Whilst it may just be another day for you and me in paradise, for over 1000 Malaysians in Kuala Lumpur, it is an extremely challenging day, finding shelter and safety on the streets. Homelessness is not a new issue. The causes are plentiful. However, the most common cause attributed with homelessness is underemployment[1] (where people are in jobs which do not pay enough or are over qualified to do). Just think about it.
In the present economic climate, with many becoming retrenched, it is not hard to imagine a future with many more Malaysian forced onto the street if regulations and laws remain as they are. This article will not be exploring how the current Malaysian government may implement policies to avoid this nightmare scenario. Rather, we will explore the law on homelessness and what steps policy makers and the government may want to explore in the future.
Homelessness: More than meets the eye
The accepted law governing conduct towards those who live on the streets is the Destitute Persons Act (DPA) 1977. Section 2 defines destitute persons as either:
a) Any person found begging in a public place in such a way as to cause or to be likely to cause annoyance to persons frequenting the place or otherwise to create a nuisance; or
b) Any idle person found in a public place, whether or not he is begging, who has no visible means of subsistence or place of residence or is unable to give a satisfactory account of himself[2];
These definitions are problematic in and of themselves. A big issue is buskers.
Busking without a permit has been seen to fall under the definition in (a) as it could be seen to cause annoyance and is a form of begging[3]. Those who find themselves homeless usually fall under the definition set out in (b).
However, this term covers both vagrants and the homeless which is part of the stigma attached to homelessness. For example, take a man, who has his shirt off (say for suntanning purposes), is in a park, has had a few alcoholic beverages and has fallen asleep. If on being awaken by the police, he is unable to provide satisfactory information about himself, on account of being tipsy, said man would fall under the definition of destitute person set out in (b). Being shirtless and sleeping in a park would fall under the possibility of the person having no visible means of subsistence. While this scenario is hypothetical, it shows the issues with the definition.
Being homeless is a more complex problem than at first glance. Qualitative studies have shown that most homeless people have had at least primary school education[4] with 4% having tertiary school education. More than half of those interviewed in the study had a job[5] and some had family who would occasionally offer a roof to sleep under. These people did not have job security, working in low paid careers. On second glance, the factors that contributed to their homelessness are the same factors youths are facing today, amid the shrinking economy and over saturation of graduates seeking employment. The only difference is many youths have parents/family they can fall back on. Just think about it.
Institutions can also contribute to the problem. Malaysia, as at time of writing does not have a federal unemployment assistance policy or legislation. While at present, the Government is offering employers incentives to maintain employment, if the economy does not recover sufficiently, it is not a stretch to foresee that many in Malaysia will be facing unemployment. Those with low paying jobs, or large family commitments (think children or medical care) are likely to face bankruptcy or the inability to pay rent. Until and unless the government implements measures against this, we may see a dramatic increase in homeless people.
In addition, political and social mindsets contribute to a lack of solution to the problem. For example, the former Minister of Women, Family and Community Development, Datuk Rohani Kassim famously stated that the issues of beggars in this country has never been solved because public generosity is a major contributor to the increasing number of beggars[6]. While an interesting explanation on the supply and demand of beggars, it *ahem* begs the question why anyone would willingly choose to bake in the hot sun or suffer through the rain as a lifestyle.
The legal position
Anatole France famously stated,
“The law, in its majestic equality, forbids the rich as well as poor, to sleep under bridges, to beg in the streets and to steal bread.”
In Malaysia, being homeless is not a crime. However, the DPA 1977 provides power to authorised officer (in practice, usually the Royal Malaysian Police (Polis Diraja Malaysia (PDRM)) to take into their charge any destitute person and produce such person in front of a Magistrate within 24 hours[7]. Where a person then refuses to be taken or resists being taken, then they become liable for an offence which on conviction can lead to either placement in a welfare home or three months imprisonment[8]. Therefore, being homeless is not a crime. Resisting being taken by the police while sleeping on the streets is a crime. Just think about it.
One consideration which many often overlook in the detainment process is a homeless Malaysian’s personal belongings. On group arrests, officers have been known to not permit a homeless person to gather their belongings. While this may seem trivial, this author wishes to remind the reader of two important points. Firstly, as noted above, many of the homeless have jobs. This may involve uniforms or IDs. If they are not allowed to collect these items (often times homeless belongings are disposed of by authorities), they may have to incur costs to replace them to continue their employment. This exacerbates their financial position.
Secondly, and on a more legal footing, it deprives these Malaysians of their rights under Article 13 of the Federal Constitution. Article 13 provides that no person shall be deprived of property save in accordance with the law[9]. Nowhere in the DPA 1977 does it provide that a destitute person cannot collect their items when being taken in, yet it has become common practice.
For those who are keeping score, a person without a roof over their head, can be “taken in” and not be allowed to collect their belongings (which may include their ID) for 24 hours. The check and balance provided by law is for such detainment to be reviewed by a Magistrate who may then order a destitute person to be admitted temporarily to a welfare home[10].
