Introduction:
In 2018, a total of 1,856 children under the age of 18 were involved in marriages [1]. To make this statistic more gut-wrenching, the Women, Family and Community Development Ministry have acknowledged that this number could be smaller than the actual number of child marriages, attributed to the variation in the collection of data by different agencies such as the National Registration Department and the Syariah Judiciary Department Malaysia, given the different definitions of a child that exists in the law and the different definitions of marriage.
This article will tackle the social issue of child marriage, providing a perspective from the legal standpoint and explaining the legal ramifications of current child marriage laws in Malaysia.
The Current Law:
For non-Muslims, marriage is governed by The Law Reform (Marriage and Divorce) Act 1976. As per s.12(1) of The Act, the minimum age with parental consent for both males and females is 18. However, girls aged 16-17 are allowed to get married with the state’s Chief Minister or Menteri Besar (s.10) permission after obtaining a license as such in s.21(2).
The Act does not apply to Muslims as stated in s.3(3) of The Act. Muslim marriages or marriages under Islamic Law are governed by the Islamic Family Law (Federal Territory) Act 1984. Here, the minimum age of marriage for males is 18 while the minimum age for females is 16. However, provided that a Syariah judge approves of the marriage, the minimum age requirement can be disregarded as per s.8.
Issues with the Current Law:
The first major issue with the law is that Malaysia has not provided structures to ensure the integrity and safety of the processes. To illustrate, let us consider how Syariah Courts grant permission for child marriage. The judges have total discretion and are free to apply their personal understanding of Islamic principles when deciding if permission should be granted. One of these arbitrary factors taken into consideration is whether the girl shows physical signs of puberty. Judges are not made to follow provisions of the Child Act, or any set of guidelines but are instead free to consider any factors they see fit. While this does not mean that judges will make inherently bad choices, it does clearly show a lack of standardised procedure for the shariah court to grant permission to marry.
Furthermore, the exception allowing child marriage under Islamic law is problematic in that it does not impose an absolute minimum age. There is, therefore, no limitation as to how young a Muslim bride or groom may be, so long as the marriage has the approval of a Syariah judge (which, as pointed out above, is entirely up to the judge’s discretion). To emphasise how dangerous this is, a child as young as 12 could be married legally to a man of any age. This issue is made even worse by the blatant manipulation of the legal system. In April 2016, the senior judicial director of the Department of Syariah Judiciary, Mohd Nadzri Abd Rahman, revealed that there were 10,240 child marriage applications between 2005 to 2015, adding that irresponsible parents (in this case, fathers) were manipulating the legal system to have their underage daughters married to cover up instances of rape within the family [2].
The combination of factors here – an unstructured and loose system alongside an utter lack of statutory protection has created an abhorrent situation where child marriage is easily accepted within the legal system. Proof of this is statistically available; an analysis of case files from the shariah courts of seven states from 2012 to 2016 revealed that of 2,143 applications for child marriage, only 10 were rejected [3]. As it stands, there are efforts towards increasing the minimum marriage age at 18 years old. In 2018, the Selangor State Assembly passed amendments to several laws to raise the permissible age for Muslims to marry in Selangor to 18. Penang, Sabah, Johor, Melaka and Perak have agreed to do so as well. While this is certainly a step in the right direction, the amended law still allows for Muslims who are underage to marry if they fulfil certain conditions – again with no elaboration about what conditions would be acknowledged. Furthermore, 7 states in Malaysia (Sarawak, Pahang, Terengganu, Perlis, Negeri Sembilan, Kedah and Kelantan) have refused to amend the laws of their states.
Justifications for the Current Law?: The Religious Debate
This brings us to the inevitable question to ask when discussing this topic, is child marriage a religious or customary issue and does it take precedence over children’s rights? The first reason why child marriage should not be a religious issue is consistency with the federal laws of Malaysia. Marriage falls under the ninth schedule of the Federal Constitution which means that the states have the power to make laws in this area. As such, the minimum age for marriage is inconsistent with the definition of a child as stated in s.2 of the Child Act 2001, which applies throughout Malaysia. This is an unsavoury situation, having practices and laws that seem to be in principle contravention with what the country views a child to be and the protections and rights that follow.
To make matters worse, child marriages have been used as a solution to pre-marital sex, teenage pregnancies, and a way to avoid statutory rape charges [4]. These are issues that are heavily stigmatised within communities and cause families of victims to protect their reputation and standing by opting into child marriages. Thus, for all these reasons, child marriage should be viewed as a strictly legal issue. Documented cases show instances where statutory rape charges were either withdrawn or not pursued as the victim married the perpetrator [5]. In 2012, a 12-year-old girl was permitted to marry a 19-year-old boy in a union that the victim described as a “marriage of love”. It was later revealed that the girl’s father had permitted the union as the boy had raped his daughter [6].
