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Defending a Victorian-era law

A Victorian wedding portrait (Source: Wiki commons)

JANAGI and Rajoo were married. After Rajoo left Janagi, Janagi approached Maniam to live with him. Displeased that Janagi was living with another man, Rajoo charged Maniam for “enticing away” Janagi to have “illicit intercourse” with her. The court decided that since it was Janagi “who sought [Maniam] out”, it was she who had “seduced” him. Maniam went free.

Hurbajan was not as fortunate. He moved away with another man’s wife shortly after her marriage, but was arrested a few months later. Hurbajan was found guilty of “enticing” away another man’s wife. He was thrown in jail for four months and fined.

Although these events read like a bad Victorian-age romance novel, they actually occurred in 1950s Malaysia. The same law that was used then was recently utilised by businessperson Ryan Chong to prosecute Choy Khin Ming, whom Chong says enticed away his wife, TV personality Daphne Iking.

“Seriously?” asked some Malaysians when the case first came to light. “Does such a law even exist?” Indeed, the law does exist in Section 498 of the Penal Code and can still be legally used against individuals today, as Choy recently found out.

Archaic law

Women’s groups say the offending law should be done away with altogether as it is flawed and originates from an environment that no longer exists in modern society.

“Section 498 was inherited from the British colonialists,” says feminist writer Ng Tze Yeng, from Awam, who has researched the origins of the old law. “It duplicates Section 498 of the 1860 Indian Penal Code imposed by the British, and reflects the prejudices of the colonial officers at the time.”

Ng explains the rationale behind the law, which ignores a woman’s choice in her own relationships. “It was drafted when women were looked upon as the property of their husbands. Women were seen as passive agents with mere reproductive duties, with no self agency or a rational mind of their own.”

Ng says the British colonialists sought to inculcate their own values — in this case, that a woman should be subjugated to her husband — by enacting laws to regulate people’s bodies and relationships. Hence, the existence of Section 498.

“Isn’t it time for us in the 21st century to be rid of the prejudices that formed this archaic law in the 19th century?” argues Ng.

Women’s consent

Women’s Aid Organisation (WAO) president Meera Samanther says that if a woman consents to a relationship, then there is no cause for the law to intervene.

Section 498 doesn’t recognise that the woman herself may have consented, Meera says. “If there is concern that the woman is detained against her own will, there are other provisions in the Penal Code such as kidnapping and wrongful detention that can apply.”

Meera observes that as a woman is capable of making her own decisions, charging someone for “enticing” her away makes a mockery of the woman’s autonomy and choice.

“In Malaysia [today], we have women ministers and university chancellors; women running corporations, heading banks and making household decisions. If we and the state can entrust women in such high positions to make important decisions, why doesn’t the state believe that women can make decisions governing themselves? Why is the element of control [over women’s bodies] still in existence, and whose purpose does it actually serve?” asks Meera. 

Clinical psychologist and WAO member Vizla Kumaresan says in an interview with The Fairly Current Show that the state shouldn’t interfere in private matters between a husband and wife.

Meera agrees: “Consensual intimate relationships between two adults should not be the state’s concern. If two adults believe their marriage needs to be preserved, then they should work on it and seek counselling. It is not for the state to criminalise acts that may be perceived to be the cause of a broken relationship.

“There are civil law provisions for the aggrieved party to pursue their cause of action. They can seek divorce, custody and maintenance.”

No removal

Despite the objections, it looks like the law is here to stay for now. Home Minister Datuk Seri Hishammuddin Hussein recently announced that there were no plans to repeal the law, saying it was used very infrequently.

In her interview with The Fairly Current Show, Vizla says that is not the point. “It doesn’t matter if the law is used once, twice or 100 times. The bottom line is that it discriminates against women, and it’s a bad law and should be repealed.”

“If they say the law is not used, then why have it in the first place?” Meera adds. She says since the Iking case has received so much publicity, there would be other cases in the pipeline as other men may want to resort to the same law.

