For Malaysia to De-Criminalize ACI and permit Consanguineous Marriage

For Malaysia to De-Criminalize ACI and permit Consanguineous Marriage

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THE PETITION

We the undersigned appeal to the Malaysian Parliament to ask the Malaysian Government to amend the law against incest, so that it does not apply in cases where participants are consenting and both adults are over 21 years of age. Moreover, for those convicted under such circumstances, both the deprivation and deprivation elements of their sentences have been reviewed to be repealed in the light of a legislative amendment.
The Malaysian Marriage law also needs to be amended so that consanguineous marriages are permitted as long as both parties are of legal age and wish to marry.

 

BACKGROUND
The British invaded the Malay Islamic Sultanates and imposed British laws, but left certain customary laws untouched. After gaining Independence from the British, Malaysians adopted a Constitution for the new Malaysian Federation which held Islam, the religion of majority Bumiputra as the state religion and Malaysia thus has a dual system of law, one secular system based on British law and the other one based on traditional Syariah (Note 1B) law.
"The offence of incest was introduced for the first time into the Malaysian penal code in 2001. ... Following s. 376A, the offence of incest is committed when a person has sexual intercourse with a person whom the person is prohibited from marrying. The prohibition of marriage between parties with close relation by blood or marriage for a non-Muslim is provided by s. 11 of the Law Reform (Marriage and Divorce) Act, 89 and for Muslims, by provisions of the individual State's Enactments, for example, s. 9 of the Islamic Family Law (Federal Territory) Act.90 S. 376B provides for a mandatory custodial sentence, i.e. if convicted, the accused shall be punished with imprisonment for a term of not less than 6 years and not more than 20 years and shall also be liable to whipping. Prior to the introduction of s. 376A, the only prosecution made was for statutory rape under s. 376, which relates to the rape of a father against his daughter.91 Incest is also provided as an offence in all state enactments, as a Syariah offence in Malaysia.92 S. 25 of the Syariah Criminal Offences (Federal Territory) Act93 provides that anyone convicted of incest shall be liable to a fine not exceeding RM5000 or to imprisonment for a term not exceeding 3 years or to whipping not exceeding 6 strokes or to any combination. (See NOTE 1A)

" It must also be mentioned that the Syariah Court (Criminal Jurisdiction) Act107 provides that the Syariah Court has jurisdiction to impose a maximum sentence of only 3 years imprisonment and, a fine of not more than RM5000 and whipping of not more than 6 stokes. Incest and unnatural offences under the Penal Code on the other hand carries a minimum punishment of 6 and 5 years imprisonment and a maximum of 20 years and the whip. What happens when two people are charged with incest, one a Muslim in the Syariah Court and the other a non-Muslim under the Penal Code? This comment reiterates that urgent steps should be taken to reform the current legal position and, as suggested above, based on the Federal Constitution such that the Penal Code should take precedent." NOTE IA

In Malaysia, incest is a crime under section 376A of the Penal Code and specifically in the Malaysian context, incest is defined as sexual intercourse with someone they are not allowed to marry due to law, religion, custom or usage applicable to said person.
Different laws and regulations govern Muslim and non-Muslim marriages in Malaysia, and that in order to be recognized as legal the appropriate requirements must be followed. Only marriages registered by the National Registration Department for non-Muslims or the Islamic Religion Department for Muslims are recognized as legal. ( see Note 1 for details on prohibited relationships)

The LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976 page 15 (Marriage) (Note 4A)
states:
'Avoidance of marriages where either party is under minimum age for marriage. Any marriage purported to be solemnized in Malaysia shall be void if at the date of the marriage either party is under the age of eighteen years unless, for a female who has completed her sixteenth year, the solemnization of such marriage was authorized by a licence granted by the Chief Minister under subsection 21(2)
The punishment for incest under the Malaysia penal code:
Incest 376A. A person is said to commit incest if he or she has sexual intercourse with another person whose relationship to him or her is such that he or she is not permitted, under the law, religion, custom or usage applicable to him or her, to marry that other person.

Punishment for incest 376B.(1) Whoever commits incest shall be punished with imprisonment for a term of*not less than ten years and not more than thirty years, and shall also be punished with whipping.(2) It shall be a defence to a charge against a person under this section if it is proved—(a)that he or she did not know that the person with whom he or she had sexual intercourse was a person whose relationship to him or her was such that he or she was not permitted under the law, religion, custom or usage applicable to him or her to marry that person; or(b)that the act of sexual intercourse was done without his or her consent.*NOTE—Previously “not less than six years and not more than twenty years”–see section 20 of Penal Code (Amendment) Act 2014 [Act 1471].

