Chapter 3- Report of the Research and Policy Development Group Section 15A prevents judicial review of the Board’s decision except on procedural matters, thereby denying the right of the aggrieved individual to access a court of law with all the guarantees necessary for his or her defence. In the Government’s efforts to combat crime, it is important to ensure that the laws enacted are progressive and not retrogressive in character. It must be kept in mind that Malaysia is a sitting member of the UN Human Rights Council; hence, the Government should uphold the highest standards in the promotion and protection of human rights. The Commission deems it important for the Government to review the amendments by taking into account these human rights principles, that: • • • • (ii) The detention must not be made arbitrarily; The detention must be based on grounds and procedures established by law; Information must be given on the grounds of detention; and The right to a fair trial and access to legal representation must be upheld and protected. Penal Code (Amendment) Act 2013 The Commission welcomes the introduction of sections 326A, 352A and 375B and amendments to sections 376(2), 376B and 377CA of the Penal Code. These new provisions increase protection of women from domestic and sexual violence and are in line with the Government’s obligations under the CEDAW. The amendment to section 377E, to increase the penalty for inciting a child to an act of gross indecency, fulfils obligations under Article 34 of the CRC, where the State Party is required to protect a child against all forms of sexual exploitation and sexual abuse. However, the Commission is concerned that marital rape remains an exception under section 375. The Commission reiterates its call to criminalise marital rape. The CEDAW Committee in Concluding Comment No. 223 has requested Malaysia to enact legislation criminalising marital rape. The definition is based on absence of consent from the wife: • Article 16(1)(c)4 of the CEDAW is clear that both spouses have equal rights in a marriage. A wife is not under the authority of her husband or subservient to him. • Article 2 of the UN Declaration on the Elimination of Violence Against Women, defines ‘marital rape’ as violence against women, which impairs upon a woman’s right to the full enjoyment of human rights and fundamental freedoms. The Commission echoes the concerns of many in regard to the introduction of section 203A. It provides for a new offence in relation to disclosure of information, carrying a penalty of fine or imprisonment or both. While noting the argument that the provision is necessary to curtail the leakage of information which could jeopardise national security, the Commission feels that this further limits the right to information. As such, the Commission calls on the authorities to ensure a fair balance between concerns of national security and the fundamental rights of individuals. 3 4 92 CEDAW/C/MYS/CO2 Malaysia has entered a reservation to this article.