Parliament can legislate to make enticement for sex an offence, says ex-judge

 

Parliament must ensure that any new law making the enticement of another person’s spouse a criminal offence applies equally to men and women, retired judge Hishamuddin Yunus said. (File pic)

PETALING JAYA: Parliament could still pass a law to make enticement of a spouse for sex an offence provided it covers both genders, a retired judge said.

Hishamudin Yunus said the new provision must make it clear that both men and women can be prosecuted for enticing another person’s spouse.

“There will be gender equality before the law when gender discrimination is removed to make the offence legal and constitutional,” the former Court of Appeal judge told FMT.

He also said MPs in the Dewan Rakyat and senators in the Dewan Negara must ensure that any law passed does not violate the fundamental rights entrenched in the Federal Constitution.

“Our constitution is the supreme law of the land and any law that contravenes the constitution could be subject to challenge in the courts,” he said.

Hishamudin was responding to a Federal Court landmark ruling on Friday which struck down as unconstitutional Section 498 of the Penal Code that makes it a crime for a man to entice a married woman. The offence was punishable with a jail term of up to two years or a fine, or both.

As a result of the decision, it is no longer a crime for any man, Muslim or otherwise, to entice a married woman. However, a Muslim man may still be prosecuted under the Islamic enactments of individual states for enticing a married Muslim woman.

Chief Justice Tengku Maimun Tuan Mat, who delivered the unanimous decision of a five-member bench on Friday, said the 152-year-old pre-Merdeka law, allows only husbands to rely on the provision.

“We hold that Section 498 is unconstitutional because it unlawfully discriminates only on the ground of gender, which is violative of Article 8(2),” she said.

Article 8 guarantees that all persons are equal before the law and entitled to equal protection.

Tengku Maimun said the provision is not open to judicial amendment under Article 162(7) as doing so would require extensive amendment to the extent of changing the character of the offence.

She said the only possible means to bring Section 498 into accord with the constitution was by judicially repealing it in its entirety.

Senior lawyer Bastian Pius Vendargon suggested that Parliament could, if it thinks fit, make adultery a criminal offence for both men and women.

“However we cannot legislate to bring our civil laws in line with shariah law of the states since the personal law of non-Muslims is protected by the constitution, too,” he said.

For that reason, he said non-Muslim men cannot ask for legislation to recognise their rights to polygamy simply because Muslim males have this right.

Meanwhile, lawyer Syed Iskandar Syed Jaafar said it will only take a simple majority on the floor of Parliament to pass a new law creating the offence.

“It will be interesting to see if the current government will propose such a law and whether it will receive support from component parties in the unity government,” he said.