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.
Read the fist segment of this enticing guide to Section 498 of the Penal Code here.
What then is the problem with Section 498?
It is very blatant gender discrimination. In other words, it perpetuates an unjust and disparate treatment between husbands/men and wives/women. And in doing so, deprives women of their constitutional rights.
How are the constitutional rights of women affected here?
Article 5(1) of the Federal Constitution states that no person shall be deprived of his life or personal liberty save in accordance with law.
A woman is deprived of both her life and personal liberty with Section 498.
When one reads the Constitution, one must give it as wide an interpretation as possible. In fact our own Federal Court in a series of cases in 2008/9, beginning from Badan Peguam Malaysia and ending in Sivarasa Rasiah has affirmed this principle.
So when one talks about “Right to Life” or “Personal Liberty”, one is talking about large concepts here.
Right to Life doesn’t just mean the ability to continue breathing. The Right to Life here is the Right to Live with Dignity.
Personal Liberty is a compendious term to include within itself all the varieties of rights which go to make up the rights of a person; her right to privacy, her right to receive information, her freedom of conscience, etc.
Very well. What then is Dignity?
Dignity means that an individual or group feels self-respect and self-worth.
It is concerned with physical and psychological integrity and empowerment.
Dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits or when individuals and groups are marginalised, ignored, or devalued (Law v Canada 170 D.L.R. (4th) 1).
Dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he or she sees fit. At the root of the dignity is the autonomy of the person and her/his freedom of choice and of action.
Dignity rests on recognition of the physical and spiritual integrity of the human being – her/his humanity and value as a person, irrespective of the utility she/he can provide to others. (NAZ Foundation v Government of NCT of Delhi WP(C) No. 7455/2001, 2nd July 2009, Unreported)
So how is a woman’s dignity affected here?
The manner in which a woman can be enticed away i.e. to be induced, blandished or allured to leave her husband suggests that a woman is taken to have no autonomy, no private will and no freedom of choice or action. A woman regardless of her age, is treated as a child, unable to provide consent or manage her personal affairs.
A wife becomes something in the nature of a chattel of a husband. As Alfred Lord Tennyson puts it: “Something better than his dog, a little dearer than his horse.”
As a result of Section 498, a woman will always be held to be of lesser value than her husband; deserving of lesser respect and having lesser worth than her husband . The breach of a woman’s right to live with Dignity is inherent within Section 498, it cannot be read in isolation or be taken out of the offence.
This unfair treatment of women is premised upon personal traits which do not relate to a woman’s needs, capacities or merits and are merely archaic assumptions of the role of women from a different century.
Section 498 makes a woman to be nothing more than a servant to her husband, meant to satisfy his sexual urges, provide him with company and render him with services.
What of a woman’s “Personal Liberty” then?
“Personal Liberty” in Article 5(1) includes within its compass other rights such as the Right to Privacy.
Every woman has the right to respect for her private and family life and her home. The Right to Privacy encompasses and protects the personal intimacies of the home, the family, marriage and motherhood.
Privacy recognises that citizens have a right to a sphere of private intimacy and autonomy which allows them to establish and nurture human relationships without interference from the outside community.
Put succinctly, the Right to Privacy is a “right to be let alone.”
So how is a woman’s Privacy affected here?
Section 498 invades into the private life of women and in doing so curtails a woman’s Right to Privacy.
Section 498 pries into the private life of a woman; opening her intimate space to interference from outside community.
In essence, Enticement calls for greater public scrutiny into the life of women as compared to men as a husband owned his wife and had a proprietary interest in her.
This would very inevitably have the effect of reducing the private space of women, denying them the right to let alone and to develop their personalities as they see fit; barring a woman from exercising her autonomy to establish and nurture human relationships and to exercise her private life freely without interference from others and without the fear of being the element of a criminal charge.
But doesn’t Article 5(1) say that Life and Liberty can be deprieved “save in accordance with law“? Isn’t S498 law?
