Between Intention and Implementation

Recent Legal Reforms on Child Marriage in Contemporary Malaysia

in Journal of Legal Anthropology
Author:
Nurul Huda Mohd. Razif Postdoctoral Fellow, Japan Society for the Promotion of Science, Centre for Southeast Asian Studies, Kyoto University, Japan nhm27@cantab.net

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Abstract

In 2018, news of a 41-year-old Malay man's marriage to a Thai girl of 11 as his third wife broke out in the Malaysian media, catalysing nationwide concerns on the state of affairs of child marriage in Malaysia. This article analyses the news reports on this child marriage scandal and draws on my own long-term ethnographic fieldwork studying marriage and intimacy in the state of Kelantan to examine the ensuing public and religious debates concerning the amendment of Malaysia's Islamic family law enactments. I demonstrate that state- and federal-level efforts at curbing child marriage have failed largely due to the lack of consensus amongst the religious and political elite, as well as members of the Muslim community, on what the purpose of marriage is, who – and whose interests – it is meant to protect, and what measures should be implemented to prevent its abuse. Furthermore, child marriage in Malaysia has been ideologically sustained by a rhetoric of ‘masculinist protectionism’ in which men justify their marriage to young girls as an act of care and benevolence to mask a reality of coercion and violence. However, legal reform on child marriage will not only be ineffectual but also inadequate if it is not enforced in tandem with other initiatives such as seeking poverty eradication in rural regions; looking at the feasibility of contracting eloped marriages in Southern Thailand; and carefully reconsidering Malay adat and Islamic norms promoting young and early marriage as alternatives to prolonged periods of courtship.

In June 2018, Malaysia was scandalised by news of a 41-year-old Malay man from Gua Musang, Kelantan, who had just taken an 11-year-old Thai girl as his third wife. The marriage was solemnised by a kadi (‘marriage officiant’) of the Islamic Council of Narathiwat (the Southern Thai province where this marriage took place) in Sungai Golok – a small village straddling the Malaysia–Thailand border. This marriage would have easily gone unnoticed, had it not been for the groom's second wife, who posted photos of her husband's nikah (‘solemnisation’) ceremony on Facebook that went viral, which were accompanied by the caption: ‘Congratulations on your marriage, my husband. [My] husband is 41. My co-wife is 11 years old’ (Selamat pengantin baru, suamiku. Suami 41 [tahun]. Maduku 11 tahun). News reports say that the bride's family were not local citizens, but ethnic Malays originally from Narathiwat (Bernama 2018a; Sharifah Mahsinah 2018a). Seeing this family live in poverty was said to be one of the groom's primary motivators for taking the child as his wife, as he confessed to the media that he had married her simply to help a poor family in need: ‘I want[ed] to care for her, seeing her in her poor state. To help her family, I've taken this decision [to marry her]’ (Sumanti 2018).

It is unclear whether his philanthropic motives for the marriage were intended to disguise other (romantic) intentions he harboured for his young bride. What is certain is that his claims of having been ‘in love’ (bercinta) with her ‘ever since she was seven years old’ disturbed many, particularly after he further confessed to the press: ‘I told myself, “One day I will take this girl as my wife”, and I did so four years later’ (The Straits Times 2018). This raised suspicions, especially amongst government authorities, that there might have been elements of sexual grooming involved behind the marriage (Singh 2018). When Kelantan's Islamic authorities got wind of this case, the groom faced two charges in court, and paid a total of RM1,800 (GBP350) in fines. These charges, however, were for marrying without the court's permission and for contracting a polygynous marriage without the court's permission. There was no charge for marrying an underage bride without the court's consent (Sharifah Mahsinah and Ramli 2018).

What ensued was a media storm around this controversial marriage that brought to light the fact that 14,999 child marriages actually took place in Malaysia between 2010 and 2017, two-thirds – around 10,000 – of which involved Muslim children (Hui 2018).1 According to the Malaysian Department of Syariah Judiciary (Jabatan Kehakiman Syariah Malaysia, JKSM), from 2013 to June 2018 alone, a total of 5,823 applications for Muslim child marriage applications were submitted – and, save for a few exceptions, approved – in Syariah courts throughout Malaysia (Hui 2018). Indeed, the approval rate for child marriage applications has been overwhelmingly high on average – around 80 per cent – suggesting that any legal restrictions on such unions currently in place in Malaysian Syariah law are ineffectual (Hin 2017). These numbers and other statistics as noted below elicited great surprise from Malaysian citizens during this child marriage case, many of whom were unaware of this phenomenon that had been occurring seemingly off the public radar. This instigated a sense of moral panic nationwide, prompting state- and federal-level Islamic authorities to launch legal reforms on child marriage that would ultimately expose the various discrepancies and dissonances within the Malaysian Syariah system itself.

