‘We are not anyone’s property

PETALING JAYA: The Federal Court has rightfully declared that Section 498 of the Penal Code is unconstitutional, reaffirming the principle that women are equal citizens and no law should treat them as property, says Sisters in Islam.

Its executive director Rozana Isa said the equality of married women is now recognised and upheld following the court’s declaration of the Penal Code provision, which makes it a crime for men to entice married women, as unconstitutional.

“The notion that women were considered their husbands’ property was outdated and contrary to the evolving legal perspective on marriage.

“The contentious Section 498 within this legislation perpetuated an obsolete perspective implying that women lacked independent thought and needed protection from men with questionable intentions.

“It’s important to note that existing legal frameworks, such as the Law Reform (Marriage and Divorce) Act of 1976 (amended in 2006), already encompass comprehensive provisions for divorce, custody and maintenance, providing legal recourse for parties in the event of a marital breakdown,” she said yesterday.

The Federal Court ruling emphasised that the sanctity of marriage is authentically protected only when these rights are equitably shared, Rozana added.

Association of Women Lawyers (AWL) committee member Meera Samanther said the law should have been repealed a long time ago.

“Since the crime of enticement under this section has been expressly declared as unconstitutional, it should be repealed from our Penal Code to keep our law up to date with the development of international law and changes in public values.

“That said, this ruling does not expressly overrule and eliminate the tort of enticement, but may implicitly do so,” she said.

All Women’s Action Society (Awam) information and communications officer Amanda Shweeta Louis said the ruling is important as it removes a law that was perceived to be discriminatory.

With Section 498 being declared unconstitutional, the court is affirming the rights of women and challenging laws rooted in traditional gender roles, she said.

She added that it was also important to note that what might have been considered effective in the 19th century might no longer be suitable and the law should adapt to the latest developments as society progresses.

Louis said the ruling by the country’s highest court sets a precedent for future legal considerations and encourages more progressive interpretations of laws related to gender.

This, she said, may also inspire further legal reforms that promote gender equality in the future.

However, she added that enticement is a “delicate issue” where a balance must be struck between morality and legal intervention.

Lawyer Salim Bashir said the judgment “marks a progressive activism of the Apex court” in dealing with archaic laws that are deemed inconsistent with the Federal Constitution.

“A lauded decision premised purely on the constitutionality of Section 498 of the Penal Code.

“It was an archaic offence which entails the husband to lodge reports against the enticer regardless of the consent or willingness on the part of his wife to be taken away by the enticer,” said the former president of the Malaysian Bar.

Salim added that the provision was not only inconsistent with gender equality under Article 8 of the Federal Constitution but also against the modern notions of self-autonomy and the rights of women to think for themselves, which insults their intelligence.

“The law was an epitome of the old days’ notion that women are regarded as chattels and enslaved to their husbands. On the same pedestal there could be some outdated laws and penal provisions that might be inconsistent with the Constitution or averse to modern norms of Malaysian society,” said Salim.

“The government is urged to form an Independent Law Revision Commission to magnify and consider amending or repealing such outdated laws,” he added.