Malaysia’s legal system includes a sharia law system of personal law applicable only to Muslims and administered by the various state sharia courts. The politicisation of Islam has unjustifiably allowed its proponents to advocate for a more central role for sharia law, resulting in increasing conflicts with federal law in numerous areas.
In particular, the child marriage of Muslims is a problematic area because state religious administrations have sought to exclude federal intervention by invoking personal law entitlement. The Federal Government has made negligible efforts to address the situation, fearing political backlash. Navigating the differences between sharia and civil law has thus become a contentious and key issue in Malaysia.
In civil law, the legal age of marriage is 18, but girls aged 16 to 18 years old may marry with the Chief Minister’s approval.[1] In contrast, the legal age of marriage under sharia law is 16 for girls and 18 for boys, with the option to get permission from the sharia court to marry younger. This difference primarily affects Muslim girls, thus prolonging the gender and religious discrimination in Malaysia; 70% of child marriages are of Muslim girls,[2] with the girls involved being as young as 11 years old.[3]
Given that the rate of Muslim child marriage appears to be increasing,[4] legal protection must be prioritised for the welfare of the child. Muslim girls are unjustifiably denied the protections afforded to their non-Muslim counterparts. A holistic approach that influences social norms and political will, whilst also implementing legal change is required.
Religious justifications
A public campaign is needed to reinterpret the Islamic basis for child marriage and appeal to the predominantly Muslim judges of the Malaysian superior courts. Such a campaign has been successfully executed in Sri Lanka where a government-appointed advisory committee has proposed reforms to raise the minimum age of marriage in the Muslim Marriage and Divorce Act.[5]
Proponents of child marriage rely on religious texts as justification for the practice. Namely, the prophet Muhammad (pbuh) married a nine-year-old, Aisha, showing that the Prophet condoned child marriage. However, the better argument is that Muhammad’s marriage to Aisha was a custom of its time, and customs should adapt in line with changing social norms regarding consent and marriage.[6]
Furthermore, the Qur’an does not set a minimum age of marriage, but it states that orphans must have “sound judgement” to be fit to marry and manage their own property.[7] This requirement can be extended to all Muslim children, including non-orphans, since sound judgement is key to a child understanding and discharging marital obligations. Thus, sharia law should adopt civil law’s minimum age of consent of 18 years to properly reflect contemporary social standards of responsibility.
Reforming procedure
A judicial review should be brought in the civil courts to challenge sharia judges’ wide discretion to approve child marriages. Civil courts have jurisdiction over sharia courts since sharia courts are an inferior tribunal.[8]
Currently, sharia judges cite as reasons for allowing a child marriage: preventing illegitimate pregnancies and reducing the shame of pre-marital sexual intercourse.[9] The judges provide little scrutiny, with only 10 applications for underage marriages rejected out of 2,143 applications between 2012 and 2016.[10] Sharia judges focus on the opinion of the parents about the suitability of the marriage, with some judges even ignoring plights from the children that their marriage is forced.[11] Thus, sharia judges merely rubber-stamp child marriages without ensuring that the child’s welfare is protected.
Instead, sharia judges’ discretion should be limited to factors such as the child’s understanding and desire to get married. The child’s capacity is key since the marriage is an exception to the normal age of consent. Considerations such as the shame of premarital sex should be excluded, as this would otherwise condone and protect statutory rapists, especially since marital rape is not criminalised in Malaysia.
Liberty of the person
A judicial review should also be sought to challenge sharia child marriage laws on the basis that it contravenes the child’s constitutional right to liberty of the person.[12] This right has been interpreted broadly by the Court of Appeal to include the right to dignity.[13] Child marriage breaches this right to dignity by allowing children to marry before the age of consent under contract and criminal laws. This position is consistent with Indian jurisprudence, where the Supreme Court has held that sex with a child bride violates their right to dignity.[14]
Further, parental consent is not a solution to this fundamental breach of dignity because it is the child, not the parent, who must fulfil the marital obligations. Child marriage is distinguished from other situations where parental consent is acceptable, such as for medical treatment, since child marriage is not a time pressured decision. It is possible to wait until the child is of age to make the decision themselves. The potential social stigma of premarital sex or children being born out of wedlock does not warrant circumventing the child’s right to dignity.
