JULY 11 ― Our Deputy Prime Minister (DPM) was reported as having said that the Government is "powerless to nullify the marriage because Kelantanese Islamic laws allow children under 16 to get married with the permission of a Shariah Court judge”. She is correct. The question is, what are you going to do about it?

The DPM goes on to say that the Government is working with the National Fatwa Council to push the age limit to 18. This is problematic on many levels. What is most troubling is the lack of understanding (in my view) of basic constitutional principles.

The National Fatwa Council

The council has no legal basis to issue binding fatwas/statements. Islamic law is a state matter. Even if the council issues a fatwa on the subject, the states can decide not to follow the fatwa.

Pushing the responsibility to the states

What is even more troubling is that the government is pushing the matter to the states. The issue at hand involves Muslim persons, but that in itself does not make it an Islamic law matter. This is where the fundamental misconception lies.

The states can only deal with Islamic personal law. As I have explained, the issues surrounding child marriage are of public concern. It can no longer be considered a personal law matter. Parliament is empowered to introduce a provision in the Child Act or the Sexual Offences Against Children Act to criminalise child marriage (for a detailed explanation, see https://www.malaymail.com/s/1647716/parliament-can-act-against-child-marriages-surendra-ananth)

Once Parliament does this, it will empower the government to act on the issue regardless of whether it is permitted under the state Islamic law. The states would then have two options: first, to amend their Islamic laws to increase the age limit; or secondly, to challenge the federal law criminalising child marriage in court. The point is, regardless of what the state does, the government would be able to clamp down on the issue.

If a state actually challenges the law (on the ground that Parliament has no power to make it), it would be interesting to see how the Federal Court would actually say that the matter is not of public concern.

Freedom of religion

Suhakam is of the view that the right to freedom of religion is relevant when it comes to child marriage, and that it can be made a crime under one of the restrictions in Article 11(5), Federal Constitution. This again is, in my view, not correct. The right to freedom of religion is an individual right and not a group right. The right protects the believer, not the belief. There is no constitutional basis to even claim that child marriage is protected under the right to freedom of religion (the restrictions apply only if it is protected). This right focuses on the individual to ensure all of us can profess and practice what we believe in, regardless of what that is. Thus the word "freedom”.

There is no need to resort to Article 11(5) to make it a crime. That would only acknowledge that child marriage is a constitutionally protected practice to begin with. It can be made a crime purely under Item 4 of the Federal List.

Will the government act?

There is clear constitutional basis for the government to act on its own accord without having to deal with the states. As usual, like the previous regime, there is hesitance because of religion. This is not a religious issue. It is a public issue that concerns all Malaysians.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.