PUTRAJAYA: A pre-Merdeka law that punishes men who entice married women has been ruled as unconstitutional by the country’s highest court.
The Federal Court delivered the ruling against the provision in the Penal Code yesterday.
Chief Justice Tun Tengku Maimun Tuan Mat, who led a five-member bench, noted while delivering the unanimous judgment that Section 498 allows only husbands to rely on the provision and excludes wives.
“We hold that Section 498 is unconstitutional for the reason that it unlawfully discriminates only on the grounds of gender, which is violative of Article 8(2),” she said, referring to the Federal Constitution.
“That the law was intended to apply to the enticement of women only is also made amply clear by Section 132 of the Criminal Procedure Code (CPC) cited earlier.”
Section 132 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.
“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 added.
Tengku Maimun said Section 498 is a pre-Merdeka or “existing” law within the meaning of Article 162 of the Federal Constitution.
“By Clause (6) of Article 162, any court or tribunal applying the provision of any existing law which has not been modified may apply it with such modifications as may be necessary to bring it into accord with the provisions of this Constitution.
“Clause (7) stipulates that ‘modification’ includes amendment, adaptation and repeal,” she said.
The five-member bench also comprised Chief Judge of Malaya Tan Sri Mohd Zabidin Mohd Diah and Federal Court judges Datuk Harmindar Singh Dhaliwal, Datuk Abu Bakar Jais and Datuk Abdul Karim Abdul Jalil.
Under Section 498 of the Penal Code, a man can be sentenced to two years in jail or fined or both if convicted of enticing, taking away or detaining a married woman with criminal intent.
The ruling came after the matter was raised by a businessman who was charged in the Petaling Jaya Magistrate’s Court in 2020 with enticing a married woman in an apartment in Selangor in 2018.
The businessman made an application to refer a constitutional question for the court to determine the constitutionality of the law and whether it was against Article 8(1)(2) of the Federal Constitution on equality before the law and whether it constitutes gender discrimination.
In March this year, the Shah Alam High Court allowed the man’s application to refer the matter to the Federal Court.
Counsel Jayarubbiny Jayaraj, assisted by Jay Moy and Puteri Batrisyia Abdul Latif, who represented the businessman, contended that Section 498 was archaic, paternalistic and infringed on the autonomy and dignity of women.
Deputy public prosecutors Yusaini Amer Abdul Karim and Eyu Ghim Siang argued that Section 498 does not violate Article 8 of the Federal Constitution.