This article examines the media coverage of the child marriage case above to uncover the legal and social infrastructure that has allowed Muslim men in Malaysia to marry girls as young as their own daughters under fully legitimate conditions, and with the consent and complicity of state Islamic authorities. I consider recent attempts at legal reform following this child marriage scandal alongside the contradictory and rather casual approach to child marriage I encountered in my own long-term ethnographic research on Malay intimacy and eloped marriages in the city of Kota Bharu, Kelantan, at the Malaysia–Thailand border. To follow the thread of these debates and the legal and social ramifications that followed, I analysed more than thirty news articles in English- and Malay-language newspapers reporting the development of the scandal, and the information gradually made public. I draw on my primary data collected through court observations and archival analyses of marriage validation, inheritance, and divorce cases conducted in the Syariah Court of Kota Bharu, highlighting marital trends in Kelantan that generally favour younger and earlier marriages compared to other parts of Malaysia. My daily interactions and interviews with my Kelantanese interlocutors from various walks of life – from court officials to judges and from market vendors to taxi drivers – reveal a relatively widespread acceptance of ‘marrying young’ (kahwin muda) to curb unlawful sexual temptation. In Kelantan, child marriage is not an irregular occurrence, though the sensationalised news coverage around the above-mentioned marriage gave the nation the impression that this was out of the ordinary.

This article demonstrates that the practice of child marriage has been ideologically sustained and supported by a ‘masculinist protectionist’ rhetoric among its proponents, who justify marrying underage girls as a benevolent act of care and protection for the young, the poor, and the vulnerable. ‘Masculinist protectionism’ refers to the paradigmatic positioning of women and children as weaker in relation to men, who are designated as their protectors. In this marital bargain, women's obedience and subservience is expected in exchange for men's care and protection, allowing for a relation of dependence that is unequal and exploitative. This creates the condition for a form of ‘dominative masculinity’, which is defined by the Malaysian sociologist Maznah Mohamad as ‘the inter-dependent syndrome of the “behaving women, privileged men”, denoting a relationship based on a differential and unequal exchange of rights, entitlement and resources’ (Maznah 2011: 822). The masculinist protectionist ideal deeply entrenched in the Islamic marital contract, I suggest, explains this political hesitation to raise the minimum age for marriage, which has been stalled by a lack of consensus amongst the religious and political elite as well as the Muslim community on what the purpose of marriage is, who – and whose interests – it is meant to protect, and what measures should be implemented to prevent its abuse. Although state Islamic authorities have issued religious opinions (fatwas) indicating that child marriage is harmful to children, the lack of political will to enforce these as law shows the political powerlessness of Islamic leaders in curbing this practice. These conflicting opinions at the level of Islamic interpretation and legal enforcement carry concrete political and policy implications that continue to allow men in Malaysia to wed young, underage girls under perfectly legal conditions.

Marriage patterns in Malaysia

Child marriage is defined as a marriage involving minors or children under the age of 18. The United Nations Children's Fund (UNICEF) recognises child marriage as a fundamental violation of human rights and a serious gender discrimination issue (UNICEF 2021a). Globally, girls are five times more likely to marry under the age of 18 than boys, and usually to men who are much older than them (Arthur et al. 2018: 52). This creates a host of negative impacts on child brides that have been widely documented in the literature, including reduced access to education and participation in the labour force (Hindin and Fatusi 2009); limited agency and decision-making on personal, financial, household and reproductive issues (Parsons et al. 2015: 13); higher risks of facing sexual, gender-based and intimate partner violence; and reduced control in sexual autonomy and reproductive decisions (Parsons et al. 2015). Child marriage also leads to poorer mental health outcomes (Gage 2013), as well as reduced states of physical health associated with earlier and higher rates of pregnancy (Onagoruwa and Wodon 2018).

Despite these risks, UNICEF estimates that 650 million girls have been affected by child marriage worldwide (UNICEF 2021a: 9). Statistical data released by UNICEF Malaysia shows a disproportionate distribution of gender in child marriages, which are exceedingly higher for girls than for boys: 90 per cent of 1,856 children who were married in 2018 were girls (UNICEF 2021b).2 This means that most child marriage cases in Malaysia actually involve female minors marrying men older than them; few of these are marriages between minors, as those in favour of preserving child marriage would argue.

Contemporary debates on child marriage reflect the significant demographic changes that Malaysia has undergone since the pre-independence period (before 1957). Existing studies indicate that women's age at first marriage in Peninsular Malaysia has increased considerably from 16.6 in 1947 to 21.4 in 1974 (Jones 1986).3 In the state of Kelantan, this number remained much lower for both men and women. According to Che Hashim Hassan's study of marriage and divorce in a rural village in Kelantan conducted in 1981, the age at first marriage for men and women appears to have increased since the pre-independence period, though it is still far below the figures nationwide.

Table 1.

Year of first marriage in a village in Kelantan in 1981.

Year of first marriage N Men's median Age Women's median age
Before 1958 63 17.4 14.7
1958–1969 54 19.0 15.7
1970–1981 51 20.6 17.3
Total 168 18.9 15.6

Early marriage – for girls in particular – in Kelantan was reported to be more common due to family poverty, women's limited access to education and the labour force, and the stigma of being an ‘unmarried old virgin’ (anak dara tua) (Zainab and Wan Ibrahim 2017: 164). The anxiety to prevent pre-marital intimacy or out-of-wedlock pregnancy also led many parents to marry their daughters off early through parental arrangement. Despite this pattern of early and arranged marriage, Kelantanese women were not expected to stay in an incompatible marriage; it was not uncommon for marriages to end in divorce before they were consummated. Indeed, Kelantan in the 1950s was known for its unusually high divorce rate – the highest in the Malay Peninsula (Raybeck 1974: 228), and also in the world, in fact (Jones 2021: 37)! Malays in Kelantan thus approached marriage as a dissolvable union rather than a lifelong commitment. The low stigma on divorce, the relative ease of marrying as a divorcé(e), and fluid childcare and household arrangements made remarriage a common and natural progression after divorce (Firth 1966; Jones 2021; Tsubouchi 1975).

