Child marriage: Federal govt can criminalise it, bypass state laws

Child marriage: Federal govt can criminalise it, bypass state laws

So, the government claimed that Muslim or customary marriage is a matter within state jurisdiction, therefore the Federal Government can only try to persuade but cannot compel the states to raise the age of marriage to 18.

 Is it true?

Which constitutional experts have they consulted? Perhaps they should have asked experts like Prof Shaq Faruqi, who already stated that despite the federal-state division of powers, the federal government is not as helpless as it may seem.

(1) It can request the Conference of Rulers to take a stand on this matter.

(2) The Conference could in turn advice, though not compel, the Malay Rulers in each state to instruct their State Assemblies and Shariah establishments to increase the age to 18.

(3) Though Muslim and customary marriages are in the state list, criminal law is a federal matter. It is therefore possible to create a federal crime of child marriage under the penal code or some other child protection law.

(4) Marriage is one thing; crimes within marriage are another. Take domestic violence or anal sex in a Muslim marriage. It is arguable that any matter in the Penal Code is outside the jurisdiction of the states (see schedule 9 List II item 1) and within federal powers to prosecute.

(5) We take note that all religious practice is under art 11(5) subject to “health” and “morality”. Child marriage, even if permitted by religion or custom, can be criminalised under the power of Article 11(5) of the Federal Constitution.

Time for us the rakyat to start acting for the most vulnerable of our society, our children.

Siti Kasim is a human rights lawyer cum activist.

The views expressed here are those of the author/contributor and do not necessarily represent the views of The Leaders Online.


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