Loyal Followers

Tuesday, December 04, 2012

Child Marriage – rethinking the issue

Child marriage has somewhat become something of a phenomenon in Malaysia.

In a New Straits Time report dated 13th June 2010 (republished by asiaonenews), the following was published:

“….according to the 2000 Census, there were 11,400 children below 15 years of age who were married - 6,800 girls and 4,600 boys. Of the 6,800 girls, only 2,450 were Malay. This means that the syariah court gave its consent to each of these 2,450 under-age girls to get married.

The remainder of 4,350 girls were non-Malays comprising 1,550 other Bumiputera, 1,600 Chinese, 600 Indians, and 600 others. It is not known whether they had got their licence from the relevant minister, but even if they did, it would have been illegal, since there are no legal provisions for a non-Muslim under 16 years to get married.”

The report added:

“Last year,(2009) 479 children under 15 years, two of them boys, were getting ready to tie the knot. And 32 of them were below 10 years. None of them were found to be HIV-positive.

This is based on Health Ministry statistics of premarital HIV screening for Muslims, a compulsory requirement for those wanting to get married.

However, it is not certain if any of these applications for marriage were approved by the state religious department.”

The legal age for marriage for non-Muslims in Malaysia is 18 years old. For Muslims however, the legal age is 16 years old. However, in the case of Muslims in Malaysia, the Syariah Courts are empowered to allow marriages of children who are under 16 years of age.

There are alarming and disconcerting reports about child marriages in Malaysia. In early 2010, there were reports of two marriages involving a 10 and 11 year old girls married off to men in their 40s in Kelantan. The 11 year-old was later found in a state of shock. The Syariah Courts later ruled the marriages illegal. The ground for illegality however was not based on whether there was adequate consent from the children or on their respective age but was rather based on procedural non-compliance.

Child marriages, particularly among Muslims in Malaysia, although not a societal norm, are however a socially acceptable practice among a section of the society. Mass weddings involving children are, for instance, carried out. The State lends its approval and sanction either by publicising such weddings on the front page of its mainstream newspapers or by its leaders attending such weddings. In December 2010 for instance, a 14 year old girl participated in such wedding by marrying a 23 year old teacher. This was widely reported.

Recently, the Syariah Court granted permission to a father to marry off his 12 year old daughter to a 19 year old boy. In the application for permission, it was cited that the girl had run away to stay with her boyfriend and refused to come home. Marriage was, apparently, the only solution to solve the problem and to protect the family’s honour and reputation.

If only life was that simple.

Let’s consider what the laws of this country say about children under 18 or 16. They can’t enter into a binding contract save for those which affect their necessities. They can’t even buy tobacco products and alcohol. They can’t have driving license. They can’t watch movies of certain types without an adult accompanying them. They cannot be contractually employed. They surely can’t vote in a general election. They also cannot enter clubs. Generally, a boy or man can’t have sexual relationship with any girl of 16 or less even with her consent. That would be statutory rape.

Why is that? That is because the law assumes that a girl or any person, regardless of gender, of less than 18 year old (or 16 in the case of statutory rape) is not able to give free consent. For the uninitiated, free consent is a necessary element in a contract or in sexual acts in order to determine whether the acts constitute rape or otherwise.

Regardless of the above, strangely, sexual acts involving girls of 16 or less will be alright and completely legal if she is legally married! The law is indeed an ass!

If children under 18 or as the case may be, 16 years of age, are presumed by law not to be able to give free consent to enter into a contract or to have sexual relationship – or to exercise proper judgment whether or not to buy tobacco products or alcohol – on what premise does the State legalise such sexual acts through a State-sanctioned marriage?

What is most unsatisfactory about the marriage of the 12 year old is the blatant transfer and absolution of parental responsibilities by the parents and the Courts to the 19 year old groom as well as the 12 year old bride. Reading the case, the first question which crept up in every reasonable person would be, “how can a 12 year girl have a boyfriend?” And “how can a 12 year old run from home to be with her 19 year old boyfriend?” Then, we would ask “what will happen to the 12 year old after her marriage?” “How is she going to cope with all the responsibilities that come with a marriage?” “Can she be a good mother?” “Can the 19 year old support his family?”