The percentage of marriages ending in divorce in Kelantan fell from 70.96 per cent around the time of Malayan independence in 1957, to 65.9 per cent in 1966 (Raybeck 1974: 228). By 1970–1971, the Japanese anthropologist studying Kelantan, Yoshihiro Tsubouchi, found that ‘a decrease of divorce [had] become a prevalent trend in Malaysia’ (1975: 135). Part of this change in the divorce rate can be explained by the rapid economic development that began in the 1970s, which opened up various economic opportunities for women outside of marriage, in addition to expanding women's access to education (Brien and Lillard 1994: 1169). The decreasing divorce rate is also closely linked to an increase in women's age at first marriage as a result of these developments. Barbara Von Elm and Charles Hirschman reported that the length of women's education in Malaysia had ‘the strongest effect’ in increasing their age at first marriage (1979: 883) – a trend that is also reflected globally, though to a varying extent (McCleary-Sills et al. 2015: 69; UNICEF 2021a).

Marriage and divorce statistics for Muslims in Malaysia as of 2019 indicate that the current median age at first marriage is 27 for men and 26 for women (Department of Statistics 2020). Yet according to a study of single mothers conducted in three states located in the East Coast region (Kelantan, Terengganu and Pahang), the median age at first marriage for women was found to be 20 – remarkably lower than the national average. Around 49.6 per cent of the 500 respondents recruited for this study reported first marrying at the age of 19 or below (Zainab and Wan Ibrahim 2017: 163–164).

There may be several reasons why Malay women in the East Coast still resort to early marriage today. According to Tey Nai Peng, rural women in Malaysia are more likely to marry younger, to divorce while still at a marriageable age, and to remarry to secure a source of financial support (2011: 152–153). However, Kelantan's lowest urbanisation rate in all of Malaysia at only 42.4 per cent (as of 2010) indicates low levels of economic growth and activity (Department of Statistics 2011). This actually creates economic precarities that bring many marriages to the brink of divorce, leading to a paradoxical cycle in which socio-economic instability and poverty both contribute to divorce and are themselves an outcome of divorce (Maznah and Rashidah 2011).

According to statistical data on divorce I obtained from the Kota Bharu Syariah Court in the state of Kelantan, between 2003 to 2014, more than one-third of divorces occur in the first five years of marriage, with one-fifth more taking place within five to ten years of marriage. Although these numbers do not indicate the main cause of divorce, my court observations of divorce proceedings in the same court between 2013 and 2014 suggest that male unemployment, economic constraints, and family intervention due to the lack of resources needed to establish a neolocal household all contributed to divorce for couples in the first several years of marriage.

Table 2.

Divorce and marriage duration in Kota Bharu, Kelantan, 2003–2014.

Duration of marriage: 1–5 Years 6–10 Years > 10 Years
Year Total divorce No. of divorce % of total divorce No. of divorce % of total divorce No. of divorce % of total divorce
2003 1,975 727 36.8 362 18.3 886 44.9
2004 1,835 635 34.6 351 19.1 849 46.3
2005 2,032 728 35.8 381 18.8 923 45.4
2006 1,959 694 35.4 375 19.1 890 45.4
2007 1,912 659 34.4 375 19.6 878 45.9
2008 2,266 814 35.9 384 16.9 1,068 47.1
2009 2,275 870 38.2 407 17.9 998 43.9
2010 2,572 869 33.7 419 16.3 1,284 49.9
2011 2,734 1,119 40.9 530 19.4 1,085 39.7
2012 2,630 1,141 43.4 527 20 962 36.6
2013 2,636 974 36.9 518 19.7 1,144 43.4
2014 1,355 572 42.2 269 19.9 514 37.9

Source: Syariah Court of Kota Bharu, Kelantan.

As the child marriage scandal discussed above indicates, poverty is also one of the main drivers of child marriage in Malaysia, alongside limited access to sexual and reproductive health education, ineffective parenting skills and poor school attendance (UNICEF 2021b). Parents earning a low income are more prone to marrying off their daughters to reduce the financial burden of the family (Kohno et al. 2019: 5; Kohno et al. 2020: 8). This is a common family strategy for survival, particularly in social contexts with a strong tradition of providing bride wealth or a bride price, where the groom or his family provides a gift payment to the bride or her family at the time of marriage (Parsons et al. 2015: 13).

