Written by: Averroes
(1.0) Introduction
(1.1) Background
Child marriage remains omnipresent in many parts of the world, and is a major predicament for most developing countries from the regions of sub-Saharan Africa, the Middle East, Latin America, the Caribbean and South Asia. This issue also is apparent in Malaysia. Countries with the highest child marriage also include Bangladesh, Nigeria, Ethiopia, Brazil, Pakistan and Indonesia.
Recent studies, according to the Recommendations For Actions Against Child & Forced Marriages by the UNHCR, every year, 15 million girls are married before they reach the age of eighteen which is 28 girls every minute. It does not only affect girls, but boys. However, girls are the most highly impacted. There are many negative implications if children are wed at such an early age, which will be discussed further below.
In Malaysia, according to the Women, Family and Community Development Minister in 2020, there was a reported 543 child marriages in the first 9 months, with Sarawak being the State with the highest reported numbers. The Ministry also produced statistics, that 1,856 children were involved in child marriages, under the age of 18.
Staggeringly, from 2013-2018, the Department of Syariah Judiciary received 5,823 applications for marriage, revolving around underage Muslim children.
(1.2) Contributing Factors
(i) Poverty: Among the common reasons why this practice has gone undeterred is mostly due to poverty, lack of education, cultural practices and religious beliefs. These combination of factors are clearly seen in the rural areas of Sarawak, Kelantan and Sabah. If people in the rural areas are more educated, they should know of the negative implications of wedding their daughters off.
Many parents allow their children to wed young, as they themselves have large financial constraints and believe that their children could depend on other financial sources to sustain themselves. Hence, they are able to reduce daily stipends, such as food, clothes, education. Some parents may consider that their son's education is more important.
Accordint to the International Centre for Research on Women (ICRW), it is also known to be a way to repay debts, manage disputes, settle social economic and political alliances. Another perspective taken is to protect the girl from being trafficked and be in safe hands of the other spouse.
(ii) Cultural norms, traditions and religion: Religion is always used as a tool, utilised in a disdainful and gratifying way. Inaccurate and misleading interpretation of religion is the reason as to why child marriage persists. In addition, parents may want to avoid cultural barrages of attacks if their daughters do not marry the rapist, as it is a way to also prevent the child from being born illegitimate.
(iii) Lacunae in the law: This entails that as long as the laws set a very low minimum age for marriage or other laws that enable children to be married and no legal action taken against those who exploit children, child marriage will still remain perceptible. Apart from that, it is because the court or parents consent to it legally.
(2.0) Legal Aspect
(2.1) International Law and Actions
Since child marriages involves cultures and varying religious interpretation, article 3 of the Preamble to the United Nations Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages 1964 states that;
"Recalling further that the General Assembly of the United Nations declared, by resolution 843 (IX) of 17th December 1954, that certain customs, ancient laws and practices relating to marriage and the family were inconsistent with the principles set forth in the Charter of the United Nations and UDHR."
"Reaffirming that all states... complete freedom in the choice of a spouse, eliminating completely child marriages and the betrothal of young girls before the age of puberty, establishing appropriate penalties where necessary and establishing a civil or other register in which all marriages will be recorded."
On the world stage, there is a plethora of international instruments that safeguard children from being wedded. Among them include the Convention on the Rights of Child (CRC) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Additionally, the United Nations Populations Fund (UNFPA) and the United Nations Children's Fund (UNICEF) also plays an important role in formulating programmes.
Though, the issue of child marriage still persists.
Article 1 of the CRC defines children as;
"A child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.
This definition allows each country to set and determine the age of a child. This provision may be dangerous, as children at the age of 18 and below could be classified as adults.
Malaysia being a signatory and ratified the CRC in 1996, reserved the definition of article 1 and adopted our own definition. The CRC continuously urges all countries to set the minimum age for marriage at 18, for both men and women. This is in tandem with section II, paragraph 21 of the Vienna Declaration and Programme of Action, 1993.
The Committee on the Rights of Child (CRC) defines 'child marriage' as "any marriage where either one (or both) partners are below 18 years of age."
Since most marriages are non-consensual of the child themselves and are forced, this would run counter as both articles 16(1) and 16(2) of the United Nations Declaration of Human Rights (UDHR) and pari materia with CEDAW. Respectively, both provisions state that;
"Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution."
"Marriage shall be entered into only with the free and full consent of the intending spouses."
