LEGALISING MORALITY, OR MORALISING LEGALITY?  A CASE STUDY ON THE IMPACT OF THE BEAUTY AND HEALTH ESTABLISHMENTS (FEDERAL TERRITORY OF KUALA LUMPUR) BY LAWS 2003 ON THE EXCLUSIVELY MALE MASSAGE PARLOURS IN KUALA LUMPUR

 

MOHD NAZIM BIN GANTI SHAARI
Faculty Of Law UiTM Shah Alam

 

INTRODUCTION 

Massage has been accepted as an important past time in the Asian community.[1]  In the agrarian sectors of the Malay community, massage is used to alleviate the backaches and muscle soreness suffered by the farmers.  Massage is also used by midwives to administer postnatal treatment.[2]  While this cultural pastime is not something which is frowned upon in the villages, transporting this cultural past time to the big city has the opposite response.  Lurid accounts of lewd and immoral activities that accompany the massage sessions have been reported in the main stream mass media, coupled with views questioning the relevancy of using suspiciously indecent pictures in advertising such services.  Therefore, we have been at times entertained by newspaper reports regarding police raids on prostitution dens masquerading as massage parlours.  While these establishments might be a cause for moral concerns, the massage parlours that have an exclusive male clientele have only of late been receiving bad press.      

Generally,  a massage is where the masseur would rub the body , usually the back and the legs, to ease muscle ache, or to promote better circulation of the blood.  These are the anatomical parts that suffer the most from strenuous physical activities.  Deep within these massage establishments, several other types of massages are also offered, such as the “urut batin” otherwise known as the “manhood therapy” massage and sports massage. The later is usually seeked by athletes after incurring some form of sports related injury.  The former type of massage is often proclaimed to be beneficial in improving men’s sexual performance, or at least is believed to be good remedy for erectile dysfunction and premature ejaculation.[3]  One highly morally questionable type of massage offered by these establishments is known as the “body-to-body massage”.  This type of massage is done in the nude.   It was only recently in February 2006 that the mainstream newspapers had published reports regarding police raids on a few of these establishments.  The Malay Mail,  had these phrases on the front page: “Round –up of the Day! Chicks, Ducks and Gays”.[4]     The existence of these premises and the types of services offered therein have been advertised on the internet ever since time immemorial.  Even after such raids have been carried out by the authorities, these websites still carry the advertisements. While the media predictably sensationalized this news item (TV3 had even broadcasted these raids), there have been no reports on whether the people arrested by the police during such raids have been charged for any criminal offence.  This “éxpose” was continued further in the House of Senate recently when a Senator disclosed that some massage parlours function as “rendezvous points for gays”.[5]  

 

MALE HOMOSEXUALITY IN MALAYSIA 

Male homosexuality has been in existence in this region even before the Independence.  In 1941, a male prostitute was charged for theft and gross indecency in Singapore,[6] thus proving that homosexuality is not something new in this part of the world.  In Malaysia, it is well known that homosexuality is an offence.  However, the legal prohibition on sodomy is not truly certain.  Section 377A defines the meaning of sodomy, in which this section uses the term “carnal intercourse against the order of nature”, which means “ the introduction of the penis into the anus or mouth of the other person”.  Section 377B then provides the punishment for this offence.  What seems to be clearly bewildering in this case is that the person who is at the receiving end of the conduct does not have any criminal liability.  One would probably argue that the law would still impose criminal liability on such persons under section 377D, which is about gross indecency.  However, more problems arise when reference is made to this section.  Firstly, the punishment imposed under this section is significantly less than the punishments imposed under sections 377B and 377C.  One is tempted to question reason for the difference in the punishments since in the act of sodomy, the act of insertion cannot be made without an inert body or receptacle.  Secondly, section 377D does not make any differentiation between consenting and coerced acts.  This is a peculiar situation whereby an innocent party might be charged for gross indecency.  However, in the Singaporean case of Ng Huat v PP[7] regarding gross indecency, the Court   ruled that while that might be a risk, the prosecution could be trusted not to abuse this power.  On the other hand, in the Malaysian case of  Dato Yap Peng v Public Prosecutor[8] concerning the wide powers possessed by the Attorney General in transferring cases to other courts , the judge remarked that while there was a danger of abuse of power, the State could not just offer a guarantee that they would not abuse it. 