The strongest driving force behind early marriage in Malaysia's East Coast, however, could be Malay adat (culture and traditions) and Islamic prohibitions on pre- and extra-marital intimacy. Kelantan, in particular, is known as the most Islamically ‘conservative’ state in all of Malaysia. More than 90 per cent of the population of Kelantan are Malay-Muslim; it is also home to the country's main Islamist opposition party, PAS (Partai se-Islam Malaysia, or the Pan-Malaysian Islamic Party). PAS's government enforces a unique form of state-level leadership known as ‘ulama [religious leader] leadership’ (kepimpinan ulama), which enforces Islamic policies and inculcates spiritual values that enjoin its Muslim citizens to ‘enjoin the good, and forbid the evil’ (amar makruf, nahi mungkar). In this spirit, public places that could serve as a dangerous meeting place for young, ‘hot-blooded’ (darah panas) lovers such as cinemas are banned. A Vice Prevention Unit (Unit Pencegah Maksiat) operated by Kelantan's Department of Religious Affairs (Jabatan Hal Ehwal Agama Islam Kelantan, JAHEAIK) also makes regular spot checks in budget hotels and public parks to ensure that couples do not transgress codes of sexual decency, lest they be charged under Kelantan's Syariah criminal law for khalwat (illicit proximity) or zina (unlawful sexual intercourse) (Nurul Huda 2020).

Marrying young

The sense of urgency to marry young couples before they transgress adat and Islamic limits on intimacy was also manifested in my daily conversations on marriage and intimacy with my Kelantanese interlocutors in Kota Bharu. Many of them claimed to be faithful adherents of the teachings of PAS's (now deceased) spiritual and political leader, Nik Aziz Nik Mat, who advocated his young followers to ‘marry early’ (kahwin awal), and to ‘halalise’ (render permissible) their relationship through marriage as soon as possible instead of engaging in a period of prolonged courtship.

On a drive home from Kota Bharu's Syariah Court in the suburb of Tunjung to my apartment one day in January 2015, I had a conversation with my taxi driver, Razak – a Kelantanese man who was unusually still unmarried at the age of 28 – about young people's attitudes towards marriage and sexuality in Kelantan. He recounted the story of a friend around his age, who had married a girl of 15 in the small town of Bachok, situated about twenty kilometres from Kota Bharu. He said that although the bride was much younger and was still in secondary school then, he thought the union was ‘acceptable’ because there was ‘mutual attraction’ (suka sama suka) between the two of them. And, he continued, a couple in such a situation must quickly resort to marriage to help mitigate the social and moral risks aroused by sexual temptation: ‘At least, if the girl becomes pregnant, the husband will naturally have to take responsibility for it. If they were not married, there is no guarantee that her fate (nasib) would be protected’.

Thus, in Kelantan, strong cultural and religious reservations against pre- and extra-marital sexual intimacy create socially permissible conditions – even social pressures – for Malay women to marry at a much younger age compared to their counterparts nationwide. This pressure is reinforced by social anxieties on extra-marital pregnancies, which would leave the girl's family in disgrace – unless a marriage were to take place between the couple to immediately ‘halalise’ the relationship. As Ayako Kohno and colleagues demonstrate in their study on early marriage amongst minors in Kelantan, some child marriages are the product of ‘shotgun weddings’ intended to hide the fact that the couple had had sexual relations, or that the girl had become pregnant out of wedlock (Kohno et al. 2019: 6). In such cases, a marriage – even involving a minor – is seen as a logical step for several reasons: to prevent the couple from engaging in further pre-marital sexual relations; to attribute a paternal lineage (nasab) to the child by formally acknowledging the groom as the father; and to ‘hush the matter up’ and ‘cover the family's shame’ (tutup aib keluarga).

This tendency to marry young is also supported by financial incentives offered by the Kelantan state government to prospective grooms (each as the ‘head of the family’) under the ‘Gateway to Marriage’ (Gerbang Az-ziwaaj) scheme. This scheme offers RM1,000 (GBP200) of financial aid to young couples marrying for the first time in covering their wedding expenses or the costs of setting up a new household, so as to ensure that financial constraints are not a reason for delaying their marriage. Since the launch of the scheme in 2011, the Kelantan government has allocated RM23.768 million (around GBP4.5 million) to young couples, showing a serious commitment by the state to promote lawful marriages amongst the state's youth (Norzana 2021).

These economic incentives, alongside the punitive approach to pre- and extra-marital sexual engagement, all point towards a collective social pact that favours marrying young and early. It is therefore unsurprising to see the Kelantan state's refusal to raise the minimum age at marriage following the child marriage scandal in 2018 (discussed further below) for fear that young couples might be denied a lawful outlet for sexual desire. This suggests that contemporary public debates on child marriage have largely been either absent or unimpactful in regions such as Kelantan, where age at first marriage has historically been lower than the national average, and social, cultural and religious norms are accepting of early marriage. Next, I turn to the laws on child marriage in Malaysia’ Islamic family law that make this practice feasible at the legal level too.

