By R. Jayabalan
Pre-Merdeka and Post-Merdeka Laws
The Federal Constitution (FC) is the supreme law of the Federation of Malaysia and any law inconsistent with the FC is void to the extent of the inconsistency. This is trite law – Alma Nudo Atenza v PP (and another appeal) [2019] 3 AMR 101.
In its scope of application, the FC recognizes two categories of laws namely pre-Merdeka and post-Merdeka laws and each are treated differently when found to be inconsistent with the FC. Post-Merdeka laws refers to laws passed after 31.8.1957 i.e Merdeka Day. Pre-Merdeka laws refers to laws referred in the FC as “existing laws” and more clearly defined in Article 160(2) as “any law in operation in the Federation or any part thereof immediately before Merdeka Day”.
Whilst Article 4(1) declares the FC as the supreme law and laws that are inconsistent with the FC are void, this however only applies to laws passed after Merdeka Day e.g. in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 4 AMR 123, the Federal Court declared s 40D of the Land Acquisition Act 1960 to be unconstitutional for being inconsistent with Article 121 in respect of judicial powers.
Article 162 and the judicial modification powers of pre-Merdeka laws
Pre-Merdeka laws are given separate treatment under Article 162. Under this provision, the laws in place before the Merdeka Day continue to be in force after Merdeka Day but subject to modifications as may be made under Article 162 or by the Federal or State law. If the pre-Merdeka law had not been modified under Article 162, and found to be inconsistent with the FC, the court applying the law has the powers to apply it with the necessary “modification” to bring the law into accord with the FC. “Modification” is defined in Article 162(7) as including “amendment”, “adaptation” and “repeal”.
In Surinder Singh Kanda v Govt of Malaya [1962] MLJ 162 there was inconsistency between the pre-Merdeka law that refers to the powers of the ‘Commissioner of Police’ and the FC that refers to ‘Police Service Commission’. The Privy Council applied Article 162 and read the pre-Merdeka law as modified by reading the reference to Commissioner of Police as Police Service Commission thus bringing the law into accord with the FC.
In Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 5 AMR 629 the Court of Appeal found that s 12 of the Aboriginal Peoples Act 1954 on land compensation had violated the aboriginals right to adequate compensation under Article 13(2) of the FC. As it was a pre-Merdeka law, the court applied Article 162(6) and modified s 12 to render it harmonious with Article 13(2) by interpreting the word “may” for “shall” and introducing “adequate” before “compensation” – thus incorporating a new phrase “the State Authority shall grant adequate compensation…” into s 12 and brought s 12 into accord with the FC that ensured that the aboriginals constitutional right to adequate compensation was protected.
In Ling Towi Sing & Ors v Sino America Tours Corporation Pte Ltd [2022] 4 AMR 117 an attempt was mounted under Article 162(6) to modify s 24(1) of the Limitation Act 1953 on the grounds that s 24(1), a pre-Merdeka law, had contravened the right to equal protection under Article 8(1). That attempt however was not successful as the Court of Appeal had found that s 24(1) had not contravened Article 8(1).
Does the power to modify laws under Article 162(6) means that the court makes laws and usurps the role reserved for the legislature by the FC? This was answered by the Court of Appeal in Sagong bin Tasi : “ I am aware that ordinarily we, the judges, are not permitted by our own jurisprudence, to do this. But here you have a direction by the supreme law of the federation that such modifications as the present must be done. That is why we can resort to this extraordinary method of interpretation.”
Breaking down Article 162 – Lai Hen Beng v. PP [2024] 1 AMR 249 (enticing married woman)
The Court in the earlier cases did not venture into an analysis of Article 162 in order to explain the modification powers. This fortunately was undertaken by the Federal Court led by the Chief Justice recently in Lai Hen Beng v. PP [2024] 1 AMR 249.
