On 8 November 2010, Edmund Bon and Aston Paiva appeared in the Federal Court for the Bar Council as amicus curiae. They arrived armed with 2 hefty bundles of authorities and a very thorough written submission to argue for the unconstitutionality of Section 498 of the Penal Code. Also part of the Bar Council team was Khairuzzaman Muhammad, Amer Hamzah, Dipendra Harshad Rai, Syahredzan Johan, Deepa Nambiar, Joanne Leong and Elaine Gan. The matter was presided over by the Chief Justice of Malaysia Zaki bin Tun Azmi, the Chief Judge of Malaya Arifin bin Zakaria and Federal Court Judge Raus bin Sharif.
Seven (7) questions as to the constitutionality of Section 498 of the Penal Code (“the questions“) were made out in the Magistrate Court, before the trial of the case. It was subsequently referred by the Magistrate to the High Court Judge.
When it came for the 7 questions to be ventilated before High Court Judge Sofian bin Tan Sri Abd. Razak, an application was made to have it referred to the Federal Court. The Judge granted the application.
On the Federal Court Hearing date, the Chief Justice raised an objection to the Federal Court hearing the matter. In his words: “We don’t answer question of law without facts. We do not answer hypothetical questions“. The Star had also reported this.
The matter was subsequently fixed for trial in the Magistrates Court and the hearing on the questions did not proceed. The most recent update of the case can be found in yesterday’s report by The Star.
I’ve been asked many questions about Section 498 by many. There seems to be misconceptions about Section 498 as well as the legal procedures at play. In light of this, I have compiled this guide to assist the public on the relevant sections of law and the ancillary issues surrounding it.
I certainly hope there will be more challenges to laws being undertaken by citizens in years to come.
Why did the High Court Judge refer the matter to the Federal Court?
When a case is in the High Court, and a question arises as to the effect of any provision of the Federal Constitution (“FC“) the Judge hearing the case can stay the proceedings and have the case referred to the Federal Court to decide the question which has arisen, having regard to the speedy and economical final determination of the proceedings. (Section 84 of the Courts of Judicature Act 1964)
What does Section 498 say?
Section 498. Enticing or taking away or detaining with a criminal intent a married woman.
Whoever takes or entices away any woman who is and whom he knows, or has reason to believe, to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals, or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.
What were the 7 questions posed by the accused?
1. Whether Section 498 of the Penal Code is an unequal law as it imposes criminal liability on the male party only and is therefore in breach of Article 8(1) and (2) of the Federal Constitution.
2. Whether Section 498 of the Penal Code is inherently discriminatory of the male sex as it criminalises the conduct of the male party in a joint and/or consensual act involving a female party, and is therefore gender discriminatory under Article 8(1) and 8(2) of the Federal Constitution.
3. Whether the targeting of the male party only for criminal liability under Section 498 of the Penal Code is an unreasonable classification for the purpose of Article 8 of the Federal Constitution and without reasonable nexus to the perceived objective of the classification.
4. Whether Section 498 carries an inherently unreasonable classification as it is predicated on the pre-modernistic assumption that women are mere chattels and incapable of a rational choice as to their male companionship
5. Whether Section 498 achieves the unreasonable object of consigning a woman to the custody of a man with whom she no longer wishes to reside or consort with as her husband.
6. Whether Section 498 is inherently violative of Art 5(1) of the Federal Constitution as it is deprives the liberty of a man in his choice of consortium or a married woman to consort with a man other then her husband.
7. Whether Section 498 of the Penal Code as a pre-Merdeka law cannot be applied without the modification to bring it in conformity with the provisions of the Federal Constitution as envisaged under Article 162(1)(b) and is therefore unenforceable.
What does “Enticement” mean?
“Enticement” or “Enticing away” is the offering of any inducement, blandishment or allurement to a woman to leave her husband and not return to him.
So, is the willingness of the wife to leave her husband a relevant factor?
Not at all. The gist of the offence under S498 consists in depriving the husband of his proper control over his wife.
Any consent or willingness on the part of the wife is irrelevant to the guilt of the accused.
Why is the consent or willingness on the part of the wife irrelevant i.e. what if she voluntarily decides to want to move away from her husband?
Section 498 is intended to protect the rights of the husband not the wife.
Therefore the willingness of the wife to deprive her husband of his proper control over her would not be material.
The willingness of the wife to leave her husband is irrelevant and it cannot be a defence to the accused.
(Alamgir v State of Bihar 1959 Cri. L. J. 527)
How did such a law come to be?
In Malaysia, the Penal Code was adopted from the Indian Penal Code which was enacted by the British and likewise done so here.
Section 498 can be found in India and could at one time be found in Singapore as well.