Child marriage in Malaysian Islamic family law

Laws on child marriage across the Muslim world typically set a minimum age limit for both boys and girls, yet many countries still allow marriages for children below this age. In Morocco, the introduction of the new family code in 2004 known as the Moudawana was deemed as progressive, as it increased the minimum age for marriage for girls to 18 – equal to boys’ – but the court may still allow exemptions for girls under 18 to marry (Prettitore 2015). Algeria, Oman and Tunisia too have set the minimum age at marriage to 18, while Saudi Arabia, Yemen and Iran use puberty, not age, as the determining factor to assess a child's maturity and readiness for marriage (Al-Hakami and McLaughlin 2016). According to the Hanbali school of thought followed by Saudi Arabia, the wali (‘male guardian’, usually the girl's biological father) can also accept a marriage proposal on behalf of his ward, even before she has reached puberty. By this time, she may choose to reject the marriage proposal before it is contracted, though few may be in a position to do so (Al-Hakami and McLaughlin 2016). In 2019, an amendment to the Indonesian Marriage Law only recently raised the minimum age of marriage to 19 for both boys and girls (Judiasih et al. 2020). These negotiable laws based on customary and religious reasons, as UNICEF points out, negate existing legal restrictions on child marriage, and threaten any progress towards its prevention and elimination (UNICEF 2021a: 29).

In Malaysia, prior to new amendments implemented in 2018 (discussed further below), all states had set 16 as the minimum age of marriage for girls and 18 for boys. Section 8 of the Islamic Family Law Enactment 2002 for the state of Kelantan, where the above-mentioned child bride and her polygynous groom resided, states that:

No marriage may be solemnised under this Act where either the man is under the age of 18 or the woman is under the age of 16 except where the Syariah judge has granted his permission in writing in certain circumstances.

Thus, the minimum age limit for marriage for both boys and girls could be circumvented with the permission of a Syariah judge. Although there are standard operating procedures (SOPs) set by the Malaysian Department of Syariah Judiciary (JKSM) for reviewing child marriage cases, it is uncertain what these are, and who they are actually trying to protect. The wording of the law in the enactment itself is vague and incomplete, allowing for permissive interpretations by Syariah judges. For example, there is no Islamic family law enactment currently enforced in Malaysia that specifies an absolute minimum age for marriage for girls and boys in the cases of exception (how young can they marry?), or by what criteria judges should assess the ‘maturity’ of the child (physical, psychological, or both?), and his or her readiness for marriage. None of these enactments furthermore state whether explicit consent from the child bride or groom is required, nor offer any guidelines for determining how the marriage will preserve the interests of the child(ren) involved (SIS and ARROW 2018: 16–18).

To the contrary, the Syariah leaves much of the decision-making power to the bride's wali. For example, in the child marriage scandal discussed above, the kadi (marriage officiant) who presided over the solemnisation ceremony explained that he had proceeded to marry the couple because ‘both the bride's parents who were present that day also agreed [to the union] and were ready to act as wali’ (Sharifah Mahsinah 2018b). As the groom was urged by the Kelantanese state authorities to register this marriage in the court, this means that the marriage had some basis for legal validity, as it fulfilled the requirement of having the wali's permission.

However, granting the wali the uncontested right to marry off their underage daughters also allows them to abuse this privilege for their own agendas. This was brought to light through certain public accounts where a senior judicial director of JKSM, Mohd Nazri Abdul Rahman, stated to the media that there have been cases involving abusive fathers forcing their underage daughters to marry to cover up various crimes. One case involved a father marrying off his daughter whom he had raped; another had forced his daughter to marry her rapist, who was also the owner of the restaurant where she worked; some had ‘sold’ their underage daughters to moneylenders to settle off their debts (Anith 2016). In all of these cases, parental – specifically, paternal – consent carries legal and moral weight that is strong enough to override a judge's authority to refuse a child marriage application. This effectively allows fathers to place their daughters in marriages that risk being physically and psychologically abusive, thus abrogating certain parental responsibilities not to do harm in favour of such practices.

Religious and political responses to child marriage

I turn to the differing approaches of the Malaysian federal government's response to the child marriage case in 2018. This response was at first condemnatory, but soon mellowed into a state of resignation when state-level Islamic authorities failed to reach an agreement on the necessity for reform.

Soon after the scandal broke out, the then Deputy Prime Minister and Minister of Women, Family, and Community Development, Datuk Seri Wan Azizah Wan Ismail, issued a public statement, saying: ‘The marriage is not [legally] valid and … they [the couple] must be separated’ (The Star Online 2018). Besides the fact that this marriage was contracted in Thailand without prior authorisation from a Malaysian Syariah judge, there were other factors that rendered the marriage legally and morally questionable: first, Wan Azizah claimed that ‘the girl's father was not approved by the court as her custodian’; second, ‘the court also did not approve of her being married to an older man’ (Danial 2018). Despite echoing public opposition to the marriage, these claims did not gain much legal or political traction, as child marriage practices in Malaysia that have come to light typically involve the father marrying off the daughter to a much older man. The Islamic family law enactments also do not prohibit marriages with a significant age difference.

This repudiatory position prompted the Malaysian Islamic authorities to sissue a fatwa (learned opinion) on child marriage. A fatwa in Islam is generally considered to be a knowledgeable response from religious scholars (ulama) on a particular issue that carries no legal weight. In Malaysia, however, some fatwas that have been gazetted can be enforced as law by the Syariah Courts, and thus can become legally binding. Within Malaysia's extensive Islamic bureaucracy, the ulama – including the muftis4 – who produce these fatwas are state bureaucrats officially appointed as the official interpreters of Islamic doctrine and legal principles. This, in theory, grants them extensive religious, political and judicial authority to amend and adapt Malaysian Syariah laws according the changing needs and circumstances of the Muslim community. However, as illustrated below, many muftis adopt either an ambivalent or encouraging position towards child marriage that has prevented any serious legal reform from taking place throughout the country in a uniform manner.

