KUALA LUMPUR, MALAYSIA: The concept of child marriage appears to be alive and well in Malaysia based on government statistics of premarital HIV screening for Muslims preparing to get married.
Last year, 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.
Under the Syariah Family Law system in Malaysia, prospective brides and grooms -irrespective of age - have to apply for permission from their respective state religious departments to marry. In the application form is a section for HIV premarital screening, which has to be filled by a medical doctor.
The result of the test does not affect the granting of permission. What's shocking is that the doctors had signed off the forms for the children without batting an eyelid.
Malaysia is not a country that encourages child marriages. But neither does it outlaw it outright. Under Malaysian law, a Muslim girl below the age of 16 can marry, provided she has the consent of the syariah court. The syariah court is supposed to rule on each and every case and cannot give blanket permission.
And under the Law Reform (Marriage and Divorce) Act, which applies to non-Muslims, marriage is allowed only for people 18 years and above. However, a girl aged 16 years and above may marry, conditional upon a licence being obtained from the chief minister or menteri besar.
This means that it is supposed to be very difficult for a Muslim girl under 16 to get married, and it is supposed to be impossible for a non-Muslim girl under 16 to get married at all.
However, 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.
"We are deeply troubled by this issue and we are currently undertaking comprehensive studies to provide a clearer picture of the incidence and frequency of child marriages across the board," said Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil when contacted by the New Sunday Times.
"A child does not have the choice or capacity to give his/her full consent, and as such child marriages must be viewed within the context of force and coercion; an act that subjects the child to physical, social and psychological trauma and abuse, " Shahrizat said.
"At present the Women, Family and Community Development Ministry is not empowered to intervene in these matters unless an offence has been committed under the Child Act 2001 or, as provided by that same act, for the purposes of child protection where abuse is suspected."
The registration of Muslim marriages comes under the purview of the state religious authorities, while the registration of non-Muslim marriages comes under the National Registration Department. The minister said the ministry would be undertaking a study on child marriage in Malaysia, which would serve as the basis for future legislative change.
The phenomenon of child marriages may seem isolated when only one or two cases get reported in the news, such as the two girls in Kelantan recently. They were aged 10 and 11 years, and were allegedly married off to 40 and 41-yearold men respectively. But these are the controversial cases that make it into the public sphere. As the statistics show, child marriages are not isolated cases. This trend will have a head-on collision with the law soon, when Malaysia removes all its reservations to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
This is because Article 16(2) of the convention, which deals specifically with child marriage states: "The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory."
Women's Aid Organisation executive-director Ivy Josiah said the current laws needed to be amended, because it did not make sense for syariah and the civil LRA to be inconsistent with the Child Act 2001.
"There is a serious flaw in our laws. Both the Convention on the Rights of the Child and the Child Act define a child as a person below the age of 18.
"It doesn't make sense to allow children to get married. This goes against the grain of universal standards of human rights for children. These are not young marriages; they are child marriages.
"The state has a duty to protect children, so it should get rid of these loopholes," said Josiah. -NST