Malaysia’s Child Act and the UN Convention on the Rights of the Child (Part 1)

Vivian decided to participate in a Children’s Right Colloquium held by her law school this month. Here, she shares what she learnt.

“Because every child in the world has something in common. Their rights.” — Convention on the Rights of the Child.

Every child has their rights recognised under the United Nations Convention on the Rights of the Child (commonly abbreviated as UNCRC or CRC). The CRC defines a human being as ‘child’ so long as he or she is under the age of eighteen (unless an earlier age of majority is recognised by a country’s law), including human beings at the foetal stage.

The CRC is an international human rights treaty. It has been ratified by 194 countries across the globe. The ratification of the CRC obliges states to adopt a different approach from their domestic common law. Prior to this, children were treated as chattels and possessions in the court of law.

Malaysia is one of the 194 countries that have ratified the Convention in 1995, and by this ratification, Malaysia is bound by it. This was Malaysia’s first few steps towards upholding the protection of rights and welfare of children. Through this, the Child Act 2001 was legislated, aiming to protect children in Malaysia.

Source: http://www.flickriver.com/photos/paulcowell/sets/72157608604126014/

Source: http://www.flickriver.com/photos/paulcowell/sets/72157608604126014/

The Child Act 2001 imposes severe punishments for child trafficking, abuse, molestation, neglect, and abandonment. It also mandates the formation of children’s courts.

After the ratifications, changes have been made, and the effects of it protecting the legal interests of children have been far-reaching. For example, incest has been criminalised by the Penal Code (Act 574), while the Domestic Violence Act 1994 (Act 521) protects the child against violence within the family. The number of children dying before the age of five is also reduced, girls’ education is accelerated, and there is an increase in access to education for children living in remote parts of the country. Primary school education was also made compulsory in 2002 to ensure increased school enrolment and completion.

In addition, the Federal Constitution of Malaysia also sets out basic fundamental human rights like liberty of the person (Article 5); prohibition of slavery and forced labour (Article 6); and rights in respect of education (Article 12). These human rights extend also to children.

Therefore it is undeniably seen that children rights are upheld by the laws of our country. At least on paper, that is. Why then, even after ratification and emphasis on children’s rights, are children still being harmed in so many ways and their rights neglected?

In our country, around 20% of the yearly national budget is allocated to education, which is provided free for children through age 17. As recently as 25 June 2010, it was reported that the Permata programme focuses on early childhood education and care for children aged between one and five whose parents earn below RM 1,500 and who live in rural areas.

However, 90% of Tamil school children do not get to attend preschool because of poverty and Permata does not set up kindergartens in Indian neighborhoods, or allow Indian children into these kindergartens. Arising out of this, 42% of standard one pupils in Tamil schools cannot read and write at all because they did not attend kindergarten.

How is this possible after the ratification of the CRC, which had emphasised on the right to education in Article 28(1)?

Allow me to quote the famous and often mention aphorism, “Not only must Justice be done; it must also be seen to be done.” Fairness and justice for children in relation to their right to education must not merely only be in writing and documented, but must also be seen to be done. Unfortunately, no action is brought against countries that do not follow international treaties.

Vivian Kuan is a person that never lets anyone tell her she can’t do something. She channels her time and energy only to what she loves in life. Thus, she chose to read law and is currently in her second year. Other than burying her head in law books, she loves to dance, play the piano and write songs. And she never says no to food. She has a heart for people; hence she finds joy in making a difference in the lives of others. She always believes she can do anything, which sometimes gets her into crazy situations, but that belief gets her through. She’s always wanted to be a part of something bigger in life.

Stay tuned for Part 2, where the ambiguity of the Child Act 2001 will be addressed, and discover that Malaysia is not fully adopting the CRC because it is incompatible with Syariah Laws.


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5 Responses to Malaysia’s Child Act and the UN Convention on the Rights of the Child (Part 1)

  1. Adriene

    hello Vivian, reading your article for research :D

  2. The Worried Student: Many thanks for the noting on Article 28's reservation. Yup it is really a shame how the International Division of the AG’s chambers can be ever that shallow. They don't realise how important education is – to bring the refugees/stateless out from the cycle of poverty and being marginalised.

    They do not realise that if they provide education, at least they can control the perpetual increase of the refugees, thus eliminating the numbers and hence, the problems. I strongly believe education is one of the ways we pull the problems out from its roots.

    Lacuna: Yup Children Rights would only remain as a right on paper. And yes, it is up to the children to exercise it. However some children are not aware they have these kind of rights. Which is really sad – like when they are abused sexually and are told its because they are love. They begin to accept the sexual abuse and think maybe thats the way love is supposed to be. They do not know if it is wrong, what more the knowledge about their rights. So it is up to us, because we know what is right and wrong, and what are their rights. So that we can stand up for their rights when they are incapable of doing so, to be an advocate for children.

    Which I believe you are one; well you certainly sound like one. =) I absolutely agree that the law should reflect the rapidness of how children mature and should be treated as responsible individuals at earlier age.

    Thank you for your comment. It is indeed food for thought.

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  4. Lacuna

    Vivian:

    I think that the law should reflect a consistent school of thought as to how fast children mature.

    For example:

    s.96(2) Child Act 2001– child aged 14 years or above shall not be ordered to be imprisoned if can be dealt with probation etc.

    s.14 Child Act 2001– May order detention in approved school or Henry Gurney School beyond 18 years of age up to 21.

    s.113 Evidence Act 1950– irrebuttable presumption that a boy under 13 years of age cannot commit rape

    On the other hand, people are fighting to reduce voting age to 18 (one of Bersih 2.0 ideal goals) because they think that children mature faster these days and should be treated like any other adults.

    My opinion is that children should be treated as responsible agents for themselves at earlier age. Not having the opportunity for preschool is no deterrence for them to excel in studies. It is just like the additional tuition that a rich could afford, but the poor could do without.

    Likewise, although you're still at an age (borderline =p) eligible for s. 14 Child Act 2001 to be applicable, you're already writing great, influential articles.

    As mentioned in your article, children rights are already upheld by the law. It's not anyone's fault that children rights remain on paper. It is a "right" after all. It is up to the children to exercise them. Just like how all of us Malaysians are eligible to vote when we're 21, at least on paper. Whether or not we exercise that right is a whole different story. Their responsibility on education at their age is akin to our responsibility to our country at ours.

  5. Vivian, good piece! But i believe that Malaysia has expressed reservation to Article 28 of the CRC. That is one reason why many are not receiving proper education.

    Children without birth certificates will easily be turned away from schools. Therefore, the stateless/refugees/undocumented children face most risk.

    Someone from the International Division of the AG's chambers once said that the politicians view it this way, to the same effect : "If i get them to school, are they going to vote for me? No right? Because they cant, theyre not documented and neither are they Malaysian."

    The ministry's justification is that education here is not provided literally and completely for "free" anyway, so Malaysia cannot ratify this Article.

    Shame.