Ever heard the saying “never mess with another man’s wife”? That used to be more than just advice, and was actually a crime under the Penal Code in Malaysia.
But times have changed, and that law has now been struck down. Here’s everything you need to know:
1. Section 498 of the Penal Code
On 15 December 2023, Putrajaya Federal Court struck down Section 498 of the Penal Code, a law that made it a crime for a man to entice someone else’s wife, according to Harian Metro.
The then Chief Justice, Tun Tengku Maimun Tuan Mat, speaking for the five-judge panel, said they unanimously ruled the section unconstitutional because it discriminates based on gender, violating Article 8(2) of the Federal Constitution.
“Section 498 only allows the husband to rely on it, while completely ignoring the wife’s rights. That makes it clear gender-based discrimination. Section 132 of the Criminal Procedure Code states that only the husband can file a complaint under Section 498, which highlights the gender bias in the law,” she said.
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2. Why was this Penal Code highlighted?
It came up after a 53-year-old businessman was charged at the Petaling Jaya Magistrate’s Court in 2020 for allegedly enticing a married woman at an apartment in Selangor back in 2018, following a police report by her husband.
Under Section 498 of the Penal Code, the man faced up to two years in prison, a fine, or both if found guilty.
Back in March 2023, the Shah Alam High Court agreed to let the man’s case be referred to the Federal Court to settle the legal question.
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3. Court rules Section 498 is valid as existing law
The panel made its decision after agreeing to hear the businessman’s application that questioned whether Section 498 was unconstitutional for clashing with Articles 8(1) and 8(2) of the Federal Constitution, which guarantee equality before the law and prohibit gender discrimination.
Chief Justice Tengku Maimun explained that the panel viewed Section 498 as a pre-Merdeka or “existing law” under Article 162 of the Federal Constitution.
Because of that, it couldn’t be changed by the courts under Article 162(7), as doing so would require major amendments that would essentially change the offence itself.
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4. The verdict
The Chief Justice said both sides agreed, or at least didn’t dispute, that the main purpose of Section 498 was to treat women as their husbands’ property, making it an offence to “entice” them.
“We’re satisfied that the only way to bring Section 498 in line with the Federal Constitution is to strike it down completely through judicial review, and that’s exactly what we’ve done,” she said.
She explained that the ruling will only apply moving forward, so past prosecutions under the law remain valid. The case was then sent back to the High Court to issue the necessary declarations and orders to give effect to the judgment.
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5. Muslim men can still be prosecuted
Even though the Federal Court struck down Section 498 of the Penal Code for violating gender equality, Muslim men can still be prosecuted under State Syariah Criminal laws for similar offences, as reported by Berita Harian.
Former Malaysian Bar president Salim Bashir pointed out that the old law, which came from the British Victorian era and India, treated women as their husbandsā property.
He added that moral concerns alone aren’t enough to justify a civil criminal law that goes against the Constitution, and that not criminalising such acts could lead to scandals and other forbidden behaviour in society.
Salim Bashir
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Also read: M’sian Politician: Men “Seduced” Into RAPING Women Need to Be Protected by Law
