LAI HEN BENG v Jabatan Peguam Negara

06rj-3-04-2023b Federal Court (Mahkamah Persekutuan) 14 December 2023 • 06(RJ)-3-04/2023(B)

Catchwords

[1] Section 498 of the Penal Code is an archaic and anachronistic provision which comes from an unfortunate bygone Victorian era when women were regarded as the personal property of men or even an extension of men not unlike how slaves were treated for a long time until abolished in the last century. [2] Section 498 is unconstitutional for the reason that it unlawfully discriminates only on the ground of gender which is violative of Article 8(2). [3] Constitutional validity deals with the objective compliance of the impugned law vis-à-vis the FC. And when it concerns pre-Merdeka law, the Judiciary is only objectively empowered to modify the law to the extent of rendering the law valid. Repeal is the last option where the only way to render the law valid would be to delete it. CONSTITUTIONAL REFERENCE: Whether Section 498 of the Penal Code is unconstitutional as it violates the fundamental principle of equality governed under Article 8(1) and (2) of the Federal Constitution? – archaic and paternalistic law – pre-Merdeka law – complaint made by the husband of the woman - women as their husband’s property – seduction by one man towards a married woman - woman’s autonomy and dignity – gender discrimination – gender equality – protection of the rights of the husband and not those of wife – gender bias – Article 162(6) of the Federal Constitution – modification of pre-Merdeka law into accord with the Federal Constitution – modification of the law – repeal and amendment of the law –

Practice Areas

Constitutional Law Criminal Law

Judges (5)

Abdul Karim bin Abdul Jalil Coram Abu Bakar bin Jais Coram Harmindar Singh Dhaliwal Coram Mohamad Zabidin bin Mohd Diah Coram Tengku Maimun binti Tuan Mat Delivered

Parties (2)

Jabatan Peguam Negara Respondent Lai Hen Beng Appellant

Judgment

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Source: eJudgment (06rj-3-04-2023b)