In the previous segment of the article, I discussed the essence of Section 54 and policy considerations. Now, we shall deal with the constitutional validity of Section 54.
Right to Privacy – Article 5
In the recent Federal Court case of Sivarasa Rasiah v. Badan Peguam Malaysia & Kerajaan Malaysia Civil Appeal No. 01-8-2006(W) 17th November 2009, it was held that the word ‘personal liberty’ in Article 5(1) of the Federal Constitution, which reads:
“No person shall be deprived of his life or personal liberty save in accordance with law.”
includes within its compass other rights such as the ‘Right to Privacy‘.
I am in complete support this decision by the Federal Court. All State bodies and public authorities should be urged to adhere to this decision and to respect the constitutional ‘Right to Privacy’ of the citizens of Malaysia.
Following international human rights norms and case laws from foreign jurisdictions, the ‘Right to Privacy’ is a wide and encompassing right. The Right to Privacy is, succinctly put, the “right to be let alone”. The purpose of such right is to secure conditions favourable to the pursuit of happiness while recognizing the significance of humankind’s spiritual nature, of its feelings and intellect; to protect people in their beliefs, their thoughts, their emotions and their sensations (Gobind v State of M.P., (1975) 2 SCC 148)(Olmstead v. United States, 277 U.S. 438 (1928)).
A citizen, by virtue of her personal liberty, has a right to safeguard the privacy of her own, her family, marriage, procreation, motherhood, child bearing and education among many other matters (R. Rajagopal v. State of T.N., (1994) 6 SCC 632). Thus, in other words, the ‘Right to Privacy’ would be a right for the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person (Eisenstadt v. Baird, 405 U.S. 438 (1972)).
Matters such as pregnancy, child birth and sexuality are matters of great confidentiality and privacy. These matters involve important deliberations on part of a person with regards to their own body, well being and health. These are also matters which require a critical personal assessment on part of the person affected and the State should not be allowed to undermine a person’s decision or the autonomy one has over herself.
The woman and her husband in this case ought to be let alone to determine the status of their family life and marriage on their own. These are not matters for the State or for JAIM to decide but instead should be left to the personal consideration and private contemplation of the couple.
Any law that makes pregnancy and/or sexual intercourse between consenting adults an offence is both unjust and unconstitutional.
Of course, the next line of questions would be:
Indeed that would be the case. Section 54 of the Enactment is law.
For that, we must look at Article 160(2) of the FC which defines “law” as written law and the common law of England.
It would encompass the procedural and substantive dimensions of the Rule of Law; as A. V. Dicey highlights – that there be no arbitrariness, equality before the law and the Constitution is the consequence of the rights of individuals.
Thus, whatever law that is enacted must not be arbitrary, it must place everyone equal before it and be subservient to the fundamental liberties enshrined within the Constitution.
Having outlined these, we now proceed to the next area, where we see the principles of the Rule of Law beautifully entrenched within Article 8 of the FC in relation to “law”.
Equality – Article 8
Following Sivarasa’s case, it was held that, when a violation of a constitutional right takes place, Article 8(1) of the FC, which states that:
“All persons are equal before the law and entitled to the equal protection of the law“
will be engaged immediately in that the State action in question, might it be legislative, executive or administrative, must be shown to be fair and just (equal before the law) or proportionate to the aims being sought (equal protection of the law).
Equal before the Law
In order to show whether one is placed ‘equal before the law‘, it must be shown that a particular law is fair and just in that a person from one class is treated the same as another person from the same class (PP v Khong Teng Khen  2 MLJ 166).
It can thus be argued that Section 54 is unfair and unjust for it treats the pregnant Muslim woman in this case unfavourably compared to all other Muslim women that live in this Federation, as it imposes a criminal sanction upon her for being pregnant when such a sanction does not apply to other Muslim women.
This argument is taken under the basis that there ought to be no discrimination on a woman for being pregnant whether she is married or not. What she wishes to do with her own body is entirely her own prerogative. Nobody has the right to instruct her on how she should exercise her reproductive and bodily functions.
Equal Protection of the Law
Now, in order to show that one is being given ‘equal protection of the law‘, it must be shown that the law in question is proportionate to the aims being sought i.e. the means must justify the end. One must not use a sledgehammer to crack open a nut. Laws must not be arbitrary.
It will thus be argued that Section 54 and the subsequent decision to prosecute the woman is disproportionate to whatever aim presumed to be sought.
If it is indeed the case that the Malacca State Government and JAIM intends to curb incidences of children being born out of wedlock in order to, presumably, preserve public morality, it would be far more proportionate an action to work with Jabatan Pelajaran Melaka to introduce sex education and gender studies in schools and universities to educate the youths on ethical behaviour and safe sex practices.
It would also be proportionate to the aim being sought for the Malacca State Government to work together with Jabatan Kesihatan Negeri Melaka, Jabatan Kebajikan Masyarakat Negeri Melaka and Pejabat Pembangunan Wanita Negeri Melaka to provide counseling to the public about family life as well as offering free contraceptives to increase awareness among the general public; positive efforts to reduce incidences of unwanted pregnancies, backdoor abortions and discarded infants (buang bayi).
Prosecuting a woman for being pregnant out of wedlock will not solve anything for the public still remains to be uninformed about matters pertaining to family life and safe sex practices. Further, the State government must also be mindful and respect the decision of the woman if it was her intention to have the child, whether she is married or not.
It is also the case that in the event the woman is found guilty and is sentenced to prison, her child would be deprived of a mother (and even a father if the man in the said case is also found guilty under Section 55).
Additionally, Section 54 is in violation of Article 8(2) of the Federal Constitution, which reads:
“Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law. .”
Section 54 of the Enactment is a provision of law that discriminates against women. As a provision of law, Section 54, aside from expressly referring to women also penalises women for exercising their reproductive functions; functions not exercised by men.
Comparatively speaking, this places women at a detriment compared to the men. A criminal restriction is placed on all women but no such restriction shall or will ever apply to men for the lack of such reproductive functions. In other words, a male can never be charged under Section 54. Such a law treats women unfavourably owing to their gender and their reproductive functions.
‘Personal Law’ Re-visited
There will also be no conflict with Article 8(5)(a) of the FC which states that Article 8 does not invalidate or prohibit any provision regulating personal law. I have stated in the second segment (II) of this article that I do not believe Section 54 is ‘personal law’ for there is an imposition of a criminal sanction, taking it out of the ambit of ‘personal’ and into the domain of the ‘public’. This is solely a criminal offence; an offence that is blatantly in violation of the fundamental liberties guaranteed by the FC.
Likewise, even in instances where people are arrested and prosecuted for close proximity/Khalwat, questions still remain:
These are questions that civil society must ponder on to reach a logical, rational and reasonable resolution.
Conclusion of Segment III
JAIM’s decision to prosecute the said woman would not only be contravening her Right to Privacy and her Right to be Free from Discrimination as enshrined by the Federal Constitution but it would also be disproportionate to the aims being sought.
At this point, it would be up to civil society and the relevant Women NGOs and Islamic NGOs to vehemently urge the State Legislative Assembly of Malacca to repeal Section 54 of the Enakmen Kesalahan Syariah (Negeri Melaka) 1991 (En. 6/91) for being unconstitutional and unjust.
In the fourth segment (IV) of this article, I shall be dealing with Malaysia’s representations to the world, its international human rights obligations and the legitimate expectation of the people of Malaysia as well as other ancillary matters.