A study on policies and laws affecting children in Malaysia : an appraisal of the children`s best interests

Abstract

This study is designed to explore the interface between policy and law affecting children in Malaysia especially with reference to children’s best interests. This study appraises the philosophical underpinning of certain policies and strategies that had been adopted by the Malaysian government since 1957 in dealing with children’s best interests. In order to understand the relationship, qualitative method was applied. This was carried out by invoking historical approach and using secondary data. A series of government’s reports, international legal instruments, statute and case laws were parts and parcel of the secondary data. Content analysis was also carried out in order to comprehend the issue on children’s welfare that has been interpreted through judicial decisions. This study significantly proves that the existence of diverse statutes on children had prompted different understanding on child best interest principles. In terms of implementation, there is inadequate supervision from the government agencies in conducting the plans of action. This study shows that there are several factors that undermine the role of legislations and diminish the effectiveness of its implementation which include jurisdictional conflict of legal provisions and inadequacy of provisions which can penalize the non-compliance of court’s orders. The interpretation of best interests of child in the Shariah courts also does not correspond with the objectives of maqÉÎid al-SharÊÑah from Islamic point of view. A major obstacle in enforcing the best interests principle in matters pertaining to children are linked to the monitoring system that has not been established properly due to overlapping jurisdiction between different agencies in implementing the similar policy. This study implies that any proposed policy must be based on empirical research evidence and robust since the current practice of formulating social policy and legal reforms was not driven by solid empirical research. This study shows that the nexus between policy and law which affect children’s best interests is still poor as there is no comprehensive policy to protect the overall development of Malaysian children both for Muslim and non Muslim.