This article is written in conjunction with Children’s Day which is celebrated on the last Saturday of October every year in Malaysia. Universal Children’s Day takes place on November 20 annually. It was established to encourage all countries to institute a day to promote mutual exchange and understanding among children and to initiate action to benefit and promote the welfare of the world’s children.
Historically, it was first celebrated worldwide in October 1953, under the sponsorship of International Union for Child Welfare in Geneva. The idea of a Universal Children’s Day was then adopted by the United Nations General Assembly in 1954.
November 20 is also the anniversary of the day when the United Nations General Assembly adopted the Declaration of the Rights of the Child in 1959. The Convention on the Rights of the Child (CRC) was then signed on the same day in 1989, which has since been ratified by 191 states.
Malaysia ratified the CRC in 1995 to uphold its commitment to the protection and welfare of her children. This was a major step for the country in particular government’s serious attempts to comply with the CRC-especially through the enactment of the Child Act in 2001. The country’s ratification however contained a number of conditions in the form of ‘reservations’ (a ‘reservation’ allows a state to disagree with a provision in a treaty) to the provisions of the CRC. These reservations were made since there were discrepancies between these CRC articles and some national and Syariah laws.
From the Malaysian Shariah laws perspective, the CRC has its own shortcomings. For example, Malaysia made seven reservations which include reservations to Art 14(1). This Article states that States shall respect the right of the child to freedom of thought, conscience, and religion and declared that the paragraph shall be interpreted in compliance with the basic foundations of the Malaysian legal system.
Current development relating to the CRC shows that a number of specific as well as general reservations have also been made by other Muslim countries.
Bangladesh and Jordan have entered similar reservations to several Articles. So far as general reservations are concerned, provision is made by, for example, Algeria, Iran, Malaysia, Djibouti, Indonesia, Iran, Kuwait and Pakistan, that they shall be bound only by those provisions of the Convention which are in conformity with Islam and the Shariah law. Egypt expressed its reservation with respect to all the clauses and provisions relating to adoption.
It is therefore of some interest to see whether any concept of universality can be attained in the light of such far sweeping reservations. Are the well known principles of the CRC incompatible with the generally understood substantive laws of the Shariah as it applies to the law of children?
Judge David Pearl commented the universality approach used by the CRC and proposed that it is best that each country “stick to their own patch”. However, some scholars feel that to protect children’s rights, universal norms need to be developed; and point to the United Nations Convention on the Rights of the Child as a good beginning. One of the reasons for this is that the CRC was the first instrument to incorporate the complete range of international human rights- including civil, cultural, economic, political and social rights as well as aspects of humanitarian law. The guiding principles of the CRC include non-discrimination; adherence to the best interests of the child; the right to life, survival and development; and the right to participate. They represent the underlying requirements for any and all rights to be realized. However, these rights are found on different basis and this is the critical point of concern especially by Muslim countries.
For example, in terms of definition of children under the CRC (defined as less than 18 years old) and the Shari’ah law, the basis of legal accountability is different. A child has no legal capacity except when he has reached the age of puberty (baligh) and it is based in effect on the Islamic principle of ‘akl (reason) which may not necessarily be 18 years old. The child acquires capacity when he reaches the age which Islamic law presumes him to have acquired ‘akl. This is different in the various schools of thought, but it would appear that the “maturity of mind” (rushd) in the context of certain transactions which enables the child a limited capacity.
As opposed to general principles of Civil law which is used in the CRC, Islamic law, as a general proposition, creates a system of steps in ascertaining legal capacity. Above certain age, when of “perfect understanding” he can participate in legal acts. However, these acts can be intervened by the guardian (wali), if this is done in the interest of the child. After the child has reached the age of majority, intervention by the wali is no longer possible.
One important issue, rightly raised by Geraldine Van Bueren, is that whereas the CRC emphasizes equality of parenting as a norm, Islamic law on the other hand has developed a series of norms whereby the responsibility for early childhood is that of the mother and after puberty by the father. Is this division of responsibility compatible with the internationally recognized norms? This issue has not been addressed well especially in the light of the high number of child abduction across borders cases.
Another important issue is the concept of illegitimacy under the CRC which is unacceptable from the Shariah law perspective. So is the concept of adoption which many Muslim States have made reservations to the CRC. Adoption is generally not acceptable to any section of Shariah law, although variants of adoption techniques have been introduced by the CRC. The Islamic variant (kafala) enables a child to be brought up in another family but without inheritance rights given to them. However, the property rights of the adopted child can be protected through other means such as hibah (gift inter-vivos).
To ensure that children’s rights are protected, many Muslim countries subscribes to a number of specifically Islamic declarations on rights of children; and reference are made to the Charter on the Rights of the Arab Child, and the Cairo Declaration on Human Rights in Islam.
Reliance on this Charter and the Cairo Declaration on Human Rights in Islam are important because the rights of children living in the Muslim world need to be protected. The limited reforms relating to children’s rights in a few Muslim countries and reliance on protection of these rights under the rather vague terminology of the few Charters and Conventions would assist Muslim countries to ensure that their children’s rights are not limited.
At the end of the day, whatever national laws, Charters and Conventions relating to protection of children’s rights, these laws, national and international, are after all, words on paper. Malfrid Grude Flekkoy, the 1st Ombudsperson for Children in Norway has rightly said that the real results of these legal documents actually depend on how they are implemented, and what is done to follow up to reach the ideals.