Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
Child marriage is presently legal for both Muslims and non-Muslims respectively. Owing to the recent headlines of reported cases of child marriage, this issue has re-emerged as a hot-button issue, with numerous calls to end the practice of child marriage.
The issue of child marriage sparked outrage in Malaysia owing to the controversial marriage of an 11-year-old girl to a 41-year-old man. Malaysians have expressed grave concerns about the incident, resulting in clarion calls from many quarters to raise the floor age of marriage to 18. This call is especially pertinent in light of Pakatan Harapan’s pledge in its manifesto for the 14th General Election, which was to “ensure the legal system protects women’s rights and dignity”, including “introducing a law that sets 18 as the minimum age of marriage”.
However, the nation is currently witnessing the controversial handling of child marriage issue by the Women, Family and Community Development Ministry, headed by Datuk Seri Dr. Wan Azizah Wan Ismail. The minister has received brickbats with reasonable justifications as it has been two months since the incident occurred, but there is yet to be any significant resolution proposed. The answer to the people’s cries was repetitive — that the federal government does not have jurisdiction to intervene in child bride cases. Yet another case of child marriage was reported on the 18th of September in Kelantan where a 15-year-old girl tied the knot with a 44-year-old man, who is a father of two. The author is of the opinion that the longer the ministry delays in reacting towards this controversial issue, the higher the number of young girls who will fall victim to child marriage and have their welfare and interest jeopardised.
This article seeks to explain the basic legal issues of child marriage in Malaysia by providing an overview of the marriage legislations applicable to Muslims and non-Muslims in Malaysia. The article will then evaluate the newly passed amendment in Selangor to raise the marriage age of Muslim girls, the negative impacts of child marriage to underage girls, the call to reform Syariah court processes, and the highly anticipated total ban of child marriage in Malaysia.
II. MARRIAGE LAWS IN MALAYSIA
Malaysia has a dual-track legal system which comprises of civil courts operating in parallel with Islamic Syariah courts. Syariah law is only imposed upon Muslims and concerns personal matters including morality, inheritance, marriage, and divorce. Muslims are governed under their respective states’ Islamic Family Law enactments. On the other hand, the non-Muslims are required to follow secular legislations that deal with the same matter, including the Law Reform (Marriage and Divorce) Act 1976 (‘LRA’) which is enacted by Parliament and applies across the country.
In Malaysia, according to the Child Act 2001, a child is defined under S.2(1) to mean a person under the age of 18 years. Similarly, S.2 of the the minority of all males and females shall cease at the age of 18 years. Therefore, “child marriage” may be defined as any marriage carried out with individuals below the age of 18.
Unfortunately, children are allowed to marry under existing Malaysian legislations, and child marriages remain common in our country. For non-Muslims, the legal age of marriage is 18 for both men and women, while parental consent for marriage is required under S.12 of the LRA if the children are still below the age of 21. Nonetheless, non-Muslim girls are permitted to marry between the ages of 16 and 18 with the consent of the Chief Minister, as is clearly stipulated under S.10 of the LRA. At the very least, the LRA specifically provides that under no circumstance can the marriage of non-Muslims below 16 years old be legally approved.
As for the Muslims, the minimum legal marriage age in states’ Islamic family laws is 18 for men and 16 for women. However, those below these ages can still marry if they obtain the consent of a Syariah judge. For instance, S.8 of the Islamic Family Law (Kelantan) Enactment 2002 provides that “no marriage may be solemnized where the man is under eighteen years old or the woman is under sixteen years old except where the Syariah Judge grants his permission in certain circumstances.” Muslims are not subject to the LRA, thus in reality, there is no written absolute minimum age to marry for them.
In short, child marriage is presently legal for both Muslims and non-Muslims respectively. Owing to the recent headlines of reported cases of child marriage, this issue has re-emerged as a hot-button issue, with numerous calls to end the practice of child marriage.
III. PASSED – RAISING THE MINIMUM AGE FOR MUSLIM GIRLS IN SELANGOR TO WED
Recently, His Royal Highness the Sultan of Selangor decreed for the legal marrying age of Muslims in Selangor to be raised from 16 to 18. With the Ruler’s royal blessing, the Selangor State Assembly passed several legal amendments to raise the permissible age for Muslim girls to marry in Selangor to 18, making it the first state in Malaysia to do so. This is a positive indicator that the Rulers are taking the lead in reforming the administration of Islam to grant Muslim girls the protection of their fundamental rights.
