JULY 2 — The issue of child marriages has resurfaced once again.
The majority view is that child marriages should be prohibited. The question however is who should act to prohibit it. This is not an easy question when it concerns Muslim marriages. Should it be Parliament or the respective State Legislative Assemblies (SLA).
My view is that Parliament can criminalize child marriages for all persons, including Muslims.
Marriage for persons professing the religion of Islam falls within the purview of the State. Generally, the state Islamic laws allow for the Syariah Court to permit marriages under the ages of 18 and 16 without any cap.
However, many forget that the Constitution words the power of the states as follows: “personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage…”. The words “personal law” are very important. This means that not everything related to marriage falls within the purview of the State. It is confined only to personal matters, for example, administrative and ceremonial matters.
Criminalising child marriages
Parliament has power to enact criminal law, including on matters pertaining to marriage. Though there is an express exception on “Islamic personal law relating to marriage”, the question is whether child marriages can be considered a personal matter.
My view is that it cannot be considered a personal matter for the following reasons:
1. It contravenes a number of fundamental rights guaranteed by the Federal Constitution, i.e. the right to live with self-dignity (Article 5), the right to equal treatment and non-discrimination (Article 8) and the right to freedom of expression (Article 10).
2. It has in fact been impliedly recognized as an offence. Certain aspects of child marriage can be a criminal offence under the Sexual Offences Against Children Act 2017 (SOACA). The SOACA applies to all persons, including Muslims.
3. It is a violation of a number of international instruments, either directly or indirectly. This includes the Universal Declaration of Human Rights (free and full consent), the Convention on the Elimination and Discrimination against Women and the Convention on the Rights of the Child. Pertinently, Malaysia has ratified the latter two conventions. This is important as Parliament is empowered to implement international treaties.
4. As an internationally and domestically recognized crime, the harm done is to society.
For the reasons above, child marriages cannot be considered as Islamic personal law. It is an abhorrent crime and therefore is a matter of public concern.
Addressing the State Islamic laws
The ideal way would be to amend each state Islamic law to remove the discretion given to the Syariah Court and fix the limit to the age of 18 years. This however would fall within the purview of each State.
If Parliament enacts a federal law criminalizing child marriages (this can be even done by inserting a provision into the SOACA), all state Islamic laws that allow for child marriages would be rendered unconstitutional (for being inconsistent with a federal law).
Alternatively, the state Islamic laws that allow for child marriage can be struck down by the civil courts for violating the fundamental rights mentioned above. This would require judicial intervention.
This issue has been in the public domain for a very long time. It is not enough for the Government and Parliamentarians to merely say that something should be done. It is time to act. Pushing it to the states might not solve the problem across the board. Parliament needs to find a way to address the issue. The question is whether there is sufficient political will to do what is necessary.
* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.