Reasons for Petition.
The Malaysian laws on adult consensual incest in its present form is inappropriate, unfair, ineffective and discriminatory. The existing (secular) incest law on incest in Malaysia punishes consensual incest between adults with incarceration (and whipping) and thus violates the spirit and intent of the UN human rights provisions and the spirit and purpose of the Universal Declaration of Human Rights, in particular, the right to personal and sexual autonomy; (Malaysia did not sign the Universal Declaration of Human Rights when most other Muslim nations did so in 1948, as it had not yet come into being (Merdeka was not until 1957). But as a member of the United Nations, as do all the other member states, including the USA, the UK, Canada etc. it still has an obligation to uphold the principles of this Declaration.) (Note 5)
both the Malaysian Criminal Code and the Syariah law unjustly and unnecessarily punish incest between consenting adults: there are other laws to punish child abuse and statutory rape, so there is no need for the duplication of laws against those offences. People in adult consensual incest oriented (CIAO) relationships are not violating any one else's rights, and not harming anyone so the law ought not intervene in their private and consensual relationships. A law that disrupts such a relationship is unjust and ought to be repealed without delay.
Public fears, prejudices, and bigotry towards the Adult Consensual Incest oriented people( hereon referred to as CIAO people) are largely due to ignorance and poor education. Malaysian law was heavily influenced by British law " Between the late 17th and early 19th century, Britain’s ‘Bloody Code’ made more than 200 crimes – many of them trivial – punishable by death." (4) Writing for History Extra, criminologist and historian Lizzie Seal co). "Adat Temenggung" (patriarchal Malay customary law) of the Sultan or the law ordained by the rulers and later adopted in the other regions of Peninsular Malaysia was shaped by three main influences, namely the early non-indigenous Hindu/Buddhist tradition, Islam and the indigenous "adat" and religious schools / the media. To a degree it was influenced by the pseudo-science of eugenics and the philosophy of Social Darwinism which arose during the height of Imperial competition between colonialist powers towards the end of the 19th century, partly to justify imperial subjugation of colonized peoples and the appropriation of their lands.
It is perhaps worthwhile to address Malaysia's outdated incest law in four points:
1. The genetic argument;
2. Public opinion;
3. Protection of the child and other family members;
4. The maintenance of family solidarity and cohesion;

Point One - The genetic argument

The the argument for criminalization of ACI sexual relationships because of a supposedly higher risk of birth defects in children of ACI oriented (CIAO) parents does not stand up to rational reasoning.
According to the Dr. James A Roffee paper 'Incest in Scots Law: Missed Opportunities' in the New Zealand Law Commission Review),(3) 'The genetic argument has been judged and disregarded in England and Wales A number of reasons supporting such a conclusion include: that genetics was not used as a justification in the past, that there are great doubts that the greatly increased risk of a variety of Illnesses would justify an offense, and it would not matter to the achievement of the goals of protecting family and children, if the incest law were justified by genetic defects of potential offspring and thus overriding the principle of sexual autonomy, this would not just be one relatively remote problem, but also has the added effect of making a mistake caused to offspring, illegal. "
Since all mating couples have a 2-3% chance of having a child with a birth defect (consanguineous couples are only marginally higher), the consistency of the law would criminalize "all bad fruit-producing sexual intercourse" and would thus criminalize a large number of sexual acts that produce children with birth defects. It would, of course, be unfair to convict the parents of the 6% of children born with birth defects every year worldwide. So why lock up a tiny number of people in ACI relationships who are only slightly more likely to have a child with a birth defect than the general population, which is responsible for nearly 99.9% of children with birth defects?

The above-mentioned New Zealand Law Commission document mentions the genetic argument as the reason for the continuation of the incest law in New Zealand, but ends with this contradictory statement:
"Logically, genetics can not be the sole determinant, because contraception can prevent the birth of children in such relationships." Note 6


Law professor Joachim Renzikowski said: "Criminal law is not there to protect morality."
In countries where the offense had been abolished, there had been no increase in incest.
"You can not protect a child from the way it is conceived, otherwise there are many high-risk groups that should be banned from having children: women of advanced age, smokers, alcoholics or people with relatively common hereditary diseases, such as cystic fibrosis. ...In the fall of Leipzig, incest did not destroy a family, it only started (it) in the first place," says Renzikowski. "The rule of law does not collapse if we show a little grace."

