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Federal Court (Putrajaya)
Tengku Maimun CJ, Mohamad Zabidi CJ (Malaya), Harmindar Singh, Abu Bakar Jais and Abdul Karim Abdul Jalil FCJJ
1. Background of the Case
Lai Hen Beng (‘the Appellant’) was charged in the Magistrate’s Court with committing an offence under s. 498 of the Penal Code (‘the PC’).[1] In the course of the proceedings, he sought to challenge the constitutionality of the said section under the PC. The matter was then transmitted to the High Court in Shah Alam and then further transmitted to the Federal Court, in accordance with ss. 30 and 84 of the Court of Judicature Act 1964 (‘the CJA 1964’) respectively. The constitutional issue raised by the Appellant in the present case is simple and straightforward:
Whether s. 498 of the PC is unconstitutional as it violates the
fundamental principle of equality governed under Art. 8(1) and 8(2)
of the FC?
The Federal Court then observed that there are two major issues to be decided by the court arising from the Appellant’s instant case:
is s. 498 of the PC unconstitutional on the ground of unlawful discrimination? and
if the answer to (i) above is in the affirmative, what then is the effect of the declaration of unconstitutionality?
2. The Arguments by the Parties
The Appellant contended that in the present day and age where gender equality prevailed or was advocated in all areas of life, s. 498 of the PC was not only anachronistic, but discriminatory against women by treating them as chattels of their husbands. The Appellant submitted that whilst an aggrieved husband was entitled to pursue the prosecution of any person who had enticed or taken away his wife, the wife had no similar recourse if her husband had been taken or enticed away by another woman. The Appellant further argued that since s. 498 was ‘no longer’ a pre-Merdeka law, the provision should be struck down under Art. 4(1) for being inconsistent with its Art. 8 of the FC.
The Respondent on the other hand maintained that s. 498 is not unconstitutional either under cll (1) or (2) of Art. 8. Specifically on Art. 8(2), the Respondent argued that despite the one-sided nature of the protection accorded by the provision, the reasonable classification test should apply to matter/legislation/Act claimed to be unconstitutional under the said provision.
3. Decision of the Court
The Federal Court unanimously held that s. 498 is unconstitutional and recommending its judicial repeal under Art. 162 of the FC, remitting the case back to the High Court to make appropriate declarations and orders to give effect to the instant judgment and otherwise in accordance with law, and make the appropriate directions in respect of the pending proceedings before the Magistrate’s court.
3.1 Constitutionality of s 498 of the Penal Code
S. 498 of the PC has been declared unconstitutional by the Federal Court for the reason that it unlawfully discriminates only on the ground of gender which is violative of Art. 8(2) of the FC. S. 498 read together with s. 132 [2] of the CPC only entitles husbands to rely on the provision to the exclusion of all wives, hence constitutes discrimination on ground of gender only. The only defence available to the Respondent is the express authorization by the FC under the same Art. 8(2) for the meaning connotated by s. 498 which the party in the instant case has failed to raise at any stage of the proceeding.
3.2 Repercussions
The next issue is the repercussions following the declaration of unconstitutionality of s. 498. Since the PC is a law that was first enacted in India on 18 October 1860 and was later brought to Malaya in 1871, does it still maintain the status of a ‘pre-Merdeka’ law despite the fact that the PC has gone through several revisions and legislative transformations or that its status has now changed to ‘post-Merdeka’ law for the said reasons? The significance of this question is the following: (i) the declaration that a law is void for being inconsistent with the supreme FC under Art. 4(1) is only applicable to the laws passed after Merdeka Day. However, (ii) if the inconsistent law is a ‘pre-Merdeka’ law, it will attract the application of Art. 162 which under its cll (1) (6) and (7) the court is empowered by the FC to modify, and that is to amend, adapt or repeal the law as may be necessary to bring it into accord with the provisions of this Constitution, so long as it has not been modified by the Federal or State law. Upon examination of the submission made by the parties and relevant constitutional provisions, the court concluded that s. 498 of the PC is a pre-Merdeka law since that specific provision has neither been expressly or impliedly modified by the Federal or State law as expressly suggested by Art. 162(1), hence should be dealt with under Art. 162 and not Art. 4(1).
