Myanmar, Cambodia and Vietnam: Muslim minorities under monogamy laws

1Regional overview

Unlike Malaysia, Brunei or Indonesia, none of these three countries has a Syariah Court or state-recognised Muslim marriage registration. The role of religious leaders (imam, hakem, mufti) is limited to solemnising marriages and giving guidance. The validity of a marriage under national law depends on civil registration.

2Myanmar: Islamic law in the civil courts

• The Burma Laws Act 1898, s.13 directs the courts to apply Islamic law in matters of marriage, divorce, inheritance and religious institutions where the parties are Muslims. Cases are decided by the ordinary civil courts, not Shariah courts.
• The Dissolution of Muslim Marriage Act 1952 gives a Muslim wife the right to apply for divorce on reasonable grounds.
• Under classical Islamic law, a Muslim man may have up to four wives. The offence of bigamy under Penal Code s.494, which applies only if the second marriage is void, has therefore traditionally not affected Muslim men (current judicial interpretation to be verified).
• The 2008 Constitution (Article 34) guarantees freedom of religion subject to public order. The Constitution also recognises Islam as one of the religions existing in the country (Article 362, to be verified).

3Myanmar: the 2015 “race and religion laws”

In 2015, under pressure from the Buddhist nationalist Ma Ba Tha movement, President Thein Sein signed four laws:

1. Population Control (Health Care) Law, 19 May 2015: allows a birth spacing of 36 months to be imposed in certain areas.
2. Religious Conversion Law, August 2015: a change of religion requires approval from a township board.
3. Myanmar Buddhist Women's Special Marriage Law (Pyidaungsu Hluttaw Law No. 50/2015), August 2015 (exact date to be verified). A Buddhist woman who wishes to marry a non-Buddhist man must follow a special procedure. The application is publicly displayed for 14 days and anyone may object in court. Women under 20 need parental consent. A non-Buddhist husband must allow his wife to practise Buddhism, and may lose joint property and custody of children if he breaches this law.
4. Law Relating to the Practice of Monogamy, 31 August 2015: a marriage under any law, religion or custom is valid only if monogamous. This law makes marrying again or cohabiting while still married an offence. The penalty refers to Penal Code s.494 (up to 7 years' imprisonment and a fine), and the guilty party may lose property rights on divorce (HRW 2015). It also applies to residents and foreigners who marry citizens.

4Rohingya: marriage restrictions in Rakhine

Fortify Rights (2014) published internal Rakhine State government documents that had never been made public:

• Regional Orders from 1993 to 2008 show a consistent policy requiring Rohingya couples to apply for permission to marry. Other ethnic groups are not subject to this requirement.
• An annex titled “Requirements for Bengalis who apply for Permission to Marry” lists ten conditions. The couple, their parents and witnesses must appear several times before the authorities, a process described as humiliating and costly.
• Regional Order 1/2005 requires Rohingya couples who have “obtained permission to marry” to limit the number of their children. This became the basis of the two-child policy in the townships of Maungdaw and Buthidaung. The order also prohibits children born out of wedlock.

These restrictions violate the right to marry and found a family (Article 16 UDHR). Since the 2017 military operations, most Rohingya are now refugees in Bangladesh. The current status of these orders in Rakhine is to be verified.

5Cambodia: Cham Muslims and civil monogamy

• Communities. Most Cambodian Muslims are Cham and Chvea (Malay), following the Shafi'i school. Many Cham students study in Kelantan. The 2019 census recorded around 311,045 Muslims, about 2% of the population. The relevant ministry recorded 884 mosques in 2016 (secondary source).
• Constitution 1993 (amended 2008), Article 45: “Marriage shall be conducted according to the law, based on the principle of mutual consent between one husband and one wife.”
• The Civil Code 2007 (in force 2011) replaced the Law on Marriage and Family 1989 and prohibits concurrent marriages. Article numbers and related criminal penalties are to be verified.
• Religious administration. Each Cham village has a hakem, an imam and a bilal. At national level there is a Mufti and a supreme council for Islamic affairs based in Chrouy Changvar, Phnom Penh (current structure to be verified). They have no court jurisdiction over marriage.
• A religious marriage contract without civil registration gives no legal protection to the wife and children.

6Vietnam: Cham Bani, Cham Sunni and the 2014 Law

• Communities. The 2019 census recorded 70,934 Muslims in two groups. First, the Cham Bani in Ninh Thuận and Bình Thuận, who practise a localised form of Islam. Second, the Shafi'i Cham Sunni in the Mekong delta, especially in An Giang (Châu Đốc), as well as in Ho Chi Minh City.
• Constitution 2013, Article 36(1): marriage must comply with the principles of voluntariness, progress, monogamy and equality between husband and wife.
• Law on Marriage and Family No. 52/2014/QH13: Article 2 makes monogamy a basic principle. Article 5 prohibits a married person from marrying again or living together as husband and wife with another person.
• The Criminal Code 2015 makes a breach of the monogamy regime a crime, with imprisonment reportedly of up to 3 years for serious cases (article number to be verified, believed to be Article 182).
• Marriage registration is done at the local People's Committee. A religious marriage contract alone is not recognised by the state.

7The Shariah position for Muslim minorities

Polygyny is permissible (harus), subject to the condition of justice (Surah an-Nisa' 4:3), not an obligation. Scholars who discuss the fiqh of minorities generally hold that a Muslim living in a country that prohibits polygyny may, and should, comply with that law. Leaving something permissible does not mean leaving the religion. Breaking the law, on the other hand, can expose a second wife and children to legal harm and loss of rights. The fiqh maxim “averting harm takes precedence” is relevant here.

A secret or unregistered polygynous marriage to evade the law is not encouraged. The wife gets no enforceable maintenance, inheritance or lawful status for her children. See unofficial marriage and Muslim minorities in the West.

8What Malaysians / foreign nationals need to know

• Polygyny in these countries is not a shortcut. A married Malaysian man cannot register a second marriage in Cambodia or Vietnam because civil law forbids it. In Myanmar it risks being a crime under the Monogamy Law 2015.
• A marriage contract in a mosque without civil registration may be valid in terms of the essentials of marriage, but is not recognised by the state concerned. In Malaysia, meanwhile, polygyny without the permission of the Syariah Court is an offence (Act 303 s.123 and the equivalent state enactments).
• Cham women who marry Malaysian men should make sure the marriage is registered in their home country and in Malaysia, for the sake of rights to maintenance, inheritance, the children's citizenship and visas. See cross-border marriage and recognition of marriage.
• For Thailand, which has Islamic family law in its southern provinces, see the Thailand page.

Sumber & rujukan