Adults and parents perceives that under the law they are having full authority to decide what is best for the children without realizing that the children themselves have also rights to decide what is best for them. The same perception appears in the family circle of the Semai and other indigenous people in general. This paper tries to bring adult and parents alike to come to terms some of the minimum rights provided to the children around the world including the indigenous children under International Law so that one are not caught unaware and help secure the very basic needs of children of today

Yusof, Mohamad Sabri

English

Universiti Teknologi MARA Institutional Repository

Semai Children in Cameron Highlands and Understanding the Indigenous 
Children's Rights in the International Legal Settings 
 
Mohamad Sabri Yusof
1
 
 
1 Faculty of Law, Universiti Teknologi MARA Pahang, Bandar Tun Abdul Razak Jengka, Pahang, Malaysia 
arifnazihah@yahoo.com.my 
Abstract: Adults and parents perceive that under the law they are having full authority to decide what is best 
for their children without realizing that the children themselves have also rights to decide what are best for 
them. The same perception appears in the family circle of the Semai and other indigenous people in general. 
This paper tries to bring adult and parents alike to come to terms on some of the minimum rights provided to 
the children around the world including the indigenous children under International Law so that one are not 
caught unaware and help secure the very basic needs of children of today.   
 
Keywords: Indigenous Children’s Rights, International Law 
 
 
Introduction 
 
The Semai people is one of the clans of indigenous people in peninsular Malaysia. They mostly live 
scattered throughout the forest area of Cameron Highlands. Most of them are pagan which believe in 
the existence of ‘roaming forest spirit'  and the spirit of their ancestors. Most of their children are 
reluctant to go to school provided for due to the distance and also failure to understand the need for it. 
This to a certain degree affects their future for not having the ability to accommodate the changes 
surrounding their lives nowadays. 
 
Historical Account 
 
The issues on protection of children at international level first came into focus in 1919 with the 
adoption of the Minimum Age ruling (Industry Convention by the International Labour Conference). 
Later, in 1924 the international community appreciating the need to protect and promote child 
welfare and have the children’s economic, social and psychological needs, adopted in Geneva a 
Declaration of the Right of the Child. 
The 1924 Declaration recognized that “mankind owes to the child the best that it has to give, … 
beyond and above all considerations of race, nationality or creed’. It reflects the then unquestioned 
assumption that protection and exercise of children rights are dependent on those people categorized 
as ‘adults’. Accordingly children were perceived as vulnerable objects not capable of standing by 
themselves, and for their very existence are dependent on International Law protection. This same 
assumption persisted and was reflected in the 1959 Declaration of the Right of the Child as well as in 
many international treaties adopted throughout the 1960s and 1970s.  
In 1979 the United Nation proclaimed that year as the “International Year of the Child’. It opened 
up a new international approach in a matter of children protection including the indigenous children, 
this time through more liberal lens. International community begins examining the international laws 
on children from the child rights perspective.  
This perspective has been accepted stages by stages both at regional and international level. The 
child rights perspective approach was adopted at regional level in the European Convention on the 
Legal Status of Children born out of Wedlock 1975 and in the Declaration on the Right and Welfare 
of the African Child 1979. At international level, this approach was adopted in the United Nation 
Minimum Rules for the Administration of Juvenile Justice 1985.  From the early 1980s, revaluation 
on the international law on children from a child rights perspective takes place in a number of specific 
areas including adoption, fostering and child justice. In the area of child adoption, for example, The 
United Nation Declaration on Fostering and Adoption's approach is to place both fostering and 
adoption within the context of the welfare of the child as opposed to the interest of the parent. Here 
the Declaration states that a child needs to be cared for by his or her own parents; and the need of the 
child for affection, security and continuing care should be the paramount consideration. It also set out 
in detail as to how the best interests of the child are to be met. This approach was later incorporated 
into Articles 20 and 21 of the Convention on the Right of the Child. 
 
