El Catastro de Ensenada (1752) La Respuesta General nº

The Malaysian Government ratified the CRC in 1995.132As a country that adopts the Common Law system, ratification of the CRC does not automatically make it part of Malaysian legal system. Instead, it is the duty of the Malaysian Government to incorporate the CRC into domestic law by both formulating new legislations as well as reviewing existing ones to ensure full compliance with the convention. The process of reviewing domestic law with the requirement of the CRC is not a straightforward exercise. Due to the complexity in reconciling domestic laws and national policies with the provisions of the CRC, the Malaysian Government decided to place reservations to twelve articles of the CRC after the

131_{Ibid, p 36.}

132_{Mustaffa, A. and Kamaliah, S. (2010). Evidence by Child in Criminal Proceedings in Malaysian Courts: A}

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ratification.133 In due course, some of these reservations have been gradually lifted up by the Government of Malaysia. Currently, the number of Articles which are still under reservation has been reduced to five, namely Article 2 (Non- discrimination), Article 7 (name and nationality), Article 14 (freedom of thought, conscience and religion), Article 28(1)(a) (Free and compulsory education) and Article 37 (right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment).

Nevertheless, the ratification of the CRC activated a new phase of progressive development of the Malaysian juvenile justice system. Among remarkable developments in the Malaysian Juvenile justice system after the ratification of CRC was the introduction of the Child Act 2001. It took a long process before the Child Act 2001 finally came into existence. Following the ratification of the CRC, the Government of Malaysia geared up efforts to actively focus on issues relating to the protection and welfare of children. In line with this development, the Ministry of National Unity and Community Development introduced the Malaysian National Action Plan (PINTAS) in 1997 with the aim of studying and reviewing relevant laws and policy relating to social aspects.134 Among the areas which were given main focus in PINTAS was the revision of law on protection of children. The report on PINTAS was presented to the Cabinet Committee on 15th April 1997.135 Based on the proposal made in the report on PINTAS, the cabinet committee decided that it was necessary to reform the law relating to child protection and juvenile justice. Acting on the proposal, the government formed a special committee consisting of a group of experts from various fields to revise and analyse all existing laws relating to children, particularly the Child Court Act

133

Dusuki, F.N. (2009). The UN Convention on the Rights of the Child and The Administration of Juvenile Justice: An Examination of the Legal Framework in Malaysia. Asia Law Quarterly, 1, p 142.

134_{Mohd Awal, N.A., n. 130 above, p. lxxxviii.}

135_{Majid, M.K. (2002). Akta Kanak-Kanak 2001: Cadangan Pindaan Undang-Undang Berkenaan Gejala}

Sosial. In: Jamaluddin, S.Z., Talib, N. and Mohd Yusoff, J.Z., eds., Siri Undang-Undang Mimi Kamariah: Akta Kanak-Kanak 2001. Kuala Lumpur: Penerbit Universiti Malaya, p 2.

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1947, the Women and Young Girls Protection Act 1973, and the Child Protection Act 1991.136 Based on the study, the special committee recommended to the government to enact a new comprehensive statute governing child laws. The Committee closely worked together with the Attorney General‟s Chamber of Malaysia in drafting a newly proposed Child Act. The proposed bill of the Child Act 2001 was tabled in parliament on 16th October 2000. It was passed by the parliament and gazetted on 1st March 2001. Eventually, the Child Act 2001 came into force on 1st August 2002.137

Among the main objectives of the Child Act 2001 is to streamline Malaysian juvenile justice system with the requirements of the CRC and international standards and practice. It incorporates the core principles of non-discrimination, the best interests of the child, the right to life, survival and development as well as respect for the view of the child.138 The Act repealed three previous Acts, namely the Child Courts Act 1947, the Women and Young Girls Protection Act 1973 and the Child Protection Act 1991. As far as juvenile justice matters are concerned, Part X and XI of the Child Act 2001 provide for the specific criminal process for children in conflict with the law. The act provides for the establishment of a special court for children known as the Child Court. The court has jurisdiction to try and hear various applications pertaining to children in conflict with the law. Part X of the Child Act 2001 provides provisions pertaining to criminal procedure in court for children. This part consists of four chapters which cover charge and bail and others (chapter 1), trials (chapter 2), power of the Court for children at the conclusion of the trial (chapter 3) and probation