Homosexuality has occupied a special in the Malaysian legal history.  With reference to Anwar Ibrahim’s sodomy trials,  both Sukma Dermawan and Dr. Anees Munawar, having pleaded guilty to the charge of sodomy, had filed affidavits emphatically stating that they were coerced into making such confessions.[9]  Therefore, the threat that homosexuality or sodomy could be used to victimize individuals for no reason at all is still a valid concern in Malaysia.  It could be argued that gay men could easily be victimized and harassed.  The Constitutional Court of South Africa had made the same observation in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice and Others[10]:  “legitimate or encourage blackmail, police entrapment, violence (‘queer bashing’) and peripheral discrimination, such as refusal of facilities, accommodation and opportunities.”[11]

It is truly obvious that the sanctions on “unnatural sex” or “carnal intercourse against the order of nature” are only applied to male homosexuals, and that the Penal Code has no sanctions at all regarding acts of lesbianism.  Even if it could be said acts of lesbianism are covered by section  377D, the punishment provided under section 377D, as explained earlier, are significantly less than the punishment contained under sections 377B and 377C.  There has been no reported case of lesbianism in the law reports in Malaysia, but surely this cannot be understood so as to be a clear proof that such acts do not occur in Malaysia. 

MORALITY IN MALAYSIA 

The stand on moral values in Malaysia , with due respect, leaves a lot of unanswered questions.  For instance, in a 1996 decision,[12] in refusing to follow the English Courts’ recognition of non-marital relationships regarding the doctrine of undue influence, the Court stated that: 

“Our society, on the other hand, has an entirely different set of moral standards.  It would therefore be quite wrong to blindly follow all foreign decisions if the result would facilitate moral decadence  within our social structure…….Our refusal to act in such cases is based upon the policy consideration that refusing to accede to such an extension  may deter a fall in the moral standards of our society.”[13] 

The Court impliedly stated that morality is an important element in Malaysia and that the Court must strive to protect the moral standards in the Malaysia society.  This view was followed  in the case regarding the ex-Chief Minister’s of Sabah’s gambling debts.[14]   Despite the fact that the Court approached its judgement from the angle of public policy,[15] the crux of the judgement rests on the principle that gambling is a vice and therefore contrary to the religious teachings in Malaysia.[16]   In paragraph 10,  the Court stated that: 

“The world would be a much nicer place if no country would allow the recovery of a judgment for a gambling debt which debt was the result, invariably, of the debtor being enticed to gamble on credit and beyond his means…..Its populace must be protected from being enticed to gamble on credit and the only way to discourage this entrapment is to prevent such foreign judgment founded on gambling on credit from being registered and from being enforceable in Malaysia….In all the foreign cases referred to by counsel for the judgment creditor, they involved countries that do not have a God-fearing principle as part of their philosophy as Malaysia has.” 

Justice Ian Chin had arrived at a conclusion which was diametrically opposite the decision made by the High Court of Malaya in the case of  The Aspinall Curzon v Khoo Teng Hock.[17]  In The Apinall Curzon’ case,  the difficulty faced by the Court was that if foreign gambling debts were to be declared null and void for reasons of immorality and public policy,[18] it would be a contradiction since gambling was allowed in Malaysia as long as they are carried out in the licensed venues.[19]  The Court settled this dilemma by holding that since the foreign debt in question was from a validly licensed gaming institution, and that had it been incurred from a locally licensed gaming venue it would have been valid, the foreign gambling debt judgement was allowed to be registered under the Reciprocal of Judgements Act 1958.[20]

On the other hand, within a week of the decision in the Datu Seri Haji Osu Sukam’s case, the Ritz Carlton had managed to get another of their gambling debt judgement registered under the Reciprocal of Judgements Act 1958 at the High Court of Malaya in Penang.[21]  While the debtors and the locality might be different, the facts in both cases are similar.  In both cases, the debtors  were Malaysians who owed a big sum of  money to the Ritz Carlton Casino in the UK.  It certainly attracts a great attention as to how the Courts could distinguish between these two cases.