The accused was charged under s 498 of the Penal Code for enticing a married woman. He contended that s 498 was unconstitutional as it had unfairly discriminated against women in breach of the gender equality in Article 8. It was contended that as s 498 only protects a husband’s right to a peaceful marriage against the interference of a third party without providing similar protection to the wife, there was discrimination against women. The court had little difficulties in finding that s 498 was in violation of the gender equality provision in Article 8(2) as it only entitled husbands to rely on the provision to the exclusion of all wives. There was gender discrimination and s 498 was unconstitutional.
This was rather straightforward. The more difficult task for the court however was what to do next with s 498?
S. 498 a pre-Merdeka law: It was first held that s 498 was a pre-Merdeka law or “existing law”. The provision had first appeared in the Indian Penal Code in 1860 that was later applied in the Federated Malay States in 1871 and the Unfederated Malay States in 1872. The Federated Malay States (FMS) Penal Code was enacted in 1935 and extended throughout Malaya in 1948. In 1976 the Penal Code was extended to Sabah and Sarawak. In 1997, the FMS Penal Code was revised and renamed the Penal Code (Act 574). Throughout the long history of the Penal Code, s 498 however has remained unchanged from the time of its first appearance in the Indian Penal Code.
The options of modification and the chosen one
Referring to Article 162(6) that refers to “provision of any existing law” it was explained that the focus ought to be on the individual provision of the existing statute and not on the entire statute. Hence although the Penal Code had been modified several times after Merdeka Day, s 498 however had not underwent any modification and remained a pre-Merdeka law.
The Court thus invoked Article 162(6) in order to apply s 498 with such modifications as may be necessary to bring it into accord with the FC. With the definition of “modification” in Article 162(7), the question for the Court was whether s 498 was to be judicially adapted, amended or to be repealed in order to bring it into accord with the FC.
The Court declined the option of adapting the law as was done in Surinder Singh as there was no federal law upon which s 498 may be adapted. Next, the amendment option was considered viz. to read s 498 in a way that removes the unlawful gender-based discrimination and applying it equally to both spouses. That option was also declined as such amendment to include both spouses would negate the legislative intent of s 498 which was to confine the law only to the enticement of women. This intent was in fact reinforced by s 132 of the Criminal Procedure Code which stated that no court can take cognizance of a s 498 offence unless the complaint is lodged by the husband of the married woman.
The Court found that s 498 was so intricately drafted that amending it without changing its legislative intent was judicially impossible. Whilst amending it to include both spouses would remove the discrimination, the amendment would result in redefining the original purpose of the provision and would amount to an act of judicial legislation.
It was cautioned that the Court must be mindful of the constitutional limits of the Judiciary. Whilst Article 162(6) allows the Judiciary to modify a pre-Merdeka law in a way that resembles legislative power, such power must only be applied to the extent of bringing the pre-Merdeka law into accord with the FC and not for the purpose of judicial reformation. Whether s 498 ought to remain or to be revived in another form is a question for the legislature. The Judiciary is only empowered to modify the pre-Merdeka law to the extent of rendering the law valid and the judiciary or judges cannot engage in judicial legislation or reformation to the extent of substituting their private views for the law. Following that, and left with no other option, the Federal Court decided to judicially repeal s 498 and ordered the decision to take effect prospectively.
Conclusion
The different treatment rendered to post-Merdeka and pre-Merdeka laws has brought stability to the laws of the country after Merdeka Day and strengthened the position of the FC as the supreme law of the land. Article 162 especially sub-clause (6) and (7) played a pivotal role in ensuring that the pre-Merdeka laws continue to exist but in a manner that is consistent with the FC.
The judicial ‘legislative’ powers in sub-clause (6), whilst is a necessary tool, however ought not be utilized by the judiciary as a device to implement judicial reform of the laws as cautioned and outlined in Lai Hen Beng v PP . The decision from the Federal Court serves as the reliable guide in understanding the role and powers of the Court when exercising the ‘judicial legislative’ powers accorded under Article 162(6) and (7) so as not to usurp the role of the legislature.
R. Jayabalan
MESSRS R. JAYABALAN
