DEVELOPMENT OF

CHILD LAW IN
MALAYSIA

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FOUR SIGNIFICANT PHASES IN DEVELOPMENT

Malayan Union - •Children & Young Persons (Employment) Act

1966
Independence •Women & Girls Protection Act 1973
2001 - Current
•Children Enactment of the FMS
1922 (1946-1957) •Childcare Centres Act 1984
•Children Ordinance of the SS 1927 •Children & Young Persons •Child Protection Act 1991 •Child Act 2001
•Children Enactment of Johor 1932 Ordinance/Act 1947 •Evidence of Child Witness Act
•Children Enactment of Kedah •Juvenile Courts Ordinance/ Act 2007
1947 •Child (Amendment) Act 2016
•Children & Young Persons
(Employment) (Amendment) Act
2017
Pre Malayan Union Post-Independence •Sexual Offences against Child Act
2017
(before 1946) (1957- 2001 )

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Pre Malayan Union (before 1946)
•There was a multiplicity of laws affecting
children prior the Malayan Union

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Pre Malayan Union period
Children Enactment 1922 of the Federated Malay States

Children Ordinance of the Straits Settlement 1927

Children Enactment of Johor 1932

Children Enactment of Kedah

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Pre Malayan Union period
• Unfortunately, however, no records are available as to what had prompted the
passing of these laws.
• From the general literature on the development of the Malaysian law, it can be
deduced that acceptance of these laws was mostly due to the Malaya being to
subject to colonial rule, as opposed to having specific needs for such laws,
although necessary modifications were made to suit local conditions.
• Apart from slight differences in the wording and order of the provisions, there
appears to be no substantial difference between these Acts
• The two main issues dealt by these laws were the prevention of cruelty to children
and the conditions for the employment of children and young persons

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 Pre Malayan Union period
• Accordingly, from 1922, it was an offence for a person over the age of 14 to wilfully assault,
ill-treat, abandon or expose the child to danger over whom he has a responsibility
• The Children Enactment 1932 and the Children Enactment 1922 had an additional
provision to protect children who were infected with vermin or were found in a foul or
filthy position.
• The reason for this provision may be that in 1922, the general level of knowledge in
childcare among poor mothers were limited, and without proper hygiene and care, the
children, babies in particular, were more exposed to diseases associated with lack of
hygiene
• The parent or guardian of such child could be ordered to cleanse the person and provide
clothing for the child within twenty-four hours failing which a medical officer or a
person in authority could remove the child for cleansing purposes
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 Pre-Malayan Union

• Since 1922 it was an offence for a person over the age of 14 to wilfully assault, ill-
Abuse and treat, abandon or expose the child to danger over whom he has a responsibility
Neglect • Additional provision to protect children who were infected with vermin or were found
in a foul or filthy condition

• Minimum age for any child to be engaged in any kind of labour was 7 years old
Working Children • Labour Codes

• Protection of women and girls

• “MuiTsai” practice of giving girls to another family for a sum of family for want of a better living-
Other domestic help
legislation • Age of majority
• Adoption /guardianship of children
• Youthful offenders ( though limited)

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 • It has been noted that state acceptance of responsibility for
welfare dates from the immediate post-war era
• The aftermath of the Second World War or more specifically the
Japanese Occupation in Malaya followed closely by the impetus in
economic development in many countries, resulted in an
explosion of a wide range of complex social problems.
• The necessary organisation and resources to handle the situation
clearly then became the government’s responsibility.
Malayan Union • The Department of Welfare came to be established in 1946.
- Independence • Prior to this period there was no literature evidence nor police or
court records available to suggest of any serious problem relating
to juvenile delinquency
(1946-1957)

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Post Japanese Occupation
• Totally changed the social situation affection particularly children and young
persons.
• Juvenile delinquency was the natural consequence of breakdowns in family unit;
poverty; lack of parental supervision during the challenging period and closure of
schools.
• Records indicated that in a span of 4 months (April-July 1946), there was 12% of
juvenile cases at the District Courts and 10% at the Magistrates Courts. The
highest was 23% recorded at the Penang District Court.
• Data at the District Courts indicated the ratio of 3 Chinese to 1 Indian and 1 Malay.