Secondly, the Malaysian Courts had also arrived at different decisions concerning the rights of a transgendered  person.  In Wong Chiou Yong (P) v Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara,[22] the High Court of Malaya in Ipoh decided that the applicant, who had successfully gone through a gender reassignment operation, did not have the automatic right to have the gender information on the identity card be amended so as to be in line with the new post-operative gender.  However, in the case of Re JG, JG v Pengarah Jabatan Pendaftaran Negara,[23] which was decided  within a few months after the Wong Chiou Yong’s case, the High Court of Malaya in Kuala Lumpur upheld the transgendered person’s right to amend the gender identity on the identity card.  The former case was about a gender reassignment surgery from a female to a male gender, while the later was about a gender reassignment surgery from a male to the female gender.  The issue in both cases was whether a person could legally amend the gender identity particulars contained on the identity card after the gender reassignment surgery.    Similarity notwithstanding, the High Court of Malaya gave two decisions in opposite directions.  Thirdly, while the Malaysian Penal Code expressly criminalizes sodomy and acts of indecent behaviour among males, there are no prohibitions in the Penal Code concerning prostitution.[24]  Indeed, even the Women and Girls’ Protection Act, which has been replaced by the Child’s Act, did not criminalize prostitution.  It is trite that both homosexuality and prostitution are seen to be equally immoral.  In spite of such equal concerns, the law seems to have a greater tolerance on prostitution .  These cases lend support to the contention that Malaysia does not strictly uphold morality in its policies and that  morality itself is susceptible to changes.  

       

A survey of several statutes in Malaysia shows that the paternalistic power of the State in Malaysia is very strong.  For instance, the Police Act and the Universities and university Colleges Act strongly declare that the Malaysia citizens are not free to congregate anywhere within the area of the Federation.   However, recent decisions in case law might give rise to the idea that the Malaysian Courts are now more attentive to the rights of the individual.  Upon a closer inspection, that idea might be far from the case.  Tan Sri Gopal Sri Ram’s decisions are an example on the muddy state of individualism in Malaysia.  In the case of Fatimah Bt Sihi & Others v Meor Atiqulrahman Bin Ishak & Others,[25]  Tan Sri Gopal Sri Ram JCA  upheld the State’s contention that the wearing of turban would be against the school rules.[26]  This decision was an echo of the Court’s decision in Hajjah Halimatussaadiah bte Hj Kamaruddin v Public Services Commission Malaysia & Anor[27]  which was based on the paternalistic authority of the State.  However, in the recent case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Others,[28] Tan Sri Gopal Sri Ram JCA gave the dissenting judgement, supporting Lina Joy’s right to have the particulars of her identity card be amended.  This minority decision strongly supports the principle of liberalism regarding the right of the individual to embrace any religious faith of her choice.   

A timeless contention in the field of morality is that moral values are susceptible to changes.  In the UK for instance, from the criminalization of homosexuality in the conviction of Oscar Wilde, the UK government had changed its position bit by bit, such as institutionalizing the recommendations from the Wolfenden Report to allowing Elton John and George Michael to marry their male partners recently.  While these might seem to be an isolated case, a study of the prevailing attitudes in the neighbouring countries might be relevant.  In Singapore, the Government had officially relaxed its attitude to gays by accepting them “as normal as you and me”.[29]  Hence, the gay and lesbian community in Singapore would feel that at long last they would not be persecuted any more.  This change of policy was soon followed by some big gay and lesbian parties akin to the well known Sydney’s Mardi Gras.   However,  the Singaporean government still displays some form of conservatism , and this was made clear when the Singaporean government prohibited the gay community from organizing gay parades,[30] when a minister commented that the gay lifestyle was responsible for the increase in the number of AIDS cases in Singapore.[31]  Furthermore, like Malaysia, it has yet to abolish its anti-sodomy law.

