THE UPDATE SCOOP (#1/2024)
“Law against Enticing Married Woman is Unconstitutional” | Constitutional Law
By TAY & HELEN WONG – Feb 1, 2024
A man enticing a married woman was actually a crime under s.498 of our Penal Code (PC) as held in the first ever case of its kind several years ago involving a Malaysian female celebrity which resulted in a public apology from the guilty enticer to the celebrity’s then husband for causing the latter’s embarrassment and humiliation. Recently, the Federal Court in Lai Hen Beng v PP[i] ruled that this provision was unconstitutional in that it was unlawfully discriminatory on the ground of gender (i.e. against women) in violation of article 8(2) of the Federal Constitution (FC).
Article 8(2) stipulates that there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in, among others, any law except as expressly authorized by the FC. In the view of the apex court, s.498 of the PC only entitled a husband to rely on the said provision and protected his right by allowing him to seek prosecution of any person who had enticed his wife; but conversely, there was no recourse to a wife whose husband was enticed by another woman. It would thus seem that a woman may entice a married man without any repercussions in law. This was discrimination on the ground of gender only. Since there was no provision in the FC that expressly authorized such discrimination in the form that s.498 connoted, s.498 was held to be inconsistent against Article 8(2) of FC and was therefore unconstitutional.
Section 498 of the PC was however a pre-Merdeka law and in the light of Article 162(6) and (7) of the FC, the apex court could not immediately take the approach of simply striking it down, unlike post-Merdeka laws. Article 162(6) of the FC required s.498 to be applied ‘with such modifications as may be necessary to bring into accord with the provisions of this Constitution”. That said, the apex court refused to make any judicial amendment as that would not only have totally changed the original legislative intent (i.e. to protect husbands against enticers of their wives) but would also be tantamount to making a new law (i.e. to protect wives against enticers of their husbands) which was properly the function of the legislature and not that of the judiciary. Thus, repeal was, in the judgment of the apex court, the only possible outcome to make that law not inconsistent with the FC.
[i] [2024] 1 AMR, 249; [2024] 1 CLJ 681, FC
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Tags: [constitutional law Malaysia] [enticing married woman/man] [Federal Court] [Penal Code]