Ending sexual violence against children through eradicating child marriage in Thailand

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Child marriage below the age of 18 is a violation of basic human rights of children, especially regarding physical, intellectual, emotional, and mental development, which adversely affects their quality of life as well as society and economy in the long run. It also deprives girls and boys of the rights to live their lives as a child and destroys their opportunities to education. It puts children at risk of danger to health, including becoming the victims of domestic violence and abuses. Marriage is a significant foundation of a family institution where the spouses must be capable of bearing responsibility for themselves, family, and society. Premature marriage obstructs the development of children in every aspect, causing the inability to create a perfect family institution.

Members of the Organization of Islamic Cooperation (OIC), such as Algeria, Oman, Bangladesh, Pakistan, Egypt, Kenya, Morocco, and Turkey, have set the minimum age of marriage at 18 years of age. Recently, the President of Indonesia has prepared the Presidential Decree to amend the 1974 Marriage Law to seal the legal loopholes which allow child marriage, despite the clear stipulation of the minimum age of marriage at 21. In the exceptional case of the court’s permission, the minimum age of marriage is 19 for boys and 16 for girls. In Malaysia, the minimum age of marriage is set in both civil and Islamic laws at the age of 18 for boys and at 16 for girls, without exceptions.  

            In Thailand, however, child marriage is permitted under the Civil and Commercial Code. With an exception under the Civil Procedure Code, a man who has sexually assaulted an underage girl regardless of her consent, which is a criminal offense under the section 277 of the Penal Code, can marry her with the permission of the court and by fulfilling the requirements of the law. The Islamic Law on Family and Legislation, BE 2484, and the Act on Application of Islamic Law in the Provinces of Pattani, Narathiwat, Yala and Satun, BE 2489, do not prescribe the minimum age of marriage but leave it upon the discretion of the court, which has created a legal loophole where child marriage is legitimized based on local norms and customary practices in several cases, all of which are the violation of the Child Protection Act, BE 2546.

In the case of a 41-year-old Malaysian man marrying an 11-year-old girl from Narathiwat, Thailand, claiming the marriage was performed in accordance with the Islamic principles, the governmental and non-governmental agencies, including religious bodies in Malaysia and Thailand, have not been negligent but hastened to coordinate efforts to protect the child by convening a meeting on July 11, 2018 in Pattani. The meetings with the Central Islamic Council of Pattani and Narathiwat were held on July 12, 2018, respectively. Both Provincial Central Islamic Councils have clarified the marriage was wrong. The Central Islamic Council of Narathiwat confirmed the marriage was void as the marriage appeal document prepared by the Imam who performed the marriage was not authorized by the official body prior to the issuance of the marriage certificate. Therefore, the marriage certificate claimed by the husband is neither recognized nor validated by the Central Islamic Committee of Narathiwat. Also, the aforementioned Imam has been put on probation; hence he is unauthorized to perform the marriage for anyone. Currently, the investigation committee has been formed to probe this case. Nonetheless, the incident above indicates the legal loopholes that enable the exploitation and sexual abuses of children under 18.

Child marriage in the southern frontier provinces of Thailand continues to be misused as a tool to deal with premarital pregnancy and child abuses such as rape. Forced marriage has become the only way to avoid shame, especially from having an illegitimate child and to legalize the relationship. Marriage to escape poverty is another major reason for child marriage. Therefore, the efficient and sustainable elimination and prevention of child marriage require an attitude and behavioral change to create a new social norm. Religious and community organizations are required to take responsibility for the empowerment of the community through the Zakat Fund as a powerful tool to eliminate socioeconomic disparities and poverty in the community. This effort should be implemented alongside the amendment and enforcement of the laws by upholding the best interest of the child. To fulfill the obligations to The Convention on the Rights of the Child (CRC) and The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the CEDAW committee has given the recommendation to Thailand to amend the Criminal Code, Section 277 by setting the nationwide minimum age of marriage at 18.  The effective measures to eliminate child marriage and forced marriage must also be introduced by the Thai government (paragraph 49 (a) CEDAW / C / THA / CO6-7).

Today's children are the future of tomorrow. All children have the rights to thrive for their hopes and dreams. To achieve their fullest potentials, they should learn and have access to education, instead of getting married before the age of 18. Thus, to protect the 11-year-old girl and to prevent exploitation, sexual abuses, and for the long-term prevention of exploitation of all children, child abuse and violation of the rights of the child from child marriage, the undersigned individuals and organizations of this open letter urge the following concerned parties to take immediate actions:

1. The provincial governor of Narathiwat province, as the chairman of the Provincial Child Protection Committee, with direct responsibility under the Child Protection Act, BE 2546, is urged to resort to the legal mechanisms and lodge a police report as a necessary prerequisite for the relevant authorities to investigate the evidence of sexual assault and exploitation against the child. The police report would lead to further steps of rescue and protection of the child which enable her access to basic rights, especially education. It is also imperative to file litigation against the offender to establish future norms and procedures for child protection.

2. The Central Islamic Council of Narathiwat is urged to make a public clarity on the marriage of 41-year-old Malaysian man and 11-year-old Thai girl to clarify unlawful conduct of Nikah and issuance of the marriage certificate, which have led to the exploitation and the violation of the rights of the child. These offenses have also damaged the reputation of the Central Islamic Council of Narathiwat.

3. The Central Islamic Council of Thailand and the Provincial Central Islamic Councils are urged to take strict measures to protect the rights of children and women by conducting a clear and careful investigation of women’s willingness to marry, and ensure no women are forced in marriage. The efficient measures must be urgently established to prevent the child marriage of women under the age of 18. An example can be taken from the Central Islamic Council of Pattani, under whom, the child marriage below 18 years of age is prohibited based on the strict observation of Child Protection Act, BE 2546. Men wishing to marry more than one wife must be scrutinized to assess their behavior, economic ability and capacity to ensure genuine justice in the family based on Islamic principle, which includes the emotional and mental justice for the prior wife/wives.

4. The government is urged to coordinate with all sectors to address the problem of child marriage. It is particularly important to work closely with Sheikhul Islam Office of Thailand and the Central Islamic Council of Thailand to ensure the verdicts and laws pertaining to marriage and child protection are in compliance with Islamic principles, as well as  the international instruments and conventions, to which the Thai government has given the commitment, and hence is obliged to fulfill.  These conventions include the Convention on the Elimination of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC), particularly in preventing child marriage and forced marriage. The Thai government must seek cooperation with the Malaysian government to improve the laws and ensure their compatibility with the aim to prevent the misuse of legal loopholes between the two countries for the exploitation of children including sexual abuse against children and women.