Malaysian colonial-era law unconstitutional, treats ‘women as chattel,’ court rules

Iman Muttaqin Yusof
Kuala Lumpur
Malaysian colonial-era law unconstitutional, treats ‘women as chattel,’ court rules Malaysian police officers stand guard outside the Federal Court in Putrajaya, Aug. 23, 2022.
Lai Seng Sin/Reuters

Malaysia’s top court ruled on Friday that a colonial-era law that made it punishable for a man to seduce another man’s wife was unconstitutional because it was discriminatory toward women.

Section 498 of the criminal code, which the Federal Court struck down, entitles husbands only to initiate criminal proceedings against a person who interfered in their marriage, while wives are not allowed to rely on this provision, Chief Justice Tun Tengku Maimun Tuan Mat said in issuing the ruling.

Women’s rights groups and legal scholars have long criticized the law drafted during the years when Malaysia was a British colony and wives were considered the property of their husbands.

“This is, as such, discrimination on grounds of gender only,” the judge said in the verdict, according to a transcript viewed by BenarNews.

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

Article 8(2) of the country’s constitution prohibits discrimination based on religion, race, descent, place of birth or gender in any law.

Tengku Maimun led the five-judge panel that ruled unanimously on a request filed by an unnamed businessman who had been charged in a Magistrate’s Court under Section 498 in 2018 after a woman’s husband lodged a complaint against him. Under that section, an offender faces two years in jail, a fine, or both if found guilty.

The businessman asked for the top court to rule on whether the section was unconstitutional as it contradicted Article 8(2) of the Constitution on equality before the law and gender discrimination, according to media reports.

The court repealed Section 498, ruling it was considered a pre-Independence law and the constitution prohibits amendments through the judicial system.

“Both parties either accept or do not deny that the sole purpose of the section was to view women as chattel to their husbands to the extent that the enticement, taking away, detention of them is considered an offense.

“That the law was intended to apply to the enticement of women only is also made amply clear by Section 132 of the cited earlier. We are therefore satisfied that the only possible means to bring Section 498 into accord with the Federal Constitution is to judicially repeal it in its entirety, which we hereby do,” Tengku Maimun said.

The decision means the Malaysian High Court’s appeal court can decide on the businessman’s appeal of the Magistrate Court’s ruling because the case is still pending.

Women’s groups react

Rozana Isa, executive director of women’s rights group Sisters in Islam, called the ruling a commendable step toward recognizing and upholding the equality of married women. 

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

“Despite the conventional view of a married couple as a single entity, the Married Women Act of 1957, enacted over six decades ago, has been instrumental in acknowledging the independent legal personality of married women,” she said in a statement sent to BenarNews.

“The legislation grants married women explicit rights to their property, the ability to sue and be sued in their individual capacity and ensures that their legal representatives [should they die] maintain identical rights and liabilities as if they were alive.”

Rozana said Section 498 implied that women lacked independent thought and needed protection from men’s questionable intentions. 

Another group, the All Women’s Action Society, said the ruling marked a progressive step for Malaysian society.

“By declaring section 498 of the Penal Code as unconstitutional, the court not only dismantled an outdated law, but also underscored a commitment to fostering a society that recognizes the equal rights of individuals, irrespective of gender,” it said in a statement. 

“Women are individuals with their own autonomy, rather than properties or possessions of their husbands. Moreover, this declaration highlights that women and men are viewed equally in the eyes of law and equality before the law is one of the core principles of rule of law that we need in a legal system.”


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