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Summary: This report extracts mentions of children's rights issues in the reports of the UN Special Procedures. This does not include reports of child specific Special Procedures, such as the Special Rapporteur on the sale of children, child prostitution and child pornography, which are available as separate reports.
Please note that the language may have been edited in places for the purpose of clarity.
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- UN Special Rapporteur on the right to health
- UN Working Group on Arbitrary Detention
- UN Special Rapporteur on Myanmar to India, Indonesia, Malaysia and Thailand
- UN Special Rapporteur on the Right to Development
- UN Special Rapporteur on the Right to Freedom of Opinion and Expression
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UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Pūras
(A/HRC/29/33/Add.1)
Country visit: 19 November–2 December 2014
Report Published: 1 May 2015
The special rapporteur identified the following points and concerns:
Child Mortality Rates: Infant mortality rates in Malaysia have more than halved from 39.4 deaths per 1,000 live births in 1970 to an estimated 6.3 per 1,000 live births in 2012, reaching ratios similar to those of high-income developed countries. Malaysia is one of three countries in the Association of Southeast Asian Nations (ASEAN) with infant and child mortality rates below 10 per 1,000 live births (para7).
International and national legal framework: Malaysia has only ratified three of the international human rights treaties: the Convention on the Elimination of All Forms of Discrimination against Women (1995); the Convention of the Rights of the Child (1995) and the first two Optional Protocols thereto (2012); and the Convention on the Rights of Persons with Disabilities (2010) (para 12).
The Special Rapporteur recommends that Malaysia ratifies all core universal human rights treaties and the optional protocols thereto, remove all reservations to the treaties ratified and ensure timely reporting to the monitoring bodies; and extend an standing invitation to the special procedures of the Human Rights Council (para 111 a).
The right to health of women and girls: Overall, girls and women in Malaysia have access to basic (primary and secondary) health-care services and benefit from improved health indicators, including child and maternal mortality, immunization and life expectancy (para 27).
Although Malaysia has consistently reaffirmed the agenda established by the International Conference on Population and Development in Cairo in 1994 and its Programme of Action (E/CN.9/2014/4), many of the goals on that agenda and set in the follow-up to the Programme of Action have not been adequately addressed. While there has been substantial progress in maternal health indicators, more needs to be done to achieve key goals connected to the enjoyment of the right to health of women and girls, in particular concerning sexual and reproductive health and rights, gender-based violence and harmful traditional practices (para 29).
Sexual and reproductive health and rights: The Special Rapporteur acknowledges the formulation of the National Adolescent Health Policy and the National Adolescent Health Plan of Action (2006–2020) to ensure coordinated delivery of health-care services to this group of the population. However, on the basis of certain restrictive interpretations of religious and cultural values and beliefs which dominate the political discourse and praxis, women and girls do not always have adequate access to comprehensive sexual and reproductive health services or comprehensive sexuality education (paras 30-32).
The reproductive health services most needed, in particular among girls and young women, include access to safe, reliable and good-quality contraception; comprehensive maternal health services; safe abortion and treatment for complications of unsafe abortion; and prevention and treatment of sexually transmitted infection and HIV/AIDS. Related educational programmes are often not based on evidence and have a stronger emphasis on abstinence than on providing information and education to girls to allow them to make free and informed decisions about their sexuality. This has contributed to the high prevalence of unintended pregnancies amongst girls, high numbers of underage marriages, unsafe abortions and a high risk of the spread of sexually transmitted diseases, including HIV/AIDS (paras 33,34).
The Special Rapporteur recommends that Malaysia ensures that barriers to access sexual and reproductive rights of girls and women in Malaysia are removed, including by providing, regardless of age and marital status, sexual and reproductive health services and comprehensive adequate sexuality education and information (para 111 e).
Harmful traditional practices: The Special Rapporteur expressed concern about the situation of women and girls who face compounded forms of discrimination owing to their social, cultural and religious backgrounds (para 40).
