In February, a 15-year-old girl was charged with killing her newborn after giving birth alone in a house in the eastern Malaysian state of Terengganu.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The baby was found to have injuries on its body, including what looked to be a stab wound. When the police arrested the girl, she told them she had been raped by a man in his twenties. A week later, she was charged with murder.
The intimately harrowing nature of the case shocked many in Malaysia and once again brought public attention to the country’s high rate of teen pregnancies and related issues – including restrictive reproductive laws, statutory rape and child marriage.
Many experts were concerned about the handling of the teenager’s case.
“I see the gaps in the system, the need to exercise a punitive approach with little regard for the best interest of the child,” Hartini Zainudin, a child rights activist, told Al Jazeera. “Nothing is child-centred.”
Infanticide and baby abandonment are not uncommon in Malaysia – a multi-ethnic and largely conservative country, where 61 percent of the population is Muslim.
Over the past five years, the Ministry of Health has recorded 41,083 pregnancies among teenagers.
The Ministry of Women, Family, and Community Development had also previously reported that about 830 pregnant teenagers receive services at government health facilities every month.
Such circumstances led to more than 1,000 cases of baby abandonment and infanticide between 2010 and May 2019, the ministry also previously reported.
‘A lot of failures’
In the girl’s case, it was revealed by the Human Rights Commission of Malaysia (SUHAKAM) that her family had been unaware she was pregnant, as she had not been at home and had dropped out of school because she was unable to access online learning when pandemic-linked lockdowns closed her school.
“There are a lot of failures in systems in supporting her wellbeing throughout, including during her pregnancy,” said Alyssa Wan Azhar, a social worker at Women’s Aid Organisation, an NGO campaigning against gender-based violence.
Young women in Malaysia are often pressured to toe the line in a conservative and patriarchal culture, where sex education is also lacking. Abortion on the grounds of rape, or even incest, is also banned unless a doctor deems that the pregnancy is a danger to the mother’s physical or mental health.
If their daughter becomes pregnant, some parents see marriage as the best way to avoid family shame, even if she is just a child and even though sex with a minor is considered statutory rape.
“We handle a lot of cases where a child gets raped and is then forced into marriage. Culturally, it is seen as a solution. But it just further traumatises the survivor because she is now stuck with the perpetrator for a lifetime,” Alyssa Wan Azhar said.
According to UNICEF, there were 14,999 cases of child marriage in Malaysia between 2007 and 2017 across all communities, with 10,000 of them involving Muslims. In 2018, 1,856 children – 1,542 of them Muslim – were married. The report defined child marriage as where at least one of the parties was under 18.
Despite calls to ban child marriage, the Malaysian government recently announced that it would not do so, saying it preferred to address the issue by implementing public education and socioeconomic programmes.
Malaysia has a dual legal system, with civil and Islamic laws operating side by side. Cases involving Muslim family and marriage issues come under Islamic law, which is the responsibility of the country’s individual states.
That means that while the minimum age for marriage is set at 18 and the age of consent is 16, Muslim marriages fall under the states’ purview – and they allow marriage under the minimum age providing the Islamic court approves.
“Unfortunately, in Malaysia, child marriage has been utilised as a way out for perpetrators hoping to avoid prosecution by marrying their victims,” according to a 2020 UNICEF report on child marriage in the country.
To prevent incidences of baby abandonment, the government has run sex education campaigns focusing on sexual abstinence outside marriage, and introduced baby hatches where mothers can anonymously leave their babies. There are also special schools so teenagers who are pregnant can continue their education.
Salmi Razali, head of Universiti Teknologi MARA’s psychiatry department, had previously interviewed nine imprisoned women – one of them a teenager – convicted of filicide (killing a son or daughter) in Malaysia. In a paper published in 2018, she reported that they had not found the initiatives helpful.
“It may be because these services are directed at changing girls and women and not their social context,” she wrote.
Hartini says the approach has to change.
“We exercise our cultural beliefs and biases, tell children and young people not to do this or that, but don’t give them enough information and support to know better, and punish them when they fail to comply with our societal beliefs and values,” she said. “Why haven’t we learnt from the last high-profile example?”
The best interests of the child
The girl, meanwhile, remains in custody, remanded by a magistrate on February 9 even though she was still receiving post-natal treatment in hospital. The following day, she was discharged and transferred to a police station ahead of a court appearance a week later, where she was charged with murder.
The crime carries the death penalty in Malaysia, but under-18s who are found guilty are jailed for a period determined by the king.
In a public statement, Noor Aziah Mohd Awal, SUHAKAM’s Children’s Commissioner, said that the girl should have been given “proper postpartum treatment including psychological treatment” before being prosecuted, and assigned a social welfare officer to protect her throughout the legal process.
Noor Aziah told Al Jazeera that the police often do not avail themselves enough of the Child Act, which seeks to better protect children who come into conflict with the law.
“When a child is arrested, this has often happened: the child is detained in a police station and spends the night in police lockup. The police will question them without informing their parents or the social welfare officers, and there is no legal representation,” she said.
The girl only obtained legal representation when a few lawyers stepped in to represent her after reading media reports about the case, while Hartini crowdfunded money for her bail application.
AG Kalidas, president of the Malaysian Bar Council, highlighted in a public statement that the National Legal Aid Foundation has the power to provide free legal aid to any child in conflict with the law from the moment of arrest or detention – if only the police and the courts would make the child and their parents aware of it. Even so, as Noor Aziah and Hartini point out, there is a shortage of experienced lawyers taking on legal aid cases, since the work is largely voluntary.
Azalina Othman Said, chairman of the Parliamentary Special Select Committee on Women and Children’s Affairs, and Social Development, has suggested a charge of infanticide would be more appropriate in the teenager’s case, since it involved “the killing of a baby by its mother within 24 hours of its birth”.
The Penal Code stipulates that a woman could be charged with infanticide if at the time of the crime, “she had not fully recovered from the effect of giving birth” and “the balance of her mind was then disturbed”. The offence carries a maximum jail term of 20 years.
Still, the charge of murder remains. And despite her lawyers’ arguments – that she is under the age of 16, a girl, and sick after only recently giving birth (which are possible grounds for an exception under non-bailable offences such as murder and infanticide) – her application for bail on February 15 was rejected without reason, and rejected again on appeal three weeks later.
Instead, she was granted a psychiatric evaluation at a government hospital by the Kuala Terengganu High Court. Under Malaysian law, a court must refer an accused for psychiatric evaluation if it suspects they may be of unsound mind.
Her lawyers have reapplied for bail, but the teenager remains in police detention awaiting trial.
The Attorney General’s Chambers has since published a statement saying the charge could be reviewed pending additional developments – including the results of the investigation into the girl’s rape allegation.
However, the alleged perpetrator, who has been identified by police and asked to turn himself in to assist investigations, remains at large.