The incidence of child marriages is alarming. By child marriages, I mean the marriage of any person under the age of eighteen. This is more so for the fact that it appears that such marriages are significantly more prevalent amongst Muslims. A recent statement by a United Nations agency here indicates that the number of such marriages has increased significantly over recent years.
The minimum age of marriage for persons of other than the Muslim faith is eighteen. Muslims girls are permitted by state law to marry at the age of sixteen. In some states, like Kedah, the Shariah Court can sanction the marriage of an even younger Muslim girl. In one such case, the Shariah Court recently granted permissions for a twelve-year old girl to marry a nineteen-year old man (some reports have put the age of the groom at sixteen). According to reports, the father of the bride consented to the marriage to avoid any “immoral activity” on the part of the couple. The husband is quoted as saying that his bride had agreed to shoulder the responsibility of a wife. The reports do not indicate either his view or that of the father as to the ability of the twelve year old to understand the full implications of the situation.
It may be recalled that in 2010, a marriage between a fourteen-year old and her twenty-three year old husband sparked some controversy. The Government at that point took the position that if the marriage was permitted under Islam, and as such within the jurisdiction of the State Government, there was no basis to reject the same. Its position does not appear to have changed.
The Attorney General has, through his continued silence on the subject, endorsed such marriages.
On my part, I fail to understand how the Federal Government and the Attorney General could have allowed for this self-evidently destructive trend to continue. Such marriages are not only, I say, unconstitutional, they hurt the children concerned and society. Research shows that child marriages have severely adverse consequences on the physical, emotional and mental development of the child. UNICEF has reported that girls who marry young tend to forego formal education, which, not only disadvantages the girls concern, lead to gaps in their knowledge on maternal health and child rearing issues. There is an increased risk of death in childbirth for girls that young.
It is for this reason that the Convention for the Elimination of All Forms of Discrimination Against Women, which Malaysia has acceded to, places an obligation on the State to ensure that the “betrothal and the marriage of a child shall have no legal effect” and to take appropriate steps to regulate this.
It is also for this reason that various countries have set to combating child marriages with a view to improving the welfare of children and for the protection of the community. It is generally accepted that the prohibition of such marriages will contribute significantly to poverty eradication and the promoting of gender equality. In some countries, punitive measures against persons who perform, permit, or promote child marriages have been enacted.
It is no answer to say that the economic realities of the situation are in favour of such marriages. If poverty is causing such marriages, then poverty should be addressed. We cannot allow the situation to evolve; I shudder at the thought of this process being used to validate trafficking of child brides or, for all purposes intents, validating the pedophilic tendencies of the monsters that prey on young children. Less sensationally, even the thought of young child-divorcees is reason for concern.
It appears that rather than dealing with the root problems, the Government would rather sidestep the matter. In this, it would seem that Islam is being invoked to stifle the controversy.
While I can appreciate the need for the State to preserve the integrity of personal law, it is not the case that the personal law of Muslims can be understood as permitting the endangering of Muslim minors. More so for the fact that the legal framework of this nation so evidently gives basis to the Federal Government and the Attorney General to intervene and correct the situation.
A question arises as to whether the power of the Shariah Court to validate such marriages is constitutional. The analysis cannot stop at the fact that the Legislative Assemblies of the states enact laws that vest the Shariah Court with the power to validate. Though it is true that the Legislative Assemblies have competence over the legislating of laws for the purposes of the administration of Islam, the discretion to do so is not absolute. It must be appreciated that such discretion is limited to enacting only laws that are constitutional.
As to the question of what is constitutional in the circumstances, several key features of our constitutional framework are material. Firstly, the constitution protects the fundamental liberties of all its citizens. Two of these are highly relevant to the discussion: the right to life, and the right to equal protection of the law.
As to the former, as has been underscored by the Federal Court, the right is not limited to merely concerns over corporeal existence. It extends to the intangible aspects of the right to live one’s life, a state of being that hinges on the protection of mental and emotional integrity. As to the latter, it would be wholly repugnant to our system of life to allow for a state of affairs where some vulnerable citizens are protected from physical, mental and emotional abuse while others are not. It is for this reason that while at first glance, some constitutional powers could be read as allowing for violations of these strictures in the interests of some other cause, closer scrutiny would inevitably lead to the conclusion that this could not be the case.
Put another way the power of the State Legislative Assemblies to enact law pertaining to the administration of Islam cannot be extended to validating the enacting of laws that defy the constitution. And yet this appears to be what section 8 of the Kedah Islamic Family Law Enactment 2008 does. It vests the Shariah Court with the power to expose Muslim children to the kind of conduct that is proscribed where non-Muslim children are concerned. In doing so, it discriminates against the former category of children. It permits the undermining of the physical, emotional and mental integrity of Muslim children in a way that is wholly inconsistent with their right to life.
It is not coincidental that the Child Act 2001, which defines a “child” as being a person under eighteen years of age, makes it an offence to cause physical or emotional injury to a child. The same law provides that a minor is deemed to be in need of the care and protection of the State if there is a substantial risk of the minor being emotionally injured or sexually abused. Sexual abuse is defined to include situations where the minor takes part in sexual activity for another person’s sexual gratification.
It is equally no coincidence that the Penal Code defines the offence of statutory rape as involving sexual intercourse with a girl below the age of sixteen without exception. Marriage does not make lawful such sexual congress. It is highly significant that the Malaysian courts in convicting offenders for statutory rape have found that girls under the age of sixteen are too young to even be introduced to carnal knowledge between a man and a woman.
This takes me to the second point. In recognition of possible conflicts between state and federal laws, their respective law-making bodies potentially unavoidably encroaching into each other’s fields of competence, the Federal Constitution gives federal law primacy. As such, where federal law and state law conflict, federal law prevails.
That being the case, even if the Kedah legislation (or any other such legislation_ were constitutional, which for the reasons I have explained above I cannot see as being a correct proposition, then in light of Parliament having enacted the Child Act and the statutory rape offence under the Penal Code, the Kedah legislation is void.
I suggest that the circumstances compel the Federal Government and the Attorney General to take immediate action. There is recourse; the Federal Government is entitled in law to mount a challenge on the state legislation in the Federal Court. It must do so.
(This article first appeared in The Edge on 15.12.2012)