Law on enticing wife under spotlight again

If found guilty, Safriduwan Safar, 43 of Bandar Jengka, Maran, will be facing either up to a two-year imprisonment, or fine, or both.

Safriduwan had reportedly tried to persuade a married woman to have sex with him at a house.

In the same hearing, the accused – who was unrepresented – was also charged for other offences, including that of owning pornography, under Section 233(1)(a)(i) of the Malaysian Communications and Multimedia Act (MCMA) and carries a fine and a jail term.

The fact that the prosecutors decided to charge Safriduwan under Section 498 puts back the ‘old Victorian’ law under the spotlight once again.

The last time the public was interested in understanding this law better, was during the – popular celebrity – Daphne Iking’s case.

Section 498 is a controversial law in the country that has sparked various debates on whether or not the law is constitutionally legal to have around in the first place.

The law, read briefly, says that “Whoever entices away any women … (who is the) wife of any man … with intent that she may have illicit intercourse… shall be punished”

According to various lawyers, Section 498 is rarely prosecuted in Malaysian courts, and the reason why this is so, is often represented with two arguments.

First reason, is that Section 498 is an unequal law.

In the Daphne Iking case of 2009, the lawyers of that case debated that Section 498 only blames the ‘enticer’ of the wife, and not the wife as well.

And since the transgression only blames one party, in a situation where both parties are consenting, the lawyers say that Section 498 of the Penal Code is in direct breach of Article 8(1) and 8(2) of the Federal Constitution which says that “all persons are equal before the law” and “there shall be no discrimination against citizens”.

Since there is a basis where laws are no longer harmonious with each other, legal challenges can arise, and did arise, in the Iking's case.

The second reason why the law is not normally seen inside a courtroom in Malaysia is that the law is deemed to be outdated, and that it no longer reflects the values of modern society that is currently in place.

The origins of Section 498 comes from Indian law, drafted more than a century ago, which was itself based on old Victorian laws, written even earlier than that.

And Malaysia borrowed this law, as was the convention at the time, and has since put it in place along with thousands of other laws. Essentially, borrowed Indian and English laws form the backbone of the Malaysian legal system.

Therefore, the criticism is not on how Section 498 came to being, but rather, whether or not this law reflects the values that Malaysia currently has.

Basic principles of nature and of society must be taken into account whenever a law is considered to be either timely to have, or outdated and must be done away with.

Murder for example is an abhorrent crime against humanity at any given time, and therefore, laws to punish those who murder others are considered timely, despite when the law was written.

An old law by itself, is not the problem. The problem is when a law no longer reflects the values of the society. And Section 498 is arguable contesting the notion that is does not reflect the modern society of Malaysia.

At the time it was written, Section 498 does not recognise women as having equal rights to men.

Section 498 was intended to protect the rights of the husband, and not the wife.

The law is worded to ensure that the husband could exert his control over her and therefore treats the wife as an ‘item’ or ‘property’ of him, and therefore he must be compensated for any loss of control he has over her.

He has the right to demand the State to impose a penalty, for any persons who ‘entices’ his wife away from him. And the State, has a legal obligation, to ensure that the enticer is indeed punished accordingly.

In furtherance to this, and in some instances, the State must compensate him further, by way of Tort Law, in that he will be reimbursed with sums of money if indeed the State has deemed that his wife was truly ‘enticed’ by another man.

Lawyers argue that the underlying principle of Section 498 on treatment of women as properties of men is again a breach of Article 8(1) and 8(2) of Malaysia’s Federal Constitution.

Since the debate on Section 498 continues to wax and wane in the eyes of the public discourse, the timeliness of the prosecutors, deciding to charge the primary school teacher – Safriduwan – under this law, is intriguing various parties of the legal community in particular, and the general society at large.