CHILD MARRIAGE IN MALAYSIA

INTRODUCTION

UNICEF defines child marriage as an informal or formal union before 18 years old (UNICEF, 2011). Though Malaysia ratifies Convention of the Rights of Child (CRC), child marriage is still legal. This breaches several international laws and conventions including Universal Declaration of Human Rights (UDHR), International Convention on Economic, Social and Cultural Rights (ICESCR), International Covenant on Civil and Political Rights (ICCPR) and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The highest child marriage rate is in Kelantan followed by Sabah and Sarawak which are 5.4%, 4.34% and 4.32% respectively (Health Ministry, 2010). In 2005 until 2015, Muslims child marriage recorded a total of 10,240 as revealed by the Syariah Judiciary Department while for non-Muslims, it amounts to 2,104 as stated by the National Registration Department. 

MAGNITUDE OF THE PROBLEM

Child marriage has adverse consequences especially on medical and psychological aspects (Fatwa Committee, 2014). There is severity of increased risk pf psychological trauma, deprivation of their childhood and educational opportunities, but also makes them vulnerable to the brutal cycle of domestic violence, sexual abuse and poverty (Sabbe et al., 2013; Machel et al., 2013). The health problems includes pre-mature pregnancies, maternal mortality, infant mortality, pre-mature childbirth, complications during delivery, low birth-weight (UNICEF, 2001; Santhya, 2010). Among the sexually-transmitted diseases among young married girls with complications like fistula during childbirth, death of the young mother or her baby and HIV/AIDS (Raj et al., 2009; Reporter, 2012; Nour, 2006). 

In Malaysia, there lacks proper governance in regards to child marriage. This includes absence of pre-marital counselling, loopholes in enactments (marriageable age, age of majority, puberty, consent and human rights violation), absence of guidelines on giving permission to marry, absence of support system (economic, psychological and emotional support) as well as lack of research and development i.e. by JAKIM and JAIN (Saidon et al., 2015).

LAWS IN MALAYSIA

Malaysia has a dual legal system which practices a civil legal system and an Islamic (Sharia) legal system. Article 121 (1A) of the Federal Constitution states that the civil courts have no jurisdiction over matters that are within the jurisdiction of the Sharia Courts (which varies according to states). Thus, matters governed under Islamic laws are only to be administered through Sharia Courts. In East Malaysia, there is also existence of Native Courts taking on the role as administrators of native and customary laws. Under civil marriage, Section 10 of the Law Reform (Marriage and Divorce) Act 1976 states that a couple under the age of 18 can only marry with a licence from the chief minister and a written consent from the parents. Section 8 of Islamic Family Law (Federal Territories) 1984 prescribes the marriageable age of man is 18 while the women is 16 and those below the minimum age is still allowed to be married if granted the permission by a Shariah judge. 

Thus, shariah court judges have discretionary powers for approving child marriage applications based on circumstances. Based on case laws, this includes the children’s ability to support a family and manage a household, their memorization of basic Islamic teachings and the availability of family support after marriage. Reasons for rejecting marriage applications included any evidence of coercion, lack of consent from a guardian, a lack of knowledge of basic Islamic teachings, unemployment (for male applicants) and a criminal record.

REASONS FOR CHILD MARRIAGE IN MALAYSIA

Sisters in Islam (2018), notes that the main reason for child marriage is culture, tradition, and a low tolerance for young children engaging with the opposite sex.

1. AVOID PREMARITAL SEX

The main reason for child marriage in Malaysia is due to its conservative culture i.e. sexual impropriety. There are provisions in the Islamic Laws which necessitates the child to marry which is khalwat. Khalwat is the suspiciously close proximity of men and women in a secluded place as accordance to Section 27 of the Syariah Criminal Offences (Federal Territories) Act 1997. This statute has significant stigma and shame especially when the couple has shown interests to each other which may lead to illicit and improper behavior. Another provision is zina which is the performance of sexual intercourse out of wedlock as in accordance to Section 23 of the Syariah Criminal Offences (Federal Territories) Act 1997. Furthermore, pregnancy out of wedlock which may lead to baby dumping. Due to the shame attached to these heinous crimes under Islam, families marry off their daughters (Easwary, 2018).