Child Rights Perspective in Area of Child Justice 
 
The re-evaluation on the international law on children from a child rights perspective in the area of 
child justice only started to take place in 1966 when the International Covenant on Civil and Political 
Rights was adopted. The International Covenant provides for the regulation of administration of child 
justice focusing mainly on the separation of juveniles and adults, and providing that trial procedures 
for juveniles should take account  the age of the offender and the desirability of promoting 
rehabilitation.  
From this background, in 1985, the United Nation General Assembly adopted the United Nation 
Standard Minimum Rules for the Administration of Juveniles Justice. The United Nation Standard 
Minimum Rules for the Administration of Juvenile Justice is also known as the Beijing Rules.  This 
United Nation Standard Minimum Rules provided for a human response to juveniles who may find 
themselves in conflict with the law and has become a model for states domestic rules. Some of the 
rules have been incorporated into Articles 37 and 40 of the Convention on the Rights of the Child. 
Under Article 37(a) and (b) for example, emphasis is given to ensure that detention or 
imprisonment of children is only for the shortest appropriate period of time, and only as a measure of 
last resort. Here states parties are also prohibited from subjecting a child to torture or other cruel, 
inhuman or degrading treatment or punishment nor are they allowed place a child under capital 
punishment of life imprisonment without possibility of release.  
The recognition of the child rights perspective has led international community to call for the 
Rights of the Child. By 1989 the Final Draft of the Convention was completed. So far for the first 
time, children were acknowledged by the international community as the holders of a specific body of 
identifiable rights. 
The United Nation General Assembly adopted the Convention on the Rights of the Child on the 
20th of November 1989. Later, on the 2
nd
 of September 1999 it came into force. As of January 1994, 
155 nations have become states parties to this convention. The United States is the only major state 
remaining outside the treaty regime. 
 
Support and Reservation to the Convention on the Rights of the Child 1989 
 
Cohen (1990) had credited the convention as a very comprehensive treaty, covering the full range of 
human rights.  However there are some who think that despite of its enormous scope, it is still 
sufficient because the issues relating to the children protection are very broad and intricate. 
There were some countries, which registered reservation about provisions of the Convention on the 
Rights of the Child 1989. These countries are also the very same countries which decline to accept 
some provisions of the Convention on the Rights of the Child. These states include Bangladesh, Egypt 
and Iraq. For these reservations are certainly incompatible with the spirit and support given to the 
Conventions. However their reservations are not without any valid reason due to their religious and 
customary belief (Alston & Steiner, 1996). 
To the writer this treaty is  quite comprehensive and important as it is not only extensively covers a 
wide spectrum of rights given to children all over the world without limiting to any geographical 
boundaries, but covers also children of all races, colours, belief, creed and background including the 
displaced children and the indigenous children. 
 
Overview of the Provisions of the Convention on the Rights of the Child 
 
The Convention on the Rights of the Child 1989 can be said to be a recent internationally binding 
treaty. It came into force on the 2
nd
 of September 1990. A year after it came into force, a total of 
ninety-four countries had become states parties to the convention and by January 1994, 155 states 
entered. It includes also Malaysia. Nowadays the numbers have grown further. The Rights of the 
Child is a convention that have been ratified by so many states, so quickly gaining a very wide 
support and enjoy a strong international community commitment. This shows that the issue on 
children’s protection and their rights were accorded the very utmost attention and paramount 
consideration from the entire international community. Unfortunately, however despite a great 
response that it received, and despite its apparent commonality, there were clear divisions in the 
application of its provisions; especially in relation to the ‘best interest’ of the child principle and in 
area concerning the indigenous children. 
 