(2.2) Malaysian Law
To understand better Malaysia, our country operates on a dual-legal system as this is constitutionally enshrined under article 121 and 121(1A) of the Federal Constitution.
(2.2.1) Civil Law
In Malaysia, we have our definition of child. According to both section 2 of the Age of Majority Act 1971 and the Child Act 2001, they are defined as a person under the age of 18 years old. Though, this definition is true as being the default definition. If other written laws state otherwise, then the definition in both those Acts will not be applied.
The law for marriage is section 10 of the Law Reform (Marriage and Divorce) Act 1976. This law governs non-Muslims and non-Bumiputera. The minimum age of those wishing to marry is 18 years old. However, the law allows those aged 16 to 18 to marry with the consent of the Chief Minister of the state, with a license, followed by application to the Registrar as under section 21(2) of the same Act.
Every individual under 21-years of age would require the consent of their parets.
(2.2.2) Islamic Law
In Islam, there are two contrary school of thoughts on the issue of who are considered children. The Shafie' school states that as long as the child has not shown physical signs of maturity or puberty, then they are still children. Even at 15 years old, if that child shows physical traits of a grown adult, then they are no longer a child.
The Hanafi school of thought differs from this view as they argue that a child becomes an adult or ceases to be a child at the age of 18.
The codified legislation for marriage in Malaysia is found in each respective States. Each Malaysian States has the autonomy to dictate their own Islamic Law, as long as it is in conformity with the Federal Constitution and other written laws issued by Parliament. This patently clear as under the 9th Schedule, List II, Item I of the Federal Constitution.
For example, in the Federal Territories of Kuala Lumpur, Putrajaya and Labuan, Muslims there are governed by section 8 of the Islamic Family Law (Federal Territory) Act 1984 (IFLA). The minimum age for Muslims to get married is 18 years old for boys and 16 years old for girls. However, there is the lacunane whereby, the Syariah Court allow or consent either genders to get married earlier than the minimum.
Synonymously, section 8 of the Islamic Family Law (Kelantan) Enactment 2002 follows the same wordings for solemnisation for 18-years-old for boys and 16-years-old for girls, except the Syariah Judge consents the marriage to be lower than the minimum.
From the above provisions in the Federal Territories and Kelantan, marrying at a younger age is allowed, if justified on the term of 'certain circumstances'. This remains obscure and vague as there is no proper guidelines to what it means. Though, learned judges allow such marriages, by taking into account of medical reports of sexual and reproductive health, counselling reports for preparedness of marriage and repercussions of their own decisions or family decisions (shame, ridicule, illegitimate children).
According to the Mufti of Selangor, Datuk Seri Mohd Tamyes Abdul Wahid, he clarifies that, "Islam does not prohibit underage marriage, as long as the couple is mature enough and understands the circumstances and responsibilities that come along with the act, as husband and wife."
This is where the controversy occurs. In 2012, the Kulim Shariah Lower Court consented for a 12 year old girl to marry an adult man. The marriage ended in divorce and it was soon discovered that the marriage happened, because the girl was raped by that man and his friends four months before the wedding.
Another incident was that, an 11-year-old girl was coerced to marry a 41-year-old man by her own father who was a devotee of a religious sect. She married at such a young age, which resulted her to suffer from major depression and was found in a state of delirium, hundreds of kilometres away from home.
(2.2.3) Legal and Social solutions
(2.2.3.1) Legal amendments
As a proposal, each State Legislative Assembly in Malaysia from Perlis to Sabah should revise their laws to increase the minimum age of marriage for girls to 18, as well as to remove wordings of consent from the Syariah Courts, Chief Ministers or Parents for that matter.
The legislative amendment would be in line and respect Malaysia's commitment and obligation to the CRC. The CRC states as under article 19(1) which it pronounces;
"States Parties shall take all approprite legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child."
Article 19(2) of the CRC also provides;
"protective measures, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment... for judicial involvement."
So far, many states in Malaysia agree to increase the minimum age of marriage, but some other states refused to do so, perhaps of the strong religious tendencies or ideologies in those particular state, or the bulky compassion toward culture and norms.
Lastly, this is not an amendment, but a law that prevents the spouse to engage in sexual activities with the child spouse. In Malaysia, those having sex with girls aged 16 and below is considered rape. It is true while the marriage exists, the husband could not have sex with the young wife. However, this is disputed as there is an exception that it is not rape if both are validly married in law.