 

REGISTRATION OF MASSAGE PARLOURS IN KUALA LUMPUR 

That male massage parlours in Malaysia are masquerading as normal massage centres thus hiding its true identity as male prostitution dens is not something shocking.  In a Singaporean criminal case,[32] the Court accepted as evidence some modelling agencies in Kuala Lumpur act as a recruitment centre for male prostitutes, and this case, the male prostitute was sent to work in Singapore. Homosexuality has received a bad press in Malaysia, probably ever since time immemorial.  The tabloid magazine “Mastika” had prominently carried out an issue on male homosexuals in Malaysia for two editions consecutively, while the Utusan Malaysia carried out a piece of investigative journalism on the existence of transsexual prostitutes in Kuala Lumpur.

In setting up a massage centre, it is pertinent to note the procedures involved.  Licenses have to be obtained from several government departments, namely the Kuala Lumpur City Hall and the Fire Brigade Department.  The law does provide some regulations in this respect.  What is the scope of protection that these premises have?  Do they enjoy some or a limited form of autonomy?  Or do they operate in continuous fear knowing full well that the authorities might clamp down on their activities anytime at all ?  To compare and contrast with other vice-related premises such as gambling dens and pubs, all of these establishments generally share the same conditions on registration and licensing.

In Kuala Lumpur, the local authority had had regulations in place concerning the operation of massage parlours, starting in 1964 until the present day.  The current by-laws concerning massage parlours in Kuala Lumpur is the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-laws 2003.  This particular by-laws had effectively repealed the Massage Establishments (Federal Territory) 1980,[33] which in turn, had repealed the Kuala Lumpur Municipal (Massage Establishments) By-laws 1963.[34]

All these by-laws require the registration of massage parlours as a condition precedent.[35]  Cleanliness and hygiene are the inevitable matters of paramount importance in maintaining a massage parlour, and this could be clearly seen in the by-laws.  Regarding the cleanliness of the premises, both 1980 and 2003 by-laws strictly require that the infrastructure such as bathrooms, beds and the related appliances, be kept scrupulously clean.[36]  As to matters regarding personal hygiene, the new 2003 by-laws contain stricter provisions than the 1980 by-laws.  The 1980 by-laws required the proprietor to send his employees for a medical check-up once a year.[37]  With reference to the 2003 by-laws, not only that it contains a similar provision,[38] the proprietor is further required to prevent anyone “whom he knows or reasonably suspects to be suffering from an infectious or communicable disease”[39] from entering the premises.  In addition to this requirement, the proprietor is also prohibited from employing anyone “whom he knows or has a reason to believe to be suffering from an infectious or communicable disease”.[40]  From a general perspective, it could be said that the authorities have chosen the utilitarian way of dealing with massage parlours, wherein although there is a risk that massage parlours might morally endanger the society, the authorities have allowed the operation of the massage parlours with some degree of control, hence the requirement for the medical check-ups.

            By allowing massage parlours to be operated, could it be said that the right of privacy of the individual is sacrosanct?  One would surely object to being massaged out in the open, within full view of the members of the public, hence the rationale for massages being carried out in secluded areas.  While this might support the argument that the authorities therefore respect the right to privacy of the individual, a closer scrutiny of the by-laws reveal otherwise.  Firstly, full partitioning of the massage areas is not permitted where the partition used must not exceed 2 metres in height measured from the floor,[41]  despite the fact that this requirement might cause discomfort to the client since he would not enjoy total exclusion or privacy from the people around him.  Secondly, the door to any massage area must at all times during the business hours be kept unlocked.  This requirement, while standing on its own, might not truly violate the client’s privacy.  However, the by-laws allow an officer to “enter and inspect any part of the premises”[42] and as such when combined, the client could be intruded upon at anytime by the aforesaid officer.  Consequently, these provisions have the effect of diminishing the client’s right to privacy.  The only safeguard here so as to ensure that the right to privacy of the individual would not be arbitrarily intruded into, is the requirement that the authorization of the Commissioner of the City of Kuala Lumpur must be obtained before the DBKL officers could exercise their powers of inspection.[43]  Furthermore, in the case of police officers, police officers who are below the rank of  an inspector do not possess this power of inspection.[44]

