Federal Court bins pre-Merdeka law that makes it a crime for men to entice married women, rules it is unconstitutional

KUALA LUMPUR, Dec 15 — A decades-old law drawn up before Malaysia was formed and still exists today in the Penal Code was ruled unconstitutional by the Federal Court today, and struck out.

Chief Justice Tun Tengku Maimun Tuan Mat, who chaired a five-judge panel that made the ruling, said Section 498 of the Penal Code — which punishes the act of men enticing married women with up to two years' jail or fine or both — goes against Article 8(2) of the Federal Constitution.

“We hold that Section 498 is unconstitutional for the reason that it unlawfully discriminates only on the ground of gender which is violative of Article 8(2),” she said in a written summary of her judgment.

The only question of law that the Federal Court had to consider in this case was “Whether section 498 of the Penal Code is unconstitutional as it violates the fundamental principle of equality governed under Article 8(1) and 8(2) of the Federal Constitution?”

Article 8(1) states that all persons are equal before the law and entitled to the equal protection of the law.

Article 8(2) provides that "there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law" or in a list of other matters, unless such discrimination is expressly authorised by the Federal Constitution.

Before concluding that the Federal Court finds Section 498 to be gender discriminatory, Tengku Maimun pointed out that Section 498 “only entitles husbands” to rely on the provision, while wives are not allowed to rely on this provision.

“This is, as such, discrimination on grounds of gender only.

“The fact that this is the case is also made amply lucid by Section 132 of the Criminal Procedure Code (CPC), which states that 'No Court shall take cognisance of an offence under section 498 of the Penal Code except upon a complaint made by the husband of the woman’,” Tengku Maimun said.

Section 132 means that only a complaint made by the husband of a married woman – who was alleged to be enticed – would result in the Section 498 offence being heard and decided by a court.

In its ruling today, the Federal Court said Section 498 is considered to be a pre-Merdeka or “existing” law under Article 162 of the Federal Constitution.

The Federal Court highlighted that Article 162(6) enables any court to make necessary “modifications” to any pre-Merdeka law to bring such laws to be in line with the Federal Constitution.

It also noted that Article 162(7) states that such “modifications” includes amendment, adaptation and repeal.

In other words, under Article 162, the courts can amend any pre-Merdeka law like Section 498 of the Penal Code so that it is in accord with the Federal Constitution.

But Tengku Maimun indicated it was not feasible to amend Section 498 to remove its discrimination based on gender, and that it should be struck out instead.

“In our view, section 498 is incapable of judicial amendment under Article 162(7) because doing so would require extensive amendment to the extent of changing the character of the offence,” she said.

She said both the businessman – who was charged under Section 498 and had challenged Section 498 as unconstitutional – and the prosecution “either accept or do not deny” that Section 498's sole purpose was to “view women as chattel to their husbands to the extent that the enticement/taking away/detention of them is considered an offence”.

Chattel refers to property, with the judge highlighting that those involved in the case had accepted that Section 498 was based on the concept of women being their husband's property.

The chief judge said Section 132 also made it clear that Section 498 “was intended to apply to the enticement of women only”.

“We are therefore satisfied that the only possible means to bring Section 498 into accord with the Federal Constitution is to judicially repeal it in its entirety, which we hereby do,” she said when stating the Federal Court's decision to struck down the entire Section 498.

She said the Federal Court's striking down of Section 498 will take effect prospectively, and this means that all previous prosecutions will be preserved.

In other words, the judgment means Section 498 cannot be enforced from today onwards.

But for the businessman who had challenged Section 498's constitutionality, Section 498 remains valid for his criminal case that started in the Magistrate's Court as the Federal Court's decision did not have retrospective effect.

In its ruling today, the Federal Court said Section 498 is considered to be a pre-Merdeka or ‘existing’ law under Article 162 of the Federal Constitution. — Picture by Yusof Mat Isa

The Federal Court then sent the businessman's case back to the High Court in line with the Section 85 of the Courts of Judicature Act 1964.

The Federal Court said it is for the High Court to make the appropriate declarations and court orders and to provide the appropriate directions for the businessman’s criminal case at the Magistrate's Court.

The ruling was unanimous, news portal Free Malaysia Today reported.

The other judges on the Bench were: Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah and Federal Court judges Datuk Harmindar Singh Dhaliwal, Datuk Abu Bakar Jais, Datuk Abdul Karim Abdul Jalil.

National news agency Bernama previously reported that a 53-year-old businessman was charged in the Magistrate's Court in Petaling Jaya in 2020 for enticing a married woman in an apartment in Selangor in 2018, after the woman's husband lodged a police report.

In March this year, the High Court in Shah Alam allowed the businessman to refer his constitutional question on Section 498 directly to the Federal Court.

The businessman had challenged Section 498 by arguing it is unconstitutional as it unfairly discriminates against women in violation of Article 8(1) and 8(2).

Section 498 states: “Whoever takes or entices away any woman who is and whom he knows, or has reason to believe, to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals, or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

In other words, Section 498 makes it a crime for anyone who takes away or entices or conceals or detains any married woman (whom he knows or believes is married) – from the woman's husband or from any person having care of her on behalf of the husband – with the criminal intent for the married woman to have illicit intercourse with any person.

A conviction under Section 498 could result in up to two years’ jail or fine or both.