Child Marriage, Religion And Human Rights

The conundrum

Child marriage is legal in Malaysia. According to the Department of Syariah Judiciary Malaysia (also known as “Jabatan Kehakiman Syariah Malaysia” or JKSM) and the National Registration Department, 10,807 child marriages were registered for Muslims and 4,999 registered for non-Muslims between the years 2007 and 2017. The practice prevails because both civil and Syariah laws allow for child marriage.

Civil laws governing non-Muslims define a “child” as a person below 18 years old: section 2 of the Age of Majority Act 1971 and section 2(1) of the Child Act 2001. Section 10 of the Law Reform (Marriage and Divorce) Act 1976 provides for a minimum marriageable age of 18 for both genders except that girls between 16 and 18 may marry with a state Chief Minister’s permission. Islamic family laws governing Muslims set the minimum ages of 18 and 16 for males and females, respectively. In 2018, Selangor amended its law to raise the minimum age to 18 for females. Nevertheless, persons below the minimum ages may still marry with the Syariah court’s approval. For instance, a 15-year old girl was said to have agreed to marry a 44-year old man while the girls were as young as 12 and 13 years old on two other occasions. In a 2018 case that sparked a public outcry, a  41-year old man was fined under Syariah law as he failed to obtain the Syariah court’s approval to marry an 11-year old girl. Following this, the Selangor Ruler decreed that the minimum marriageable age for Muslim males and females be fixed at 18 years old. Not all states have followed suit, and there is still resistance despite the Government adopting a five-year National Strategy Plan in Handling the Causes of Child Marriage (NSPCM) in 2020.

Why has it been a challenge for Malaysia to legislate a total ban on child marriages, and what arguments are being made for and against the ban?

Religious practices versus child welfare

Some have justified child marriage from a religious perspective. The Quran is cited to support the position that girls are regarded as having reached a marriageable age once she has attained puberty or maturity. Muslim scholars who adopt a narrow interpretation in Islam claim that setting a minimum age for marriage has no basis in Islamic tradition, and children should be allowed to marry once they are considered mature. On the other hand, the Malaysian National Fatwa Council, in its 106th discussion on Islamic affairs, said that child marriage was not considered a religious obligation and “made clear that the marriage between Prophet Muhammad and Aisha could not and should not be used as religious justification for underage marriage”. Pahang’s Mufti opined that parents should ensure their children focus on schooling rather than marrying them off as a way out of poverty. He also said that if underage unions are necessary, they must be sanctioned by the Syariah courts following guidelines and procedures to ensure no abuse.

Unfortunately, the approvals granted by judges have been disproportionately high. Based on an analysis of case files in the Syariah courts in seven states, only ten applications were rejected from a total of 2143. In 2012, 1022 of 1165 applications were approved. It was an increase from 2011 when some 900 marriages involving at least one Muslim minor were approved. In 2020, 451 of 692 registrations were approved. It is still doubtful whether the Syariah courts’ mandatory scrutiny has afforded the much-needed protection to children. Judges consider numerous factors to accept or reject marriage applications. Rejections may lead to more pre-marital sexual activities, abortions and illegitimate children. Approvals encourage children to stop going to school and increase cases of domestic violence and divorce. In many instances, judges feel duty-bound to approve the applications when they perceive that the decision is “the lesser of two evils”, given that some girls are already pregnant. Observedly, religion does not play as important a role in child marriages as other “push” factors such as poverty, insufficient parental guidance, and lack of access to sexual and reproductive health education. At times, the practice legitimises sexual relations between the underaged girl and man, and to avoid criminal prosecution for statutory rape. Or to protect the family’s honour when the girl is caught engaging in “immoral activities” and could be charged for committing the Islamic offence of “khalwat” (close proximity). In such a case, parents opt to marry their children to mitigate the shame that their daughters are “impure” and prevent criminal punishment. Traditional and cultural values here play a part. Little, if any, considerations are given to the welfare and best interest of the child.

Does child marriage violate human rights?

From an international human rights law lens, states must ensure that the minimum legal age of marriage for boys and girls is established, with or without parental consent, at 18 years. In a joint general recommendation, the United Nations Committee on the Elimination of Discrimination against Women and the United Nations Committee on the Rights of the Child (CRC Committee) said this:

  1. The Committees recommend that the States parties to the Conventions adopt or amend legislation with a view to effectively addressing and eliminating harmful practices. In doing so, they should ensure:

…

(f) That a minimum legal age of marriage for girls and boys, with or without parental consent, is established at 18 years. When a marriage at an earlier age is allowed in exceptional circumstances, the absolute minimum age must not be below 16 years, the grounds for obtaining permission must be legitimate and strictly defined by law and the marriage must be permitted only by a court of law upon the full, free and informed consent of the child or both children, who must appear in person before the court; …

In a similar vein, the 2017 joint general comment by the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child dictated that states must take legislative measures to prohibit child marriage and to specify that the minimum age of marriage shall be 18 years. Litigation commenced by human rights non-governmental organisations in 2018 before the African Court on Human and Peoples’ Rights (ACrtHPR) resulted in a finding that the Republic of Mali’s family laws violated Africa’s human rights treaty. Under Mali’s laws, boys and girls could marry as early as 15 years old subject to conditions. Further, the ACrtHPR frowned on the state applying “religious and customary laws on the consent of marriage” that heightened the risks of forced marriages. Mali was therefore ordered to remove traditional and cultural practices harmful to women and children. To be clear, under human rights law, imposing a minimum legal marriageable age does not amount to a denial of the right to marry, even if a person’s religion permits marriage at a younger age. Religious freedom cannot be asserted to allow an underage marriage as it is not simply a form of expression or practice of belief and religion, it has been held. Non-recognition of child marriage does not violate human rights.   

The United Nations treaty bodies have critiqued Malaysia’s legal regime on the issue of child marriage. In its concluding observations in 2007, the CRC Committee noted disparities in the laws on how a “child” is defined. Civil and Syariah laws also define the minimum age for marriage “inconsistently”. The Government was tasked to “take all necessary measures to harmonize the definition of the child, including the terminology used, in the national laws so as to eliminate inconsistencies and contradictions”. It was to expedite the necessary law reforms. After more than 14 years, the recommended legal harmonisation has not been conducted, although, in 2010, the country’s reservation to article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) banning child marriage was removed. Undoubtedly, judging from the apparent disagreement of some states to change the marriageable age, the political will to end child marriage in Malaysia is lacking.

Conclusion

Underage marriage profoundly impacts children’s lives, health and well-being. Adolescents are hindered from furthering their education, suffer from limited employment opportunities and face higher risks of maternal mortality and morbidity. One cannot discount the possibility that many children are not ready for their marriages despite obtaining judicial sanction. Poverty, family pressure and religious-based views of morality result in covert coercion dressed up in the name of “consent” to the union. Children who are physically and psychologically immature cannot properly understand the consequences of marriage, and consent. Representing the weaker of the couple in terms of power relations, many girls will sadly continue to remain in the cycle of domestic abuse and sexual violence. Litigation has not been an option because none of the brides will want to step forward to sue their parents or husbands. Hence, the global human rights position in treaties such as the Convention on the Rights of the Child and CEDAW calls for age reforms in domestic laws. As a party to both conventions, Malaysia has yet to implement its obligations in this regard and is in breach. Unless the Government will sincerely manage the present conundrum on the age discrepancies, eliminating child unions would be a tough row to hoe.

 

* The law stated is as of 31 July 2021