            A study of the prohibitions under these by-laws provides an interesting insight into the evolution of these regulatory controls.  The new 2003 by-laws contain some new prohibitions.  Firstly, the prohibition on allowing any person suspected to be suffering from any infectious disease from entering the premises,[45] nor employing such people.[46]  Secondly, displaying any obscene picture or article in the premises[47]  and thirdly, dressing indecently or allowing the employees to dress indecently in the premises.[48]  All these new prohibitions give rise to the perception that the authorities have lessened the importance of the right to privacy of the individual.  On the other hand, the new extra-regulations have also been slightly modified.  In granting a licence under these by-laws, the City Commissioner has the power to issue any conditions that he deems fit.[49]  It has been a practice for the authorities to impose further conditions whenever a licence is granted.  The current extra-conditions do not contain a requirement for the proprietor to display a sign in the premises that prohibits muslims from patronizing the premises, unlike in the past.  This presents an anomaly: on one hand more prohibitions are added on matters regarding morality such as the prohibition on obscene materials and indecent attire, but on the other hand the authorities have impliedly expressed their withdrawal from checking up on the private affairs of the muslims.

 

JOINT RAIDS WITH JAWI 

The licensing department of the DBKL had said that in some cases, there were raids conducted together with officers from the Kuala Lumpur Islamic Affairs’ Department (JAWI).  Under the Shariah Criminal Offences (Federal Territories) Act 1997,[50] the only offence relevant to these premises would be the offence under section 25, which is the offence of liwat and attempting to commit liwat.[51]  With reference to the interpretation contained in section 2, liwat  means “sexual relations between male persons”.  Upon conviction, the proprietor of the premises could also be liable to be charged under section 35 for encouraging vice.  The people involved could not be charged for khalwat since this offence refers to people of different genders “found in any secluded place or in a house or room under circumstances which may give rise to suspicion that they were engaged in immoral acts”. 

            In an interview conducted with the head of the Enforcement Department, Ustaz Mohamad Zain Bin Dollah, he admitted that his department lacked manpower, which is one of the obstacles in JAWI’s legal enforcement.  However, that was not the biggest obstacle faced by JAWI.  The biggest problem faced by JAWI is the perceived hostility that it received from the public at large.    This problem then makes it more difficult for JAWI’s legal enforcement machinery.  For instance, in conducting a raid, people would often dispute on the authority of the person who firstly entered the premises, whereby it is often emphatically argued that such a person must be  a person who has legal authority, hence not just any JAWI officer could enter and raid the premises.  With reference to the Syariah Criminal Procedure (Federal Territories) Act 1997,[52] the offence of liwat is a seizable offence[53] and when it is read together with section 18,[54] a warrant of arrest from a judge need not be obtained.  However, section 18 confers this power to arrest without any warrant of arrest only to any Religious Enforcement Officer, police officer and Pegawai Masjid.   

            The widely accepted view that the DBKL officers’ power is only to check on licensing requirements is defective.  Equally defective is the view that only the relevant officers as enumerated under section 18 of Act 560 could make an arrest for the offence of homosexuality.    Other than the offence of violating the licensing requirements and the syariah offence of liwat, since the biggest worry regarding these premises is about homosexuality, the DBKL and the JAWI officers do possess the power to arrest the suspects without any warrant of arrest.  Under the Criminal Procedure Code,[55] section 27 (1) allows any private person to make an arrest regarding non-bailable and seizable offences.  With reference to the First Schedule of the Criminal Procedure Code, the offences of homosexuality, which are under sections 377B, 377C and 377D, are categorized as non-bailable and seizable offences.  Therefore, it necessarily follows that any DBKL or JAWI officer could arrest those involved in the act of liwat without having to obtain a warrant of arrestIn fact, it follows that any person in Malaysia has the same authority.    

POWER TO LEGISLATE MORALITY 

Does this mean that the authorities have the legal power to enact laws on morality?  Common complaints from the public regarding this matter quite often revolve around the questions of  jurisdiction and priority: that morality should be left to be decided by the individuals themselves, and that the local authorities should focus more on the maintenance of public infrastructure.    