Spectrum of Rights of Child 
 
As a whole there are fifty-four articles in the convention. It provides for duties of States Parties in 
relation to child, ranging from economic, social and cultural to civil, political and humanitarian rights. 
It includes matters such as a child inherent right to life; right from birth to a name; right to acquire a 
nationality; a right to know and be cared for by his or her preserve his or her own identity ( which has 
becomes very important aspects in relation to the indigenous children’s rights); right of a child who is 
separated from one or both parents to maintain personal relationship and direct contact with both 
parents on a regular basis; right to be protected from illicit transfer and non-return of children abroad; 
right to express their own views freely and right to freedom of thought, conscience and religion; right 
to freedom of association and to freedom of peaceful assembly; right to the protection of law against 
unlawful interference and attack on his or her honor and reputation; right to free access to 
information; right to be protected from all form of physical or metal violence, injury or abuse, neglect 
or negligent treatment, maltreatment or exploitation including sexual abuse; right of a child who is 
seeking refugee status or who is considered a refugee to receive appropriate protection and 
humanitarian assistance; right of a mentally or physically disabled child to enjoy a full and decent life 
and to special care; right to enjoy the highest attainable standard of health; right to benefit from social 
security; right to a standard of living adequate for the child’s physical, mental, spiritual, moral and 
social development; right to education; right to a child belonging to ethnic, religious or linguistic 
minorities or having indigenous origin to be in community with members of the group and to enjoy 
his or her own religion or to use his or her own language; right to rest and leisure and to engage in 
play and recreational activities; right to be protected from economic exploitation, all from of sexual 
exploitation and sexual abuse; right of a child not to be subjected to torture, or cruel, inhuman or 
degrading treatment or punishment and right of every child alleged as, accused for a recognized as 
having infringed the penal law to be treated in a manner consistent with the child’s sense of dignity 
and worth.  
 
Practical Analysis 
 
One should appreciate that not all of these rights are entirely absolute. Some of them are subjective 
and its application are to a certain extent, qualified, so as to balance them with other specific rights 
given to the parents and other individuals and entities within society and those rights listed in the 
municipal laws. Note also that some of these rights are accorded only to certain classes of children. 
For example the displaced children, disabled children and the indigenous children. 
The enormous right in the Convention on the Rights of the Child again shows that the issues 
relating to protection of children do enjoy the greatest of international community attention. The 
Convention does not only provide for the rights of child but also imposes obligations on states parties 
to safeguard and promote those very rights listed through enactment of municipal law and procedures 
in accordance with international laws. One can also see that there is to a certain extent some form of 
adaptation of the family law ideas of child protection in the Convention. However it only occurs in 
certain matters and in the context of ‘best interest of the child’ principle. 
 
The Convention of the Rights of the Child 1989 and the ‘best interest of the child’ principle 
 
The ‘best interests of the child’ principle has a long standing in the municipal family law. It has been 
applied largely in relation to family affairs in areas concerning custody, maintenance, adoption and 
intra-family abuse. The principle was later developed and interpreted in human rights law. Some 
international lawyers and observers advocated that state intervention to protect the ‘best interests of 
the child’ should only be permitted in specific cases where there is clear evidence of family failure to 
protect the most basic interests of the child. However, there are others who find this observation very 
disturbing as it has a tendency to reduce the legal issues virtually to a case-by-case determination of 
an individual child’s ‘best interests’. This group argues that the sheer survival prospects for children 
in many countries, as well as the deteriorating state of living and learning conditions of millions of 
children worldwide, call for an urgent reassessment of the traditional relationships between family, 
the state and civil society in matters relating to children’s health, nutrition, education and general 
well-being. 
In the international arena, the principle of ‘best interests of the child’ was first introduced in 
Principle 2 of the Declaration of the Rights of the Child 1959. The principle was later adopted in the 
text of the Convention on the Rights of the Child 1989. 
The crux of the text of the Convention on the Rights of the Child is article 3, in which its 
paragraph one states that ‘In all actions concerning children, whether undertaken by public or private 
social welfare institution, courts of law, administrative, authoritative or legislative bodies, best interest 
of the child shall be a primary consideration”.  Alston expands the importance of that article 3(1) as it 
underlines the fact that the principles apply not only in the context of legal and administrative 
proceedings or in other narrowly defined contexts, but in relation to all action concerning children’. 
He argues that this represents a very significant extension of a principal which was originally little 
more than a way of ensuring that the interest of any children involved would be taken into account in 
divorce or custody cases. 
Within the Convention, the phrase ‘best interest of the child’ also appears in relation to the 
separation of the child from the family setting with reference to parental responsibility for upbringing 
and development of the child; in relation to adoption and comparable practices) ; and in the context of 
the child’s involvement with the police and the justice system (Convention on The Right Of The 
Child, 1989). 
 