Nevertheless, the amendments do not amount to a blanket ban on child marriage as there are leeway to bypass the laws. The amended legislations only introduces stringent requirements before a couple receives the green light to tie the knot. Permission still can be given for marriages below the age of 18, as long as certain conditions are met, including having the parent or guardian file an application to the Syariah Court for permission to marry, attached with a supporting affidavit outlining the reasons for the marriage, the health condition of the couple, and the ability to provide maintenance as well as previous involvement in any criminal activity.
As such, G25, a group of prominent Malays committed to pursue for the betterment of Malaysia expressed its disappointment that there cannot be any condition to legalise child marriage; a total ban must be imposed. However, the Selangor Islamic Religious Council or Majlis Agama Islam Selangor (MAIS) should indeed be commended for its progressive initiative as the increase of permissible age for Muslims girls to marry is the first in the country.
In contrast, shocking the nation was the recent call from Sabah Mufti Datuk Bungsu @ Aziz Jaafar’s controversial suggestion to lower the minimum marriage age to 14 for a bride and 16 for a bridegroom to follow Syariah law because “children are now very mature and are prone to sex earlier.” Sabah Chief Minister Datuk Seri Mohd Shafie Apdal even said he sometimes felt that 18 was too late of an age to tie the knot for some. Newly minted Selangor Chief Minister Amirudin Shari Said also said that underage marriage is necessitated under Syariah Laws and that the move to ban such marriages is not in line with these laws. The author feels disheartened that Sabah and Selangor Chief Ministers do not support a total ban of underage marriage, turning a blind eye to the election manifesto of Pakatan Harapan.
IV. THE BANE OF CHILD MARRIAGE
It is important to acknowledge that the issue of child marriage in Islam is multi-faceted and deep-seated. Therefore, the voice of outspoken detractors against the complete banning of child marriage must be heard and not simply invalidated. The Malaysian Islamic Party, or Parti Islam Se Malaysia (PAS), has been extremely vocal in the issue, claiming that imposing such a blanket ban contravenes religious teachings, and is thus unacceptable. The understanding, respect, and acceptance of other cultures and religions are pivotal factors to maintain a stable and multicultural society, and we should not simply leap to a conclusion that child marriage must in all circumstances be banned. However, the author — though he highly admires, acclaims and treasures the authority, intellect, wisdom and history of Islam — with all due respect, begs to differ with its practice in recognising child marriage, even with conditions imposed.
Empirical evidence has revealed that girls who marry early are often exposed to violence, divorce, abandonment, and poverty. It is to be noted that Malaysia has ratified the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 3(1) of the CRC guarantees that the best interests of the child shall be a primary consideration in all actions concerning children. Article 19(1) of the CRC also requires States to take all appropriate measures to protect the child from all forms of abuse, neglect, or maltreatment. Thus, to pursue the best interests of children, the government is responsible for protecting their children’s health, education, development, and overall well-being to the best of their capacities. Child marriage harms the child’s health, particularly her sexual and reproductive health, which often results in maternal mortality and morbidity due to early pregnancies. Apart from the violation of health rights, early marriage disrupts the child’s education which is in contravention to Article 10(a) of CEDAW which guarantees equality in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training.
We should be most perturbed by the dire consequences of child marriage, and hence should advocate for the abandonment of child marriage practices allowed under Islamic law. In fact, Malaysia should emulate other Muslim majority countries that have raised their minimum marriage age such as Algeria (19 years old), and Turkey, Morocco and Bangladesh (18 years old). We should not condone child marriage merely because religious teachings allow it. Religious practices should never supersede the fundamental rights of a child as the best interests of the child must prevail.
V. REFORM THE MECHANISM OF SYARIAH COURT PROCESS?
One of the arguments against a complete ban is that the current Syariah enactments of respective states in Malaysia on this aspect are not well-drafted. As a result, the Syariah Court process is easily abused, but once rectified, the issue of child marriage would be addressed accordingly. For the time being, although Syariah Court judges are empowered to allow underage marriages under ’certain circumstances’, local Islamic family legislations neither list nor make clear the grounds on which approvals are given. There is no standard for the assessment, and it is not known how a Syariah judge makes his or her decision. The lack of clarity and certainty, according to former Syariah High Court judge Datuk Ismail Yahya, is owing to protection of the privacy and interests of children in underage marriages. Hence, the cases are not published in major law journals such as the Malayan Law Journal (MLJ) and the Current Law Journal (CLJ). Dr. Mohd Al-Adib Samuri, a senior lecturer from the National University of Malaysia, or Universiti Kebangsaan Malaysia (UKM), also observed that the process of approving marriages is not standardised in different states, resulting in the lack of transparency in determining the applicants’ eligibility, further exacerbating the conundrum.
