MALAYSIA: National Laws

Summary: General overview of Malaysia's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law
In Malaysian law, ratified treaties must be incorporated into national law by an Act of Parliament in order to be directly applicable in the courts. The Convention on the Rights of the Child has not been incorporated in this manner, meaning that national law takes precedence over any conflicting provisions in the CRC.  Nevertheless, the courts have shown a willingness to interpret national law in conformity with international obligations such as those under the Convention. 

Constitution: Part II of the Constitution of Malaysia contains a number of rights provisions that apply regardless of age, but only one that makes specific reference to the rights of children. In addition, a small number of provisions throughout the rest of the Constitution make specific references to children:

  • Part II, Art. 12(2): allows for the establishment of religious schools and prevents discrimination on the grounds of religion in relation to such institutions
  • Part III, Ch. 2, Art. 26A: provides that should a person renounce his or her citizenship, he or she also renounces that of any children under the age of 21
  • Second Schedule, Part III, Art. 18: defines "child" as including adopted children
  • Second Schedule, Part III, Art. 19B: provides that a newborn child found abandoned shall be presumed to be the child of a mother permanently resident in the place where the child is found

Legislation: Malaysia passed the Child Act 2001 as comprehensive implementing legislation for the CRC. Nevertheless, there is a substantial amount of additional legislation relevant to the rights of children including, but by no means limited to:

  • Child Act 2001 (Act 611)
  • Islamic Family Law Act (Federal Territories) 1984
  • Penal Code (Act 574)
  • Syariah Court (Criminal Jurisdiction) Act 1965 (Act 355)
  • Domestic Violence Act 1994 (Act 521)
  • Age of Majority Act 1971 (Act 21)
  • Children and Young Persons (Employment) Act 1966 (Act 350)
  • Education Act 1996 (Act 550)
  • Child Centres Act 1993 (Act 506)
  • Adoption Act 1952 (Act 257)
  • Guardianship of Infants Act 1961 (Act 351)
  • Human Rights Commission of Malaysia Act 1999 (Act 597)
  • Law Reform (Marriage and Divorce) Act 1976 (Act 164)
  • Married Women and Children (Maintenance) Act 1950 (Act 263)
  • Immigration Act 1956/63 (Act 155)

It should be noted that Malaysia operates a dual system of civil and Islamic law and, as such, different legislation may apply to Muslim children as opposed to non-Muslim children.

Legal Research:
The Malaysian Parliament (Parlimen) maintains an official website in English and Malay (http://www.parlimen.gov.my/index.php) that publishes pending and approved legislation. The Commonwealth Legal Information Institute maintains a database of Malaysian legislation in English (http://www.commonlii.org/my/legis/consol_act/), and the International Labour Organisation's NATLEX database has also published a selection of Malaysian legislation in English and Malay (www.ilo.org/dyn/natlex/natlex_browse.country?p_lang=en&p_country=MYS).  In addition, the GlobaLex initiative at New York University has published a guide to legal research in Malaysia (http://www.nyulawglobal.org/Globalex/Malaysia1.htm) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/malaysia.php) and the World Legal Information Institute (http://www.worldlii.org/catalog/235.html) provide links to a variety of legal and governmental resources.

Case Law
CRC Jurisprudence

Please contact CRIN if you are aware of any national cases that reference the Convention on the Rights of the Child.

Case Law Research
The Commonwealth Legal Information Institute publishes the case law of the Malaysian Court of Appeal (http://www.commonlii.org/my/cases/MYCA/), Federal Court (http://www.commonlii.org/my/cases/MYFC/), and High Court (http://www.commonlii.org/my/cases/MYMHC/), as well as the High Court of Sabah and Sarawak (http://www.commonlii.org/my/cases/MYSSHC/). The judiciary of Malaysia also maintains an official website with legal resources in Malay with limited information in English (http://www.kehakiman.gov.my/?q=en).

Compliance with the CRC
In its 2007 Concluding Observations, the Committee on the Rights of the Child expressed concern at the potentially inconsistent treatment of children that could arise from the dual legal system that operates in Malaysia. The Committee noted that Syariah law applies to Muslims while civil law applies to non-Muslims, and that the two legal systems could result in uncertainty among families of mixed religious background and potentially unequal levels of protection for children of different backgrounds.

In depth analysis
A number of areas of Malaysian law emerged from the Committee on the Rights of the Child's 2007 Concluding Observations as containing substantial incompatibilities with the CRC. Among the most fundamental concerns expressed by the Committee was the unclear and inconsistent definition of a child within national law. The definition of who constitutes a child varies between civil law and Syariah law as well as between employment legislation and the Child Act 2001. The Committee recommended that the State harmonise all relevant law so as to eliminate inconsistencies and contradictions.

The Committee also considered that substantial aspects of the juvenile justice system were incompatible with the Convention. Specifically, the Committee expressed concern at the young age of criminal responsibility (10 years), the discrepancies between minimum age standards under the Penal Code and Syariah law, lengthy periods of pre-trial detention for children accused of crimes and the practice of indeterminate sentences. As such, the Committee recommended amending national laws and practices to address these concerns and bring national law in conformity with the Convention as well as ensuring that deprivation of liberty is only used as a measure of last resort and for the shortest period possible. In a related area, the Committee was highly critical of the use of criminal justice measures in "street cleaning operations" in which children have been unlawfully arrested and detained on the basis that they live on the streets.

Several areas of the law were also highlighted with regards to the absence of relevant legislation. The Committee raised concern over the absence of a law on internet offences such as child pornography, noted that there was no law to specifically address the plight of refugee children as opposed to child immigrants, and recommended that the State legislate to fill these voids in national law. The Committee also noted the absence of a law addressing the trafficking of children, particularly given the widespread nature of the practice. The Anti-Trafficking in Persons Act has since been enacted, but the Committee is yet to examine it for compatibility with the Convention.

Current legal reform projects
Please contact CRIN if you are aware of any current legal reform projects.

Countries

Please note that these reports are hosted by CRIN as a resource for Child Rights campaigners, researchers and other interested parties. Unless otherwise stated, they are not the work of CRIN and their inclusion in our database does not necessarily signify endorsement or agreement with their content by CRIN.