Not entirely correct. While it is true that Life and Liberty can be deprieved save in accordance with law but that law itself must afford “equal protection” as required by Article 8(1) of the Constitution.
This enables the Courts to see whether a law enacted by Parliament affords equal protection.
The Courts are able to do this as in Malaysia it is the Constitution that is supreme not Parliament. Parliament cannot go about enacting any law it wants. Laws must be consistent with the Constitution.
So, in testing to see whether a law affords “equal protection”, the Courts will ask whether the harm the law is causing to people’s rights justifies what the law intends to achieve i.e. whether the means justifies the end.
To use the old comical Frank Zappa saying on music censorship: “You don’t cure dandruff with decapitation.”
So, all of this means that a wife is free to have sex with whoever she wants right?
A wife has her respective marital obligations as does a husband. If a married person commits adultery, then there are civil ramifications for it and a potential for divorce.
Enticement, has got nothing to do with sex.
Consider the following example posed by trial judge Justice McCardie in Place v Searle (1932) 2 KB 497;
Let me now give an illustration to show the serious difficulty of reconciling the old law (Enticement) with modern conditions (the freedom of Women). A wife desires to take a position as the manageress of a business at a salary of 200l. a year. She deems it her duty to supplement the income of her husband and herself for the benefit of the children. The husband strongly objects to the desire of the wife. He prefers that she shall stay at home in order to discharge her domestic duties. The wife goes to the proposed employer and tells him of her husband’s strong objection. The employer says to her: “Do not obey your husband’s wish, but enter my employment and I will make your salary 250l. a year.” The wife, thereupon, yields to the persuasion and decides to disregard her husband and to make her own income. She enters on her occupation and spends every week-day, from nine to seven o’clock, in the service of the employer. Is that employer liable to an action for enticement at the suit of the husband? If “Yes,” then I know not how the old law is to be reconciled with the independence which the modern law has given to married women. If “No,” then I see not how the principle asserted in the present action can have any practical validity at the present time. Many other and, perhaps, still more forcible illustrations will occur to the lawyer who possesses sociological vision. The fact is that many of the old decisions require adjustment, if not abolition, in view of the conditions of modern life. [emphasis provided]
She need not have sex with anyone. Merely exercising her autonomy can result in a case being instituted against an alleged “enticer”.
What about considerations of “Public Morality” or “Protecting the Sanctity of Marriage”?
It would be very far fetched to say that Section 498 serves the purpose of preserving the sanctity of marriage when the subject matter of the offence is the wife only and not the husband.
As for Public Morality, we cannot dispute the fact that this is ultimately a matter concerning the relationship of a married couple. In no way does it affect the public at large and should therefore lie outside the ambit of State intervention/criminal law.
Such matters should be dealt with by the married couple as a civil action under Divorce proceedings and not determined by the State as a criminal offence.
Hypothetically speaking, even if the alleged enticer is brought to justice, the wife still continues to enjoy the freedom to remain apart from her husband and to reside with whoever she chooses. The wife (a woman) cannot be compelled or be forced through any other lawful means to reside with someone she doesn’t want to whether husband or not.
But the wife is not charged/convicted! It is the accused, if found guilty, that is convicted. So why are women making all the fuss?
It is very obvious. Women face Discrimination with the mere existence of Section 498.
Any law being scrutinised for ‘Discrimination’, as is the case with Section 498, should not only be assessed on its proposed aims but rather on the implications and effects.
Section 498 suffers from incurable fixations of stereotype morality and conception of gender roles. It therefore deserves deeper judicial scrutiny and the Court must ensure that outdated moral traditions do not impinge upon a woman’s autonomy.
No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until and unless there is a compelling purpose.
(Anuj Garg and Others v Hotel Association of India and Others  3 SCC 1)
How do you know that there is “Discrimination”?
Firstly, Section 498 makes a distinction between all males/husbands and females/wives.
Secondly, the distinction results in the deprivation of a woman’s/wife’s Right to Live with Dignity and her Right to Privacy but such results do not affect men.
