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2009/12/06

SOME laws in the Malaysian Penal Code are outdated and irrelevant, say criminal lawyers who are calling for a review of the code.

For example, Section 229, which spells out offences relating to jurors, still stands 14 years after Malaysia abolished jury trials and trials by assessors.

"There are laws which have not been in use but are still found in the Penal Code because there's no concerted reform of the code," said Edmund Bon, chairperson of the Bar Council Constitutional Law Committee.

Bon suggested that the Law Reform Committee, an independent committee set up this year by Prime Minister Datuk Seri Najib Razak to restructure obsolete or overlapping legalisation in the country, extend its scope to cover the Penal Code.

The issue of archaic provisions came under public scrutiny lately after an obscure piece of law allowed celebrity Daphne Iking's husband to pursue criminal action against a businessman for allegedly "enticing" her.

Calls for the abolishment of Section 498, which criminalises enticing and taking away or detaining with criminal intent a married woman, have intensified in the weeks leading to the hearing of the case scheduled on Wednesday and Thursday.

Criminal law expert Rajpal Singh said obsolete acts could impact people as their rights and liberty were involved.

"We need to delete some sections and include new sections to cover modern crimes, because some of them were set at times that are no longer applicable.

"With the advancement of technology, today's situations are totally different. We have to move with the times," said Rajpal, who heads the Criminal Law Committee of the Bar Council.

One example is the segment of laws in Sections 292 to 294 pertaining to the sale and distribution of obscene materials, and display of obscene acts in public places, said Bon.

"Obscenity is very subjective, and with the advent of the Internet, the standards of decency and obscenity have become very blurred.

"The purpose of that law was to deter people from spreading obscene information.

"But porn sites are all over the place, so unless you shut down the Internet, or rework the categories to make it more relevant, it's very hard to police or prosecute obscenity.

"So the law has fallen into disuse. And it is no longer appropriate to have the offence because it will result in unfair and selective prosecutions."

Chapter XXI of the Penal Code, which outlined offences on defamation should also be reviewed, Bon contended, because defamation should not be a criminal offence.


"Defamation may be punishable by civil action and result in damages but it shouldn't put someone in prison. That would be too heavy a punishment and is an unwarranted violation of freedom of expression."

In recent years, some women's groups have taken the stand that prostitution-related offences should go because sex work should be seen purely from a functional perspective.

In making sex work illegal, the trade had been pushed underground, they argued. Discrimination and crimes like human trafficking, violation of rights, and unfair treatment had also been exacerbated.

"It's a delicate issue, but from the legal perspective, we look at laws to meet social needs. We have to see if the law is affecting society more detrimentally than if we have no such laws," said Bon.

There had also been calls by human rights groups to repeal Sections 377A and 377B of the Penal Code which criminalises carnal intercourse against the order of nature, an offence punishable by imprisonment of up to 20 years.

As long as oral sex is consensual between adults and takes place behind closed doors, it should not be an offence, Bon said.

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