            The recent decision of the Federal Court in upholding the power of the City Commissioner in enacting by-laws on public decency[56] has been seen in different perspectives.  One on hand, the Chief Justice raised the issue as to whether the Malaysian community could accept the actions of kissing and hugging in public as normal and therefore acceptable:  “So, they should be given the freedom to live as they like? The constitution allows all citizens to do that (hugging and kissing) even by the roadside, in public parks?  In England, those acts are acceptable to the people in that country but is kissing and hugging acceptable to Malaysian citizens?”.[57]

            A probable explanation to this is that the Malaysian society is still in the conservative model, taking into account of the various Malay, Chinese, Indian and Islamic taboos.  On the other hand, the responses as reported by the mass media are contradictory to this view.  Scores of letters to the editors condemned the actions by the DBKL law enforcers, having the same message that this should not be legislated at all and that the State should not interfere with this private sphere of morality. 

The challenges made in this case, that firstly, the by-laws were ultra vires the parent Act (Local Government Act 1976) and secondly that the by-laws were in violation of Article 5 and 8 of the Federal Constitution,  did not find support from the Court.  It was argued that although section 102 of the Local Government Act allows the local authority to enact by-laws on some related matters, section 102 does not contain any specific provisions allowing the local authority to enact section 8(1) of the Parks (Federal Territory) By-Laws 1981 which states that “Any Person found behaving in a disorderly manner in any park commits an offence”.[58]  The Federal Court held although section 102 does not contain such specific provisions as argued, the general provision as contained in section 102 which states that :

 

“In addition to the powers of making by-laws expressly or impliedly conferred upon it by any other provisions of this Act every local authority may from time to time make, amend and revoke by-laws in respect of all such matters as are necessary or desirable for the maintenance of the health, safety and well-being of the inhabitants or for the good order and government of the local authority area and in particular in respect of all or any of the following purposes” 

            When read together with section 26 of the Interpretations Act 1967, both provisions do confer the power to the local authority to enact section 8(1) of the contentious by-laws.[59]   It is interesting to note that the Court indirectly said that the restrictions placed on the conduct of individuals based on moral concerns cannot be struck down on the individual’s right to life, livelihood and reputation.[60]

            To compare and contrast with the powers of the DBKL under the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-laws 2003, it is questionable whether any person could successfully challenge the powers of the DBKL in regulating the massage parlours, even by using the argument of right to privacy.  Based on the reasoning used by the Federal Court in the above case, although the words “massage parlours” are not contained in any of the provisions under section 102 of the Local Government Act, the DBKL could still legislate and exercise control for the “maintenance of the health, safety and wellbeing of the inhabitants or for the good order and government of the local authority area”.[61]  This general part of section 102  is very wide, and it seems to confer the authority to DBKL to enact any kind of legal provisions, not to mention that it is also paternalistic in nature.

            As a result of this case, a flurry of letters were published by the mainstream media, protesting the “moral policing”[62] activities of the local authorities.  The Minister for Local Government has given a clear warning to all local authorities not to encroach upon this matter anymore.[63]  He stressed that actions could be taken only if it involves public nudity or any extreme actions that are a prelude to a sexual intercourse.  However, these guidelines have yet to be approved by the cabinet.  This still leaves this issue unsettled.  By releasing these directives, the government seemed to say that anything short of  stripping or undressing must be tolerated and allowed.  There has been no studies or statistics offered by the authorities to back up this presumed standard on the public’s level of tolerance.  One would question whether a majority of members of the Kuala Lumpur society share the same western liberal standards of morality.  More than that, the Minister also said that this form of “moral policing” would  “send a wrong message to the outside world, especially the foreign tourists” and this would have adverse effects on Malaysia’s “Visit Malaysia Year” 2007 campaign.[64]  It is submitted here that this type of explanation does not tackle the real issue at hand.  It is also questionable whether what has been reported in the newspapers correctly represents the view shared by most of the members of the society.      

