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“My best friend is my stepmother now. It doesn’t make any sense.” Such were the words uttered by a confused teenager as she slowly realised her father’s third wife was none other than her 11-year old friend. In 2018, the legal marriage of a 41-year old Kelantanese man to a girl 30 years younger sparked national outrage, and was a turning point in igniting Malaysia’s fight against child marriage.

Constantly lurking unforgotten, child marriage remains a topic that crops up every now and then, but is overlooked for the most part. It is a topic that is uncomfortable to think about, even more so to discuss extensively. Yet, this plight faced by innocent children continues, whether we choose to acknowledge or to ignore it still.

Child marriage refers to the union – formal or illegitimate – in which one or both spouses are below the age of 18. However, delving deeper into the matter shows that this definition may not be as straightforward as one might think.

Malaysia’s bifurcated legislation

Malaysia is constitutionally governed by a dual legal system: civil law under the Federal Court for all citizens, and Syariah law under a distinct Syariah Court exclusively for Muslims. Although it might be perceived that the two courts run simultaneously and are all-encompassing in application, Syariah law actually supersedes civil legislation for Muslims in matters such as family law, apostasy (renouncing a religion or faith), and inheritance.

Recently, the overlap of Syariah law into the criminal justice system has tampered with the administration of law, by dishonest individuals using conversion into Islam as a loophole to bypass Federal Court ruling. Take this real-life example of a father abducting his son from his mother, only to later be awarded custody of the boy … is this true justice?

The relevance of dual legislation to child marriages

In the context of child marriage, having a dual legal system indicates that the minimum age required for a legal marriage is independently determined for Muslims and non-Muslims:

1. Non-Muslim citizens: Under Section 10 and 12 of Law and Reform (Marriage and Divorce) Act 1978, the Federal Court sets the legal age of marriage at 18 years old with parental consent and 16 years old with judicial consent. Complete autonomous agreement to marriage is only granted after the age of 21.

1. Muslim citizens: Under Section 8 of Islamic Family Law (Federal Territories) Act 1984, the Syariah Court sets the legal age of marriage at 16 for females and 18 for males with parental consent. Any age below requires special permission from the Syariah court – which is assumedly not very difficult to obtain, judging by the worrying number of 9061 child marriage cases from 2010 to 2015.

It should also be noted that there is no standard operating procedure in Syariah law for child marriages. It is entirely up to the judge’s discretion to decide if a minor is fit for nuptial union. This is especially concerning, taking into account the inherently patriarchal nature of the Syariah courts – only admitting its first 2 female judges into the Syariah High Court in 2016, progressing from the first 2 female judges being appointed in 2010 in the lower courts. 

Malaysia’s legislation is also heavily influenced by a third, unseen authority – customary law, otherwise better known as adat. Adat refers to established traditions that have been passed down over generations, to the point of becoming obligatory social constructs. Customary law is prominent in indigenous and local communities; in the seven states that have not criminally outlawed the marriage of minors (Sarawak, Pahang, Terengganu, Perlis, Negeri Sembilan, Kedah and Kelantan), it is customary law that permits child marriage to continue. 

Malaysia’s integration of civil law, Syariah law and customary law into the legal system has complicated the definition of what accounts as a “minor” in regards to child marriage. Not only does this make it difficult in establishing an accurate scale of cases, but it also encourages criminal opportunity due to the ambiguity clouding the jurisdiction. For example, as marital rape has yet to be criminalized in Malaysia, child marriage can be and is used as a defence against statutory rape. This sadly contributes to the common occurrence of accused rapists marrying their underage victims in attempt to avoid prosecution.

A 16 year old in Timor-Leste on her wedding day. Image source: The Asean Post.                       

 

How do we do better?

The stumbling block of child marriage is not privy to Malaysia alone. This issue is one of global concern as many leaders fail to recognise the direct violation of human rights that comes with child marriage. Of the 198 countries in the world, a startling 117 allow legalized child marriage. An immense number of 12 million underage girls are married per year, yet this figure is grossly underestimated as many cases go unreported. Even in countries that set a minimum age requirement for marriage, there exist many exemptions that nullify this law. Whether by parental consent, court authorization, or customs and beliefs – they weaken the already failing legal protection safeguarding these children.

Malaysia has pledged to abolish child marriage, and a national strategic plan is currently being reviewed to be put into place. Be that as it may, the government is still unable to enforce a nationwide ban on child marriage as seven states opposed the proposed bill in 2018. 

Nonetheless, credit should be given where due. Selangor has paved a path towards the liberalisation of children by raising the minimum age of marriage to 18 for both Muslims and non-Muslims alike, being the only state so far to do so. Looking towards the future, one can only hope and wait to see how the rest of Malaysia will follow.