Paedophilia in Malaysia

Hot on the heels of marital rape comes another issue – paedophilia – that is igniting all sorts of debate in the media. The news that a Malaysian student at Imperial College being charged and imprisoned for the possession of over 30,000 items of child pornography, sent shockwaves through our community.

What is shocking isn’t the fact that a Malaysian student was found guilty of such proclivities, but rather the reaction of the government, institutions and the people to this crime.

One minister actually suggested that the government appeal for a lightening of the sentence:

We can appeal (to reduce the length of the sentence), the problem is we are subjected to the prevailing laws of the country.

This encouraged the student’s sponsor, MARA, to suggest that the student be given a second chance to complete his studies in a MARA institution:

He said the opportunity was not exclusive to Nur Fitri Azmeer as the same opportunity could be given to any other MARA-sponsored student if they were faced with a similar fate.

One MARA council member likened paedophilia to truancy:

Students who play truant are given a second chance, so why is it different with Nur Fitri.

So, now we know where all the paedophiles of the country are going to go to school, and play truant while at it.

What is particularly sickening is that people in the country seem to lack the necessary tools to understand that the problem with paedophilia isn’t one of sexual preference but of a sexual crime. One can be both a homosexual and a paedophile. It isn’t in the same category. A paedophile isn’t like a homosexual. A paedophile is like a rapist since the issue is that of consent.

So, if people are willing to condone paedophilia, these same people are condoning rape.

Now, there is the problem because certain groups in our society do not consider sex with a minor as a crime, just like how some do not consider marital rape as a crime. This is a difficult problem to solve because it is one of values and values are different from individual to individual.

I won’t blame the normal rakyat for this confusion because our government has failed us on both regards. I have already highlighted how marital rape isn’t considered a crime in Malaysia as it is an exemption under S.375 of the Penal Code. However, as far as paedophilia is considered, there are no laws to govern it in Malaysia as highlighted elsewhere.

What is worse is the fact that sex with a minor is even legalised and halal under specific circumstances. There have been many cases of such things and many precedents where marriage with a girl under 16 is allowed with the permission of a Syariah Court under S.8 of the Islamic Family Law (Federal Territories) Act:

No marriage may be solemnized under this Act where either the man is under the age of eighteen or the woman is under the age of sixteen except where the Syariah Judge has granted his permission in writing in certain circumstances.

Keep in mind that this is very different from the concept of a minor entering into a marriage contract, which is also allowed under civil law. This is a child entering into a actual marriage in both fact and law.

Now, if you read this section with S.375 of the Penal Code, we come to the inexplicable conclusion that having sex with a minor is allowed in Malaysia as long as one is legally married under Syariah Law. While having sex with a minor is statutory rape under S.375(f) of the Penal Code, marital rape is an exception under the same law.

This is a worrying trend as has been pointed out recently that child marriages are on the rise in Malaysia:

In 2012, there were around 1,165 applications for marriage in which one party, usually the bride, is younger than the legal marrying age. The Syariah Courts approved 1,022 of them. This is an increase from the 2011 record, when some 900 marriages involving at least one Muslim minor were approved.

Therefore, it is hard to criminalise paedophilia, as generally understood, in Malaysia when there is legal recourse to engage in paedophilia. I am not going to go into the effects that child marriages and/or paedophilia have on our society as I’m sure that there are others far more qualified to discuss it. I’m just pointing out legal facts as it stands in Malaysia.

So, it is no wonder that the authorities are nonchalant about Nur Fitri’s crimes as they probably do not consider it as much of a crime at all, like truancy. If he had engaged in such proclivities in Malaysia, he would not be considered a criminal at all. If he took a child bride, then it would not only be legal, it would be halal too.

Such is the state of our law.

Published by

Shawn Tan

Chip Doctor, Chartered/Professional Engineer, Entrepreneur, Law Graduate.

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