepared to seek a better compromise and consensus among
the countries. On the one hand, some argued that in approaching the question of
freedom of thought, conscience and religion under Article 14, the Working Group
should not set a lower standard or depart from the existing human rights
instruments while some were of the opinion that the Article should incorporate
alternative formulations which considers countries that are not in the position
of giving a child a freedom to choose his or her own religion.
Islamic countries such as Bangladesh, Morocco, Algeria, Egypt and Tunisia which
were part of the Working Group were actively providing inputs on the position of
Islamic law and customs in approaching the question of freedom of religion .
The final version of the Article, in reality, reflects the difficult process of
formulating a universally acceptable human rights document. Hence, to simply
dismiss Article 14 as a provision that is insensitive to Islamic law and customs
is unwarranted for.
In fact, the current Malaysian situation manifests how the question of freedom
of religion of children has not been put to rest yet either by the public or the
State for example in cases where the children was converted by one of his or her
parents such as in the case of Chang Ah Mee or Shamala Sathiyaseelan .
Article 14 should be a point of reference for the State to create adequate and
appropriate mechanisms to safeguard children whose right to exercise his or her
religion, conscience and belief are hindered by his or her parents’s marital
problems or conflict.
Other important Articles that reflect on how the CRC recognizes Islamic
practices are Articles 20 and 21. Article 20 is about the right of a child to
special institutional care and protection in the event that the child is
temporarily or permanently deprived from his or her family environment. Clause 3
of Article 20 has included kafalah of Islamic law as one form of care recognized
by the Article.
Article 21, on the other hand provides for a child’s right to adoption.
According to Adam Lopatka, Chairman/Rapporteur of the Working Group on a Draft
Convention on CRC:
“Unexpectedly for some members of the Working Group, there were serious
difficulties in reaching common agreement on the content of Article 21
concerning adoption. Delegates of States with an Islamic culture had problems
accepting the proposed text because adoption is not recognized in those
countries.
Moreover, a delegate from a Latin American State kept blocking a consensus by
making statements on financial gain for persons or institutions that act as
brokers in inter-country adoptions.”
Realizing this, the final version of Article 21 adopted by the Working Group
phrased the beginning of the Article as follows:
“State Parties that recognize and/or permit the system of adoption…”
The way in which Article 21 was phrased above signifies the Convention’s
flexibility in addressing the difficulties of some States with Islamic culture
to accept the adoption system.
Not only do these 3 Articles reflect how the drafting process of the CRC thrives
to accommodate national differences evident during the process, it also reflects
the political, economic and social realities of the countries involved. In
short, being a document aimed for universal acceptance does not prevent the CRC
from addressing and embracing the local social and cultural peculiarities found
in many countries.
Is the CRC child centered and watered down parents’ rights?
One of the common questions posed by the participants who attended the CRC
workshop is “We only talk about children’s rights, what about our rights on our
children?” There are two aspects that need to be clarified on this question
posed. One, there is no such thing as Convention on Parental Rights or
Teachers’s Rights because parents and teachers are regarded as adults whose
rights are stipulated under the Universal Declaration of Human Rights,
International Covenant on Civil Political Rights, International Covenant on
Economic Social and Cultural Rights or being women, the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW).
Children, on the other hand, are vulnerable to societal threats such as underage
labour, human trafficking and to many cultural or community practices are
regarded not as rights holders but mere objects of protection or property of the
family.
The very first movement to establish international standards in child protection
was in fact related to attempts of dealing with the problems of children who are
stateless and victim of wars, children who are trafficked as slaves and also
children who are laborers in horrible working conditions . Hence, the primary
objective of establishing CRC is embedded in the historical efforts of the
States and civil societies to address the devastating realities that children
have to endure during the early 20th century.
This however, does not mean the CRC absolutely neglects the role and
responsibilities of parents to their children. The CRC contains articles that
directly deal with parental roles and responsibilities and also articles that
touch on the role of parents to assist their children in the exercise of these
rights under the CRC. One example would be Article 5 that provides for parental
guidance that is consistent with the evolving capacities of their children.
Article 5 asserts that:
“State Parties shall respect the responsibilities, rights and duties of parents
or, where applicable the members of the extended family or community as provided
for by local custom, legal guardians or other persons legally responsible for
the child, to provide, in a manner consistent with the evolving capacities of
the child, appropriate direction and guidance in the exercise by the child of
the rights recognized in the present Convention”
Article 5 not only recognizes the role of parents to provide guidance and
direction to children but also members of the extended family and community. In
fact, apart from Article 5, there are also other Articles that deal with
parental responsibilities and family care such as Article 9 and 10 .
