Out of date? Out with it! – law of enticement in Malaysia

Various women’s and human rights groups in the country explain why the law on “enticement” has no place today.

A man owns a donkey. One day, his neighbour walks by, sees the donkey and thinks, “Hey, this is a nice creature. I like it.” So he dangles a carrot in front of the donkey and lures it away.

Outraged, the owner sues his neighbour for “enticing away” his donkey.

“Now replace the donkey in the story with a woman and you will get what Section 498 of the Penal Code is all about,” says Abigail de Vries, senior programme officer of the All Women’s Action Society (Awam).

“Which married person, man or woman, would want to be equated with being ‘owned’ and incapable of making decisions, so as to be easily lured away?” she adds.

Representatives from the organisations involved in the Section 498: Out of Date, Out with It! campaign.

At a press conference in Kuala Lumpur Awam, together with the Women’s Aid Organisation (WAO), Sisters in Islam (SIS), and the Pusat Kesedaran Komuniti (Community Awareness Centre, or Empower), had called for the abolition of Section 498 because “it is discriminatory against women”.

Three months ago, Ryan Chong, husband of popular TV personality Daphne Iking invoked Section 498 of the Malaysian Penal Code to accuse corporate figure Choy Khin Ming of “enticing” his wife to be unfaithful.

The section states that a man who entices, takes away or detains with criminal intent a married woman can be jailed up to two years, fined, or both, if convicted.

The case, scheduled to be heard next month, has raised more than a few brows, partly because many Malaysians are unaware of Section 498. In fact, it has been invoked only six times, the last being in 1976.

“Section 498 infers that an adult married woman is unable to think for herself,” says WAO president Meera Samanther.

“In assuming that married women are incapable of making decisions, the law is also silent on the issue of consent. In the end, what it’s really saying is that husbands have the right to control wives where sex is concerned.”

That is ironic, she adds, because Malaysia has women ministers, university chancellors, CEOs, and bosses and a woman bank governor.

“We entrust women to make many important decisions at work, but when it comes to governing themselves, in particular their bodies, they are denied the right to do so.

“We strongly believe that women’s sexuality and bodies belong to themselves, and as such, all laws that put their bodies and sexuality in the hands of men, family and society should be abolished,” Samanther says.

In light of this, women’s and human rights groups in the country reiterated their call for this outdated law to be abolished – using the tagline, “Out of Date, Out with It!” – on Monday in solidarity with the Coalition for Sexual and Bodily Rights in Muslim Societies’ global campaign, “One Day, One Struggle”.

On that day, people across Asia, the Middle East and North Africa, in countries such as Pakistan, Indonesia, Turkey, Lebanon, Sudan, and Egypt, took actions against violations committed on the basis of sexuality, including honour killings, lashing and stoning of women, discriminatory healthcare services, and female circumcision.

Section 498 of the Malaysian Penal Code reads the same as Section 498 of the Indian Penal Code. In fact, the Malaysian Penal Code evolved from British-imposed Straits Settlements Laws in Malaya in the 19th century, which were inherited from the 1860 Indian Penal Code.

Awam member Ng Tze Yeng, who has done preliminary research on the provision, explains that it is worth noting that the Indian Penal Code – which became the model legal system throughout British colonies in Asia and Africa – was drafted at a time when women were perceived as property of their husbands.

“Women were seen as passive agents whose functions were mainly to bear children and manage the household. They were perceived not to have any self-agency or rational mind of their own.

“A married woman was thus subordinated to her husband on the assumption that she was under his ‘protection’ as he was expected to be liable for her civil and criminal wrong-doings.”

In 2005, the Joint Action Group for Gender Equality (JAG), comprising Awam, Empower, SIS, WAO and the Women’s Centre for Change, had submitted a memorandum urging the government to abolish Section 498. But nothing came of that.

At the Dewan Rakyat sitting last month, Teresa Kok (DAP – Seputeh) had asked whether the Government had any plans to amend Section 498.

In a written reply to Kok, Home Minister Datuk Seri Hishammuddin Hussein stated that the Government had no intention of abolishing the law as “it is an isolated case”.

Referring to Hishammuddin’s response on Oct 20, Samanther says: “A bad law is a bad law, whether it is used once or a hundred times.

“The state should not criminalise acts that may be perceived to have caused a marriage to break down. After all, if two adults are deemed capable of deciding to get married, shouldn’t the state leave them to decide if, and how, their marriage should continue?”

There are already laws in the civil system, such as the Law Reform (Marriage and Divorce) Act 1976 (amended in 2006), that contain adequate provisions for matters relating to divorce, custody and maintenance, among others, thus providing recourse for the aggrieved party, Samanther says.

“If the state wants to get involved, it should be in cases where there is a clear violation of the rights of a partner, as in the case of domestic violence and, in particular, marital rape, which is still not regarded as an offence in Malaysia.”

What about the argument that Section 498 is necessary in order to protect women and keep them safe?

“Other existing provisions (for kidnapping, abducting, wrongful confinement, and wrongful restraint) under the Penal Code are sufficient to ensure that justice is served in the case where a woman is concealed or detained against her will,” Samanther adds.

In conjunction with ‘16 Days of Activism Against Violence Against Women’, the All Women’s Action Society, Sisters in Islam, the Women’s Aid Organisation and Pusat Kesedaran Komuniti will launch ‘Project Sentuh: Seksualiti & Tubuh’ on Dec 5.

This event will feature installation art and performances at the Five Arts Centre in Taman Tun Dr Ismail, Kuala Lumpur; it is a collaboration with artists such as Project Connect, Rumah Anak Teater, Lost Generation Space, Shieko, Julya Oui, Aisyah Baharuddin, and Mien Lor.

Participants will go through a theatre workshop with facilitators from inter-disciplinary backgrounds on Nov 21 and 22 and 28 and 29 (5pm-10.30pm) and from Nov 23 to 27 (7.30pm-10.30pm).

Project Sentuh is open to anyone interested in issues of discrimination on the basis of sexuality in Malaysia. Admission fee: RM30. Contact: Hui Koon (012-976 0397, kunszitan@gmail.com), Pat (nowhitespace@gmail.com) or Farid Ayam (013-223 2169). For more details, visit http://www.awam.org.my.



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