Muslim states and the implementation of the convention on the rights of the child: with special reference to Malaysia

• Main Author: Hamid, Abdul Ghafur@Khin Maung Sein
• Format: Book Chapter
• Language: English
• Published: Brill: Martinus Nijhoff Publishers 2013
• Subjects: KZ Law of Nations
• Online Access: http://irep.iium.edu.my/33365/1/1.pdf; http://irep.iium.edu.my/33365/; http://www.brill.com/islam-and-international-law

The Convention on the Rights of the Child (CRC)1 is the most widely adopted international human rights treaty of the time, and almost all Muslim States are parties to the treaty. This contribution seeks to examine the issues and challenges that Muslim States are faced with in the imple­ mentation of the CRC. It first reviews the various reservations entered by Muslim States and distinguishes between those based on Islamic law (Sharī‘ah) and those based on domestic laws or national policies of the State concerned. The article then examines whether Islamic law is the main obstacle to an effective implementation of the CRC by Muslim States. The obser­ vation is made on the basis of the three alleged hard­core problems: Non­ discrimination, freedom of religion, and adoption. I will argue that most provisions of Islamic law are either consistent with or even contribute to children’s rights under the Convention and that while there are tensions between the two in certain areas, they are reconcilable. Special emphasis is placed on the Malaysian experience in the imple­ mentation of the Convention. Malaysia does not rely on Islamic law, but instead invokes domestic laws and national policies to enter reservations. There is a fundamental principle of treaty law to the effect that having contrary domestic laws is not a justification for a State not to comply with an international convention. As a result, it is recommended that Malaysia should consider withdrawing all the remaining reservations to the CRC, improving its national legal framework for the protection of the rights of the child, and acceding to the other human rights related international conventions.