There are criticisms that the application for approval can easily be made, and even parents are allowed to apply for marriage on behalf of their children in the respective state religious department. Parents' testimonies before the Syariah Court are often considered as sufficient and the child involved may not even be asked to appear in Court. The well-being of the child is placed on the line more often than not, without the power to make own decision or to reject the unwanted marriage. The Syariah Judiciary Department agrees that the fault lies in the present Syariah court system which entrusts parents with the power to obtain consent from the courts on behalf of their underage daughters. Cases involving fathers marrying off their underage daughters to moneylenders after they have failed to settle their debts are strong evidence that the system gives room for parents to escape parental responsibilities.
It is therefore not a surprise when academicians from UKM suggest to establish a Standard Operating Procedure (SOP) for Syariah judges in approving an underage marriage with the utmost goal of protecting the child's well-being, including health checks by medical officers, report by the police to verify whether there was any criminal element involved, and also reports from the Welfare Department. The report from Welfare Department should determine the reasons for the underage marriage and look into the financial status of the child's family. The complete report then serves as a supporting document for the judge to decide on the eligibility of the applicants. Despite protesting against the blanket ban, PAS agrees to enforce and tighten existing legislations to protect young children from being forced into unwanted early marriages. Selangor’s recent meritorious amendment is, too, on par with the suggestions.
However, the author, in his humble opinion, is of the view that the abovementioned soft reform is a mere short-term solution. The author is in complete agreement with Dr. Muzaffar’s view that the minimum age of marriage provision under the Syariah laws of the respective states should eventually be amended so that the discretion of Syariah court judges to approve underage marriage is abolished altogether. As long as that discretion is retained, Muslims have no minimum age of marriage. However, we can be assured that the government is taking the issue seriously as Minister in the Prime Minister’s Department for Religious Affairs Datuk Mujahid Yusof Rawa said that pending a permanent solution, the government will introduce more stringent procedures to temporarily curb marriages. In the meantime, he emphasised that the authorities will evaluate Syariah and state laws to draft a piece of legislation that will end the controversial practice for good. It is laudable that the minister in charge of religious affairs took a firm stand in stating that child marriages should be banned in the long run.
In short, reforming the Syariah court system is only good as a temporary measure. The current trend of child marriage is evidence that the present SOP is flawed and lacks safeguards to protect children’s best interests. In the long run, the end goal is to completely curb child marriage.
VI. IN THE LONG RUN – A TOTAL BAN AND TO MAKE CHILD MARRIAGE A FEDERAL CRIME
Public dissatisfaction has arisen lately when Dr. Wan Azizah announced that the government will work with the National Fatwa Council and try to have them push the age limit. Instead of taking the lead to reform, she was deemed to be shifting the burden of responsibility to the council to issue a fatwa for the state authorities to enact state legislation to make child marriage illegal. Unfortunately, quite recently, the public is again disappointed by two more cases of men marrying underaged girls in Kelantan. This underscores the reality that girls are paying the price for the government’s lack of political will to end child marriage. In one case, a 44-year-old man, who is a father of two, married a 15-year-old girl as his second wife. In another case, a 15-year-old girl went missing, just two months after marrying a 30-year-old man.
I am aware that the new government is seeking resolution for the issue of child marriage but the lackadaisical attitude of some of the government officials towards the issue is discouraging the people of Malaysia. G25 has also expressed its disappointment towards there being no assurance that every state will agree to follow the National Fatwa Council’s directive, as Islam is a state matter. As long as there is no national blanket ban that includes Muslims, states with conservative Islamic religious authorities can continue to insist that Muslim men have the right to marry underage girls so long as the Syariah court grants them permission. Thus, the archaic practice of child marriage should be made a federal crime that is applicable to all Malaysians irrespective of religion or race, to sidestep the reluctance of some states in taking proactive action.