On 19th July 2012, Malaysia ratified the United Nation Convention on the Rights of the Child with the following reservations:

"The Government of Malaysia accepts the provisions of the Convention on the Rights of the Child but expresses reservations with respect to articles 2, 7, 14, 28 paragraph 1 (a) and 37, of the Convention and declares that the said provisions shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia."

The Convention defines a child as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

Article 18 provides:

States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

Article 19 provides:

“States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”

In view of the aforesaid provisions, which we as a nation have chosen to accept without reservation, it is thus with a degree of perplexity that child marriages, even involving girls as young as 12, are taking place without nary a thought on the welfare of the child and the responsibilities of her parents.

7 comments:

Anonymous said...

any case in reverse?? A makcik hitching up with a 12 year boy, perhaps resulting in blessed matrimony?
Also goes to show that our laws are impotent and in serious need of some blue pills.

Tiger said...

Does it mean that the law on statutory rape do not apply on these child marriages?

Anonymous said...

It does give that impression.

art harun said...

Tiger,

Rape laws, including statutory rape laws, do not apply if the child is married with the sanction of the Syariah Courts.

Ellese said...

Good issue you raise here. Essentially I'm in agreement with you. But this is part of the equation. The main worry is the advancement of teenage sex. Last year itself there's around 19000 reported teenage pregnancy. The total discarded babies if not mistaken is around 1000 to 2000. Increasing marriage age is only part of solution. There will still be thousands I reckon teenage sex below 18 and by disallowing marriage, it creates more complication.

The advent of Internet has changed the values of our teens. Increasingly there's more people subscribing to teenage or pre marital sex. The solution (not necessarily comprehensive) is in the values we want. We should reaffirm the value against teenage sex or premarital sex. We should also relook into statutory rape offences.

Perhaps with the increasing of the marriageable age we should also introduced what is called Romeo and Juliet law. unless married, it's an offence to have sex between teenagers below age say 18, 19, 20 or any other age we feel correct. It's not statutory rape but consensual sex will entail penal punishment like community service etc. and must apply to all both boys and girls. The intended effect is to have much lesser teenage pregnancy prior to the allowable marriageable age. Not only do we need to attend to young children marriage issue but must reaffirm the value of against premarital sex. Not perfect but think its part of a more comprehensive solution.

Anonymous said...

Some troglodytes never learn!

Perhaps, they have been hibernating under a tempurung near the river of denial.

The only problem to teenage or pre marital sex is sex education. PERIOD.

Legislating any new laws prove their stone-aged mindset.

art harun said...

Ellese,

Thanks.

Frankly I don;t know whether a legislation regime to criminalise sexual relationship for people of below whatever age group would be the correct solution to the problem.

We have to know what the real problem is first. Is the problem teenage sex or is it teenage pregnancy? Or both? Or is t one which leads to another?

I say this because different problems need different solution(s).

And of course, we also do not want a piece of law which is very very difficult to enforce. There is a school of thought in legal jurisprudence which argues that a rule or law which is very hard or impossible to enforce is bad rule/law.

You would remember we have laws against using mobile phones while driving right? There was also a proposal sometime ago to make it an offence for driving without both hands on the steering wheel in order to curb the usage of mobile phones while driving. Thank God it was followed true. Because enforcement would be zero! That is an example of bad law. The same with the rule against driving while talking on the phone. What is the rate of enforcement? Is there any?

I am saying this because assuming your suggestion is taken up, how are we to enforce that law? Snooping on what teenagers do in every corner of the cities/towns/kampungs?

Frankly, I do not have a clue on how to "prevent" teenage sex.

That's where I think parental responsibilities come to the picture. Why must it be the State/government which must bear the burden of this? Mustn't it be the responsibility of the family institution instead?

The State/government can of course lend a hand in education. But the real McCoy when it comes to instilling good values and morals is the family institution, which means the parents must bear the brunt of this burden.