Additionally, in 2014, the National Fatwa Council discouraged child marriages, stating that child marriage is an unhealthy practice that has a detrimental impact on a child’s health and psychology [7]. There is plenty of dissatisfaction with allowing the practice of child marriages to continue, even from impartial bodies such as The Ministry of Women, Family and Community Development as well as religious organisations such as the National Fatwa Council and the Department of Syariah Judiciary. Religion or customs are not reasons for the government to justify poor protective measures or the maintenance of a legal system that affords unequal and insufficient protection to all children.
Other Justifications against Child Marriage:
Aside from the issues described above, the legality of child marriages in Malaysia also presents issues in relation to its contravention of International Law. In 2010, Malaysia removed its reservation to Article 16(2) of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This Article provides that women should have the right to “freely choose a spouse and to enter into marriage only with their free and full consent”, and “betrothal and marriage of a child shall have no legal effect.” Despite this, little has been done to achieve the intent of this Article. This failure to give full effect to Article 16(2) in the decade since the removal of the reservation against it reflects poorly on the government’s commitment to CEDAW, and to the abolishment of child marriage in Malaysia.
Moreover, broadly speaking, children cannot consent to marriages. The former Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil acknowledged that this is because “children do not have the choice or capacity to give their full consent” [8]. This lack of capacity in children can be attributed to the insufficient education on sexual and reproductive health in schools, while the lack of choice ties to forced child marriages resulting from poor economic conditions. The latter is an unfortunate circumstance arising from mere economic survival [9], where poor families who can no longer sustain their daughters resort to marrying them off in exchange for a dowry. Additionally, safety is a definite concern within these child marriages. Beyond the already grave mental and emotional ramifications, The International Centre for Research on Women has found that girls below 15 years of age are five times more likely to die during pregnancy and childbirth than women in their twenties.
The implications of ineffective regulation of child marriage cannot be understated. Child marriages can lead to the sexual exploitation of children by their older spouse. Datuk Seri Shahrizat Abdul Jalil noted that this issue arises as “the minute a child embarks into the institution of marriage, for some reason, sex with a child is seen with a different pair of eyes” [10]. Compound this with the non-criminalisation of marital rape in Malaysia and we have a vulnerable group of individuals left with little recourse to the sexual exploitation they are often forced into.
Hence, by failing to properly address child marriage in Malaysia, these social issues are perpetuated, and undesirable practices are allowed to continue to the detriment of young children.
Where We Go From Here: Developments in the Current Law:
In the 2018 Election. Pakatan Harapan pledged to raise the minimum age for child marriage to 18, This, of course, worked out in ways many of us did not foresee and quite obviously was not implemented. In March 2021, the current Women, Family and Community Development Minister Datuk Seri Rina Harun emphasised that Malaysia is committed to addressing child marriages in light of their international law commitments [11]. In doing so, she references the five-year National Strategy Plan in Handling The Causes of Child Marriage that was launched by the Women, Family, and Community Development Ministry in 2020 [12]. This Plan recognises the key factors perpetuating child marriage in Malaysia, and lays out short, medium, and long-term actions with the aim of addressing them. These actions include policy changes, legislative improvements, and the implementation of awareness programmes.
It is hopeful that the Plan, and the increase in governmental support, will finally begin the march away from child marriages in Malaysia.
Disclaimer: The views expressed in this article belong solely to the author and do not reflect the views of Taylor's Education Group. Additionally, this article is for informational purposes only. Please exercise your discretion before making any judgements.
References:
[1] Ida Lim, ‘Ministry: 543 Child Marriages, including Applications, from Jan - Sept 2020’ (4 December 2020, Malay Mail).
[2] Anith Adilah, ‘Child Marriages Used to Cover Up Rape’ (23 April 2016, Malay Mail).
[3] UNICEF, ‘Child Marriage in Malaysia’; Kha Chia Hui, 'Child Marriage: Why it is still a problem in 2018' (10 November 2018, Malay Mail).
[4] ‘The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia’ (2019) 335; See also <https://www.girlsnotbrides.org/about-child-marriage/how-to-end-child-marriage/>
[5] Heather Barr, ‘Marrying Your Rapist in Malaysia’ (2017, Human Rights Watch).
[7] Valentina Lai, Shareena Mohd Sheriff, Syarifatul Adibah Mohammad Jodi and Andi Suraidah Bandy, ‘National Report: Malaysia – Child Marriage: Its Relationship with Religion, Culture and Patriarchy’ (2018), 16.
[8] ‘Not enough is being done to discourage child marriages’ (2010, New Straits Times).
[9] Girls Not Brides, ‘Child marriage in Malaysia, a child rights issue’ (2013) <https://www.girlsnotbrides.org/articles/tackling-child-marriage-in-malaysia-a-child-rights-activists-perspective/>
[10] ibid
[11] ‘Addressing child marriage will help Malaysia meet 8 United Nations SDGs’ ( 9 March 2021, The Sun Daily)
[12] Ministry of Women, Family and Community Development, ‘National Strategy Plan in Handling the Causes of Child Marriage’ (16 January 2020, KPWKM)