At this check, one has to weigh the practical considerations. We must ask, who is more likely to be believed, the arresting officer or the accused destitute who often does not have sufficient identification (sometimes caused by their inability to collect their belongings)? While in 9 out of 10 cases the accused destitute is one who falls under the definition and has no means of supporting himself, statistically, there must be cases where the homeless person brought before court does have a job, just not a roof over their head. However, this author cannot comment further on what elements a Magistrate puts weight on as there are no reported cases under the act in both CLJLaw and Lexis Nexis. Not a single one. Just think about it.
In most cases, as provided by the law, those who are deemed destitute are placed in a welfare home for three years[11]. This author applauds the progressive attitude the Government takes in terms of trying to help these people. The DPA 1977 provides that those in welfare homes may be required to engage in suitable activity with a view to fitting them for employment outside the welfare home[12]. For those with a job, it provides a roof over their head. In addition, if determined by a medical officer, those in the welfare home may receive treatment at a hospital or clinic as a resident of a welfare home[13] which indicates the payment for such treatment is borne by the Government.
However, it must be pointed out that if a person residing within the welfare home, attempts to leave the home within the period of stay, it would be deemed an offence[14]. Alternatively, if a person returns to the welfare home after expiration of permitted time away without reasonable cause, they could be deemed guilty of an offence[15]. These conditions on a Malaysian citizens freedom of movement is akin to incarceration. Adults who are told where they can go and for how long. It is understandable why legislation may impose such conditions but please bear in mind, a person placed under these conditions did not have their day in court. They were not accused and/or convicted of a crime. They were merely too poor to afford rent.
What can we do about it?
One solution often discussed is addressing the lack of affordable housing/ transportation in the Klang Valley. The Federal government have implemented targets for low-cost housing under the Malaysia plan and PR1MA but these targets are often not in line with demand and construction often does not meet set targets[16]. In addition, the focus tends to be on home ownership and not on rent levels which have seen staggering increases in the last 10 years.
One mechanism is to follow our neighbours to the south by implementing a Home Protection Scheme which ensures dependants of home owners will not lose their homes in the event of death or permanent incapacity of the sole breadwinner[17]. This would help families and dependants for a transitional period until the family can get back on their feet which prevents displacement. However, with Parliament still not being able to meet, this is unlikely to be implemented in the foreseeable future.
Another solution, as mentioned above, is to implement a national system for unemployment assistance. Unemployment benefits is not a new concept and is widely implemented in Western Europe. These benefits could be used to continue to pay the rent while seeking employment. Measures could be implemented to directly bank such benefits to landowners if there are issues of trust on how the money is used. However, there will be political pushback and until Parliament meets, unemployment assistance on a government level is unlikely to happen.
Conclusion
Homelessness is a complex issue. Many have suggested “easy solutions” but this does not take into account the different factors contributing to homelessness. This article was written to shed some light on the topic and on some of the practical issues in the implementation of the current legislation. It is important to remember we live under the shared roof that is our beloved Malaysia. If we do not stand up for our vulnerable brothers and sisters, nobody will. There are many dedicated NGOs who may be looking for volunteers and you can always lobby your Member of Parliament to raise this issue. So, while it may just be another day for you and me in paradise, please think about it.
References:
[1] Dr SM Alhabshi, Alifatul Kamilah bt Abdul Manan, Homelessness in Kuala Lumpur, Malaysia: A case of Agenda Denial, International Journal of Social Science Tomorrow, Vol 1, No.2, April 2012, page 7 [2] Section 2 of the Destitute Persons Act 1977 [3] AskLegal, Do street performers need a license to perform in Malaysia, https://asklegal.my/p/street-performers-license-perform-malaysia-busking-application [4] Note 1, page 5 [5] Ibid [6] S. Indramalar, Nowhere to go: Making a case for the homeless, the Star newspaper, 9 June 2014 https://www.thestar.com.my/Lifestyle/Features/2014/06/09/Nowhere-to-goMaking-a-case-for-the-homeless/ [7] Section 3(1) of the Destitute Persons Act 1977 [8] Section 11(a) of the Destitute Persons Act 1977 [9] Article 13 Federal Constitution of Malaysia [10] Section 3(2) of the Destitute Persons Act 1977 [11] Section 3(4) of the Destitute Persons Act 1977 [12] Section 9 of the Destitute Persons Act 1977 [13] Section 10 of the Destitute Persons Act 1977 [14] Section 11 (b) and (c) of the Destitute Persons Act 1977 [15] Section 11 (d) of the Destitute Persons Act 1977 [16] Foods Not Bombs, Homelessness in Malaysia Policy Sheet, April 2014 https://empowermalaysia.org/isi/uploads/2014/11/homelesspolicy.pdf [17] YB Wong Chen, MP for Subang, Policy Paper, The Homeless in Malaysia: Issues and Policy Solutions, < http://www.wongchen.com/wp-content/uploads/2014/03/The-Homeless-in-Malaysia-2.pdf> at page 16