RIGHT TO EQUALITY 

What happens when a client or customer is arrested and thereafter charged for sodomy or gross indecency?  Could he avail himself to the argument of the right to equality?  Pertaining to the right to equality, it is interesting to note that although the Malaysian Federal Constitution formally entrenches this right in its chapter on fundamental rights,[65] the Federal Constitution itself allows for policies that are not equal, mainly the affirmative action policies for the Malays and the Bumiputra.[66]  In the most recent case of Beatrice a/p AT Fernandez v. Sistem Penerbangan Malaysia & Ors,[67] the Applicant raised the issue that since there were other stewardesses under Malaysian Airlines who were allowed to become pregnant, the condition in her contract of employment forbidding her from becoming pregnant was therefore unconstitutional since it was in violation of Article 8 of the Malaysian Constitution.[68]  The Federal Court stated that it could not find any contravention of Article 8 in this case,[69] and the Court also stated that :  ”…all persons by nature, attainment, circumstances and the varying needs of different classes of persons often require separate treatment.”[70]

 With reference to the facts of this case, the Federal Court indirectly said that the Applicant was bound by the terms of the contract of employment not to become pregnant, and that while other women under the employment of the Malaysian Airlines did not have to observe this requirement, those other women were not under the category of work similar to the Applicant’s.[71]  Hence different categories of employment have different rules.

In PP v Su Liang Yu,[72]  the Court had to deal with the powers of the Attorney General in transferring cases under section 418A of the Criminal Procedure Code, which was challenged as unconstitutional on the grounds of right to equality.  Justice Hashim Yeop Sani explained, with reference to some Indian decisions, that the right to equality does not mean that the same set of laws must be applied to everyone, everywhere in the country.[73]  In other words, the Court said that some form of discrimination is allowed under the law.  In order for the discrimination to be permissible, the Court stated that:

“two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. -- see Budhan Choudhry v State of Bihar AIR 1955 SC 191. In Anwar Ali Sarkar's case, supra, Mukherjea J. said at page 88 that the classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantive distinction bearing a reasonable and just relation to the thing in respect to which the classification is made for otherwise the classification made without any reasonable basis should be regarded as invalid.”[74] 

In The Malaysian Bar and Another v Government of Malaysia,[75] the prohibition for members of the Bar Council and State Bar from becoming committee members, as stipulated in section 46A(1)(a) of the Legal Profession Act 1976, was challenged as unconstitutional, vis-ŕ-vis the right to equality.  It was argued that while the younger members of the Bar were allowed to become members of the Bar Council, to negate their group’s right to be represented in the committees was discriminatory.[76]   In the Lord President’s dissenting judgement, while admitting that the legislature is allowed to create situations of inequality,[77] His lordship said that in order for the differences to be constitutionally valid,  

“if the basis of the difference has a reasonable connection with the object of the impugned legislation, the difference and therefore the law which contains such provision is constitutional and valid. If on the other hand there is no such relationship the difference is stigmatized as discriminatory and the impugned legislation is therefore unconstitutional and invalid.”[78] 

His Lordship then found that there was no nexus between the prohibition and the purpose of the Legal Profession Act 1976.[79]    In examining the right to representation issue, Tun Salleh Abbas found that there was no “plausible justification” to deny the younger members of  the Bar their right to representation, particularly when section 35 of the same Act provides for equal rights and privileges among all members of the Bar.[80]  In the majority decision given by Mohamad Azmi SCJ,  while endeavouring to discover the objective behind the prohibition under section 46A(1)(a), His Lordship considered the Legal Profession Act as a whole and inferred that it was the policy of the government that in order to have an independent and experienced Bar Council, it must be managed by independent and experienced lawyers, hence the prohibition contained in section 46A(1)(a).  Mohamad Azmi SCJ found that there was a strong nexus between the unequal prohibition and the “legislative policy” of the Legal Profession Act 1976.[81]  In the majority decision, the approach taken was to look at all the other prohibitions and, to infer the reason for such discriminatory from the statute.  With regards to the right to representation, Mohamad Azmi SCJ, after making a difference between the right to representation and the right to candidacy,  stated that the younger members of the Bar Council still possess this right to be represented.[82] 