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2 Main Issues:

Conditions
Juvenile for
Delinquency employment
of children

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Malayan Union - Independence (1946-
1957): 2 committees established
The Committee on the
The Committee on
Employment of
Juvenile Delinquency
Children and Young
and Juvenile Welfare
Persons

The Children and The Juvenile

Young Persons Courts Ordinance
Ordinance 1947 1947

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The Committee on the Employment of
Children and Young Persons
• The Committee, chaired by the Attorney-General, was formed
on 16th September, 1946, “to consider and make
recommendations as to the form of legislation necessary and/or
as to which provisions of the existing laws should be amended or
repealed.”
• It was found that “the legislation affecting children and young
persons in the territories comprised in the Malayan Union consists
of upwards of thirty-two Ordinances and Enactments, together
with rules and regulations made under those Ordinances or
Enactments.”

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 The Committee conceded that:
• "until adequate schools can be supplied for the whole child population of the
country and until education can be made compulsory, there is a certain danger in
prohibiting the employment of older children. Idleness is apt to breed vice and
crime and, at a time when we have a distressing problem of juvenile
delinquency and hawking and begging to combat, it would be unwise and
against the interests of the children themselves to prohibit employment for all
children under, say, fourteen and to risk turning a number of them into idlers
and hooligans. The age of twelve however, is not immutable. It is a matter which
should be kept under review and, as recommended by the International Labour
Office, the age should be raised progressively with the school leaving age when
this becomes practicable.”

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The Children and Young Persons Ordinance 1947

• cruelty to, or neglect or abandonment of, children, destitute children,

• minimum ages of employment, conditions of employment, hours of work,
sweated labour, children in public entertainments,
• female children under 14 living apart from their natural parents or
guardians, trafficking in children, importation of children by false
pretences, and the provision of places of safety for children
• Bulk of it was the employment of children

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• The previous minimum age, for children to be employed was raised from seven to
eight in the 1947 Ordinance
• A child below 12 was only allowed to work in agricultural or horticultural light work
carried out collectively by the local community, or light work of a domestic
character in the household of the natural parent or his legal guardian
• With regard to cruelty to children, the Ordinance concentrated on the after-event
measures of child protection
• Preventive measures such as support system for families in need were not dealt
with in the legislation at all. The inadequate provisions on protection on children
from abuse seemed rather intentional, as is evident from the Report of the
Committee itself, which clearly emphasised on the regulation of children under
employment

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The Committee on Juvenile Delinquency and
Juvenile Welfare
• The Committee was appointed on 18th November 1946 to "make recommendations
to Government on the legislative and other action required to deal with Juvenile
Delinquency and the steps necessary in the interests of Juvenile Welfare in the
Malayan Union.“
• Unlike the employment of children, which had a duplicate set of laws regulating it,
there was no law dealing with juvenile delinquency as it only first appeared as
a problem in the few years preceding the Japanese occupation.
• Courts were faced with challenges in the absence of relevant facilities and no law
in relation to juveniles.
• The proposals in the report were taken up in the form of a new legislation, The
Juvenile Courts Ordinance 1947

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“9 of 10 cases resulted from depravation &
environment and not from innate desire to
commit crimes”
Gang
Crimes

“basket- “spot the

lifting” lady”

Types of
offences

House “pick-
breaking pockets”

Bicycle
theft
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The Committee suggested a list of encouraging
recommendations:

• Establishment of youth organisations such as youth hostels; clubs; Scouts and

Brigades; Juvenile Welfare Committees in every states; Juvenile Court; Men’s
Service Leagues to assist in juvenile issues; Probation System; Remand Detention
Centres and Approved Schools.
• These were lessons obtained from England and Wales and discussions were made
based on the suitability of the Malayan Union context
• The suggestions were duly adopted both administratively with the establishment
of necessary institutions and statutorily in the form of the Juvenile Courts
Ordinance 1947.

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The Juvenile Courts Ordinance 1947

• First statute to deal exclusively with children who come into conflict
with the law due to the aftermath of Japanese Occupation
• The court was to hear cases involving children (10 to below 14) and
young persons (14- below 18 years old)
• Established the Juvenile Court which forms the basic structure of the
current Court for Children
• Institutions to cater for the special needs of children were established
contemporaneously
• Established a proper probation system.
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The Juvenile Court
Jurisdiction over children &
young persons

Who come Who are

into conflict Beyond
with the law Cntrol
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Jurisdiction of Juvenile Court
Children /Young Persons who Children/Young Persons Beyond
Come into Conflict with the law Control
• Children /Young Persons who have • Children /Young Persons whose
attained the age of criminal parents or guardian proves that they
responsibility under s 82 Penal Code = cannot control them and the Court
10 years old finds it expedient for the State to
take over the care of the child/young
• All offences except offences person
punishable by death
• May be sent to an approved school or
• May be ordered under the variety of designated institution
disposal orders available in the JCO

