LAI HEN BENG Jabatan Peguam Negara

LAI HEN BENG Jabatan Peguam Negara

Section 498 discriminates solely on the ground of gender contrary to Article 8(2); respondent failed to show any express constitutional authorization for such discrimination; section 498 is an existing pre-Merdeka law and cannot be judicially amended without altering its character, therefore it must be judicially...

Source-derived case information.

Citation
06(RJ)-3-04/2023(B) (Mahkamah Persekutuan)
Parties
Appellant: Lai Hen Beng; Respondent: Public Prosecutor
Court
RJ
Jurisdiction
Malaysia
Judgment Date
15 December 2023
Case Number
06(RJ)-3-04/2023(B) (Mahkamah Persekutuan)
Procedural Posture
Civil Reference (constitutional Reference) / Federal Court Judgment on Constitutional Reference Remitted to High Court
Outcome
Section 498 of the Penal Code declared unconstitutional as inconsistent with Article 8(2) of the Federal Constitution; judicial repeal under Article 162; declaration to have prospective effect; matter remitted to the High Court for implementation.
Legal Topics
Equality (article 8), Pre Merdeka Laws and Article 162, Judicial Modification Vs Repeal, Section 498 Penal Code, Gender Discrimination
Constitutional Law Criminal Law Equality (article 8) Pre Merdeka Laws and Article 162 Judicial Modification Vs Repeal Section 498 Penal Code Gender Discrimination

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Parties

Lai Hen Beng

Appellant

Public Prosecutor

Respondent

Procedural Posture

Civil Reference (constitutional Reference) / Federal Court Judgment on Constitutional Reference Remitted to High Court

Legal Issues

  1. 1 Whether section 498 of the Penal Code unlawfully discriminates on the ground of gender contrary to Article 8(1) and 8(2) of the Federal Constitution
  2. 2 Whether section 498 is an existing pre-Merdeka law and if so the legal effect and appropriate remedy under Article 162 if declared unconstitutional
  3. 3 If unconstitutional, whether the appropriate remedy is amendment, adaptation or repeal

Ratio Decidendi

Section 498 discriminates solely on the ground of gender contrary to Article 8(2); respondent failed to show any express constitutional authorization for such discrimination; section 498 is an existing pre-Merdeka law and cannot be judicially amended without altering its character, therefore it must be judicially repealed under Article 162 and the Court’s declaration is given prospective effect and remitted to the High Court to give effect.

Court Disposition

Section 498 of the Penal Code declared unconstitutional as inconsistent with Article 8(2) of the Federal Constitution; judicial repeal under Article 162; declaration to have prospective effect; matter remitted to the High Court for implementation.

Orders

  • Answer to constitutional question: Yes — section 498 is unconstitutional as it violates Article 8(2)
  • Section 498 Penal Code is judicially repealed under Article 162 of the Federal Constitution to bring the law into accord with the Constitution