Islamic Studies expert: Law criminalizing child marriage violates Muslim customs

Jasmin Romero, ABS-CBN News

Posted at Jan 12 2022 08:17 PM | Updated as of Jan 13 2022 05:58 PM

MANILA (UPDATE) - An expert on Islamic Studies warned on Wednesday that a new law that criminalized child marriages in the Philippines violates Muslim marriage customs. 

President Rodrigo Duterte last week signed Republic Act 11596, which outlines penalties and fines for persons who facilitate or arrange child marriages, those who perform or officiate the marriage, adult partners who cohabit with a child outside wedlock, and those who tamper with documents to misrepresent a child's age. 

Violators could face fines of at least P40,000, and up to 12 years in prison. 

Prof. Julkipli Wadi of the University of the Philippines' Institute of Islamic Studies said that the "sweeping" measure violated PD 1083. The decree, signed in 1977, recognized Filipino Muslim laws, including those on marriage. 

Wadi said that the new law could have recognized or given exception to traditional Muslim laws, as not all culture is negative. 

“Napaka-sweeping ng batas. Sana may recognition or even exception to traditional laws that are already recognized under PD 1083,” Wadi said.

“Hindi siya sensitive kasi ang wording ng batas is quite strong. Isipin mo, to abolish all cultural tradition and structure. That’s very sweeping, parang tinanggalan mo ng espiritu o kaluluwa ang Muslim community," he said.

"'Yun ang nagsu-sustain sa kanila eh. Kung may kaugalian ang Muslim community na salungat doon sa Philippine society, that should not be viewed negatively and sweepingly.”

Wadi explained that early marriage is permitted among Muslims to prevent pre-marital sex. If a teenage Muslim girl becomes pregnant, she would be protected because she is already married, he said. 

“Yung relationship without marriage is a cardinal sin, in a sense, among Muslims," he said.

"Ang formula kasi sa Islamic tradition is marriage first before love. Whereas, in very permissive society, love first before marriage. Eh minsan, 'di nauuwi sa marriage kaya nagkaka-anak, minsan naghihiwalay, nagli-live in, naiiwan ang babae, nagiging single parent tuloy."

"Whereas sa Islam, sa kasal palang, the relationship will be sealed before marriage. Meron namang courtship pero not as open... kasi iniiwasan dun ang magkaroon ng illicit relationship. To avoid that, 'pag nagkagustuhan na ang mga bata at the age of puberty, at 'di na sila mapipigil, dapat ikasal na sila,” he explained.

“Ang kawawa diyan, ang batang babae dahil walang maga-alalay sa kaniya na asawa at magulang nung lalaki. Whereas (kung) kasal sila, aalalayan siya 'di lang ng kaniyang husband na maski pareho silang bata, pati ang magulang ng lalaki."

"So the young girl would not suffer the same like the others experience in the larger community. So may logic siya,” said Wadi.

“Lalo na ang sa panahon ngayon, napaka-ano ng temptation. Sa social media po, makikita natin, very rampant po ang mga sexual kwan dito eh… Ang access ng kabataan, naging dahilan nagkaroon ng illicit relationship out of wedlock, nabubuntis. Ito ang dapat tignan natin. This is part of the Islamic teaching,” said National Commission for Muslim Filipinos (NCMF) Commissioner Aleem Jamal Munib.

He said marriage of people below 18 years old is not "child marriage" from their perspective.

“In Islamic perspective, it should not be termed as child marriage. Sa amin, it should be ‘early marriage’. Kung titignan natin … 4-12 (years old) considered as a child, and 13 (years old) considered as an adolescent."

"The consensus of the Islamic scholars… 'pag ang batang babae, 'pag nagme-mens na siya, she has the capacity to enter the married life. She can differentiate between bad and good,” Munib explained. 

Child marriages require the consent of the children getting married, he said.

The couple also needs to be responsible and capable before engaging in a lifelong commitment, added Wadi.

“Maski walang batas, sa tingin ko, dahil cultural tradition 'yan ng mga Muslim na maski ang edad ay mas mababa sa 18 years old, pero ngayon alam na ng mga pamilya na medyo prepared ang dalawang mag-asawa, nakapagtapos ang pag-aaral, para may trabaho, para 'di sila mahirapan."

Anwar Emblawa, a clan head in Shariff Aguak in Maguindanao, said that they have yet to hear of any abuse committed in early marriages.

“Wala pa naman po kami na-e-experience o nababalitaan ng instances ng child abuse between sa mga kinakasal sa mga minors na kinakasal,” he said.

But Wadi acknowledges the law sometimes is abused.

“Meron ding sitwasyon na na-a-abuse. Halimbawa, under ng control ang bata ng magulang o tiyuhin at tiyahin. Ang wari natin, kulang sa gabay. Hangga't maari ay yung bata ay handa,” he said.

Wadi said that personally, he preferred it if children finish school before they get married.

“Para sa akin, yung actual na marriage, baka puwedeng pag-usapan yun at a different time. Pagtapusin ang mga bata sa pag-aaral para mas prepared sila."