Child marriage is prevalent among certain groups of the population. Malaysian laws set the legal age of marriage at 18 both for females and males but sharia law lowers this to 16 for Muslim females. There are exceptions: non-Muslim girls can marry between 16 and 18 years with a licence from the Chief Minister, while Muslim girls below 16 and boys below 18 can marry with the written permission of the sharia court judge. While the Special Rapporteur acknowledges that the incidence of early marriage among girls 15–19 years old has decreased between 1970 and 2010, he remains concerned about its prevalence. He is worried that, in an attempt to reduce the incidence of premarital sex, children born out of wedlock and child abandonment, certain authorities are encouraging underage marriage. This goes against international human rights standards, established by the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child, and can represent a regression with respect to the Cairo Programme of Action (paras 41-43).
Female genital mutilation/cutting, which according to various definitions includes female circumcision under type IV, is practised in Malaysia. The Special Rapporteur expressed concern about the prevalence of this practice and learned that the health authorities have produced guidelines to regulate it. He is concerned that this could be contrary to the global strategy against the medicalization of this harmful practice, as established by the World Health Organization (WHO). The Special Rapporteur would like to highlight that this is a form of violence against women and girls, even if not intended as an act of violence, and a violation against their basic human rights and fundamental freedoms, including their right to health (paras 44, 45).
The Special Rapporteur recommends that Malaysia ensures that the legal age for marriage is set at 18 years of age. The state should do its utmost to eradicate and prevent child marriage. Malaysia should also harmonize national legislation and customary and religious laws with international human rights standards, and introduce a legal prohibition of harmful practices, including female genital mutilation or female circumcision, supported by initiatives to prevent and address those practices (para 111 h, i).
Indigenous communities: Infant and maternal mortality rates in indigenous populations are higher than the national averages. Birth registration is a serious problem among indigenous communities living in remote areas with a negative impact on access to health care. Health information is not always accessible to them in a culturally appropriate manner and they are not always properly informed about or involved in public health decisions that affect them (paras 49,51).
The Special Rapporteur recommends that Malaysia takes measures so that indigenous communities enjoy their right to health by ensuring access to information and that health services are available, accessible, affordable, adequate and of good quality. The state should also involve indigenous communities in the health decisions that affect them by consulting them in advance on relevant policies and providing health-related information in a culturally sensitive manner (para 111 j, h).
Documented and undocumented migrants: During his visit, the Special Rapporteur also learned about the establishment of immigration counters inside public hospitals to facilitate referrals of undocumented migrants to the police when they come seeking medical attention. There was a wave of arrests of undocumented women migrants and asylum seekers who, a few days after giving birth, had been taken from hospitals directly to detention centres. In those centres, some of these women and their babies had reportedly neither received the necessary medical attention nor the appropriate care needed during the postnatal period (paras 63,64).
The Special Rapporteur recommends that Malaysia ends the practice of establishing immigration counters in public hospitals, and of arresting undocumented migrant and asylum-seeking women who have just given birth in these hospitals (para 111 n).
Asylum seekers and refugees: At end November 2014, there were approximately 150,460 refugees and asylum seekers registered with the Office of the United Nations High Commissioner for Refugees (UNHCR). Of these, about 32,710 were children under 18 years of age. While health-care services are available they are not affordable or accessible for asylum seekers. The sustained fears of arrest, detention and deportation deter asylum seekers from seeking medical treatment. Language barriers are also a major obstacle. Despite the fact that Malaysia has not ratified international standards that protect and promote the rights of refugees and asylum seekers, the principle of non-refoulement is part of customary international law. Malaysia is also bound by the obligations in the international human rights treaties that it has ratified which cover the rights of these groups (paras 66, 70, 71).
The Special Rapporteur recommends that Malaysia ensure that non-nationals, in particular undocumented migrants, refugees and asylum seekers, can afford to access public health care, and consider exempting them from the increase in fees (para 111 m).
Detention conditions in immigration centres: During his visit to the Lenggeng Depot, the Special Rapporteur found out that women who have just given birth are held in a separate area where they have mattresses for them and their babies and are provided with the necessary hygienic products. However, their diet does not seem sufficient for breastfeeding mothers. Access to clean water seems to be only upon request and some of these women are reportedly not allowed to spend enough time outside the common cell, including with their babies. During his visit to the Immigration Detention Depot of the Kuala Lumpur International Airport, the Special Rapporteur found one minor who had been held with adults for more than nine months. In that depot, the Special Rapporteur visited the female ward and met with number of children of Rohingya origin, aged from 4 to 12 years old, who had been held for a period of five to seven months, some of them with special health needs. The detention of children with their parents has a detrimental effect of their physical and mental health and should be avoided (paras 76, 79, 80).
