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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 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: 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: 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: Case Law Case Law Research Compliance with the CRC In depth analysis 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
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.
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.
CRC Jurisprudence
Please contact CRIN if you are aware of any national cases that reference the Convention on the Rights of the Child.
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).
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.
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.
Please contact CRIN if you are aware of any current legal reform projects.