Ramifications of declaring offence of enticement unconstitutional

 

Recently, the Federal Court ruled that Section 498 of the Penal Code, relating to the enticement of married women, was unconstitutional. India has a similar provision, but to my knowledge, to date, the Indian Supreme Court has not done likewise.

These days, our constitution and penal laws have become much more complex than India’s, especially in regard to the rights of Muslims and non-Muslims due to the distinct jurisdictions of the courts in civil and shariah matters, with the civil courts having the sole power of judicial review over shariah enactments.

For example, the Penal Code applies to both Muslims and non-Muslims. Subject to the learned views of members of the legal industry, in my view, the declaration of Section 498 as unconstitutional implicitly gives room for a non-Muslim man to entice a Muslim wife. The husband of the Muslim wife cannot lodge a complaint to the police. A non-Muslim also cannot be charged in the shariah court.

Section 36 of the Syariah Criminal Offences (Federal Territories) Act 1997 prohibits Muslims from enticing another Muslim’s wife. If the same rationale of the Federal Court decision is followed, sooner or later Section 36 would also be liable to be declared unconstitutional.

Section 498 of the Penal Code, now declared as unconstitutional, reads as follows:

“Whoever takes or entices away any woman who is and whom he knows, or has reason to believe, to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals, or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

Section 36 of the Syariah Criminal Offences (Federal Territories) Act 1997 reads as follows:

“Any person who entices a married woman or takes her away from or in any manner influences her to leave the matrimonial home determined by her husband shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both, and the Court shall order the said woman to return to her husband.”

Protecting the institution of marriage is one of the hallmarks of every religion. A collapsed marriage will inevitably have several negative consequences, including hardship and stress to family members, especially the children of the marriage.

The Attorney-General, often referred to as the guardian of public interest, has a key role to play in protecting the institution of marriage. I will say it is also his constitutional role to ensure all Malaysians are allowed to practice their religion in peace and harmony, and the law must provide the necessary safeguards.

When and where necessary, the input of the rulers is necessary to protect the sacrosanct jurisdiction of the institution of marriage, more so if Muslim rights are involved as per our constitution.

Our pre-colonial laws as well as other laws were enacted based on the English concept of parliamentary supremacy. In England, judges cannot strike down legislation or any part of it.

The Malaysian Penal Code and the Criminal Procedure Code, both virtual replicas of their Indian equivalents but adopted with certain amendments, have in themselves mechanisms to safeguard the various principles of rule of law, including the protection of public interest and natural justice, deriving the jurisprudence from the common law cases and principles applicable in England.

Those principles have been reflected in the Federal Constitution with clarity and precision, and legitimately advocate that the constitution, not Parliament, is supreme, thereby subjecting legislation and constitutional amendments to judicial review.

This is unlike in England, where judicial review to test the validity of laws is not at all permissible unless it relates to convention obligations, etc. However, the courts have been liberal in allowing executive decisions to be challenged.

The position was the same in Malaysia despite our constitutional supremacy framework, until a case involving current Cabinet minister Nik Nazmi Nik Ahmad for an offence under the Peaceful Assembly Act 2012 came before the Court of Appeal. In that case, a three-member panel decided to declare part of that legislation unconstitutional while also importing the “reasonableness” and “proportionality” tests.

The panel was chaired by Justice Ariff Yusoff, and included Justice Mah Weng Kwai and me.

As it was a final appeal from a subordinate court, the chairman requested all panel members to write separate judgments since it involved a constitutional issue. Yes, it was indeed a decision which related to the constitutionality of the power of the courts to conduct a judicial review to strike down a part of the legislation.

We all came to a unanimous conclusion that a part of the Act must be struck down, but our reasoning and jurisprudence were different in many aspects. Such differing reasoning in court judgments is often recognised as laying the groundwork for future cases to set out the law with clarity after the courts have had the benefit of new and more refined arguments.

In England, in all important cases where the public interest element is involved, the Court of Appeal or Supreme Court panel members are known to write separate grounds, and dissenting judgments are quite commonplace. The same can be said for the Indian Supreme Court, but in Malaysia, writing separate judgments is indeed a rare practice.

Nik Nazmi’s case, and subsequently the Federal Court decision in the Indra Gandhi case, opened the pathway for unconstitutional legislation to be challenged, and gave complete recognition to the doctrine of constitutional supremacy.

Indeed, I was on the panel when Indra Gandhi’s case – which dealt with a collision of rights between a Muslim and a non-Muslim parent – came before the Court of Appeal. In fact, I wrote a dissenting judgment in the case, relying purely on the Oath of Office concept and the constitutional judicial review power of the courts.

In my minority judgment, I said that the civil courts had jurisdiction to hear the matter, and that Article 121(1A) of the Federal Constitution, which prohibits the civil courts from interfering with the shariah courts, did not apply to administrative decisions made by state bodies and Islamic agencies. I also took the view that the conversion of the child was unlawful as it violated the Federal Constitution and Perak state law.

Although I was subsequently vindicated by the Federal Court, at the time, my judgment was met with much hostility by several of my peers. I am disappointed to note that, despite a unanimous ruling by the apex court, Indira has only succeeded in getting a paper judgment, and nothing more.

Some of the colonial laws framed to safeguard national security, and religious and family harmony, cannot just be interpreted by reading the plain letters of the constitution without inviting views of relevant stakeholders such as the Bar Council and religious institutions.

In my view, notwithstanding that the courts have constitutional judicial power to strike out a legislation, it may be a harmonious exercise to direct Parliament to repeal the law when grave public interest arises.

This happened in India recently. In October 2023, the Indian Supreme Court, after hearing lengthy arguments from all relevant and interested parties, declined to legalise same-sex marriage or civil unions, and left the matter to the wisdom of that country’s parliament and state legislatures.

Perhaps, the Attorney-General after consultation with religious institutions, the Bar Council as well the as other public interest groups related to family law and human rights should seek a review of the Federal Court decision in the enticement case so that the public can have the benefit of full-blown arguments on the subject.

Parliament must take cognisance that the current jurisprudence is no longer based on parliamentary supremacy. Laws which are in breach of the constitutional supremacy framework are going to be axed unless there is a public element which is necessary to protect other rights of the public based on the principles of reasonableness and proportionality.

Ideally a Law Ombudsman, with all the appropriate credentials, should be placed in Parliament House to review and repeal laws which are not in line with our constitutional framework. The ombudsman should work closely with the Bar Council, academia and other interested groups, including Islamic institutions and other religious groups, to make suitable recommendations to Parliament. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.