This article first appeared in Forum, The Edge Malaysia Weekly on December 24, 2018 - December 30, 2018

A section of the Muslim community in Malaysia will never enter the civilised world, will cause embarrasement to the larger Muslim world and, worse still, allow for the exploitation of young girls due to their blind adherence to outdated traditions, disguised by them as divine law.

Here, I refer to the view that not only allows for the marriage of what most would regard as underaged girls, but also considers such marriages as sanctioned by Islamic law and supported by Prophetic tradition. Any attempt by the state to legislate a minimum age of marriage that would be considerably higher than what some consider to be permissible according to Islamic law, would be seen to be the creation of non-divine law and Islamically illegitimate.

The topic of child marriage became hotly debated in the media after news emerged of the marriage between an 11-year-old Thai girl and a 41-year-old man from Kelantan. Although the minimum age of marriage in Malaysia is 16 for females and 18 for males, the Syariah Courts may use their discretion to give permission for the marriage of males and females below those ages.

The above-mentioned marriage brought to the fore the question of the extent to which Malaysia is committed to protecting the rights of minor girls. While Malaysia has ratified the Convention on the Rights of the Child and the Convention for the Elimination of All Forms of Discrimination Against Women, the continuing practice of child marriages in the country does raise the serious question of our ability to protect minors, especially the most vulnerable among them.

Child marriage is by no means rare in Malaysia. According to one report, 9,061 child marriages took place during the last five years. But, it is interesting to note that child marriage is not peculiar to the Muslim community. According to a Unicef report, “Child Marriage in Malaysia”, by Prof Datuk Noor Aziah Mohd Awal and Mohd Al Adib Samuri, the practice is not restricted to Muslims but is also found among non-Muslims, indigenous and refugee communities in the country.

The report cites data showing that there were some 15,000 girls who were married before reaching the age of 15 as of October 2010. Data also shows that there were 5,215 cases of married non-Muslim female children (16 to 18 years old) between 2005 and 2015. Among Muslims, the report cites data from the Department of Syariah Judiciary, which recorded 6,584 cases of marriage among Muslim children between 2011 and 2016. Child marriage is also found among the Orang Asli community, the report says, citing the 2010 Orang Asli Census. During that year, there were 196 married Orang Asli children out of 63,883 married couples among the community.

Also in 2010, the Ministry of Health cited the state of Kelantan as having the highest rate of child marriages, with 5.4% of 15- to 19-year-olds, both boys and girls, being married. Sabah recorded the next highest rate with 4.34%, followed by Sarawak with 4.32%.

But, the actual rate of child marriages is likely to be higher than what has been reported. The statistics that we have only refer to child marriages that have been recorded. There would be many child marriages that have taken place without being recorded.

There are a host of problems relating to the phenomenon of child marriage such as the lack of knowledge and awareness of sex education as well as unplanned pregnancies. Also, many who are in underaged marriages would have dropped out of school and have far fewer years of education than those who do not end up in child marriages.

Among the most important problems associated with child marriage is the dimension of religious conservatism. A Sisters in Islam publication, based on the 2010 population census, said that of the nearly 153,000 persons below the age of 19 that were married in Malaysia, most were from the Muslim community.

Syariah courts in Malaysia may allow Muslims to marry at the age of 16 or younger.

Those Muslims who are supportive of such marriage practices would usually point to the marriage of Prophet Muhammad to Aishah when she was nine years of age. Apart from the fact that there is disagreement among Muslims scholars regarding the age of Aishah when she married the Prophet, it is wrong to identify a prophetic practice and assume that it applies to Muslims in other times and places.

Rules in Islam, including those governing marriages, are meant to safeguard and protect people, especially minors. It is the interests of people that are the ultimate concern of religiously originated rules. To say that the marriage of young girls in Islam is allowed simply because it was practised in the past and is permissible according to Islamic tradition is not to say that new rules that raise the minimum age of marriage would therefore be inconsistent with Islamic ethos. Having new rules to eradicate the practice of child marriage, therefore, requires a change in orientation.

A recent joint report by Unicef and Al-Azhar University in Egypt stated that “child marriage is no more than a custom; it is not part of Sharia or worship and it leads without doubt to significant adverse effects. Therefore, the preferred age of marriage is after the age of 18 years. Marriage is a religious and social responsibility that demands the ability and willingness of both husband and wife to bear its responsibilities, so it is not right to apply this burden to children.”

Indeed, in many Muslim countries, the minimum age of marriage is higher than in Malaysia. In Algeria, it is 19 for both men and women; 18 for women and 21 for men in Bangladesh; 18 for both men and women in Morocco; and 18 for women in Turkey.

Islamic law in Malaysia needs to catch up with this reality. The argument that Islam allows for the marriage of women, sociologically understood and defined as girls, that Islamic law is fixed and immutable, and that raising the minimum age of marriage is designed to prohibit a practice allowed by Islam, is weak when seen from the perspective of Islamic tradition itself.

In a paper entitled “Islamic Law Reform: Between Reinterpretation and Democracy” (in Yearbook of Islamic and Middle Eastern Law, Vol 18, No 1, 2017), the author, Mohamed Fadel, makes an important point regarding the place of practical reason in the development of what is called Islamic law.

He points out that in Islamic tradition, it is not only rules found in the doctrines of Islamic law or rules derived from the principles of jurisprudence (usul al-fiqh) that are deemed Islamic, but also rules that are derived from practical reason, that is, rationally derived rules that function to advance the interests and well-being of people in this life. This was the view of scholars such as Rifa‘a Rafi‘ al-Tahtawi, Khayr al-Din al-Tunisi and Rashid Ridha.

The Malaysian government needs to take strong measures against the practice of child marriage in the area of legislation and also ground these measures in terms of Islamic tradition to silence the closed mind of religious conservatism.

Syed Farid Alatas is Professor of Sociology at the National University of Singapore

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