Enticement, at one time in England, was a civil tort where sums of money can be claimed by a husband against an enticer for enticing his wife away. This was done in the civil courts.
A civil tort?
An action between persons/individual citizens for wrongs committed. This is in opposition to a criminal case in the criminal courts.
Civil law is a form of private law whose purpose is to settle disputes between persons.
What is a criminal case then?
A criminal case is made out by the State i.e. the Public Prosecutor against a person.
Criminal law is an aspect of public law which is concerned with the punishment of a certain kind of behavior. It serves the purpose of eradication/controlling behavior deemed objectionable by society.
What is the difference?
Simply put, a civil claim implies only a person/a number of persons being affected.
A criminal case implies society itself being affected.
So Enticement of a wife is a criminal offence in Malaysia?
However, it is also a civil tort.
Malaysia inherits all the common law of England and the rules of equity as administered in England on 7 April 1956.
Common law of England?
The Common Law of England is law developed by English judges through cases that come before them. This is opposed to the kind of law that is made by Parliament.
An example would be if you bought a drink from a shop, drank it and found a snail in it. The shopkeeper would be Negligent. The principles relating to the Negligence of the shopkeeper was something that judges in England came to contemplate and lay down in 1932. Subsequent cases saw them perfect it further.
We apply the same principles of Negligence here in Malaysia as well. Nowhere is it written in any Parliament made law what amounts to Negligence. Judges devised the principles.
So, when was the first civil tort Enticement case recorded?
The first known case of Enticement of a wife occurred in 1745, in a case called Winsmore v Greenbank (1745) Willes 577.
Enticement, as a civil tort, is also therefore part of Malaysian law.
So as a civil tort, how did Enticement come to be?
Enticement would’ve been something English judges developed, taking into account the social norms and values of those living in 1745.
What were the social norms and values of those living in 1745?
A husband was considered the head of the household and it was deemed that he had rights over his family and servants much in the nature of property rights. As if they were animals, therefore, an injury to them was an injury to him for which he could sue.
The archaic idea that those who interfere with a man’s wife thereby interfere also with this proprietary rights, led to the development at common law of a number of remedies available to him.
The common law regarded a husband as having a proprietary right in his wife on account of the domestic services she was expected to provide for him. As a result, the common law gave a husband certain exclusive rights of action for sums of money to protect his interest in his wife’s services.
How is the civil tort of Enticement established?
The tort of Enticement is established if it can be shown that a man’s wife was procured, enticed or persuaded to leave her husband.
Can Enticement, as a civil tort be removed?
Yes. Parliament can always abolish a common law by enacting a statute expressly doing so.
Enticement in England was abolished in 1970. Australia abolished Enticement in 2002.
Are there any criticisms on the civil tort of Enticement?
A commentator noted that the tort of Enticement bears a distinctly archaic image these days. The underlying assumption of a husband’s proprietary right in his wife has become obsolete and heart-balm unfashionable.
Other commentators have said that the tort of Enticement is a form of sex discrimination and that it will not be permitted to last.
The action is also liable to serious abuse of blackmail and perjury; “Blackmail” through collusion between husband and wife, “Perjury” through collusion between wife and enticer.
Alright, about Section 498 – Criminal Enticement, is there sex involved then?
Not at all. Intercourse need not take place.
All the section requires is the intention by the enticer that intercourse takes place between any person and the wife and her deprivation from her husband.
Is Adultery and Enticement the same thing?
No. Adultery is extramarital sex or sex with a person besides your spouse while still married.
Enticement is wholly independent of sexually immoral factors.
I keep hearing that only men can be charged under Section 498. Is this true?
In my opinion, I don’t think this view has any legal foundation.
An accused charged under S498 could be either a man or a woman.
S498 uses the word “Whoever” rather than specifying a specific gender like Section 375 of the Penal Code which says: A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman. . .
Further, when reading the Penal Code, the pronoun “he” and its derivatives are used of any person, whether male or female (Section 8 of the Penal Code).
If one goes even further into the annals of history, one would find the Indian case of Srimotee Poddee (1864) 1 WR (Cr) 45, where a woman was convicted under S498 for enticing away a married woman so that that married woman could become a prostitute in Calcutta (and in doing so, have sex with other men/other persons).
What then is the legal objective of Section 498?
It would be reasonable to say that the objective of S498 is the protection of husband’s proprietary right in his wife and his entitlement to enjoy the “services” of his wife.
Next: More to follow in the final segment tomorrow…
Aston Paiva enjoys being enticed by the Palappam stall behind Pasaraya TMC in Bangsar. Sometimes he goes fishing in the river behind his house where he contemplates about one of life’s greatest mysteries:- Why is something called a “Shipment” when transported in a Car, and called a “Cargo” when transported in a Ship?