By New Sin Yew
The recent controversy surrounding the marriage of an 11-year-old child to a 41-year-old man has brought into focus the immediate need to end child marriages in Malaysia.
The federal government recently said it was powerless to stop child marriages because Kelantan’s Islamic laws allow children under 16 to get married with the permission of a Shariah Court judge.
Is this true, though? Let’s analyse what the law says about this.
Who is a child?
In Malaysia, a child is defined as “a person under the age of 18 years”. Eighteen years is also the age of majority in Malaysia as provided by the Age of Majority Act 1971.
Why is the age of majority important?
If you have not attained the age of majority, you lack the “capacity” to make decisions with legal consequences affecting you. This means that you are not able to enter into contracts, choose your religion or make a will, among others, because you have no “capacity” to do so. In other words, the law deems that you are not able to make certain decisions before attaining the age of majority.
Can I get married without attaining the age of majority?
Yes. One exception to the Age of Majority Act 1971 is marriage.
Section 4(a) of the Age of Majority Act states: “Nothing in this act shall affect the capacity of any person to act in the following matters, namely, marriage, divorce, dower and adoption.”
This means that you can get married without attaining the age of majority.
Is there a minimum age to get married?
Yes, even though you are below 18 years old, you must be above 16 (because 16 is the age of consent to have sex), and you must obtain permission from the relevant bodies.
Section 10 of the Law Reform (Marriage and Divorce) Act 1971 (LRA) allows a person who is below 18 and above 16 to get married if the chief minister of the state gives permission.
How then was the 11-year-old girl allowed to get married?
There are two reasons. The first reason is the LRA is not applicable to a Muslim or to any person who is married under Islamic law.
This is because Muslim marriages are governed by state legislation. Under the Federal Constitution, Muslim marriages fall within the state list. This means that only the state legislative assembly may make laws on Muslim marriages. The federal Parliament has no power to do so.
Under Kelantan state law, Section 8 of the Islamic Family Law Enactment 2002 provides that “no marriage may be solemnised under this 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”.
This means that the 11-year-old girl can get married as long as she has permission from the shariah judge of the state.
The second reason is the Age of Majority Act 1971 deems that the 11-year-old girl has the capacity to get married.
Is the federal government powerless to table a law to end child marriages?
No, but this requires some explanation.
Under the Federal Constitution, there is a list of subject matters which only Parliament can make laws on. This list is known as the federal list.
There is also another list of subject matters which the state legislature can make laws on. This is known as the state list.
Parliament cannot make laws on subject matters in the state list, and the state legislature cannot make laws on subject matters in the federal list.
These lists can be found in the Ninth Schedule to the Federal Constitution.
Paragraph 4(e)(i) of the Ninth Schedule to the Federal Constitution provides a long list subject matters which fall under the federal list. It must be quoted in full for this part of the explanation:
(i) Contract; partnership, agency and other special contracts; master and servant; inns and inn-keepers; actionable wrongs; property and its transfer and hypothecation, except land; bona vacantia; equity and trusts; marriage, divorce and legitimacy; married women’s property and status; interpretation of federal law; negotiable instruments; statutory declarations; arbitration; mercantile law; registration of businesses and business names; age of majority; infants and minors; adoption; succession, testate and intestate; probate and letters of administration; bankruptcy and insolvency; oaths and affirmations; limitation; reciprocal enforcement of judgments and orders; the law of evidence.
From Paragraph 4(e)(i), it can be seen that:
1. Both “marriage” and “age of majority” are subject matters which Parliament may make laws on.
2. “Marriage” and “age of majority” are different subject matters.
That being said, we cannot ignore Paragraph 4(e)(ii) which states that:
“The matters mentioned in paragraph (i) do not include Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate.”
This means that Parliament cannot make laws on Muslim marriages. Only the state legislature can do so. No arguments with that.
What is crucial is the state legislature has no power to make laws on the age of majority.
What Parliament can do is to amend Section 4(a) of the Age of Majority Act 1971 to remove “marriage”, thus removing capacity from those who have not attained the age of majority.
What happens then?
For starters, you will not be able to get married if you have not attained the age of majority because you need to have the requisite capacity to get married.
Even if the LRA or the state enactments allow you to get married, you will lack the capacity to do so and you will not be able to consent to marriage.
This will render Section 10 of the LRA meaningless. In legal parlance, it is an implied repeal of Section 10 of the LRA. This will also render all provisions in all state legislatures allowing child marriage ineffective because marriage requires the consent of the parties.
This should bring an end to child marriage.
Where does it say that you need capacity to get married?
It is implied. Both the LRA and Kelantan’s Islamic Family Law Enactment 2002 require the parties to the intended marriage to make an application to marry.
If you lack the capacity, you will not be able to make such an application.
Is it really that simple?
It is easy to change the law as long as there is the political will to end child marriages.
However, changing the law alone will not solve the problem because child marriage remains a tradition and culture for certain sections of society.
Changing the law without prior advocacy or consultation could have the unintended effect of driving child marriages underground, not to mention the political backlash from certain sections of society.
It is essential that the federal government takes a firm stand on this issue instead of disowning responsibility, and embarks on a mission to advocate the end of child marriages to all sections of society.
New Sin Yew is a lawyer.
The views expressed are those of the author and do not necessarily reflect those of FMT.