(2.2.3.2) Social Advocacy
Apart from legal amendments, society should play a more pragmatic role in alleviating the threat of child marriage. More people need to speak out, more engagement in the classroom, the participatory roles of religious leaders to change their own mindset and to encourage the masses to partake in the effort.
Social media is a powerful tool to disseminate information as data and contents could spread within matter of seconds. Parents should also teach their children about sexual education and their interactions with the opposite gender. This may reduce the chances of unwanted, early pregnancy and marriage.
Girls should be given the chance to voice out their own opinions and have a say in their own lives. Schools should highlight that patriarchal roles and systems are archaic and detrimental, not toward not them, but to everyone. Overall, several stakeholders should also synergise together including the government and NGOs to improve better sex education.
For sex education, a report by UNESCO, 2015 defines sex education as, "age-appropriate, culturally relevant approach to teaching about sexuality and relationships by providing scientifically accurate, realistic, non-judgmental information."
For Malaysian society, discussing on the topic of sex education may be a taboo. However, it is the main contention as under article 26 of the UDHR, that "education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms"
This includes their right to strengthen the respect of human rights and fundamental freedoms including one's sexuality.
In 2018, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) released a document known as the International Technical Guidance on Sexuality Education. It affirmed sexual education within a framework of human rights and gender equality which assists in;
(i) Helping the youth to be more responsible about their attitude and behaviour regarding sexual and reproductive health
(ii) Essential to combat school dropouts from forced marriage and teenage pregnancy
(iii) Necessary to contemplate that, 2/3 girls are reported to be unaware of menstruation and pregnancy
(v) Sex Education does not increase sexual activity, STI/HIV infection rates.
(3.0) The effect on children
(i) Mental and Reproductive Health: As mentioned previously, children are not able to manage a family at such a young age. They should focus on their education and upbringing. They would have to endure complications of early pregnancy, sexual-related infections (HIV/AIDs) and psychological problems.
According to the International Centre for Research on Women, it was found that girls under 15-years-old are 5 times more likely to die during pregnancy and childbirth in comparison to women in their 20s. Girls at that age have not fully developed their sexual organs, which also causes miscarriage, stillbirth and abortion.
Thus, this increases the likelihood of maternal death, morbidity, infant death and obstetric fistula (rupture of vagina, bladder and colon walls). Delirium, depression, anxiety and other possible mental health would endanger the child.
(ii) No access to education: The United Nations Education 2030 Agenda and Sustainable Development Goal 4 (SDG4) aims to ensure that there is equitable quality education and lifetime opportunities for all. If a child enters into a marriage, it would be difficult for them to balance between education and her family. Hence, children will not be able to complete higher education and strive for professional jobs or careers. This will also increase the chances of poverty for them.
(iii) Prone to violence: Children are susceptible to physical, mental, injurious, abusive and neglecting pain from the other spouse. Studies report that, married girls between 15 to 19 with low level of education are at higher risk of domestic and sexual violence as compared to their educated counterparts. They are also isolated and confined inside their house, without outside interaction.
(4.0) Conclusion
To conclude, as society we must take arms and well-versed in issues related to children and their welfare. They will be the future leaders of our country and contribute much in various fields and expertise. Their future should not be hampered or quashed. In essence, there needs to be legal and social reforms to eradicate child marriage or abate it. If not, there would be negative insinuations if left unattended.
(5.0) References
Malayandy, T., & Shahrul Mizan bin Ismail. Preventing Child Marriage Practice in Malaysia to Protect Children's Rights. [2021] 1 LNS(A) xxx
Thuraisingama, A., & Suzanna Abdul Hadi. Child Marriages in Malaysia - A Myth or Phenomenon. [2021] 1 LNS(A) cii
Shanmugam, T., & Shahrul Mizan Ismail. Sexuality Education: A Clash Between International Human Rights and "Asian Values". [2021] 1 LNS(A) xliii
Subramaniam, M. Registration of Marriages under the Law Reform (Marriage & Divorce) Act 1976: The Paradox of Section 34 [2015] 2 MLJ xc
Noor Aziah Mohd Awal & Mohd Al Adib Samuri. (2018) Child Marriage in Malaysia. Working Paper. Universiti Kebangsaan Malaysia for UNICEF MALAYSIA.
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