Thirdly, the distinction is enumerated under Article 8(2) of the Federal Constitution (Gender) and is based on an assumption that women are incapable of expressing consent and making rational choices i.e. an irrelevant personal characteristic (that is not only outdated but unfounded).
(Egan v Canada 124 D.L.R. (4th) 609)
Well, why not just ask the Court to read the word “wife” as “spouse” and apply it to husbands/men as well?
It would not be feasible to read the word “wife” in Section 498 as “spouse” for the Court would then be depriving all husbands/men in Malaysia of a Life of Dignity (Article 5(1)) and their Right to Privacy (Article 5(1)) thereby putting both men and women at a legal disadvantage.
Equality calls for the provision of benefits and advantage, not an increase in burdens and impediments.
Are there any proportionate substitutes to Section 498? Something that promotes protection for both husbands and wives?
Section 58 of the Law Reform (Marriage And Divorce) Act 1976 stipulates that on a petition for divorce in which adultery is alleged, a party is allowed to make the alleged adulterer or adulteress a co-respondent in the divorce proceedings .
The adulterer or adulteress can be condemned in damages in respect of the alleged adultery.
This section above is also gender neutral and it restricts adultery to a matter of personal law rather than criminal law.
Section 498 would therefore be irrelevant, excessive and disproportionate when compared to the provision of the Law Reform (Marriage And Divorce) Act 1976.
Ok, what if a woman was kidnapped i.e. she does not consent to being taken away. How do we protect her then?
Section 361 and 366 of the Penal Code apply when a woman is kidnapped or abducted and she is an unwilling party that does not respond to the criminal intention of the accused.
What has Singapore done to their Section 498?
The equivalent Section 498 in the Singaporean Penal Code has been abolished since the 1st of February 2008.
The Singaporean Ministry of Home Affairs in its Consultation Paper on the Proposed Penal Code Amendments said the following in response S498:-
We also intend to repeal s.498 on enticing, taking away or detaining a married woman with a criminal intent, as it is an archaic offence which is no longer relevant in today’s context . [emphasis added]
What is the Government of Malaysia’s track record in promoting Women’s Rights?
The Malaysian Government (“GOM“) has adopted and signed very many international treaties relating to the rights of women:
a. GOM has formally acceded to the United Nation’s Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on 5 July 1995;
b. GOM adopted the Vienna Declaration shortly after the World Conference on Human Rights on 25 June 1993;
c. GOM adopted the Beijing Declaration on 15 September 1995 at the Fourth World Conference on Women where:-
i.GOM confirmed its commitment to the equal rights and inherent human dignity of women and men ; and
ii.GOM is convinced that women’s empowerment and their full participation on the basis of equality in all spheres of society are fundamental for the achievement of equality, development and peace .
d. GOM adopted on 10 May 2005 the Putrajaya Declaration and Programme Of Action on the Advancement of Women in Member Countries of the Non-Aligned Movement where:
i. GOM committed itself to review and amend all laws in order to identify and eliminate negative traditional and customary practices that discriminate against women .
By these adoptions, GOM has clearly expressed its intention to the world and to the people of Malaysia about its stand on eliminating discrimination against women and the upholding of human rights.
What should the Courts in Malaysia do?
Section 498 is Pre-Merdeka Law.
Whenever a Pre-Merdeka Law is found to be unconstitutional, the Court can place modifications to it i.e. to adapt it, to amend it or to repeal it.
Considering that the essence of Section 498 calls for the reduction of the liberties of women in order for it to exist, the section must be repealed in its entirety by the Court for there to be any consistency with the relevant provisions of the Constitution.
(Article 162 of the Federal Constitution)
Hold on a minute! Can something which was enacted back then be unconstitutional later on in time?
Certainly, much like how slavery and race laws eventually were declared unconstitutional.
The constitutionality of a law will have to be judged keeping in view the interpretative changes of the law affected by the passage of time. The law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed circumstances.
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?