2. PATRIARCHY SOCIETY

Renowned feminist writer Gloria Jeans Watkins, in her book “Understanding Patriarchy”, described patriarchy as a political-social system that insists superiority of males over females and endowed their right to maintain dominance to rule through psychological terrorism and violence (bell hooks, n.d.). These notions of patriarchal values are deeply rooted in Malaysian traditions, cultures and customs regulating stereotypes and norms regardless of ethnicity, cultural backgrounds, and religious beliefs.

3. POVERTY

In 2010, the indigenous communities of Peninsular Malaysia who are made up of 76.9% of families living below the poverty line, with 35.2% categorized as living in hard-core poverty, contribute to the prevalence of child marriage in the community (Department of Statistics Malaysia 2011). 

4. EDUCATION

Theoretically, education for girls are perceived as not a priority. This is because poor families have limited access to schools nearby and lack financial means to purchase school materials such as uniforms. Therefore, indigenous communities from lower socioeconomic class opt for marriage as economically safer routes. They believe that daughters are considered as an economic burden because they are unable to bring financial security to the family and marrying them off is perceived as reducing the need to feed, provide education and clothes. This is because they are closely tied to the notion that girls have limited economic option compared to boys due to social construct of female role as homemaker (Sister in Islam, 2018). 

These factors exist but not to an extreme extent as compared to other countries where child marriage is a desperate act of survival and safety. In contrast, statistics seems to show that education is widely available to girls and they are given economic options that can contribute to the betterment of the family. For example, according to the Report on Education and Social Characteristics of the Population 2010, the census found that 95.8% of males and 91.1% of females aged six and above had attended school, displaying a narrow gap between both genders (Department of Statistics Malaysia 2011). 

5. RELIGIOUS FUNDAMENTALISM

Religion is the most significant stumbling block to law reform and building a good foundation towards societal change of mindset on this issue which requires action by public authorities such as discussion on safe abortion, contraception, sex education and so on. Religious fundamentalism which uses literal interpretations of Islamic texts justifies the practice of child marriage. It has not diminished when the National Fatwa Council declared that such practice is unhealthy and is neither obligatory (wajib) nor encouraged (sunat). Surely, religious fundamentalism is apparent in the Malay Muslim community whereby conservative interpretation of the Holy Quran and hadiths are transcribed as law by the Islamic administration with the consent of State ruler and is Gazetted. In which the Muslim society are dependent on the issued fatwa as well as imams and religious teachers that tell them what is right and wrong. It is within this mindset that evidence showing harm caused to child brides as a result of early pregnancies, social ostracization, inability to complete education, depriving the child of economic independence and so on are seen as secondary and subservient to the practice of early marriage as it is considered part of the teachings of Islam (Sisters in Islam, 2018).

SOLUTIONS

There has been initiatives done by the government such as SMARTSMART and PEKERTI programs. However, its impacts are not significant as awareness on these programs are limited.

1. MINIMUM MARRIAGEABLE AGE

There should be law reform agenda to curb this problem. In which Saidon et al (2015) have prepared a new model of governance. They proposed the minimum age of marriage should be increased to 18 for both boys and girls because this distinction has no justification in present day context as female are active participants in political, social and economic arena. Saidon et al (2015) has also proposed other solutions but are related to the consideration of underage marriage which includes guidelines on approving underage marriage applications, pre-marital counselling, post-marriage public assistance, setting SPM as minimum level of education, regular hospital visits, regular visits by the Welfare Department and financial assistance.

2. EMPOWERING GIRLS

In contrast, Sisters in Islam calls for the total ban on child marriage with no exception. Among the proposed solutions are empowering girls because many aren’t aware of the patriarchal oppression. Through human rights framework, training to advocate them and training confidence to express their unwillingness to marry. Education should be provided in regards to (i) communication and negotiation skills; (ii) knowledge on sexual and reproductive health and rights; and (iii) ways to earn and manage money. This can be achieved through various community programs, information campaigns, teachers at school, parents at home, and even religious leaders of a particular community.

3. SEX EDUCATION AND FAMILY PLANNING

There is a need for comprehensive sex education which is defined as an “age-appropriate, culturally relevant approach to teaching about sexuality and relationships by providing scientifically accurate, realistic, non-judgmental information” (UNESCO 2015). This is to manage peer pressure of having sexual relationships at a young age. Sex education includes teaching the reproductive systems and safe sex which provides information on boundaries that each gender should respect as well as identify signs of sexual abuse. Counselors and religious teachers must also be readily available to provide appropriate guidance and advice on relationships and physical intimacy. 