"May mga anak akong mga babae, halimbawa may lumapit sa akin, mag-propose ng marriage sa isang anak ko. Baka ang una kong sasabihin, pagtapusin muna ang pag-aaral. Madali naman ang actual marriage,” Wadi said.

Wadi said that some child marriages can be successful.

“May nagsa-succeed naman kahit maaga nag-asawa. Just three days ago, I was in a wake. I met a friend. Kinuwento n'ya sa akin na sila raw, 16 silang magkakapatid. Because nung kinasal ang nanay niya, 16 years old. At sila ay mga professional ngayon."

"May doktor, may abogado, may engineer--mga successful professional. So hindi lahat ng kinakasal ng below 18 ay hindi nag-succeed sa kanilang buhay,” he shared.

Munib said they believe no one listened to Muslims when they opposed the law.

“Nag-release po kami ng position paper opposing this bill. Ang sa amin, 'wag namang ipagbawal (ang child marriage). Lagyan ng batas kung paano gawin ito. Pero totally ipagbawal ito, that is totally against the Islamic principle,” he said.

As a government official, Munib admits he is placed in a “peculiar position" because of the law. 

“We are in a peculiar position. Ako, halos di ko alam ang gagawin dito, as a government personnel, as a religious leader. It contradicts my position,” Munib said.

The signing of the law has caused frustration and confusion among the Muslim communities, he added. 

“Talagang there is a feeling of frustration. Kasi itong bagay na ito, embedded na ito sa tradition ng mga Muslim, especially sa mga far- flung areas,” Munib shared.

“Confusion, kasi ito na ang kinasanayan. And because this is a teaching of Islam na sinabi ng aming Propeta, then suddenly isa- stop ito?"

Emblawa wondered how the law will be implemented in light of Presidential Decree 1083.

“Magkakaroon siguro ng problema ito. Ano ang mangyayari sa PD 1083?” he asked.

WHAT IS PD 1083?

PD 1083 is the Code of Muslim Personal Laws of the Philippines. 

According to its Article 16, “Any Muslim male at least fifteen years of age and any Muslim female of the age of puberty or upwards and not suffering from any impediment under the provisions of this Code may contract marriage. A female is presumed to have attained puberty upon reaching the age of fifteen.”

Section 13 of RA 11596 seems to repeal that, as it states that “all laws, decrees, executive orders, issuances, rules and regulations or parts thereof inconsistent with the provisions of this act are hereby repealed or modified”.

The signing of RA 11596 earned the praise of child rights advocates.

“Passing a legislation strengthens the legal framework and protection for our young children and underscores the commitment of the Government as a State Party to fully implement the UN Convention on the Rights of the Child,” UNICEF Philippines Representative Oyunsaikhan Dendevnorov said in a statement.

“Child marriage is a human rights violation that can result in a lifetime of suffering not just for young girls but for their children as well. Girls who marry before turning 18 are less likely to remain in school and more likely to experience domestic violence and abuse."

"Compared to women in their 20s, they are also more likely to die due to complications in pregnancy and childbirth,” she added.

What women's groups say

Some women's groups also applauded the passage of the law forbidding child marriages.

“This is a historic step towards the criminalization of child marriage, which has trapped several Filipino girls into unwanted and early child-bearing and child-rearing responsibilities and even into cycles of abuse. Pagpapalakas ito ng proteksyon sa kabataang kababaihan mula sa abuso,” Assistant Minority Leader and Gabriela Partylist Rep. Arlene Brosas said in a statement.

While this is a “cultural” issue, Gabriela believes this can be changed through the law.

“We can cultivate a culture of gender equality, respect for the rights of the children… Siguro nasanay tayo sa patriarchy, yung di na kinukwestyon ang mga culture,” Gabriela second nominee Dr. Jean Lindo said.

Lindo is from Mindanao and an advocate for indigenous people's rights.

“Sino ba namang bata ang gustong mag-aasawa na agad? Baby pa sila, pero nagkaka-baby na sila. This is a very disempowering situation for girls... It becomes their prison,” Lindo added.

WHAT’S NEXT

Right now, Muslim leaders are thinking about their next moves.

“I talked to some Muslim religious leader. Sabi nila, dapat gagawa ng hakbang dito. We are contemplating an idea na magkaroon ng... Muslim lawyer,” Munib said.

“Ngayon, nag-uusap usap kami. We are still in the process of, kung ano ang dapat gawin namin sa batas na ito. But as NCMF, kailangan namin ipatupad namin ito,” he added.

Kapatiran Party senatorial candidate Atty. Alex Lacson appealed to Muslim leaders to give the law “a chance”.

“I deeply respect the cultural practices of Muslim people in the country, but this is an opportunity for our Muslim brethren to review these practices so they may better promote respect for the basic rights of children, including their protection from abuse and exploitation,” he said in a statement.

“This new law is good for the Bangsamoro children. It would protect minor Muslims from arranged, forced or unwanted marriages,” added Lacson.

“Marriage is sacred and is a life-time commitment. Marriage, once entered into, is critical to one’s happiness. It is important that anyone who decides to marry should have the maturity and full understanding of the consequences of marriage.”

Malacanang has yet to comment on the Muslim community's questions about the law.