25 JUNE 2018
UNDERAGE MARRIAGE ISSUE
Underage marriages are strongly correlated with poverty and level of education. It happens in any society where there is an imbalance of wealth distribution, and children are the weakest fragment amongst the society and are normally the most victimised.
We support measures to stop forced marriages that are potentially harmful especially to very young brides or grooms, physically or socially. We categorically condemn cases where girls were forced to marry much older men, and instances where young girls were treated as objects or commodities as their families try to escape poverty.
However, a good policy addresses the needs of all segments of societies. It does not aim for one-size-fits-all solutions, especially in an issue as complex as marriages that are deeply related to one’s culture and religion.
Therefore, the urge by a group of 50 NGOs for the government to carry out law reform to set the minimum age for marriage at 18 years for women and men in all legal frameworks, including for civil, Muslim and native customary law marriages, without exception, and that the full consent of both parties be obtained for any marriage, in reality marks their failure to consider the many factors confounding the matters, and how the purported solving of one problem may give rise to other consequences.
THE MECHANISM FOR UNDERAGE MARRIAGE IN MALAYSIA
We stress again that in Malaysia, under Sections 10 and 12 of the Law Reform (Marriage and Divorce) Act, non-Muslims can only be legally married if they are aged at least 18 and will require parental consent for marriage if they are still below 21. Under this law, they are considered minors if they have yet to turn 21 and are not widows.
However, the law provides for an exception, where a girl aged 16 can be legally married if the Chief Minister or Menteri Besar of a State, or in the Federal Territory – the Minister, or in diplomatic missions abroad – the Malaysian Ambassador, High Commissioner or Consul respectively, authorises it by granting a licence.
As for Muslims, the minimum legal age for marriage in the states’ Islamic family laws is 18 for a male and 16 for a female. Those below these age-limits can still marry if they get the consent of a Shariah judge.
THE PROBLEM OF STATELESS CHILDREN
In Sabah and Sarawak, there are customs that allow a girl between 14 and 18-years old to wed with the consent of the family. Many still have problems registering their marriages with the current mechanism, and the children of these young couples often could not be registered as they are considered born from unlawful marriages.
The Muslims are not spared. As in Semenanjung, Muslim couples in Sabah and Sarawak are required to undergo marriage courses by Islamic authority. But due to the size of the states, the relatively poor transportation system and the fact that many are still living in remote areas, even for those who are above the age limit to marry, they find it hard to fulfil the requirement, and thus resulting in their marriages not being lawfully registered. Flowing from thereon, their children also cannot be registered as citizens.
In some cases, as reported to us by NGOs members and activists working closely in handling the one-stop-centres for women, there have been cases where 3 generations in a family goes without documentation simply because of the registration process that is still seen as cumbersome as compared to custom marriages.
Increasing the age of marriage will only increase the proportion of those who will fall into this category, and we will have more cases of stateless children. We will have to meticulously investigate this matter before we hastily adopt the blanket ban on underage marriage.
ARE JUSTIFICATIONS TO TOTALLY BAN UNDERAGE MARRIAGE IN MALAYSIA, JUSTIFIED?
Among the reasons given for complete ban of underage marriages and increase age limit are education and high divorce rates. Several countries are cited as examples namely Algeria, Bangladesh, Morocco, Egypt and Turkey. It is therefore wise to objectively assess whether we are really left behind in our educational attainment as compared to these countries. According to World Economic Forum 2017 ranking, the educational attainment in Malaysia is ranked at no 63, Algeria 84, Morocco 99, Bangladesh 95 and Turkey 92. We are higher than these countries despite not adopting the total ban on underage marriages. Our decision therefore must be based on an objective assessment.
Those urging for total ban on underage marriages also cite the issue of high divorce rate as a concern. Young marriages without support from families are exposed to high possibility of divorces. In Malaysia, a report by Syariah Judiciary Department of Malaysia stated that divorce rate among underage marriages as monitored by authorities was at 0.4% in 2015, which is lower as compared to the national rate. So, are we addressing the issue by proposing for a complete banning of marriages?
Young pregnancies also advanced as a reason to completely ban any marriages among underage. It is said that teenage pregnancies have higher risk for complications. However, there should be concrete evidences to link marriages sanctioned by the Syariah Judiciary Department of Malaysia among Muslim teenagers to direct obstetric harmful effects, because the data may be compounded with those of teenage pregnancies out of wedlock. We should be more concerned about teenagers or children who have engaged in sexual relationships out of wedlock. Several studies have addressed this. In fact, one local study by S Sulaiman et al in 2012 that compared obstetric outcomes of teenage pregnancies and adult pregnancies concluded that “the long-held beliefs about the risks related to teenage pregnancy are not all justified. Early booking, adequate antenatal care and delivery by trained personnel should improve the obstetric and perinatal outcome in this age group.”