On 16 July 2018, the Office of the Mufti of the Federal Territories published an extensive fatwa on child marriage on its website right around the time when the scandal above was still a hotly debated issue (Muhammad Fahmi 2018). This fatwa contains various dalils (pieces of supporting evidence) gathered from various Islamic textual sources such as the Qur'an, the hadith (sayings of the Prophet), the sunnah (recommended practices of the Prophet), as well as other classical Islamic legal sources. The Federal Mufti's fatwa on child marriage states that ‘considering the zuruf [contemporary context] and cultural traditions [adat], it is best if child marriage is not permitted except in exceptional cases only’. These ‘exceptional cases’, the fatwa explains, include pregnancies out of wedlock, which would necessitate marrying the biological father to secure the baby's nasab (patrilineage). However, the fatwa acknowledges psychological experts’ opinion that child marriage ‘causes physical and mental problems’ in girls, and that it usually occurs ‘not for the social good [maslahah]’, but for ‘the need to recover the family honour’. Nevertheless, it maintains an ambivalent position that refuses to take a firm stand against child marriage or to abolish this practice entirely, even though it recognises that most child marriage cases compromise social well-being. The fatwa only went as far as expressing support for the federal government's intention to increase the minimum age for marriage, which, the fatwa justifies, would be intended only ‘to ensure justice, not to forbid what has been made permissible by Allah’ (Muhammad Fahmi 2018).

It took nearly a year before the Malaysian Department of Islamic Advancement (Jabatan Kemajuan Islam Malaysia, JAKIM) eventually began launching the procedures for amending the Islamic Family Law (Federal Territories) 1984 (Act 303) to increase the minimum age for marriage to 18 for girls (Ying 2019). The involvement of JAKIM – the main body responsible for standardising Islamic rule and administration across the country – showed the direct intervention of the federal religious body in responding to the child marriage issue. Datuk Seri Dr Mujahid Yusuf Rawa, the Minister of Religious Affairs in the Prime Minister's Department at the time, promised to implement tighter SOPs in court before Syariah judges may approve any marriages involving minors below the legal age for marriage. These proposed procedures included running physical and psychological health checks on the child; determining their reasons for marriage; and assessing the parents’ economic standing in order to ensure that no child is compelled to marry out of financial desperation. Under these new SOPs, state-level Departments of Health (Pejabat Kesihatan Negeri) and Social Welfare (Jabatan Kebajikan Masyarakat, JKM) must moreover submit a social, health, and police report, should the Syariah judge find these necessary for consideration (Bernama 2018b; Sinar Harian 2019). With these restrictions, guardianship of the child – specifically, the right to give girls away in marriage – would no longer rest solely on the parents or male guardian, but would involve significant state intervention at various levels.

At a pre-meeting of the Council of Rulers and a meeting of Chief Ministers on 16 October 2018, the Malaysian federal government officially proposed its intention to raise the minimum age of marriage for girls throughout the country. As marriage for Muslims falls under each state's Islamic jurisdiction, it is therefore up to each state to amend its own Islamic family law enactments. The state of Selangor was the first to take concrete steps to legally increase the minimum age of marriage for girls from 16 to 18 by amending its Islamic Family Law (State of Selangor) Enactment 2003 and the Syariah Court Civil Procedure (State of Selangor) Enactment 2003 (The Sun Daily 2018). Under this new law, brides and grooms under the age of 18 may still marry, provided that their parents or guardian file the application on their behalf, complete with a supporting affidavit testifying to the need for or urgency of the union. Another affidavit must be provided by the bride to the groom or vice versa, which should outline the reasons for marriage, the couple's health condition, and sufficient evidence of the financial ability to support each other. In addition to these requirements, other responsible government agencies must also provide health and socio-economic reports and any criminal records (Wani 2018). This measure endeavoured to make the decision to allow underage marriage one to be taken in collaboration and cooperation with various governmental agencies, rather than at the sole discretion of the Syariah judge.

However, the Malaysian federal government's proposal to raise the minimum age for marriage did not receive unanimous support from Islamic leaders in the country. The muftis of the states of Sabah and Perak, for example, were hesitant to embrace this move, even openly opposing it based on the reason that children were becoming sexually active at increasingly younger ages. Datuk Bungsu Aziz Jaafar, the Mufti of Sabah, argued that the legal age of marriage should in fact be reduced to 14 for girls and to 16 for boys, rather than increased to 18, as ‘some of these children can already be considered mature’ (Su-Lyn 2018). Similarly, a Terengganu state official defended maintaining the existing minimum legal age for marriage at 16 for girls, as stipulated in Section 8 of the existing Islamic Family Law (Terengganu) 2017, with the following question: ‘Would we rather see a child of 12 years old commit adultery (berzina), [even though] they are already eligible for marriage when they have reached psychological and physical maturity (akil baligh)?’ (Hanneeyzah Bariah 2018). Following an extensive roundtable discussion involving JAHEAIK, Kelantan's Department of Religious Affairs, and several human rights organisations, the Kelantanese state similarly argued that underage marriage is ‘in line with Syariah laws’ and is ‘a necessity’ for preventing sexual transgressions among the youth (MalaysiaKini 2018). Like many other states, Kelantan decided to maintain existing age provisions for marriage at 16 for girls and 18 for boys out of fear that denying adolescents early access to marriage would lead them to engage in pre- and extra-marital sex.