The Best Interests of the Child Principle and its diverse interpretations. 
 
The ‘best interests of the child’ principle has been accepted, adopted and reflected in one form or 
another in many municipal legal systems. Unfortunately its application differs accordingly with the 
diverse interpretation that may be given to the principle in different settings. This diverse 
interpretation is not without valid reason. It is clearly caused by the diversity of cultural, religious, 
way of life and traditions that dominates the east and west. Thus what may be in the best interests of 
the child in a third world and developing countries may not be acceptable as being in the best interests 
of the child in developed or highly industrialized countries.  
In a more traditional society especially in Asia, the link to family and the local community might 
be considered very important and the principle may therefore be interpreted as requiring the 
sublimation of the individual child in preference to the interest of the family rather by policies that 
emphasize the child’s individuality. 
 
Conclusion 
 
Referring back to the historical account on the rights of the child and its protection we can see that 
there has been a major shift in its approach, that is from the traditional views that child protection and 
matters regarding child are best left in the hands of the parent or the adult to that of a more liberal 
approach in which consideration as to what is best for the child is taken from the child own 
perspective. On the questions as to whether the existing human rights documents are comprehensive 
enough to tackle all the existing human rights issues, the answer would be in the negative. In the area 
of children protection and rights of the child, for example, despite of the enormous scope of the 
Convention on the Rights of the Child not all the issues regarding children protection and their rights 
due to its breath can still be solved. This is evident, for example, from the existence of additional 
optional protocol and from the reports of the special rapporteur on the sale of the children, child 
prostitution and child phonography under the auspice of the Commission on Human Rights – UNGA 
(1997).  
 
 
End Notes: 
 
1. The child rights perspective approach was adopted at regional level in the European 
Convention on the Legal Status of Children born out of Wedlock 1975 and in the Declaration 
on the Right and Welfare of the African Child 1979. At international level, this approach was 
adopted in the United Nation Minimum Rules for the Administration of Juvenile Justice 1985.  
 
2. The United Nation Standard Minimum Rules for the Administration of Juvenile Justice is 
known also as the Beijing Rules.  
 
3. Cohen, C.P, Introductory Note, “United Nations Convention on the Rights of the Child,” The 
Review (1990), 36. 
 
4. These states include Bangladesh, Egypt and Iraq. 
 
5. See ‘Reservation of Parties to CEDAW’ Alston and Steiner International Human Rights in 
Context at page 920-922. 
 
      6.   Article 9 of the Convention on the Rights of the Child 1989. 
 
      7.   Article 18. 
 
      8.   See E/ Cn.4/ 1997 / 95. February 7th 1997; E/ CN.4/ 1997/95/Add.2, February 7
th
 1997. See   
 also note by the United Nation Secretary - General: CRC/C/40/rev. 6 13 March 1997. 
 
 
References 
 
Alston. P and Steiner H.J, (1996) International Human Rights In Context: Law, 
Politics, Moral, Clarendon Press. Oxford. 
Alston P (ed) (1994) The best interest of the Child: Reconciling Culture and Human Rights, 
Clarendon Press. Oxford 
Bayefsky Aif and Ebert M, (1995) Equality Rights and the Charter of Rights, Croswell Vancouver. 
Blackburn R and Busuttil J, (ed) (1997) Human Rights for the 21
st
 Century, Pinter. London. 
Bueren G.V. (ed) (1993) International Documents on Children, Martinus Nijhoff Publishers, 
Netherlands. 
Mnookin, R.H, (1998) Child, Family and State, Little, Brown and Company. Boston and Toronto, 
Spiro .E (1971) Law of Parent and Child, 3
rd
 ed. Rustica Press, South Africa. 
Sullivan. J, (1992) Sexual Abuse and the Rights of Children. University of Toronto Press. 
 
 
 
 
 
 


Semai children in Cameron Highland and understanding the indigenous childrens rights in the International Legal Setting / Mohamad Sabri Yusof

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Semai children in Cameron Highland and understanding the indigenous childrens rights in the International Legal Setting / Mohamad Sabri Yusof

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