A blanket policy on fixed ages, without assessing other factors such as maturity and family support, may instead increase cases of sex out of wedlock amongst those below the legal age. This may result in more teenage pregnancies, and this time around, without a registered and a responsible husband. We may also be dealing with more statutory rape cases of late teenagers when these can be avoided if two consenting parties are allowed to enter into a lawful marriage.
THE WAY FORWARD
We propose for the government to tighten the procedures that govern the granting of permission for underage marriage but not a complete banning; by enacting laws to mandate consent of the parent, parents or guardian of the bride and a confirmation letter from the Attorney-General Chamber of any impending investigation and/or criminal charges in any application for underage marriage.
More importantly, both National Registration Department and Islamic Authorities shall also have to review the procedures to allow for a couple to register their marriages in order to address the stateless children issue.
JOINT STATEMENT BY:
Azril Mohd Amin,
Chief Executive, CENTHRA and Chairperson, MACSA or the Malaysian Alliance of Civil Society Organisations in the Universal Periodic Review (UPR) Process.
Associate Professor Dr. Rafidah Hanim Mokhtar,
President of The International Women’s Alliance for Family Institution and Quality Education WAFIQ) and Co-Chairperson, MACSA.
Endorsed by the following members of The Malaysian Alliance of Civil Society Organisations in the Universal Periodic Review (UPR) Process (MACSA) :
1.Centre for Human Rights Research and Advocacy (CENTHRA)
2.Allied Coordinating Committee of Islamic NGOs (ACCIN)
3.Persatuan Peguam-Peguam Muslim Malaysia (PPMM)
4.Islamic and Strategic Studies Institute Berhad (ISSI)
5.Ikatan Pengamal Perubatan dan Kesihatan Muslim Malaysia (I-MEDIK)
6.Darul Insyirah │
7.Pertubuhan Muafakat Sejahtera Masyarakat Malaysia (MUAFAKAT)
8.Persatuan Orang Cacat Penglihatan Islam Malaysia (PERTIS)
9.Persatuan Belia Islam Nasional (PEMBINA)
10.Concerned Lawyers for Justice (CLJ)
11.Pertubuhan Ikatan Kekeluargaan Rumpun Nusantara (HARUM)
12.Gabungan Peguam Muslim Malaysia (i-PEGUAM)
13.Ikatan Muslimin Malaysia (ISMA)
14.Majlis Ittihad Ummah
15.Pusat Kecemerlangan Pendidikan Ummah (PACU)
16.Persatuan Peguam Syarie Malaysia (PGSM)
17.CONCERN (Coalition of Sabah Islamic NGOs)
18.Harakah Islamiah (HIKMAH)
20.Malaysian Chinese Muslim Association (MACMA) Sarawak
21.Halaqah Kemajuan Muslim Sarawak (HIKAM)
22.Pertubuhan IKRAM Negeri Sarawak
23.Pertubuhan Kebajikan Islam Malaysia (PERKIM) Cawangan Sarawak
24.Angkatan Belia Islam Malaysia (ABIM) Negeri Sarawak
25.Yayasan Ikhlas Sarawak
26.Persatuan Ranuhabban Akhi Ukhti (PRAU)
27.Ikatan Graduan Melayu Sarawak (IGMS)
28.Persatuan Kebangsaan Melayu Sarawak (PKMS)
29.Sukarelawan Al-Falah YADIM Sarawak
30.Persatuan Kebajikan Masyarakat Islam Subang Jaya (PERKEMAS)
32.Pertubuhan Damai & Cinta Insani (PENDAMAI)
- Yayasan Ihtimam Malaysia
34.Persatuan Amal Firdausi (PAFI)
35.Persatuan Jihad Ekonomi Muslim Bersatu Malaysia
36.Yayasan Himmah Malaysia (HIMMAH)
37.Persatuan Syafaqah Ummah (SYAFAQAH)
38.Gabungan Persatuan Institusi Tahfiz Al-Quran Kebangsaan (PINTA)
39.Malaysian Lawyers Circle (MLC)
40.Persatuan Kebajikan Masyarakat Islam Subang Jaya (PERKEMAS)
41.The International Women’s Alliance for Family Institution and Quality Education (WAFIQ)
42.Centre for Alternative Policies in Economics (CAPE)
43.Muslim Youth Movement of Malaysia (ABIM)
44.International Relations and Diplomacy Committee, Malaysian Youth Parliament (PBM)
45.Majlis Tindakan Ekonomi Melayu Berhad (MTEM)
47.Human Security and Peace Scholars Network (HOPE)
48.Pergerakan Belia India Muslim Malaysia (GEPIMA)
49.Jaringan Muslim Pulau Pinang (JMPP)