These states’ resistance to eliminating child marriage reveals an interesting paradox: Islamic clerics traditionally seen as ‘conservative’ here actually appear to be the ones wanting to adopt a liberal position by encouraging sexual engagement at a younger age. This position, however, overlooks the statistical reality mentioned above, in which child marriages rarely occur between minors, but in fact normally involve girls under the age of 16 with older grooms. Although there is no data to determine the age gap in these marriages involving female minors, a permissive approach at the legislative and interpretive levels leaves room for child marriages resulting from sexual grooming to occur, as in the case of the 11-year-old bride discussed above. Indeed, this child marriage case is a prime example of how Malay men have used the dominative masculinity ideology to justify marrying girls: the 41-year-old polygynous husband, for instance, rationalised his marriage as a charitable act of bringing his child bride out of poverty. This language of benevolence acts as a smokescreen for the fact that he had, by his own admission, groomed the girl to be his bride with professions of love and promises of marriage to her since she was but a child of seven. This tendency to sexualise young girls is echoed among the highest level of Islamic authorities in the country, with many state muftis defending child marriage as a means for children to be sexually active within marriage.

Framing young girls as not only sexually active, but in need of marital protection reproduces the masculinist protectionist rhetoric that elevates men to the position of the male saviour. Proponents of child marriage thus seem to favour the transferal of rights over girls from one male to another – that is, from the father to the husband – thereby allowing the reproduction of dominative masculinity in the young bride's transition from ‘daughter’ to ‘wife’. This, I suggest, is an agenda sustained by Islamic family law enactments that place female guardianship in the hands of male guardians who possess the legal right to marry off their young daughters to older men, even in situations of possible abuse and exploitation.

Further impediments to curbing child marriage

The child marriage scandal in 2018 suggests that legally raising the minimum age of marriage all over Malaysia would fail to curb child marriage in Malaysia, unless another major loophole in the law were to be addressed: the feasibility of eloping to Southern Thailand. These cross-border elopements present an alternative channel to marriage that easily circumvents Islamic family law in Malaysia. The five provinces that make up Southern Thailand where many Malay-Muslim Malaysian couples elope to – Narathiwat, Pattani, Yala, Satun and Songkhla – have a predominantly Malay-Muslim population that adopts Islamic family laws on marriage, divorce and inheritance. It is under this special concession to Islamic law that Malay-Muslim couples are able to marry in Southern Thailand. As I have explored elsewhere (Nurul Huda 2021), since 2014 cross-border marriages in Thailand have been formalised by two collaborating authorities – Thailand's Provincial Council of Islamic Affairs and JAKIM – the main Islamic governing authority in Malaysia operating directly under the Prime Minister's office. These streamlining efforts introduced specific channels and paperwork procedures for contracting a ‘legitimate’ marriage that fulfils all requirements in Islam and that can be validated within the Malaysian Syariah system.

Most cross-border marriages contracted in Southern Thailand are between young couples intending to elope and marry without the bride's wali's permission. Many of these marriages are polygynous, involving men intending to marry additional wives secretly without first acquiring the permission of a Syariah judge in Malaysia.5 In the above case of polygyny with a minor, the main conditions necessary for the nikah to be valid in Islam was that the bride must have reached a state of akil baligh (maturity, presumably both physical and psychological), have willingly consented to the marriage (bersetuju tanpa paksaan), and have been married with her wali's permission – all of which the Thai kadi claimed to have verified before proceeding with the solemnisation (Sharifah Mahsinah 2018b). If these conditions were fulfilled, then this union would have to be recognised as an ‘Islamically legal marriage’ (perkahwinan yang sah mengikut hukum syarak) that can be legalised in a Malaysian Syariah court. There was no mention of the groom's eligibility for (further) polygyny, as might have been investigated were he to apply for polygyny legally in Malaysia. In Thailand, Malaysian Muslim men are therefore not legally bound by the conditions for polygyny or child marriage enshrined in the Malaysian Islamic family law, making the unusual marriage of the 41-year-old polygynist to an 11-year-old girl very likely not the first to be contracted on Thai soil.

No reform

The lack of consensus on child marriage ultimately diminished all political will to protect girls from marrying at a young age, bringing all debates to a total standstill after the media storm. The Malaysian federal government's attempts at legal reform to restrict child marriage have been completely stalled since 2018 (Jayamanogaran 2021). In March 2022, the Minister of Women, Family, and Community Development, Datuk Seri Rina Harun, announced in a parliamentary reply that the government has no plans to pursue legally banning child marriage; JAKIM, she said, no longer considered this a ‘necessity’, as most states refused to amend their Islamic family law enactments (Ayamany 2022). The Minister continued that the federal government plans to combat child marriage not just through legislative reform, but by implementing the National Strategic Plan for Addressing the Causes of Underage Marriage. This includes addressing other areas such as ‘education, health, the strengthening of family institutions, as well as socioeconomic support for the public’ (Ayamany 2022).