In a study titled, “Analysis on Sex Education in Schools Across Malaysia,” researchers reported that teachers are often embarrassed by the topic and would teach students using metaphors without directly addressing the core issue and skip topics (Talib et al. 201). This amounted to extremely ineffective sex education with 95% (361) of the student respondents interviewed thinking that sex education was not at all provided in their schools; and even if it was, that they were only being taught in a casual manner (Talib et al. 2011).

4. AWARENESS ON THE HARMFUL IMPACTS

There should be awareness on the harmful impacts of child marriage to the targeted audience including: (i) parents; (ii) teachers; (iii) religious leaders; (iv) policymakers; (v) Sharia Court judges; and (vi) community leaders whom decides whether a couple should be married. Awareness may be created via public forums, dialogue sessions and information campaigns directed towards the above stakeholders and related actors. There is also significant roles of journalists, writers and editors to spread awareness.

5. GENDER SENSITIZATION: ENGAGING MALES

Patriarchal values and beliefs which prompt gender inequality through gender stereotyping and forced gender norms, are core reasons why child marriage is still practiced. To dismantle the patriarchy, allies from men and boys needed and there must be continuous effort to eliminate patriarchal oppression of both girls and boys i.e. risky sexual behaviors, violence and neglect of care work (Greene et al. 2015, 9). The shift of perception efforts are through respecting their wives’ rights to sexual and reproductive health, insisting on them continuing their education, and allowing them an equal decision-making power in the household. There will also be less gender-based violence and less forceful dominance of the household, which in turn will lead to a healthier marriage.

Efforts could be made via education through various community programs. For example, the Save the Children’s “Choices” curriculum in Nepal is proven to have produced fruitful results in changing young boys’ and girls’ (aged 10 to 14) views on gender roles and norms (Greene et al. 2015, 9). More participants believe that girls and boys deserve equal educational opportunities, and parents of the participants have reported their sons wanting equality for their sisters (Greene et.al. 2015, 10).

CONCLUSION

Child marriage is a prevalent issue in Malaysia as there are high number of applicants. It is evident that child marriage is deemed irrelevant in the present-day Malaysian context and has caused adverse impacts. 

Therefore, to combat this issue, the pragmatic approach is through stages requiring awareness of the harmful practice and reasons for making it illegal. Other Muslim countries such as Algeria, Bangladesh, Morocco and Turkey promulgate such legislation reforms. Thus, a way forward to the total banning of child marriage.

TERMINOLOGY

Propriety = conformity to conventionally accepted standards of behaviour or morals.

Religious fundamentalism = It is described as an approach to religion which requires its followers to: (i) embrace the early version of the said religion; (ii) view it as beyond criticism; and (iii) believe that it is worthy enough to be enforced upon oneself and others, without having to accommodate modern evidences or logical arguments against it (Kressel 2007).

REFERENCES

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3. UNICEF., 2001. Early Marriage, Child Spouses, Innocenti Digest, no. 7, http://www.unicef-irc.org/publications/ pdf/digest7e.pdf. 

4. Sabbe A, Oulami H, Zekraoui W, Hikmat H, Temmerman M, et al. (2013) Determinants of child and forced marriage in Morocco: stakeholder perspectives on health, policies and human rights. BMC Int Health Hum Rights 13: 43.

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8. Saidon, R., Adil, M. A. M., Sahri, M., Alias, B., Daud, N. M., & Murad, K. (2015). Developing a New Model of Underage Marriage Governance for Muslims in Malaysia Academy of Contemporary Islamic Studies ( ACIS ), Universiti Teknologi MARA , Malaysia Academy of Contemporary Islamic Studies ( ACIS ), Universiti Teknologi MARA , Malaysia Co. Middle-East Journal of Scientific Research, 23(4), 638–646. https://doi.org/10.5829/idosi.mejsr.2015.23.04.21762

9. Sisters in Islam. (n.d.). Child Marriage : Its Relationship with Religion , Culture and Patriarchy.

10. Hin, O. K. (2017). Child Marriages in Malaysia: Reality, Resistance and Recourse.

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13. Carvalho, M. (2018, November 15). Malaysia to have tighter rules on child marriages. Retrieved from https://www.thestar.com.my/news/nation/2018/11/15/malaysia-to-allow-child-marriages-to-go-on-but-tighter-enforcement/

14. Criminalise child marriages (n.d.). Retrieved from https://www.nst.com.my/opinion/letters/2018/09/414545/criminalise-child-marriages

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