Section 498 of the Penal Code is unconstitutional for gender discrimination, violating Article 8(2) of the Federal Constitution, and cannot be amended without altering its original intent, necessitating its repeal.

Introduction

Introduction

[1] The present and relatively straightforward challenge takes the form of a constitutional reference. The appellant argues that s 498 of the Penal Code (' PC ') is unconstitutional on the ground that it unfairly discriminates against women in violation of cls (1) and (2) of art 8 of the Federal Constitution (' FC ').

[2] In terms of the brief facts, the appellant was charged with an offence under s 498 of the PC in the Magistrate's Court. In the course of the proceedings, he sought to challenge the constitutionality of the said section. The matter was then transmitted to the High Court in Shah Alam and then further transmitted to the Federal Court. This happened consecutively in accordance with ss 30 and 84 of the Courts of Judicature Act 1964 ('CJA 1964').

[3] In this regard, the sole constitutional question posed in this reference reads as follows:

"Whether s 498 of the Penal Code is unconstitutional as it violates the fundamental principle of equality governed under art 8(1) and 8(2) of the Federal Constitution ?"

[4] For ease of reference, and unless otherwise stated specifically, any reference in this judgment to 'Articles' shall be taken to mean references to the FC whereas any mention of s 498 shall be construed to mean s 498 of the PC .

[5] Given the line of argument advanced in this case and the nature of the law under scrutiny, two major issues arise for our determination:

(i) Is s 498 unconstitutional on the ground of unlawful discrimination?

(ii) Secondly, if the answer to (i) above is in the affirmative (meaning that s 498 is unconstitutional), what then is the effect of the declaration of unconstitutionality? The reason why this issue arises will become apparent later in this judgment.

Analysis/Decision On The Constitutionality Of Section 498

Article 8

[6] Before we delve into the arguments on the validity of s 498, and since the constitutional question centres on art 8, we think it is appropriate to first espouse the law on .

[7] Clauses (1) and (2) of art 8 stipulate thus:

"Equality

8. (1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment."

[8] In explaining the ex