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MUCH OF THE CONTENTS OF THE
JCO/JCA MAKE UP THE RELEVANT
PART OF THE
CHILD ACT 2001

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ISSUE WITH GIRLS
EXPOSED TO
MORAL HARM
This problem emerged much earlier in the 1800s

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Many issues affected girls and young
women – prostitution
• The Contagious Diseases Ordinance 1870
• Women and Girls Protection Ordinance 1888-1896
• Women and Girls Protection Enactment/Ordinance 1914
• Women and Girls Protection Act 1973

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AFFECTED WOMEN
AND GIRLS
Were relocated to Places of Refuge

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Post-Independence (1957- 2002 :Child
Act 2001)
• The Children and Young Persons
Working Children (Employment) Act 1966

Protection of • Protection of Women and Girls Act 1973

Women and GIrls
Regulation of • Child Care Centres Act 1984
Nurseries
Child Abuse and • Child Protection Act 1991
Neglect
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 Post-Independence - 2002 :Child Act
2001) (1957- 2002 )
i. The Children and Young Persons (Employment) Act 1966
• This Act was passed to regulate children joining the workforce
• Prior to the 1966 Act, legal provisions relating to this matter were contained in two separate laws:
The Children and Young Persons Ordinance 1947 and The Employment Ordinance 1955.
• By repealing the provision on minimum age provided in the 1947 Act, and not specifying any
minimum age for the employment of children, it appears that the present Act has, in effect,
regressed
• This Act, rather than forbidding children from working, only operates to regulate the conditions
under which children work. Even so, it has not been effective as implementation is lax.

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ii) Regulation of Nurseries
(

• The need to have proper regulations for the administration and regulation of
nurseries and child care centres had been prompted by the increase of women
joining the workforce during early 1980s
• For instance, the participation rate of women increased from 38.9% in 1970 to
42.2% in 1980
• From 1970 to 1980 the number of working women increased from 1 million to 1.5
million whilst the number of children below the age of four increased from 1.6 to
1.8 million

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 (iii) Child Abuse and Neglect

• Until as recently as the 1980s, child abuse was not generally recognised as a social
problem in Malaysia, although ironically, there was a law specifically on this dating from
1922- the Children Enactment.
• The adoption of the Children Enactment 1922 was part of the ‘package’ of the colonial
rule, introducing a whole set of laws into its colony without much consideration of its
specific utility
• The first scientific reported analysis of child abuse in Malaysia (comprising a study of just
11 cases) was published in a local medical journal in 1974.
• The first study to determine the incidence of and social factors associated with child
abuse in an urban population in Malaysian was undertaken in 1980 and published in an
international journal
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iii) Child Abuse and Neglect
• An Intervention Committee Towards Child Abuse and Neglect was established in
1985 to identify issues in relation to the problem & to draft a specific legislation to
regulate it.
• (Note: It was only 7 years later a nationwide study was conducted by the Social
Welfare Department and sponsored by UNICEF, to study the extent of the
problem – in 1992 – AFTER the CPA 1991 was passed)
• The first Suspected Child Abuse and Neglect (SCAN) Team was established in 1984
at the Paediatric Unit, Hospital Kuala Lumpur.
• Effort to draft a new Bill began in 1985 but efforts to actually pass it in Parliament
was slow, until the case of Balasundram took place

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Child Protection Act 1991 (repealed by the
Child Act 2001 – effectively 1 Aug 2002)
• Within a year and a half, the Parliament passed the now repealed Child Protection
Act 1991, the first comprehensive law to govern parental misconduct
• contained advanced innovations in combating the problem of child abuse
• It recognised child abuse, in its different forms as a specific offence and allowed
for immediate intervention
• More importantly, it recognised the importance of inter-agency collaboration in
child protection work, by stipulating the establishment of a Co-Ordinating Council
for Child Protection at the policy-making level and making it mandatory to meet
four times annually

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Child Protection Act 1991 (repealed by the
Child Act 2001 – effectively 1 Aug 2002)
• It promoted inter-agency collaboration by specifically providing the required
mechanisms to carry-out the necessary inter-agency plan
• Notably there was now the provision for a central Registrar and Register of
Children in need of protection
• The maintenance of a nation-wide central registry of reported information in child
abuse cases is, in the opinion of many physicians and social workers, an important
part of a programme designed to deal with child abuse
• There was also the Child Protection Team, a multi-disciplinary forum supposed to
be created at every district level, whose function was not only to assist the
Department in carrying out its protection plans but also to provide assistance to
families with children

