Between social change and law

  • Letters
  • Tuesday, 11 Jan 2011

There are no easy answers – legal, social, religious or political – to the controversy surrounding the marriage of a 14-year-old girl to a 23-year-old man.

WHEN laws are drafted, lawmakers lay down general rules of conduct. They usually have in mind the average citizen over 21 years old. When the judge interprets the law, he usually speaks in terms of the average, reasonable man. Hence, in a world of average, reasonable men, law making is far less complicated.

But the world is full of exceptions, and the old adage has reason in it, that the exceptions test the rule. The exception in this context is that Muslim girls below the age of 16 and Muslim men below the age of 18 can marry only with the Syariah Court’s consent.

The marriage of Siti Maryam Mahmod, 14, to Abdul Manan Othman, 23, in July, 2010, was indeed a controversial case, which actually represents only the tip of the iceberg.

Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom, was reported to have said the marriage was legal as it had the Syariah Court’s consent. It’s refreshing to know and to see that the minister is answering the controversies around this issue and not sweeping it under the carpet.

But, the main question still remains unanswered. Why did the Syariah court consent to the marriage? Why did the Syariah judge not request both parties to go for pre-marital counseling?

This is a sensitive issue and there are no easy answers to these questions. It strikes on many domains – the social, religious and political as well as legal.

The Syariah court’s decision in this case seems to contradict decisions on the matter by Al-Azhar Al-Sharif, the highest religious body in the Sunni world, through a manual on the rights of Muslim children.

It reads: “Marriage in Islam is regulated by certain rules, namely, children must reach puberty and maturity so that they can get married.”

Similarly, Article 10 of the International Convention on Economic, Social and Cultural Rights, provides that “marriage must be entered into with the free consent of the intending spouses”.

Even more telling, a similarly worded provision can be found in Article 23 of the International Covenant on Civil and Political Rights.

Siti Maryam, who had reached puberty, was reported to have given her free consent and was not coerced by her father.

The debate is not about puberty but whether she has reached the age of maturity where legal accountability is thrust upon her. Herein lies the difference of opinions.

The Convention on Children Rights (CRC) defines a child as a person less than 18 years old. Whereas, under Shari’ah law, a child has no legal capacity except when he/she has reached the age of puberty (baligh).

It is based in effect on the Islamic principle of ‘akl (reason) which may not necessarily be 18 years old. The child acquires that capacity when he/she reaches the age which Islamic law presumes him/her to have acquired ‘akl.

This is different in the various schools of thought, but it would appear that “maturity of mind” (rushd) in the context of certain transactions gives the child a limited capacity.

As opposed to general principles of Civil law which is used in the CRC, Islamic law, as a general proposition, creates a system of steps in ascertaining legal capacity. Above a certain age, when of “perfect understanding” he can participate in legal acts.

However, the guardian (wali) can intervene, if this is done in the interest of the child. After the child has reached the age of majority, intervention by the wali is no longer possible.

In Islamic law, on attaining puberty, a marriage may only be permissible; it is not mandatory by any interpretation. Neither the Quran nor the Prophet prescribed any fixed age for puberty or marriage.

Prof Tahir Mahmood stated that the supposedly lowest age of puberty for girls (nine years) was based on some precedents of 7th century Arabia, said to have been accepted by Imam Abu Hanifa 100 years later.

Two other jurists of Abu Hanifa’s time, Ibn Shubruma and Abu Bakr al-Asam, had disapproved of minor girls’ marriages, relying on some indications in the Quran.

While the great Imam’s viewpoint prevailed among his followers till recent times, many Muslim countries have now raised by legislation the lowest permissible age of marriage for girls and boys.

The first state law for this purpose was enacted in Egypt in 1923. Many other Muslim countries followed suit. The lowest permissible age of marriage for girls is now 18 in Algeria, Bangladesh and Somalia; 17 in Lebanon, Syria and Tunisia; 16 in Egypt, Indonesia, Malaysia, Pakistan and Yemen; and 15 in those Muslim countries where family law has been codified.

However, the actual working of these enacted laws tells a different story. Nowhere in the Muslim world has the practice of the minor’s marriage been wholly abandoned.

Perhaps we should learn important lessons from India where the law to restrain child marriage has always been a toothless tiger. The Sarda Act and its provisions shared by other statutory family laws have failed to eradicate child marriage.

The old Arab practice of child marriage was not of Islam’s creation. Some great Muslim jurists of the past disapproved it on the authority of the Quran. The law in many Muslim countries does not allow it. However, these laws do not affect the legal validity of such marriage.

From the legal perspective, several studies have highlighted powerful critique of such laws, the lacunae in it as well as the confusions, contradictions, and lack of gender sensitivity inherent in the various statutes dealing with the age of marriage, the age of consent, and the validity of marriage.

These concerns were based on the fact that early marriage violates human rights to which a child is entitled: the right to health, to education, to equality, to liberty and security of the person and the right to make a free and informed choice of a spouse.

Many of these weddings are furtive and hurried. This not only deprives a young girl but also militates against opportunities to think through, especially on practical and interpersonal readiness for marriage.

Significant suggestions as to actions which can be taken by interested persons and, NGOs to challenge and change the existing situation are also proposed in such studies.

These outline strategies to help those who have been married at an early age, and for the prevention of early marriage through education, advocacy and alliance-building.

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