Child marriage – Rethinking the issue

The Star
by Art Harun

CHILD marriage has somewhat become something of a phenomenon in Malaysia.

In a news report republished by asiaonenews.com, the following was reported: “… according to the 2000 Census, there were 11,400 children below 15 years of age who were married — 6,800 girls and 4,600 boys. Of the 6,800 girls, only 2,450 were Malay. This means that the Syariah Court gave its consent to each of these 2,450 under-age girls to get married.

The remainder of 4,350 girls were non-Malays comprising 1,550 other bumiputra, 1,600 Chinese, 600 Indians, and 600 other races.

It is not known whether they had got their licence from the relevant minister, but even if they did, it would have been illegal, since there are no legal provisions for a non-Muslim under 16 years to get married.”

The report added: “Last year (2009), 479 children under 15 years, two of them boys, were getting ready to tie the knot. And 32 of them were below 10 years. None of them were found to be HIV-positive.

This was based on Health Ministry’s statistics of premarital HIV screening for Muslims, a compulsory requirement for those wanting to get married.

However, it is not certain if any of these applications for marriage were approved by the state religious department.”

The legal age for marriage for non-Muslims in Malaysia is 18. For Muslims however, the legal age is 16. However, in the case of Muslims in Malaysia, the Syariah Courts are empowered to allow marriages of children who are under 16 years of age.

There are alarming and disconcerting reports about child marriages in Malaysia. In early 2010, there were reports of two marriages involving a 10 and 11-year- old girls married off to men in their 40s in Kelantan. The 11-year-old was later found in a state of shock. The Syariah Courts later ruled the marriages illegal. The ground for illegality however was not based on whether there was adequate consent from the children or on their respective age but was rather based on procedural non-compliance.

Child marriages, particularly among Muslims in Malaysia, although not a societal norm, are however a socially acceptable practice among a section of society. Mass weddings involving children are, for instance, carried out. The state lends its approval and sanction either by publicising such weddings on the front page of mainstream newspapers or by its leaders attending such weddings.

In December 2010 for instance, a 14-year-old girl participated in such a wedding by marrying a 23-year-old teacher.

Recently, the Syariah Court granted permission to a father to marry off his 12-year-old daughter to a 19-year-old boy. In the application for permission, it was cited that the girl had run away to stay with her boyfriend and refused to come home.

Marriage was, apparently, the only solution to solve the problem and to protect the family’s honour and reputation. If only life was that simple.

Let’s consider what the laws of this country say about children under 18 or 16. They can’t enter into a binding contract save for those which affect their necessities. They can’t even buy tobacco products and alcohol. They can’t drive. They can’t watch movies of certain types without an adult accompanying them. They cannot be contractually employed. They surely can’t vote in a general election. Generally, a boy or man can’t have sexual relationships with any girl of 16 or less even with her consent. That would be statutory rape. They also cannot enter clubs.

Why is that? That is because the law assumes that a girl or any person, regardless of gender, of less than 18 years old (or 16 in the case of statutory rape) is not able to give free consent. For the uninitiated, free consent is a necessary element in a contract or in sexual acts in order to determine whether the acts constitute rape or otherwise.

Regardless of the above, strangely, sexual acts involving girls of 16 or less will be alright and completely legal if she is legally married! The law is indeed an ass!

If children under 18 or as the case may be, 16, are presumed by law not to be able to give free consent to enter into a contract or to have sexual relationship — or to exercise proper judgment whether or not to buy tobacco products or alcohol — on what premise does the state legalise such sexual acts through a state-sanctioned marriage?

What is most unsatisfactory about the marriage of the 12-year-old is the blatant transfer and absolution of parental responsibilities by the parents and the Courts to the 19-year-old groom as well as the 12-year-old bride.

Reading the case, the first question which creeps up in every reasonable person would be, “How can a 12-year-old have a boyfriend?” And “How can a 12-year-old run from home to be with her 19-year-old boyfriend?” Then, we would ask “What will happen to the girl after her marriage?” “How is she going to cope with all the responsibilities that come in a marriage?” 

“Can she be a good mother?” “Can the 19-year-old support his family?”

On July 19, Malaysia ratified the United Nation Convention on the Rights of the Child with the following reservations: “The Government of Malaysia accepts the provisions of the Convention on the Rights of the Child but expresses reservations with respect to articles 2, 7, 14, 28 paragraph 1(A) and 37, of the Convention and declares that the said provisions shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the government of Malaysia.”

The Convention defines a child as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

Article 18 provides: “States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

Article 19 provides: “States Parties shall take all appropriate 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.”

In view of the aforesaid provisions, which we as a nation have chosen to accept without reservation, it is thus with a degree of perplexity that child marriages, even involving girls as young as 12, are taking place without nary a thought on the welfare of the child and the responsibilities of her parents.