Vizla (Courtesy of The Fairly Current
Several attempts to reach Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil and the ministry’s secretary-general Tan Sri Faizah Mohd Tahir for comments proved futile.

Missed opportunity

The government, in fact, had a chance to abolish Section 498 when it appointed a Parliamentary select committee to review the Penal Code and Criminal Procedure Code.

A memorandum by the Joint Action Group (JAG) Against Violence Against Women called for the abolishment of Section 498 in 2005. The memorandum said the law “demeans and violates women’s dignity, reinforcing the idea that women are incapable of making sound decisions and that they cannot protect and take care of themselves.”

The select committee, however, did not take on JAG’s demands. When asked why the recommendation was not made to Parliament, select committee member and Seputeh Member of Parliament (MP) Teresa Kok says it “did not strike their mind at that time.”

“Our main focus was the lock-up procedure and also on rape. There were just too many presentations. A lot of our discussion was mainly surrounding rape and incest — we have already amended the Penal Code [on those issues],” says Kok in a phone interview.

She added that the nude squat incident had just occurred at the time, and so the committee was focused on reviewing lock-up procedures.

Kok, from the DAP, however supports calls for the abolishment of Section 498. “This law is archaic. Why can’t the government look into it?” she says.

But she admits that getting the government to amend the law will not be easy. “The public needs to lobby their MPs, including male MPs, to look into this.”

Meera adds that Section 498 also infringes Malaysia’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw), which Malaysia signed in 1995. She says Article 5 of Cedaw mandates the removal of stereotypical notions of women and men based on the inferiority or superiority of either sex, which is precisely what Section 498 reinforces.

“If Section 498 is not repealed, it will certainly be raised by the Cedaw committee at Malaysia’s next review,” she says.

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6 Responses to “Defending a Victorian-era law”

  1. Azizi Khan says:

    Of course our friendly neighbourhood Home Minister doesn’t want any archaic law repealed. Not only can such laws be used against women, they most definitely can be used against political opponents.

    For BN having those laws around is like an ace up the sleeve. One you accuse some of something you can be guaranteed the propaganda machines will be running at full steam to make sure the public buy it hook, line and sinker.

    I heard Sodo Mee has now beaten Mee Kari to be the most popular dish in Malaysia. Was speaking to an Umno [member/supporter] when I was in Malaysia, the poor [individual] was so concerned with Saiful’s state. […]

    So you see, any and all of these laws are at BN’s fingertips. If you are arrested under ISA you’re a folk hero. If it’s some other law, you’re immoral.


  2. khenghoe says:

    Actually, the law does not infringe on the woman’s right. The woman is permitted in law to do as she pleases, and it is no offence. What the law prevents is for a man to “entice” a married woman. If the woman initiates, it will not be an offence. Even when there is extra-marital relationship, prosecution can only be initiated against the man, and that too, only if he is guilty of the specific act of enticement. Women are in control over their own bodies. A man, however, is restrained.

    Shouldn’t this section be construed as discrimination against men instead? 😉

  3. Z00L says:

    If women nowadays are fit enough to be ministers, bank chiefs and hold high positions, they should be fit enough to seek proper divorce and after that continue to sleep with whoever they prefer.

    Please do everything according to steps and procedures, everyone will be happy 🙂

  4. KH Koh says:

    There is a doctrine called “desuetude” which might be relevant to laws that may no longer reflect the mores of the day:

  5. Hoyohoyo says:

    I did a check on Singapore’s Penal Code, and found that Section 498 was repealed during its last Penal Code review in 2007. It was also the same review that decided to “legalise” “unnatural sex” between a consensual man and woman under Section 377A (but still penalises homosexuals)…

    When are we going to make progress?

  6. eillom says:

    Instead of repealing, I think a corresponding law should come into force for the female gender. Then it will be truly fair for all those spurned wives who have to tolerate mistresses.

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