The Special Rapporteur recommends that Malaysia makes sure that children are not detained in immigration detention centres. Suitable alternatives should be found to their detention that preserve the family unit and providing such children with the necessary environment and services (para 111 p).
Lesbian, gay, bisexual and transgender persons: The Special Rapporteur is also concerned about programmes and practices supported by public institutions to change the sexual orientation of adolescents, (“corrective therapies”) (para 90).
The Special Rapporteur recommends that Malaysia puts an end to State-led programmes to identify, “expose”, and punish LGBT adolescents as they contribute to a detrimental educational environment where the inherent dignity of the child is not respected and discrimination on basis of sexual orientation and gender identity is encouraged. LGBT children should enjoy safe and enabling spaces in schools, and other public and private institutions (paras 90, 111s).
Children and the right to health: The right to health of children has progressed significantly over the past few decades. Malaysia acceded to the Convention on the Rights of the Child in 1995 but still maintains reservations to core articles of the Convention, including articles 2, 7, 14, 28 (1) (a) and 37. There remain inconsistencies in the definition of the child in national legislation, both civil and sharia law. The Child Act was enacted in 2001 and the National Child Policy and the National Child Protection Policy, with its Action Plan, were introduced in 2009.Many recommendations made by the Committee on the Rights of the Child in 2007 have not been properly addressed, and important challenges remain, mainly concerning the girl child and children from disadvantaged groups, including indigenous children, children with disabilities, refugee and asylum-seeking children, undocumented migrant children and LGBT children (paras 99-101).
The Special Rapporteur underlined the lack of recognition of the right of children to holistic development as the main cross-cutting issue. The Special Rapporteur identified prevailing attitudes supporting punitive measures for children and the use of violence as a remedy, both in public and private settings. This is reinforced by national and local authorities through the use of corporal punishment in schools, often against LGBT adolescents. He sees this as a serious systemic issue with a detrimental impact on society’s physical and mental health and well-being, ranging from child-rearing practices to public decision-making when addressing social problems (paras 102, 103).
The Special Rapporteur raised the issue of bullying in schools and its detrimental impact on the right to health of children, including mental health. He was encouraged by the reaction of the authorities, acknowledging the problem and underlining their commitment to address its root causes. However, he regrets the absence of modern whole-school approaches that advocate, by educating school communities, zero tolerance of any form of violence. Instead, he had access to information indicating that the approach is of a punitive nature, offering schools the option of inviting the police to station auxiliary personnel to tackle the issue (para 104).
The Special Rapporteur recommends that Malaysia bans corporal punishment in public and private settings, and change the focus of child policies to move away from punitive approaches to promote the well-being and autonomy of children (para 111 v).
Persons with developmental and psychosocial disabilities: Although Malaysia ratified the Convention on the Rights of Persons with Disabilities in 2010, and the Mental Health Act was adopted in 2008, the Special Rapporteur was concerned that certain public policies and services are not in accordance with the Convention. This is connected to the reservations made to the Convention, which limit the application of the core principles of non-discrimination and equality. There are certain initiatives of inclusive education of children with disabilities in mainstream schools but they need further support and development. The Special Rapporteur was concerned about the high prevalence of stigmatization and discrimination of persons living with psychosocial disabilities, which makes it difficult to provide the full spectrum of effective and inclusive community-based services, including health-care services (paras 106, 107).
The Special Rapporteur recommends that Malaysia Continue developing a system of user-friendly community-based services for children and adults with developmental and psychosocial disabilities, and ensure that the rights of these persons are respected, promoted and protected in accordance with the standards set by the Convention on the Rights of Persons with Disabilities (para 111 w).