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Child Protection Act 1991 (repealed by the
Child Act 2001 – effectively 1 Aug 2002)
• To encourage identification and referral of cases , the mandatory reporting or
informing by the medical practitioners upon suspicion of cases of child abuse and
neglect was imposed
• Although the 1991 Act actually established an advanced system for preventing and
managing cases of abuse and neglect, actual implementation and enforcement
was sadly, rather poor

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• A Working Committee on the Study and Enactment of Legislation Regulating
Social Problems was then established with the then Education Minister himself,
Dato’ Seri Najib as the chairman.
• The idea was mooted owing to the increasing disciplinary cases affecting children
and adolescents
• A team of consultants from the University of Malaya, headed by the late Prof Dato
Mimi Kamariah Majid, prepared a preliminary draft on the Bill for the Ministry of
National Unity and Social Development
• Three months after this, a workshop was conducted by the Malaysian Prevention
of Crime Foundation, with the primary intent of getting feedback from non-
governmental associations on the proposed legal changes drawn by the
committee

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• Initially the committee looked into the four Acts regulating children’s welfare, but
upon deliberation found that the Child Care Centres Act 1984 was merely
regulatory in nature hence was excluded from amendment and consolidation
• It was found that there were overlapping provisions in those three Acts thus the
idea came to consolidate them into a single bill called the Child Bill
• The Bill was subsequently vetted by the Attorney-General’s Chambers and tabled
in Parliament.
• In October 1999, the Child Bill 1999 was approved by the Dewan Rakyat (House of
Commons) However, the Bill lapsed before it could be tabled before the Dewan
Negara (Senate House) upon the dissolution of Parliament on November 11 1999.,
to make way for general election to be held on November 27 1999.

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Later development….
• In late 1997, the Government announced that a new Act on children was being
drafted for the purpose of consolidating the three Acts enforced for the protection
of children namely:
❑The Child Protection Act 1991

❑The Women and Girls’ Protection Act 1973

❑The Juvenile Courts Act 1947

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CHILD BILL 2001

JUVENILE
COURTS ACT 1947

CHILD
BILL
2001
WOMEN &
CHILD
GIRLS
PROTECTION
PROTECTION
ACT 1991
ACT 1973

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• The Child Bill, albeit with some minor modifications made, was re-tabled in
Parliament
• It was subsequently approved by the Senate House on December 18 2000 and
received Royal Assent on February 15 2001
• The Child Act was published in the Gazette on March 1 2001 as Act 611 and came
into force on August 1 2002.

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The CHILD ACT 2001 seeks to protect children in the following
categories:

PROTECTION & CARE

IN CONFLICT WITH PROTECTION &

THE LAW REHABILITATION

ABDUCTED
& BEYOND CONTROL

TRAFFICKED
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OTHER RELATED LAWS
• EDUCATION ACT 1996
• LAW REFORM MARRIAGE AND DIVORCE ACT 1976
• ADOPTION ACT / REGISTRATION OF ADOPTION ACT
• GUARDIANSHIP OF INFANTS ACT 1961
• AGE OF MAJORITY ACT
• ANTI TRAFFICKING IN PERSONS AND SMUGGLING OF MIGRANTS ACT 2007 (ATIPSOM)
• PROTECTION OF CHILD WITNESS ACT 2007
• SEXUAL OFFENCES AGAINST CHILDREN ACT 2017
• CHILD (AMENDMENT) ACT 2016

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Protection of Child Witness Act 2007
• To protect any child who has to be a witness aged 16 and below
• Mechanisms provided to facilitate the process of giving evidence

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 CHILDREN AND YOUNG
PERSONS (EMPLOYMENT)
AMENDMENT ACT 2010 & 2018

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CHILD (AMENDMENT)
ACT 2016

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SUBSTANTIAL REVISIONS &
AMENDMENTS WERE MADE
A New Concept is Introduced

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FAMILY BASED CARE

Children will be placed in family-based care for the following categories of

children:
1. in need of protection & care;
2. in need of protection & rehabilitation
3. beyond control

NON-APPLICABLE FOR CHILDREN WHO ARE IN CONFLICT WITH THE LAW

AND IN NEED OF IMMEDIATE PROTECTION

Children will be placed in family-based care UNLESS placement in

institutions will be in the best interest of such children

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FAMILY-BASED CARE

1. Mother / Father /Guardian

2. In the care of a Fit and Proper Person

3. In the care of Foster Parents

4. Centre

5. Institution (place of safety, shelter and probation hostels)

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 SEXUAL OFFENCES
AGAINST CHILDREN
ACT 2017
Created specific sexual offences against children : child pornography; child
grooming; sexual assault against children

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