Unconstitutional to end child marriage by amending section 4(a) of the Age of Majority Act 1971 — Hafiz Hassan

JULY 13 — I refer to New Sin Yew’s thoughts on ending child marriage by amending the Age of Majority Act 1971.

The writer argues that Parliament can amend section 4(a) of the Age of Majority Act 1971 to remove “marriage” from the provision. This would remove the capacity to marry from those who have not attained the age of majority. The writer further argues that the effect of such amendment would be that no one would be able to get married if one has not attained the age of majority because one needs to have the requisite capacity to get married.

Thus, an end to child marriage.

I would say that such amendment would amount to Parliament making laws that the august House cannot make. As New Sin Yew duly notes, paragraph 4(e)(ii) of the Ninth Schedule of the Federal Constitution clearly excludes “Islamic personal law relating to marriage” from the Federal List — a list of subject matters which Parliament can make laws on.

The validity of a marriage is governed both by the law of the place in which the marriage is celebrated (the formal validity) and by the capacity to marry (the essential validity). The latter is governed by the personal law. As such the capacity to marry is a matter relating to marriage and the personal law of a Muslim is the Islamic law on which Parliament has no power to make law on.

To put it simply, the amendment as argued by New Sin Yew would be ultra vires the Federal Constitution.

So, is the Federal Government powerless to table a law to end child marriage?

No. But it is not through amending section 4(a) of the Age of Majority Act 1971. It is through a constitutional amendment of the Ninth Schedule.

By the way, while much has been said on the need to end child marriage in Malaysia, the focus has been on Muslim marriages. As New Sin Yew duly notes also, section 10 of the Law Reform (Marriage and Divorce) Act 1971 too allows a person who is below eighteen years and above sixteen years to get married if the Chief Minister of the State gives permission.

Yet, not much is and has been of said and heard of amending the above provision.

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

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