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UN Working Group on Arbitrary Detention
(A/HRC/16/47/Add.2)
Country visit: 7 June – 17 June 2010
Report published: 8 February 2011
Juvenile courts: Civil suits are heard by sessions courts. Juvenile courts try offenders under the age of 18 years. The Court of Appeal has appellate jurisdiction over high court and sessions court decisions. The Federal Court hears appeals of court of appeal decisions. A special court tries cases against the King and sultans. The military has a separate system of courts. Village head courts (Penghulu), may adjudicate minor civil matters. Syariah (sharia) Law deals with religious and family issues and is implemented at the State rather than the federal level. Muslims and ethnic Malays are bound in some matters by Islamic religious laws administered by Islamic courts. (Paragraph 10)
Immigration offenses: Persons committing offences under the immigration laws (either travelling without travel documents or committing criminal offences) are detained by the relevant authorities. However, section 8 (3) of the Immigration Act 1959/63 also sets out to determine persons categorized and prohibited from entering Malaysia. In the event, however, that such offenders are from vulnerable groups, including minors, families with minor children, pregnant women, elderly persons, persons with disabilities and other such persons, the authorities are required, on the basis of humanitarian grounds, to take all reasonable measures to treat such persons with appropriate care and attention. (Paragraph 71)
The Working Group believes that detention of migrants should be decided upon by a court of law, on a case-by-case basis, and pursuant to clearly and exhaustively defined criteria in legislation under which detention may be used. The Government should not use immigration detention for asylum-seekers, refugees and vulnerable groups of migrants, including unaccompanied minors, families with minor children, pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, or people with serious and/or chronic physical or mental health problems. (Paragraph 72)
The Working Group found a 14-year-old boy who had been in the centre since June 2008. He stated that he was born in Malaysia, although his documents indicated that he was Indonesian, as both his parents are Indonesian. He was adopted by a Malaysian family after his parents returned to Indonesia in 2006. His adoptive family had not visited him since 2009. He has no bed in his cell and was uncertain about his future. (Paragraph 82)
In Sabah, concern was also expressed at the detention of foreign children whose parents had been deported. (Paragraph 84)
The Government should also rule out detention of asylum-seekers and refugees as well as vulnerable groups of migrants, including unaccompanied minors, families with minor children, pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, people with serious and/or chronic physical or mental health problems. (Paragraph 119)
Detention of minors: In Puncak Borneo prison, opened in October 2008, there were 614 prisoners, including 48 women. Its capacity is for 1,000 prisoners. A total of 18 prisoners were on death row, although no execution has taken place in the State of Sarawak since 1998. Juvenile prisoners between 18 and 21 years old were held in a separate section. (Paragraph 58)
The Working Group observed that Pengkalan Chepa prison held 1,596 detainees: 1,133 convicted, 461 on remand, 22 on death row, 29 juvenile offenders, 102 women and 16 on parole. However, its capacity is only for 1,000 prisoners. Convicted prisoners are held in buildings A and B; those remanded in building D; building C is for juvenile offenders. In building C, there were 29 identity cards, but only 28 detainees. When the Working Group asked the guards, they claimed that the missing detainee was outside cleaning. A boy was later presented, but was clearly not the boy on the identity card. The Working Group observed that segregation cells were used not for punishment, but to provide additional security to detainees requesting it or to those with psychological disorders. (Paragraph 59)
Courts for children try offenders under the age of 18. The Working Group notes with concern the low minimum age of criminal responsibility (10 years) and the discrepancies in this regard in the Penal Code, the Sharia Criminal Procedure (Federal Territories) Act 1977 and the interpretation in the Sharia Court. It also notes with concern the long pretrial detention periods and the delays in dealing with cases involving children. (Paragraph 89)
Prisoners categorized as minor offenders should not be imprisoned but made to do community work. (Paragraph 115)
Furthermore, the Working Group recommends that the Government:
(a) Raise the minimum age of criminal responsibility to 12;
(b) Include strict time limits for completing children cases;
(c) Ensure that deprivation of liberty of children conforms fully with the Convention on the Rights of the Child and other relevant international standards. (Paragraph 116)
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UN Special Rapporteur on Myanmar to India, Indonesia, Malaysia and Thailand
Paulo Sérgio Pinheiro
(A/HRC/4/14)
Country visit: 11 February – 26 February 2006
Report published: 12 February 2007
No mention of children's rights in relation to Malaysia.
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UN Special Rapporteur on the Right to Development
2001
No official report available.
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UN Special Rapporteur on the Right to Freedom of Opinion and Expression
Mr. Abid Hussain
(E/CN.4/1999/64/Add.1)
Country visit: 20 October – 24 October 1998
Report published: 23 December 1998
No mention of children's rights.