In addition, Articles 19 and 20 provide protection for children from family
settings or conditions that pose threat to themselves. The former Article
protects children from all forms of violence, maltreatment and neglect while in
the care of their parent(s) or guardians whereby the latter, provides that
special protection and assistance must be given to children who cannot be
allowed to remain in their family environment.
Parental roles in support of their children exercising their rights can be found
in Article 14 (2), where parents are expected to provide guidance to children in
the exercise of his or her freedom of thought, conscience and religion.
Furthermore, Article 27 (2) of the CRC also reiterates the roles of parents or
others responsible for the child to secure their child’ s right to a “standard
of living that are adequate for the child’s physical, mental, spiritual, moral
and social development”.
These examples clearly dismiss the misconception that CRC is not
“parents-friendly”. Most importantly, the role and responsibilities of parents
or others on the children spelt out in the Convention is directed towards
ensuring that a child is being given proper guidance, direction and support in
the exercise or realization of his or her rights under the Convention. This is a
positive departure from how society viewed children earlier on, which was as
objects of protection rather than individuals with rights.
The CRC allows too much freedom for children and there is a concern that
children may not be able to exercise their freedom wisely due to their
immaturity.
Another common fear on letting children exercise their rights under the CRC is
the concern that they might not be mature enough to do so. There were opinions
thrown in by the participants during the workshop in the Northern zone for
example, on how providing information on their rights might incite children to
abuse their rights such as getting involved in illegal rallies or causing chaos
in school.
Such common fear that those who are pre-empting children’s lack of maturity to
handle or exercise their rights shows how they are actually still trapped in the
old thinking that “children are only to be seen and not to be heard”.
Suhakam on the other hand, had experienced positive impacts resulting from its
partnership with talented young people. In 2004, it had conducted a Training of
Young Trainers which involved young people aged 15 to 17 years old as part of
its effort to recruit peer facilitators for its upcoming human rights camp for
children.
From the training, Suhakam was able to identify potential trainers among the
youths who attended. These trainers have been contributing a lot not only to the
execution of the human rights camp but also on the content and framework of the
programme.
Due to the active contribution of the young trainers, the human rights camp was
able to capture the hearts and attention of the school children who participated
since the content and framework of the camp was very child-friendly, thanks to
the young trainers.
This practical example reflects how children should be given the chance to
express their ideas and opinion with minimal supervision from adults no matter
what their age is. The impact could be a life changing experience!
The CRC Workshops for religious teachers reaffirmed how the mindset of the
society at large on a child’s rights are still based on social, cultural and
religious stereotypes and rooted in the misconception that children are not
rights holders.
Culture and religion are inevitably, the biggest influence that shapes society’s
view, hence, stakeholders should take the initiative to steer public discourses
and engage the society on the issues of religious and cultural predicaments that
affect the realization of children’s rights in order to:
1. Eradicate religious and cultural practices or perceptions that threaten a
child’s well being, and
2. To harmonize human rights principles with positive religious or cultural
values as a way to erase the constant animosity and prejudice that affects the
reconciliation of both.
Revisiting one of the opinions made by the participant of the CRC workshop, it
is fully accepted that the Syariah system is holistic and comprehensive;
however, the mechanism of implementation might not be able to translate the
system into effective practice. The Overview of the OIC-UNICEF-ISESCO report
entitled, “Investing in the Children of the Islamic World” states that:
“In OIC countries, about 4.3 million children under five die each year from
preventable diseases and malnutrition — over 60 per cent of them before reaching
their first birthday.4 About 6 million children under five suffer from
malnutrition in the form of stunting, with low height for their age. About 23
per cent of the total population has no access to safe drinking water, and 45
per cent lack adequate sanitation. Children in sub-Saharan Africa, in
particular, are facing a life-threatening crisis as a consequence of armed
conflict, HIV/AIDS and poverty.”
Poverty, war or political instability and discrimination are among children’s
biggest enemies to survive, develop and participate in the society, therefore,
the understanding and realization of child rights can be a tool to improve the
delivery and implementation of our children’s needs and rights as prescribed by
the Syariah law.
As a conclusion, Suhakam hopes to continue with its quest to spread the message
of human rights while celebrating the religious and cultural diversity of our
society. What is more important is that Suhakam hopes this and also other
efforts by other sectors will cherish greater respect and understanding among
the people, a key to a peaceful and harmonious society.
Human Rights Commission of Malaysia (SUHAKAM) will be hosting the Thirteenth
Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions
starting from 28-31 July 2008, held in Imperial Hotel, Kuala Lumpur.
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Circular No 304/2008 : Invitation - HR Debate 2008