Various vocal individuals have urged the government to amend a host of legislations to end to child marriage, including the Law Reform (Marriage and Divorce) Act 1976, Islamic Family Law, the Child Act 2001, the Sexual Offences Against Children Act 2017, the Age of Majority Act 1971, and Syariah Criminal Offences Act 1997. The author would like to venture into some of them and discuss the legal issues surrounding it.
A. Sexual Offences Against Children Act 2017
It is important to note the suggestion by Dr. Muzaffar Syah Mallow, a senior law lecturer from Islamic Science University of Malaysia, or Universiti Sains Islam Malaysia, who opined that, underage marriage should be included as a crime under the Sexual Offences Against Children Act 2017 (‘the SOAC Act’) to ensure immediate action against the culprit.
The statute is well equipped with many procedures to combat sexual crimes against children, including setting up a special court for child sexual offence and introducing new offences against children such as child grooming and child pornography.
It was, however, a disappointment for many stakeholders that the SOAC Act does not touch on child marriages. Assaulting or sexually touching a child is illegal, but when the parties are married, touching or even having a sexual relationship does not fall within any crime under the SOAC Act. Although having sexual intercourse with a girl under 16 years old is an offence of statutory rape under S.375(g) of the Penal Code (‘the PC’), child marriage can bypass the law as the exception to this provision exempts sexual intercourse between a man with his wife as rape.
Therefore, even if a girl in a child marriage does not consent to her husband engaging in the act of copulation with her, the PC provides no ground to allege rape at all. This glaring loophole has gone unplugged in the SOAC Act.
Nonetheless, the government’s efforts to protect women must be acknowledged in that under S.375A of the PC, the act of a husband causing hurt to his wife with the purpose of soliciting sex is an offence. However, the author wishes to stress that this sole provision is inadequate. Not to mention that in our country, men who raped underage girls have attempted to evade criminal charges by marrying them. In socially conservative societies, it is common for rape victims to be pressured into marrying their rapists to bury the case otherwise the girl’s name will be tarnished. As an illustration, there was the infamous Ahmad Syukri Yusuf case in 2016 where the man, charged with raping a 14-year-old girl, was spared from being sent to prison and possible whipping after he married the teenager. His was the most recent among numerous child marriages in the past few years where child rapists use marriage as a means to escape punishment. Fortunately, the High Court later reinstated the statutory rape case.
Such an egregious practice must hence be stopped, and the inclusion of child marriage in the SOAC Act seems to be one effective way to curb it. Criminalising the act is a must. It is insufficient to have legislations allowing child marriages to be appealed; there should be legislations to prohibit marrying a child.
B. Age of Majority Act 1971
Criminalising child marriage comes together with the step to rule out the legal possibility for such marriage.to take place. One of the most obtrusive legal bottlenecks that hinder efforts to curb child marriage can be found in the Age of Majority Act 1971 (‘1971 Act’). Eighteen years is the age of majority in Malaysia as provided by S.3(2) of the 1971 Act. If one has not attained the age of majority, the law deems that he is not able and lacks the capacity to make certain decisions. S.11 of the Contracts Act 1950 supports this proposition, allowing only a person who is of the age of majority to enter into a contract. Unfortunately, one yet to attain the age of majority can get married through one of the exceptions provided under S.4(a) of the 1971 Act.
Nevertheless, lawyer New Sin Yew has suggested that the federal government is not powerless to table a law to end child marriages, and the solution is by amending the 1971 Act. Paragraph 4(e)(i) of the Ninth Schedule to the Federal Constitution provides a list of subject matters falling under the federal list, including the “age of majority”, on which Parliament may legislate. Even though only the state legislature can make laws on Islamic personal matters relating to marriage, Paragraph 4(e)(ii) provides that the state legislature is not vested the power to make laws on the age of majority.
Therefore, Parliament is free to amend S.4(a) of the 1971 Act to remove “marriage”, thus removing capacity to marry from those who have not attained the age of majority. Former Federal Court judge Datuk Seri Gopal Sri Ram resonated with this view and said that Parliament can enact laws to determine the age of majority to enter into contracts, including marriage. He also reasoned that “age of majority” is a federal subject and a uniform law applicable to all communities.
In legal parlance, the amendment is an implied repeal of S.10 of the LRA and provisions in all state legislatures which allow child marriage. This is because marriage is a contract and requires the consent of the parties involved, hence both parties to the marriage must own the requisite capacity. Until and unless the child is competent to consent, a child should not marry. The government is therefore not without the power and should not give excuses in their achieving a resolution.
