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A valid case for law reform

April 2nd, 2012 · No Comments

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By TS Tan

Commonsense tells us that there is need to review old laws that were enacted during the British colonial era or soon after the country’s independence. The move is necessary not only to ensure justice in the changing world, but also to remove irrelevant provisions that were once considered pertinent or important.

A case in point is the replacement of the Internal Security Act 1960 by two new security laws announced by Datuk Seri Najib Razak late last year. The Act was introduced to combat Communist insurgency and maintain national security.

The Prime Minister rightly felt that it was time to increase civil liberties and protect human rights, including the freedom of assembly. It was a calculated move with some risks, but it was widely welcomed by people from all strata of society.

Even the Deputy Minister of Finance, Datuk Donald Lim, has called for a review of the Bankruptcy Act 1967 which was amended in 2003. The changed included the increase of debt from RM10,000 to RM30,000 for bankruptcy proceedings and the rise in the borrowing ceiling of an undischarged bankrupt from RM100 to RM1,000.

The Act, which was based on English law, was amended to allow bankrupts “a second chance.” However, they still have to waiting for five years before they are permitted to apply for a discharge from bankruptcy. During this period, they cannot leave the country, open a bank account or conduct any form of business. Thus, the restrictions prevent entrepreneurs from starting with a clean slate.

Many Malaysian laws were implemented before or soon after independence in 1957. They include the Betting and Sweepstake Duties Act 1945, Bills of Exchange Act 1949, Married Women and Children (Maintenance) Act 1950 and Registration of Marriage Ordinance 1952. Of course, most of them were later revised in order to be in sync with modern needs and norms.

One of the most controversial laws is Section 377 of the Penal Code which deals with sodomy. Opposition leader Datuk Anwar Ibrahim called it “archaic” in a BBC interview, sparking an uncalled-for uproar.

Archaic” refers to “something that is very old-fashioned and needs to be changed,” defines Macmillan English Dictionary. The sodomy law is certainly out of date in this context. It was introduced nearly 160 years ago during British colonial rule and was applied to colonies like Australia, Hong Kong, Singapore and Sri Lanka. The Indian version of Penal Code 1860 was found to be suitable for application in then Malaya and it was duly adopted.

The set of rules was an adaptation of the English Common Law that was enforced as early as 1290. It was then held that sodomy was a crime punishable by burning (like a witch in olden days). Hanging was later introduced under the Buggery Act 1533 which covered oral sex.

Under Section 377, an offender can be imprisoned for a term of two to 20 years, often with whipping. In late March, the Sessions Court in Penang sentenced a former university student to a total of 21 years in prison plus 11 lashes for committing same-sex acts on two boys on four occasions.

In a Syariah Court, an offender faces a prison term of up to three years, whipping (six lashes) and a RM5,000 fine. Fellatio and lesbianism are also considered unlawful “acts against the order of nature.”

(The Government banned homosexuals, bisexuals and transsexuals from appearing TV in 1994. Forty-five Muslim transvestites were charged and convicted for impersonating women.)

Nevertheless, times and laws have changed. Homosexual acts are now legal in 155 countries, including European Union member states, but they are banned in 80 countries even when they are consensual. Denmark, Germany, New Zealand, Switzerland and the UK even allow same-sex couples the rights of marriage.

On the other hand, LGB people – lesbians, gays and bisexuals – are forbidden to enter Belize, Lesotho, Trinidad and Tobago, and Swaziland. In Angola, convicted sodomites are sent to labour camps and it’s death penalty for those in Afghanistan, Iran, Saudi Arabia and the United Arab Emirates though the severe punishment is hardly carried out.

The criminalization of sodomy is said to be a violation of the Yogyakarta Principles, Vienna Declaration and Universal Declaration of Human Rights. The United Nations Human Rights Commission views it as an infringement on the individual right to privacy.
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TS Tan is a freelance writer, editor and researcher, and an author of several education books. He is also a blogger on eduscene.blogspot.com, socialdiscuss.blogspot.com and speakupmy.blogspot.com.

Tags: Criminal Law

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