3.3 Legal Predicament
There are two predicaments faced by the court at this juncture: (i) the parties did not put forward any direction to the court upon its finding of unconstitutionality as to how s. 498 should be modified under Art. 162 and (ii) the reference made by the High Court under s. 84(3) of the Courts of Judicature Act 1964 (‘CJA’) requires the Federal Court to answer the question only in the affirmative or negative, moreover, based on s. 84(3), [3] the court should transmit the case to the High Court to make the appropriate modification to the pre-Merdeka law. Having regard to the status of the Federal Court as the apex court in the country, it submits that while it attempts to answer the question in the affirmative or negative, the Federal Court is equipped with the capability to make suggestions on how the High Court should modify the impugned law with a view to bringing it into accord with the FC. [4]
3.4 How to constitutionally modify s. 498 of the PC?
The court then turns to the critical part of the issue, if s. 498 is inconsistent with Art. 8(2) since it unlawfully discriminates only on the ground of gender, how to modify it so that it conforms with the requirement of equality under Art. 8(2), to judicially adapt, amend or repeal s. 498?
Having earlier perused on the decision of the Privy Council in B Surinder Singh Kanda v The Government of the Federation of Malaya, [5] the Court of Appeal’s judgement in Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [6] and the minority decision in Letitia Bosman v Public Prosecutor and other appeals (No. 1) [7] and relevant constitutional provisions, the Federal Court concluded that adaptation is not an option since there is no other Federal law brought up which s. 498 can be adapted and that amendment, too, is not a possible course since the exercise of amendment to bring it into accord with the FC requires redefining the original purpose of the section to the extent that it would alter the very basis upon which the offence in s. 498 was originally enacted. [8] The judicial amendment which involves changing the nature or character against the original legislative intent, although allowed under Art. 162(6), shall not be considered by the court for it has now become tantamount to judicial legislation and not judicial amendment. [9] The court is then satisfied that the only constitutional means to bring s. 498 into accord with the FC is to judicially repeal it in its entirety. [10]
4. Commentary
4.1 Significance of the Case
While there are many points that may be extracted from this case, the focus will be only on six of them which the author believes are important for our attention. First, Lai Hen Beng v Public Prosecutor has again affirmed the principle of the supremacy of the FC in the sense that any law inconsistent with the FC will be declared as void, to the extent of its inconsistency. [11] However, the declaration of unconstitutionality will only be made when the court is invited by the parties to scrutinize the impugned law, not on its own initiative. S. 498 of the PC has been more or less in its original form since 1860, continued to be invoked by parties and individuals were convicted by the courts for more than a century and a half. Although Art. 8(2) of the FC was amended in 2001 to include ‘gender’, s. 498 was only invalidated in December 2023, two decades later.
Second, Art. 8(2) prohibits discrimination based on ground only of religion, race, descent, place of birth or gender. Reasonable classification test is only applicable to the discrimination under Art. 8(1) and there is no defence available against the discrimination on five grounds mentioned under Art. 8(2) except when expressly provided by the Constitution. [12] However, under Art. 8(5)(a), a discriminatory law is excluded from the five grounds mentioned under Art. 8(2) if it could be shown that it is one of personal law. Is the law on enticement a personal law? Definitely maybe. In one hand, the substance of the provision implies that it is a regulation aimed at safeguarding the sanctity of family institutions, meant to shield lawful marriages from any external party harboring malicious intent to bring about its disrepute or destruction. On the other hand, the same provision may be read to mean that although it concerns the private life of a husband and wife, and that Chapter XX of the Penal Code under which s. 498 is parked is labelled ‘offences relating to marriage’, its character has changed to one of a crime affecting the public where the investigation, charge, trial and punishment are handled by the public authorities and no longer the individuals when the conducts are governed by the PC. Although this matter was not raised by the parties in the instant case, the Federal Court apparently prefers the second interpretation.
Third, a pre-Merdeka law or an ‘existing law’ that has gone through a series of legislative reforms and transformation is not rendered its entire provisions a post-Merdeka status. The status will only change when Parliament or State law has either expressly or impliedly amended it. S. 498 of the PC has remained substantively the same from when it was first enacted based on the Indian Penal Code, [13] hence maintains its pre-Merdeka law and subject to Art. 162(6), not Art. 4(1) of the FC.
Fourth, when an existing law has not been modified under Art. 162, then any court or tribunal applying the provision is empowered by the FC under its Art. 162(6) and (7) with three alternatives either to adapt, amend or repeal the said law with the objective to bring it into accord with the FC. On the other hand, an inconsistent post-Merdeka law must be declared void by the court under Art. 4(1) without the discretion for the adaptation or amendment given to the court. [14]
Fifth, when dealing with the law under Art. 162, the best recourse for the court is to adapt the law where the court would read one pre-existing legal term to mean another legal phrase later used in the FC as in Surinder Singh Kanda v The Government of the Federation of Malaya. [15] The next course of action is to amend the relevant provision of the law as in Kerajaan Negeri Selangor & Ors v Sagong bin Tai & Ors [16] with a view to bring it into accord with the FC. The last and final resort under Art. 162(6) is to judicially ‘repeal’ the law if the court sees both earlier options as impossible. At this moment, the Federal Court emphasizes the need to maintain the role of the court not as a legislative organ of the government. The court is only empowered by Art. 162(7) to judicially, not legislatively amend the law. The judicial exercise is limited to only bringing the law into accord with the FC in light of its original intention, not the kind of amendment that involves changing its nature and character that is akin to changing the original intention of the law simply for the reason of retaining it. [17] On this principle, the court has chosen the last option, to judicially repeal s. 498 of the PC.
