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Wednesday, July 11, 2018

UM Law Students Express Concern on Child Marriages in Malaysia

by Christina Erin Ong, Vice Secretary of the UM Law Society (Share your thoughtful opinions)

The students of the Faculty of Law, University of Malaya are gravely concerned on the government’s reluctance to impose a blanket prohibition on child marriages, which is a troubling issue that has prevailed to this day. We wish to emphasise the notion that child marriages should be banned in Malaysia, and under no circumstance, should it be allowed.
Stop child marriage
This issue on child marriage resurfaced on the 18th of June 2018, where a social media post of a marriage between a 41-year old man in Gua Musang, Kelantan, with an 11-year old girl from Thailand sparked national outrage on various media platforms. Prior to this, there have already been several cases where child marriages were allowed. Remembering the time in December 2010, where a 14-year old girl married her 23-year old teacher with leave from the Syariah Court, and not forgetting when the Kulim Syariah Court allowed the marriage between the 12-year old wife to her 19-year old husband. Hence it is clear that this issue is not alien to the country.

In a poll that we ran to gather feedback and opinions of the students of our faculty, 97.7% of the respondents clamoured for a standardized minimum age for one to marry across religions and customs. The current legal age for parties to marry in Malaysia is 18 for non-Muslim parties unless a license is granted by the Chief Minister or Menteri Besar to allow the female to marry after she has completed her 16th year based on section 10 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164). Meanwhile for Muslim parties, the minimum age of the solemnization of marriage is only when the man has reached the age of majority (18) (S. 2 Age of Majority Act 1971, Act 21) and for the woman is 16, under the Islamic Family Law (Federal Territory) Act 1984 (Act 303). In this case, a woman under 16, may get married to her husband if a Syariah Judge has granted his permission to do so under certain circumstances.

Meanwhile, all our respondents believe that our new Pakatan Harapan Government should take further action to harmonize the definition of ‘child’ to eliminate inconsistencies and contradictions. This was also stated in Commitment 4, No. 2 of their manifesto, which was to raise the minimum marriageable age to 18 years old. Girls Not Brides, a global partnership with an aim to eradicate child marriage across 95 countries, has highlighted that there is limited data about child marriage in Malaysia, as the most recent statistic of child marriages revealed by the Deputy Minister for Women, Family, and Community Development was in 2010, where it revealed that nearly 15,000 girls under the age of 15 were married in Malaysia.

Unfortunately, there have been no recent updates on these statistics in the recent years. We also agree with the suggestion forwarded by Dr Wan Azizah who says that the issue of child marriage should be viewed in a holistic manner to determine whether or not these cases involve elements of paedophilia, child exploitation and child pornography. Therefore, we would like to urge our new government to take swift legislative reform to not only fulfil their election promises, but to harmonise the definition of a child in various legislations to avoid unnecessary discrepancies in the law.

In addition to that, 82.8% of our respondents believe that the minimum age for marriage should be final, without taking consideration of any other factors. Currently the subject of debate, it is argued that any exception to the minimum age to marry should be done away with. Although some may argue that child marriage may put an end to social ills or benefit impoverished families, we believe that it does more harm than good. Entering into a lifelong commitment at such a tender age, these child brides would barely comprehend the commitment and responsibility that comes with legal wedlock. These child brides would have to sacrifice their childhood in order to fulfil their legal and social obligations as wives, which require a degree of maturity.

We acknowledge the existence of a religious narrative on why child marriage is allowed. We are however of the opinion that such narratives must be practiced based on the current state of social morality, as laws are derivative of the societal norms of a locality. We must also take into account higher objectives for the society’s common good in the era of modernisation, such as the right to education every child is entitled to and also the importance of preventing sexual exploitation of children. Thus, we believe that child marriage should not, under any circumstance be allowed. It should not be an excuse to curb premarital sex, resolve unwanted pregnancies, or to allow a perpetrator of rape to marry his victim as to escape punishment for rape.

We, the Law Society of the University of Malaya, on behalf of the students of our faculty, strongly advocate that child marriages should be banned in Malaysia as it contravenes several articles in the Convention on the Rights of the Child (CRC), which Malaysia is a signatory. We say so as it deprives a child of their right to education (Art. 28, Convention on the Rights of the Child), their right against separation from their parents (Art. 9, Convention on the Rights of the Child), and the right to be protected against all forms of exploitation which affects the welfare of a child (Art. 36, Convention on the Rights of the Child). We stand with NGOs, children’s rights groups and activists who have voiced out that we will not tolerate child marriage under any circumstance. We also stand with a statement by Tan Sri Razali Ismail of the Human Rights Commission of Malaysia (SUHAKAM), saying in a statement to oppose the imposition of a standard operating procedure (SOP) for marriages involving minors as it would once again condone the sustenance of child marriages instead of eradicating it. To impose such an SOP would not further the social and moral fabric of the society, and is instead a regrettable decision of the new ruling government to appease the conservative voting pool. We once again expound the need to impose the minimum age of marriage at 18 years of age. In the eyes of the law, we believe that a child still should not marry until she is competent to consent, as it is a decision which will greatly influence the future of the child, for better or most likely, worse. These excuses to moralize child marriage should be completely disregarded as every child deserves to live the childhood they deserve.

Edited by Iqbal Harith Liang, President of the UM Law Society.
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