Point Two: Public Opinion.

Public opinion has changed dramatically around the world since the 1960s. After the Report of the Australian Royal Commission on Human Relationships in 1977 recommended legalization of Adult Consensual Incest (ACI) ( as well as abortion, homosexuality and prostitution among many other overdue reforms) , most recommendations have been passed into law, except ACI. Many Western countries have passed laws that reflect generally more liberal views on sex and relationships, but this has not been extended to ACI relations, except in a few countries. Many countries including Malaysia's former colonial overlord the United Kingdom have recently legalized Same-Sex Marriage and apparently in Malaysia "There has been some public discussion about reforming the law so as to exempt private, non-commercial sexual acts between consenting adults. ( 2) UK's neighbour, France, adopted the Napoleonic Code which legalized ACI and homosexuality in 1810, more than 200 years ago and since then, nearly 40 countries have emulated France.(Note 8) In the past, in many countries, fornication, adultery, divorce, prostitution, abortion, incest and homosexuality were either sins or illegal or both. In most modern countries, however, most of these activities are legal, if not moral, today. Malaysian people who have studied, read books, seen movies, used the internet, travelled the world can see that we are no longer living in the Dark Ages and we no longer accept the punishment and imprisonment of people just because because they have broken these old religious taboos. Most people think more scientifically and have degrees in maths and science rather than theology and astrology.
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Human attitudes to human rights have changed dramatically, notably through increased awareness of United Nations human rights law, a broader understanding of the Universal Declaration of Human Rights and, in particular, of the right to personal and sexual autonomy; Fewer people, even religious, can afford to be as moralizing and judgmental as before, and most people are better educated, travel to more distant places more often and are more tolerant and understand a wide variety of cultures and types of sexual relationships than ever before. People want and expect more freedom of thought and choice.

When the incest law was written in Malaysia???, no public opinion polls on incest were conducted in Malaysia.
"In 1786, Britain acquired the island of Penang, the first territory in Malaysia to fall into British hands." "Complaints and petitions were made over many years for a better system of administering justice. Finally, it came in the form of the Royal Charter of Justice of 1807"
"The Charter is the most significant event in Malaysian legal history as it marked the beginning of the statutory introduction of English law into this country. The Charter established the Court of Judicature of the Prince of Wales' island (as Penang was then known) to exercise jurisdiction in all civil, criminal and ecclesiastical matters. It was interpreted by the courts as introducing to Penang the law of England as it stood in 1807.
But incest did not become a crime in England until 1908!
Allegations that the law is based on public opinion are doubtful at best; i.e. such allegations are not supported by any evidence. In Malaysia, no public opinion polls on adult incest were conducted.

The public attitude towards incest during the 20th century in Malaysia was most likely made ignorant of the law and made by the media and education system to link healthy, happy and consensual relationships between adults and incest (not enforced, not abusive) abuse, Coercion, child abuse of incest. This ambiguity of the meanings of the word incest may have been exploited in recent reports of incest and give the impression that all incestuous acts are of a generally negative connotation. Few people in Malaysia have been made aware that French law has allowed ACI since 1810. This fact, this vital piece of truth was denied to the public, was brainwashed secretly to think that all modern countries are against and criminalized adult consensual incest, which they undoubtedly are not and not, and this state imposed incestophobic abuse and torture (Imprisonment is abuse and torture) is "normal" and incest phobia is "normal."

As with other taboo relationships in the past, (homosexual, interracial) incest was tabooed and stigmatized, mainly by the church, but also by church governments masquerading as modern secular democratic states.

Point Three - Protection of the child and other family members

By definition, ACI does not include anyone under the age of 21. It, therefore, refers only to adults and excludes persons under the legal age, and even those who are a little older and are still mentally immature and prone to abuse, but legally adults in every respect. Children are protected from sexual and other abuse by other laws, and there is no need for double criminalization of the offense. In other countries, such as England and Australia, the crime of "child sexual abuse" has replaced the more stigmatizing and psychologically harmful term "incest". Victims of child sexual abuse do not benefit from stigmatization when associated with the taboo word "incest". (Another reason why the current law needs to be urgently reformed).