C. Non-Muslim Family Laws
According to international standards, child marriage is defined as any marriage carried out below the age of 18. Thus, we must not forget that non-Muslim child marriages are still permitted under the current LRA upon obtaining a special license from the Chief Minister. Child marriage is hardly an exclusive issue confined only to the Muslim society but rather, a national issue. In fact, there are more cases involving non-Muslims in Malaysia. The Women’s Aid Organisation, a non-profit organisation in Malaysia reported that in 2017 alone, there were 968 applications for marriages of non-Muslim children whereas there were only 877 applications for Muslim children two years ago.
Moreover, rarely do we pay attention to the child marriage practices in East Malaysia, but the current family laws there are almost as bad as their equivalent in West Malaysia, if not worse. The native customary laws of various ethnic groups in Sarawak are currently silent on the marriageable age for girls. Welfare, Community Wellbeing, Women, Family and Childhood Development Minister of Sarawak Datuk Fatimah Abdullah said in August that customary laws in Sarawak may be amended to set the marriage age for girls at 18, with 16 as the "absolute minimum" age. Despite customary marriage being accepted among the state’s different ethnic groups and it being allowed under native customs, Sarawak has acknowledged that times have changed and accordingly, the laws need to be changed to prevent discrimination against girls. The proposed minimum age, albeit slightly unsatisfactory, indicates great initiatives by the state.
In short, we must outlaw the possibilities of non-Muslim girls under the age of 18 becoming child brides too. Child marriage cannot be tolerated under civil law, even under exceptional circumstances, similar to the suggested proposition for its counterpart in Islamic family law. Of course, a mere amendment of LRA on this aspect is insufficient and may expose more legal loopholes. Hence, efforts should also be made to streamline all legislations in our country to set the minimum marriage age to 18 years of age. Dr. Wan Azizah mentioned that the initiative involves not only the LRA but also the Native Courts Enactment 1992 in Sabah and various laws on Sarawak pribumi communities, the Islamic Family Law (Federal Territory) Act 1984, and the Islamic Family Enactment and Ordinance in the states.
In conclusion, a total ban of child marriage with no exceptions must be imposed. A partial or qualified ban is unacceptable, and we must have no exemptions or special cases where child marriage is allowed in both civil and Islamic marriage laws. We cannot be in denial of the issue any longer, and a mere reformation of the Syariah court process or an increase of marriage age with exceptions, although commendable, are insufficient. The whole country is now deeply disillusioned and dismayed, and disappointed with the lack of action taken by the government on the matter. The author shares the same concern as Tan Sri Razali Ismail, the Chairman of the Human Rights Commission of Malaysia (SUHAKAM) who said that as long as child marriage is possible with the consent of the Syariah court judge or the state Chief Minister, it implies a green light to possible paedophilia activity in Malaysia, further encouraging sexual violence against children.  As mentioned earlier, Pakatan Harapan has already pledged to set the minimum marriage age at 18 in its manifesto. Despite its historical victory during the 14th general election which had Pakatan Harapan controlling the federal government, and it and its ally Sabah Heritage Party governing nine states, the new coalition has been slow in taking their action. It is time to walk the talk, the government must fulfill their promise the future of the children is counting on them. The author wishes to end this article with an inspiring and meaningful quote from the Chairperson of Girls Not Brides, Princess Mabel van Oranje of the Netherlands:
“Malaysia without child marriage would be a Malaysia that is better educated, healthier, more prosperous, and more equal”.
Written by Benjamin Kho Jia Yuan, a third year law student of the Faculty of Law, University of Malaya. Edited by Syafinas Ibrahim.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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 See footnote 21 above.
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 See footnote 25 above.
 See footnote 23 above.
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 Islamic Family Law (Federal Territory) Act 1984 (Act 303).
 Esther Landau, “Suhakam: Stop consenting child marriages”, New Straits Times, 1 July 2018, 18 September 2018 <https://www.nst.com.my/news/nation/2018/07/386139/suhakam-stop-consenting-child-marriages>.
 Victoria Brown, “Child marriage is no happily-ever-after”, The Star Online, 1 July 2018, 18 September 2018 < https://www.thestar.com.my/news/nation/2018/07/01/child-marriage-is-no-happilyeverafter-children-who-get-married-at-a-young-age-tend-to-have-health-co/>.