FMT:
Muslim men can be charged for enticing Muslim married women for sex, says lawyer
Fahri Azzat says they will face investigation and prosecution by Islamic religious enforcement authorities.
Lawyer Fahri Azzat says every state has criminal enactments on enticement, since Islam comes under state jurisdiction. (Pexels pic)
PETALING JAYA: State shariah criminal enactments can be used to charge Muslim men for enticing Muslim married women for sex, a lawyer said.
However, it would only be limited to Muslim women because shariah courts do not have jurisdiction over non-Muslims.
Fahri Azzat said the offences include enticing a female or married woman, khalwat (an unmarried man and woman being together in a secluded place), zina (sexual intercourse between a man and woman outside a valid marriage), attempted zina, and instigating a spouse to divorce.
“Muslim men are not exempted from investigation and prosecution by Islamic religious enforcement authorities.
PETALING JAYA: State shariah criminal enactments can be used to charge Muslim men for enticing Muslim married women for sex, a lawyer said.
However, it would only be limited to Muslim women because shariah courts do not have jurisdiction over non-Muslims.
Fahri Azzat said the offences include enticing a female or married woman, khalwat (an unmarried man and woman being together in a secluded place), zina (sexual intercourse between a man and woman outside a valid marriage), attempted zina, and instigating a spouse to divorce.
“Muslim men are not exempted from investigation and prosecution by Islamic religious enforcement authorities.
Fahri Azzat.
“This personal law is unaffected as Article 8(5) of the Federal Constitution exempts it from the non-discrimination provision in Article 8(2),” he told FMT.
He noted that every state in the federation has criminal enactments on this, since Islam comes under state jurisdiction.
Fahri said this in response to a landmark ruling by the Federal Court on Friday striking down as unconstitutional a provision in the Penal Code that makes it a crime for a man to entice a married woman.
With Section 498 struck down, it is no longer a crime if a man, Muslim or non-Muslim, entices a non-Muslim married woman.
Previously, under Section 498, a man who takes away or entices a married woman to engage in illicit sexual intercourse with her commits a criminal offence and is liable to be jailed for up to two years or to a fine, or both.
Chief Justice Tengku Maimun Tuan Mat, who led a five-member bench, said Section 498, a 152 year-old pre-Merdeka law, allows only husbands to rely on the provision and excludes wives.
“We hold that Section 498 is unconstitutional because it unlawfully discriminates only on the ground of gender, which is violative of Article 8(2),” the top judge 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.
“We are therefore satisfied that the only possible means to bring Section 498 into accord with the constitution is to judicially repeal it in its entirety,” she said.
Meanwhile, lawyer K Shanmuga said a non-Muslim woman cannot be compelled to give evidence if she is caught for khalwat or zina with a Muslim man.
“The constitution states that the shariah court has no jurisdiction over non-Muslims,” he said.
However, Fahri said a non-Muslim can voluntarily give evidence in the shariah court and be a witness of fact.
“This personal law is unaffected as Article 8(5) of the Federal Constitution exempts it from the non-discrimination provision in Article 8(2),” he told FMT.
He noted that every state in the federation has criminal enactments on this, since Islam comes under state jurisdiction.
Fahri said this in response to a landmark ruling by the Federal Court on Friday striking down as unconstitutional a provision in the Penal Code that makes it a crime for a man to entice a married woman.
With Section 498 struck down, it is no longer a crime if a man, Muslim or non-Muslim, entices a non-Muslim married woman.
Previously, under Section 498, a man who takes away or entices a married woman to engage in illicit sexual intercourse with her commits a criminal offence and is liable to be jailed for up to two years or to a fine, or both.
Chief Justice Tengku Maimun Tuan Mat, who led a five-member bench, said Section 498, a 152 year-old pre-Merdeka law, allows only husbands to rely on the provision and excludes wives.
“We hold that Section 498 is unconstitutional because it unlawfully discriminates only on the ground of gender, which is violative of Article 8(2),” the top judge 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.
“We are therefore satisfied that the only possible means to bring Section 498 into accord with the constitution is to judicially repeal it in its entirety,” she said.
Meanwhile, lawyer K Shanmuga said a non-Muslim woman cannot be compelled to give evidence if she is caught for khalwat or zina with a Muslim man.
“The constitution states that the shariah court has no jurisdiction over non-Muslims,” he said.
However, Fahri said a non-Muslim can voluntarily give evidence in the shariah court and be a witness of fact.
No comments:
Post a Comment