This move, while holistic in its approach, would do little to deter girls from being married young, if various obstructions remain unresolved at the legislative, socio-cultural and religious levels. More importantly, no amendments made on the Islamic family law enactments would successfully curb child marriage in Malaysia, except if Malay cultural and Islamic norms conducive to child marriage were to also change simultaneously. Despite the public backlash he received for marrying his daughter's playmate, the polygynist above maintained his innocence, and affirmed his clear conscience to the media by claiming: “I don't feel guilty because I married with the bride's wali [present], and we agreed to do nikah gantung for five years before we can live together’ (MStar 2018). But he did express one regret, namely, that ‘everyone has been affected by my marriage, to the point where the government [is forced to] increase the age requirement for marriage to 18’ (Sharifah Mahsinah 2018c). That a man could marry a girl nearly a quarter his age without any guilt or remorse reveals the sense of patriarchal entitlement to marrying underage girls, without fearing repercussions from a Syariah judicial system that ultimately protects paternal and patriarchal interests rather than defend the rights of the child.

Conclusion

In the midst of everyday practices and acceptances of child marriages, a sensationalised and widely reported marriage between a 41-year-old polygynist and an 11-year-old girl in 2018 presented a crisis of child marriage in Malaysia. Such extensive media reporting of the scandal created a collective sense of moral panic. Alongside this media storm, two clearly contradictory approaches to marriage emerged, which reflected diverging views on who it was intended to protect, and from what moral or social threat. On the one hand, the approaches of the muftis and the religious elite promoted marriage as a protective measure from sin and illicit sexuality amongst transgressing youths; on the other hand, supporters of child marriage reform were driven by concerns that marriage can itself be a possible site of abuse that minors must be protected from. The latter position on child marriage in particular highlights the failure of the masculinist protectionist model envisioned for the Muslim family, a failure brought about by a dissonance between the heroic ideal of the protective male and a more gruesome situation where girls can find themselves in greater danger when left in the hands of their own protectors. This raises the necessity for men entrusted with the care of their daughters and wives to have their legal guardianship rights monitored by legal restrictions to avoid potential neglect and transgression.

I have shown that recent attempts at curbing child marriage in Malaysia have ultimately failed because of the lack of coordination and cooperation between state-level political and Islamic religious authorities as well as the federal government on the necessity of, and the necessary steps for, legal reform. In fact, we see that legal reform alone is inadequate as an effective response; the loose child marriage laws currently in place in Islamic family law enactments in Malaysia should be addressed in tandem with other critical issues that concurrently contribute to child marriage: poverty and economic precarity in rural areas; social norms on the ground and governmental policies that encourage younger and earlier marriages; the feasibility of eloping across the border to contract out-of-state (and out-of-country) marriages; and the marginal role of state religious authorities – and the political impotence of the fatwas they produce – in imposing serious sanctions on men who marry girls as young as their own daughters.

Although the extensive news reports on the child marriage scandal inevitably sensationalised the story to garner public attention, the media storm did succeed in raising alarm bells on a practice that was dangerously becoming normalised in Malaysian society through permissible laws in the Syariah judiciary; on the dominative masculinity ideology that turns marriage into an exploitative institution for vulnerable girls; and on the complicity of the state and society in making early marriage a harmful ‘redemptive’ response for sexual transgressors. Until Malaysia revises the politics and policies that continue to allow men to wed young, underage girls under perfectly legal conditions, much work still needs to be done.

Notes

1

Malaysia has a multi-ethnic and multi-religious population of 32.66 million people, with 61.3 per cent of its population practising Islam. As such, Malaysia enforces a dual legal system to accommodate its religiously and ethnically plural population. The first, applicable to all Malaysian citizens regardless of race and religion, is the Civil Code, which was adapted from British common law. The second legal system is the Syariah (Islamic) law, which applies only to Muslims in matters relating to family, marriage, divorce, custody and inheritance, and criminal law (offenses punishable in Islam such as khalwat [illicit proximity], adultery, gambling and alcohol consumption).

2

Of this number, 73.92 per cent were Muslim girls, while 15.79 per cent were non-Muslim.

3

Another study cites women's age at first marriage in Peninsular Malaysia to be 18.5 years in 1947 and 22.3 years in 1970 (Von Elm and Hirschman 1979: 877).

4

A mufti is a religious scholar who interprets Islamic law and issues legal opinions (fatwas). He occupies the highest level of Islamic authority in each state in Malaysia, second only to the sultan of the state.

5

Under Islamic family law enactments throughout Malaysia, the husband (applicant) would have to prove his economic eligibility and justify his need to marry an additional wife.

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Contributor Notes

Nurul Huda Mohd. Razif is a Social Anthropologist researching marriage and intimacy in the Malay world and Muslim Southeast Asia. She read anthropology and French at the University of Western Australia and Sciences Po Paris, before completing her PhD in social anthropology at the University of Cambridge. She has held fellowships at Harvard Law School, Leiden, Paris, and Kyoto, and has published in Southeast Asian studies and gender studies journals such as Asian Studies Review, Archipel and Hawwa: Journal of Women of the Middle East and Islamic World. E-mail: nhm27@cantab.net

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