Punishing CIAO couples do nothing to protect the child or other family members. If a parent goes to prison for the CIAO , it means that if there are small children in the family, they have lost the family income from the family earner. If adult siblings are involved in the CIAO , how can jail imprisonment protect someone in the family? The two are punished for being in love with each other. She punishes the entire family and splits them by denying her the income she could have from two working adults who are now being sent to jail and humiliated. It does not protect a family to embarrass and humiliate it by linking it and other family members to criminal convictions of an CIAO couple in the family and the stigma of incest.___________________________________________________________________________
Point Four - The maintenance of solidarity and cohesion of the family

A New Zealand Legislative Commission cites as a reason for the continuation of the incest law in New Zealand
The integrity of the family.
The integrity of the family is the element that must be added to the above considerations to justify the prohibitions. The United Nations stated in 1994 that the "family is the fundamental unit of society". It is critical to the development and maintenance of its individual members. [318]

For most people, a family is a place where they want to belong and feel safe, where they are accepted, recognized, loved and cared for. The most important requirement, however, is that society ensures that families are stable and healthy and that members assume responsibility for each other, as they are the most effective defense against marginalization, frustration, and distress. In times of crisis, social tensions and personal problems, the first place where help is usually sought is within the family. The family has the potential to be the best institution for the education of children and the intimacy between adults.

Incest threatens the security and stability of the family unit. Marriage in close family relationships is considered undesirable for the same reasons. The Scottish Law Commission, in its report on the law of incest, has found that incest can cause psychological or other direct harm, that family trust collapses and that sometimes can lead to disruptive rivalries. [319]

299 These terms apply equally to families linked by an adoptive relationship and those related by consanguinity.

http://www.nzlii.org/nz/other/nzlc/pp/PP38/PP38-11_.html

Our answer is that there is no evidence that ACI disturbs family cohesion or solidarity more than fornication, promiscuity, divorce, homosexuality, prostitution or adultery or even unemployment. All these acts are no longer subject to criminal punishment, as they may be under the church law. Incest was a sin according to the Christian church, and according to church law, it was punished by various penances and "dispensations" (or "fines").

Jealousy occurs in all kinds of relationships. In today's society, a married woman can legitimately begin to have sexual relationships with several other married or unmarried men and / or women, and her husband has no recourse, no matter how jealous he may feel. And vice versa. Parents may even feel terribly hurt when children get divorced, become prostitutes, decide to abort a potential grandchild, or engage in a same-sex marriage, and swear never to have children. Life is full of pain, but that's no excuse to deny people their human rights and to start a family with the person they're in love with, even if they're a family member. CIAO couples sometimes have no other living relatives. They form a family. They deserve the respect and protection contained in the two sentences above. "The United Nations established in 1994 that the" family is the fundamental unit of society. "It is critical to the development and maintenance of its individual members."


_____________________________________________________________

Conclusion

There are no valid reasons to discriminate against the ACI section of the Malaysian Community. Such discrimination, legal or otherwise in morally and ethically objectionable. There are many moral codes and the adherents of each consider their own the moral code.
"And twenty years ago in 1996, a committee , chaired by Rod Howie QC, charged with reforming the Australian Modal Criminal Code (to make it more in line with contemporary thinking and practices) stated in its conclusion on page 139:
"The Committee agrees that it is not the role of the criminal law to intervene in the private lives of citizens or to attempt to prohibit all kinds of sexual behaviour, no matter how objectionable or morally wrong that conduct may be.It may be fair to comment that many in the community would find incest between consenting adults repugnant. However, in the absence of sexual abuse or exploitation, the Committee is not convinced that such conduct should be the subject of criminal offense....
Recommendation: The Model Criminal Code should not provide for a criminal offense of incest." (Note 9)

The Malaysian incest law perpetuates superstitious, bigoted traditional incestophobic convictions, but is not justified. The current incest law in Malaysia is overarching in that it can not protect children or adults in a family mistreated by a family member, whereas it maltreats adult children who were in a mutually agreeable adult incestuous relationship with another adult family member by subjecting them to forced separation, arrest, persecution, public humiliation, disproportionate punishment ( whipping is a torture is illegal in most countries) imprisonment, loss of access to children, loss of family and friends, careers, family homes, and reputation.

The law punishes consensual adult incest unnecessarily and unfairly, thereby violating the right to sexual autonomy for all consenting adults accepted in other developed countries.

The law of incest in Malaysia should be repealed so that ACI is no longer a crime, and CIAO people should be allowed to marry, as other consanguineous couples ( i.e.cousins) may marry in many countries already.

