THE Malaysian Bar recently made the following statement:

“It is troubling that child marriages, for both Muslims and non-Muslims, are not rare in Malaysia.  Between 2005 and 2015, 10,240 Muslims applied for a child marriage to the Jabatan Kehakiman Syariah Malaysia. Among non-Muslims, there were 7,719 marriage applications from 2000 to 2014 for girls between 16 and 18 years old.  These alarming statistics are unacceptable and should serve as a wake-up call as to the gravity of the issue. All matters and decisions taken concern.

“Section 10 of the Law Reform (Marriage  And Divorce) Act 1976 (Act 164) states: ‘Any marriage purported to be solemnised in Malaysia shall be void if at the date of the marriage, either party is under the age of 18 years, unless, for a female who has completed her 16 year, the solemnisation of such marriage was authorised by a licence granted by the chief minister under Subsection 21(2).”

Act 164 applies only to non-Muslims.

As for Muslims, when it comes to marriages, they are subject to the respective Islamic family law state enactments.

The Islamic Family Law (Federal Territory) Act 1984 (Act 303) passed by parliament and the  relevant Islamic family law state enactments passed by the relevant state legislative assemblies  state that no marriage may be solemnised under this act (or enactment) where either the man is under the age of 18 or the woman is under the age of 16 except where the shariah judge has granted his permission in writing in certain circumstances.

It would appear that for non-Muslim girls between 16 and 18 years of age, the marriage is authorised by a licence granted by the chief minister under Subsection 21(2) of Act 164.

As for Muslim girls under the age of 16, the marriage is authorised by a shariah judge. It would appear that for a Muslim girl who has turned 16, she is permitted to get married.

For the sake of uniformity and better protection, both provisions – the consent from the chief minister in Act 164 and consent from the shariah judge in Act 303 – should be removed. These acts were passed by parliament and therefore, parliament can remove the necessary provisions in those acts. In doing so, parliament can make it absolutely clear under Act 164 and Act 303 that marriages of persons under the age of 18 is null and void. Period.

As for the respective state enactments, the Federal Constitution clearly provides that Islamic marriage matters come under the State List, in which state legislative assemblies pass laws related to it and not parliament.

The Federal Constitution, however, provides an exception for the Federal Territories in the State List in relation to Islamic matters. Hence, Act 303 passed by parliament.

Perhaps, when parliament amends Act 164 for non-Muslims and Act 303 for Muslims in the Federal Territory, the respective state legislative assemblies will take the cue and amend the respective state enactments.

The federal government cannot encroach on the State List.

As can be seen from the outset, this issue of child marriages is not a racial or religious issue but one of national interest. It involves Malaysian children. – July 6, 2018.

* Puthan Perumal reads The Malaysian Insight.