Sixth, although the Federal Court is in agreement with the Appellant that s. 498 which follows the paternalistic approach is an archaic and anachronistic law for the fact that it treats women as chattel to their husbands, not unlike how slaves were treated a long time until it was abolished in the last century, [18] the anti-enticement law has been declared unconstitutional not because of it being archaic or anachronistic law, but for the sole discriminatory character it has that is not expressly authorized by the FC. The last, but not least, although the word ‘may’ is suggested in Art. 162(6), that does not entail the court having the option not to modify the inconsistent law to bring it into accord with the FC, but it must do so as the guardian of the Constitution and as an attestation to the judicial oath and duty to ‘preserve, protect and defend’ the FC provided that the ‘authority having power to do so’ i.e. Parliament or State Legislature have not performed their duty. [19]
4.2 A Ramification
The apparent and immediate effect of the declaration of unconstitutionality of s. 498 of the PC made by the Federal Court is that husbands could no longer rely on the said provision to find another man guilty of the offence of enticement of their wives. Like the wives, the distressed husbands now have to resort to Public Officers (Conduct and Discipline) Regulations, 1993 [20] if the man is a public official, or Syariah Criminal Offences (Federal Territories) Act, 1997 (Act 559) [21] if he is a Muslim. Nevertheless, concern has arisen as to the practicality of the regulation and the law if the man involved is not a public official or if he is a non-Muslim since the Syariah Court has the jurisdiction only over persons professing the religion of Islam. The husbands then have to resort to other remedial provisions such as s. 58 of Law Reform (Marriage and Divorce) Act, 1976 (Act 164) and claim for damages from their partners on the condition that adultery is alleged by them. Again, what if the wife is not engaged in any sexual activity? And, perhaps a more curious situation, what if the person who enticed the wife is not a man, not a public official and not a Muslim? Parliament as the legislative organ of the government must quickly fix this problem.
References
[1] S. 498 of the PC reads:
Whoever took or enticed away another man’s wife either from that man or from any person having care of her on behalf of that man with intent that she might have illicit sexual intercourse with any person, or concealed or detained any such woman with such intent, shall be punished with a jail term of up to two years or a fine or both.
[2] Section 132 of the CPC reads:
Where complaint by husband … No Court shall take cognizance of an offence under s 498 of the Penal Code except upon a complaint made by the husband of the woman.
[3] S 84(3) of CJA reads:
Where an order for stay of proceedings has been made under this section the Judge shall state the question which in his opinion has arisen as to the effect of the Constitution in the form of a special case which so far as may be possible shall state the said question in a form which shall permit of an answer being given in the affirmative or the negative.
[4] Para 80.
[5] [1962] 1 MLJ 169.
[6] [2005] 6 MLJ 289.
[7][2020] 5 MLJ 277; [2020] 8 CLJ 147.
[8] Para 97.
[9] Para 93 and 97.
[10] Para 98.
[11] Para 37.
[12] Paras 10, 27 and 28.
[13] Paras 36 and 64-74.
[14] Paras 11 and 75.
[15] [1962] 1 MLJ 169.
[16] [2005] 6 MLJ 289.
[17] Para 88-93.
[18] Para 100.
[19] Para 50.
[20] Regulation 4(2)(d) under Part II on the conduct of the public officers reads:
An officer shall not conduct himself in such manner as to bring the public service into disrepute or to bring discredit thereto.
Under Regulation 38, an officer found guilty of contravening the regulation may be punished with any or the combination of two or more of the following: warning, fine, forfeiture of emoluments, deferment of salary movement, reduction of salary, reduction in rank or dismissal.
[21] The offence could be found under s. 36 (enticing a married woman), s. 37 (preventing married couple from cohabiting) and s. 38 (instigating husband or wife to divorce or to neglect duties) and may be respectively punished with fine, imprisonment or both. It is to be noted here that all three sections under Act 559 are applicable to both husband and wife. Nevertheless, until today, no single case was brought to the attention of the Syariah Court for a number of issues. Read further in https://www.sinarharian.com.my/article/240652/berita/nasional/perosak-rumah-tangga-boleh-dipenjara-denda.
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