The above indicates that Malaysian laws against incest, both in Federal law and Syariah law should be repealed. There are other laws that protect children from abuse. In any case, incest laws should not apply in cases where participants are both consenting adults over the age of consent. Those convicted under such circumstances should have both the custodial and non-custodial constituents of their judgments reviewed to be repealed in the light of a legislative amendment.


Note !A CRIMINAL LAW CODIFICATION AND REFORM IN MALAYSIA: AN OVERVIEWAuthor(s): Norbani Mohamed NazeriSource: Singapore Journal of Legal Studies, (December 2010), pp. 375-399Published by: National University of Singapore (Faculty of Law)Stable URL: https://www.jstor.org/stable/24870503Accessed: 03-03-2020 08:15 UT

Note 1 . LIst of Prohibited Relationships
11.(1) No person shall marry his or her grandparent, parent,child or grandchild, sister or brother, great-aunt or great-uncle,aunt or uncle, niece or nephew, great-niece or great-nephew, as the case may be:Provided that nothing in this subsection shall prohibit any person who is a Hindu from marrying under Hindu law or custom his sister’s daughter (niece) or her mothers’s brother (uncle).(2) No person shall marry the grandparent or parent, child or grandchild of his or her spouse or former spouse.(3) No person shall marry the former spouse of his or her grandparent or parent, child or grandchild.(4) No person shall marry a person whom he or she has adopted or by whom he or she has been adopted.(5) For the purposes of this section, relationship of the half blood is as much an impediment as relationship of the full blood and it is immaterial whether a person was born legitimate or illegitimate.(6) The Chief Minister may in his discretion, notwithstanding this section, grant a licence under this section for a marriage to be solemnized if he is satisfied that such marriage is unobjectionable under the law, religion, custom or usage applicable to the parties thereto and, where such marriage is solemnized under such licence,such marriage shall be deemed to be valid

Note 1B Syariah (the Malay spelling of "Sharia") refers to Sharia law in Islamic religious law and deals with exclusively Islamic laws, having jurisdiction upon every Muslim in Malaysia. The Syariah Court system is one of the two separate systems of courts which exists in Malaysian legal system.

Note 2 https://en.wikipedia.org/wiki/LGBT_rights_in_Malaysia

Note 4 A brief history of capital punishment in Britain
https://www.historyextra.com/period/modern/a-brief-history-of-capital-punishment-in-britain/
Note 4A: LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976 http://jafbase.fr/docAsie/Malaisie/Mariage&Divorce.PDF
Note 5 UDHR Is Not Colonial
https://www.nst.com.my/opinion/columnists/2018/12/445561/udhr-not-colonial

Note 6 http://www.nzlii.org/nz/other/nzlc/pp/PP38/PP38-11_.html
Laws of Malaysia - Prof Datuk Dr. Denison Jayasooria s/o Daniel Jayaratnam http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Penal%20Code%20ACT%20574%20-%20TP%20LULUS%2021_2_2018.pdf

Note 8. This writer found many more ACI- tolerant states than were listed on Wikipedia I was able to compile a longer list which included many former Soviet states. http://www.eurocommunicator.ge/eng/view_myth/1/
"In former Soviet states sexual relations among close relatives and family members are only prosecuted in Moldova. Georgia and in its neighboring countries (Russia, Armenia, Azerbaijan) do not prohibit incest among adults"
14 of 15 Post Soviet states that do no prosecute ACI.
I checked all the Criminal Codes of these countries and none mention any punishment of ACI, though there are punishments for consensual incest with under age relatives.
While some of these states are majority Muslim, one or two did have laws against polygyny.
The new list (alphabetical) of ACI tolerant countries is comprised of 40 independent countries and two US states
Argentina, Armenia, Azerbaijan, Belarus, Belgium,
Brazil, People's Republic of China, Estonia, France, Georgia,
India, Israel, Italy ( if no scandal is caused) Ivory Coast, Japan,
Kazakhstan, Kirghiz Republic, North Korea, South Korea, Latvia,
Lithuania, Luxembourg, Malta, Monaco, Mongolia, Montenegro,
Netherlands ,New Jersey (US) North Macedonia, Pakistan, Portugal, Rhode Island ((US),
Russia, Serbia, Slovenia, Spain, Tajikistan,
Thailand,Turkey,Turkmenistan, Ukraine,Uzbekistan.

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