KUALA LUMPUR: Although the Federal Court had ruled that criminalising men for enticing a married woman is unconstitutional, Muslim men can still be prosecuted for the same offence through the State Syariah Criminal Enactment.
Former Malaysian Bar Council president Salim Bashir said the states' religious authorities have the right to apply preventive syariah criminal laws in cases involving domestic disturbances.
He said the Federal Court made the right decision when it declared the section in question, Section 498 of the Penal Code, unconstitutional because it violated basic principles regarding gender equality.
"The section in question discriminates against gender and is against Article 8(2) of the Federal Constitution.
"It follows that only the husband can file a complaint based on the Code of Criminal Procedure and is considered to be disregarding the wife's rights.
"We need to understand that this outdated law was born from British laws during the Victorean era that was absorbed into our country's Penal Code," he told Berita Harian yesterday.
He was commenting on a statement by the Pas Ulama Council following the decision of the Federal Court recently.
The Pas Ulama Council is of the view that the provisions of Section 498 align with the main principles of Islamic law which aims to prevent evil (mafsadah) and preserve the good (maslahah) of human life.
The council believes that the act of enticing a married woman, if not considered a crime, will encourage scandals and prohibited acts of sexual harassment and adultery.
Salim said the provision viewed women as their husband's property.
Therefore, he emphasised, the issue of moral issues alone cannot be used as a yardstick in assessing the validity of a provision of civil crimes if it is against the Constitution.
"It is more noticeable if it is discriminatory and the impact of the law involves all races in this country.
"The issue of religious freedom through the provision of Article 11 of the Constitution is not directly relevant in examining this judgment.
"In the context of this case, a Muslim couple can be punished for adultery after proof of guilt in the Syariah Court," he said.
A five-judge panel led by the Chief Justice Tun Tengku Maimun Tuan Mat made the ruling after allowing a 53-year-old businessman's application to challenge the provision in the Penal Code.
The applicant argued that Section 498 of the Penal Code violated women's right to equality before the law as the section only accorded husbands the right to initiate criminal proceedings against a person who interfered in their marriage.