136_{Majid, M.K. (2002). Pendekatan Undang-Undang untuk menangani Masalah Kanak-Kanak dan Remaja di}

Malaysia. In: Jamaluddin, S.Z., Talib, N. and Mohd Yusoff, J.Z., eds., Siri Undang-Undang Mimi Kamariah: Akta Kanak-Kanak 2001. Kuala Lumpur: Penerbit Universiti Malaya, p 21.

137_{Majid, M.K., n. 135 above, p 17.}

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(chapter 4). In addition, Part XI of the Child Act 2001 provides provisions relating to pre-trial process, which consists of investigation, arrest, search and seizure.

The introduction of the Child Act 2001 expressly indicated both serious effort and commitment by the Government of Malaysia to streamline Malaysian‟s juvenile justice with the standards set by the CRC. Compared to the repealed Child Court Act 1947, the Child Act 2001 laid down a better and more structured legal framework for the juvenile justice system. This effort is commendable as it has, to a certain extent, elevated Malaysian juvenile justice system to a new level. However, it does not mean that the Child Act 2001 is comprehensive as close examination of the Child Act 2001 discloses that there is still room for improvement.

In conjunction with the requirement of the CRC, the Malaysian Government submitted its first periodic report in December 2006. The Committee has thoroughly examined the initial report of Malaysia at its 1216th and 1217th meetings held on 25 January 2007. As a response, the Committee on the CRC issued its concluding observation which, inter alia, contains comments and suggestions for the improvement of the Malaysian juvenile justice system.139 While acknowledging positive measures taken by the Government of Malaysia to comply with the international standards regarding juvenile justice, the Committee has made the following recommendations:

(a) Urgently raise the minimum age of criminal responsibility at least to the age of twelve and continue to increase it to a higher age level;

(b) Develop and implement a comprehensive system of alternative measures to deprivation of liberty, such as probation, community service orders and suspended sentences, in order to ensure that deprivation of liberty is used only as a measure of last resort;

139_{Committee on the Rights of the Child, Concluding observations: Malaysia, UN Doc. CRC/C/MYS /CO/1, 2}

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(c) Amend the existing laws, including the Child Act 2001 (Act 611), in order to ensure that the deprivation of liberty is in full conformity with articles 37 and 40 of the Convention and take the necessary measures, for example suspended sentencing and early release. This is to ensure that deprivation of liberty is limited to the shortest time possible;

(d) Take efficient legislative and administrative measures to abolish delays in the disposal of cases involving children;

(e) Encourage and promote the positive involvement of the media in the reporting on children in conflict with the law and ensure that the media fully respect the right of the child to privacy;

(f) Seek technical assistance from the United Nations Interagency Panel on Child Justice, which includes the United Nations Office on Drugs and Crime (UNODC), the United Nations Children‟s Fund (UNICEF), the United Nations High Commissioner for Human Rights (OHCHR) and non-governmental organizations (NGO).140

The observation report by the Committee on the CRC deliberately highlights various aspects of Malaysian law which still do not measure up with the requirements of the CRC. It conveys a serious message that more progressive measures and actions need to be taken by the Government of Malaysia to ensure that that the current juvenile justice framework complies with the CRC‟s requirements. The report also points out the shortcomings of the governing statute on Malaysian child law, the Child Act 2001, in providing comprehensive provisions on various aspects of juvenile justice. Therefore, it is crucial for the Government of Malaysia to re-evaluate the current legal framework on juvenile justice and reform it accordingly.

140

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