Jurisdictional issues
Deciding whether the federal or state legislatures should have jurisdiction to legislate on child marriage under the Federal Constitution requires an identification of the “pith and substance” of child marriage. The dominant approach considers child marriage under the jurisdiction of state legislatures because it involves “personal and family laws of persons professing the religion of Islam.”[15]
This approach is incorrect. The pith and substance doctrine requires an identification of the “true character and substance” of the legislation.[16] Consequently, the regulation of child marriage is better characterised by what it seeks to prevent: crimes against minors, such as grooming;[17] and health issues, including higher risk of sexually transmitted diseases and pregnancy complications.[18] Health concerns and crimes are more than “incidental” to child marriage;[19] they are the international justification for laws on child marriage and key considerations when deciding the legal age for marriage.[20] Recharacterized in this way, all child marriages should be governed by federal legislation.
Conclusion
Child marriage is a complex issue requiring the application of both legal and social strategies. In mounting a legal challenge, social elements must be addressed to rationalise with and appease the predominantly Muslim judiciary. Thus, the legal challenge must present arguments grounded in constitutional law whilst demonstrating why, even under Islamic law, child marriages are now problematic.
[1] Section 10, Law Reform (Marriage and Divorce) Act 1976
[2] Sarah Norton-Staal and Lyn-Ni Lee, “Advocacy Brief: Towards Ending Child Marriage in Malaysia,” UNICEF, (October, 2020)
[3] Hannah Beech, “11 and Married: Malaysia Spars Over an Age-Old Practice,” The New York Times (29 July 2018)
[4] Hariati Azizan, “Child Marriages on the rise,” The Star Online (6 October 2013)
[5] Mohammed Rasooldeen, “Advisory Committee on Muslim Law Reforms submits MMDA report,” Daily News, (29 June 2021)
[6] Sisters in Islam, “Do Not Use Islam to Justify Child Marriage” (2 July 2018) < https://sistersinislam.org/do-not-use-islam-to-justify-child-marriage/>
[7] The Qur’an (4:6)
[8] Article 121(1), Federal Constitution
[9] UNICEF, “Child Marriage in Malaysia” (2018)
[10] Ibid.
[11] Ibid.
[12] Article 5(1), Federal Constitution
[13]Lembaga Tatatertib Perkhidmatan Awam, Hospital Besar Pulau Pinang v Utra Badi A/L K Perumal [2000] 3 MLJ 281
[14] Independent Thought vs. Union of India [2017] 10 SCC 800; Disha Chaudhry, “Child Marriage before the Indian Supreme Court” OxHRH Blog (16 November 2017)
[15] Ministry of Women, Family and Community Development, National Strategy Plan in Handling the Causes of Child Marriage (2020); Schedule 9, List II of the Federal Constitution
[16] Mohamed Azmi SCJ, Mamat bin Daud v Government of Malaysia [1988] 1 MLJ 119
[17] s 11, Sexual Offences Against Children Act 2017
[18] Shraboni Patra, “Motherhood in Childhood: Addressing reproductive health hazards among adolescent married women in India” (2016) 13 Reproductive Health 52
[19] Raus Sharif CJ in Gin Poh Holdings v The Government of the State of Penang & Ors [2018] 3 MLJ 417
[20] UNICEF “Child Marriage: Child Marriage threatens the lives, well-being and futures of girls around the world” (June 2022) < https://www.unicef.org/protection/child-marriage>
Juliana Ganendra is studying for her LL.M. in International Legal Studies at Georgetown University, USA. She graduated from University of Cambridge in June 2023 and has interned at the Malaysian Court of Appeal and Federal Court, assisting in the research for judgements.
Many thanks to Dato’ Malik Imtiaz Sarwar for his mentorship and guidance on this research and to Datin Shalini Amerasinghe for her comments on an earlier draft. All errors and omissions remain mine.