DISCRIMINATORY PROVISIONS IN THE PENAL CODE 

Therefore, with regards to the anti-sodomy provisions contained in the Penal Code, the issue then is whether there is a nexus between the discriminatory provisions and the object of the Penal Code.  The objective of the Penal Code is to provide classifications for criminal offences.  Could it be argued that immoral acts and criminal acts are not mutually exclusive?    A study of the Penal Code reveals that the only other immoral conduct which is criminalized under the Penal Code is the offence regarding the sale of obscene materials.  Hence the criminalization of male homosexuality could be said to be discriminatory.  However, criminal law in Malaysia does not only revolve around the Penal Code.  While the Penal Code is not exhaustive on the classifications of criminal offences, other relevant statutory provisions need to be examined in order to gauge the consistency of the government in its war against immoral acts. In Malaysia, other immoral acts such as pornography and drugs are also criminalized in other statutory instruments.  Then, it could be said that Malaysia does take a hard line policy on immoral matters.  However, from the discussion earlier, it is clear that the male homosexuals have been singled out by the law, particularly when there are no similar injunctions on female homosexuals in the Penal Code.  In comparison with prostitution, prostitution itself is not deemed to be a criminal offence under the Penal Code. 

Another related issue to this is the utilitarianistic approach to morality.  While admitting that some acts like drinking alcoholic beverages and gambling are manifestly immoral, the approach taken by some countries is to legalize such acts with some form of conditions.  The main reason for doing this is to prevent a greater harm being inflicted on the society.  For instance, if the State chooses the aggressive policy of zero tolerance on these matters, these immoral acts would be performed clandestinely, thus making it difficult for the State to monitor and control them.  In Malaysia, gambling and the sale of alcohol and  cigarettes are permitted following several conditions.  In the sale of alcohol and cigarettes, the law prohibits the sale of these substances to minors, and as for gambling, a permit must be obtained from the local authorities in setting up a gambling venue, and gambling is not permitted anywhere else other than the registered gambling place itself.  It is curious to note the different methods applied by the State concerning male homosexuality on one hand, and the manifestly injurious immoral acts on the other.  Another example is the plan by the Ministry of Health to provide free needles to the drug addicts.[83]  It might be arguable that just because the State has allowed certain forms of immoral acts to be carried out after fulfilling some preconditions, it  does not mean that the State is giving a “green light” to all forms of immoral acts.[84]  However, in this issue, based on the similar reasoning of facilitating control and easier monitoring, it is not comprehensible as to why such utilitarianistic methodology could not be extended to male homosexuality?  Based on utilitarianism, one would argue that rather than completely prohibiting and criminalizing acts of homosexuality, it would be better to legalise it with some forms of control, for instance, by requiring the “rendezvous points for gays” to be registered and licensed under the law.    

CONCLUSION 

Cries of outrage are heard whenever the authorities take any action on immoral conduct:  “Have we turned into a Taliban style of government?  We are not an Islamic State”.  It is pertinent to note that moral injunctions in public areas have been accepted as valid even in the western jurisprudence, as explained by Hart.[85]  This knee-jerk reaction on blaming and putting Islam on the dock is even worse after the 9-11 incident.  The Badan Amar Makruf Nahi Mungkar under the Selangor Islamic Affairs’ Department (JAIS) was dissolved due to numerous complaints from the public concerning abuses of power perpetrated by the religious enforcement officers.    Immediately following the arrests of several people at the night club “Zouk”, was a continuous warning and reminder to the public as to how the moral guardians had acted in excess of their powers.  However, the same calls for dissolution were not heard whenever acts of abuses of power of the police were reported in the media.  This only goes to prove the double standards employed and deployed by the people who castigated the actions of the  various Islamic Affairs’ departments.      

There seems to be a fashionable trend among the middle-class to identify themselves with a popular social cause, while at the same time closing their eyes on other social issues.  One case in point is the issue on women’s rights in Islam.  Scores of letters were written and published in the media.  However, when human rights violations on preventive detention detainees have been revealed , and when the female relatives of the detainees called for help and support, the silence that emanated from these “champions of human rights” was deafening.  Next,  it is doubtful whether these parties legitimately represent the majority of members of the society.  Simply having a syndicated column in the New Straits’ Times does not conclusively proof that the person legitimately represents the “voices of the downtrodden”.  It is interesting to note that the group “Sisters In Islam” has probably enjoyed its popularity based on the influence that it has by having the daughters of the respective prime ministers as its supporters.[86]            The fierce opposition to Islamic moral values is truly an alarming matter to Malaysia.  Many discourses have been made as to whether Malaysia is an Islamic State and the judgement in Che Omar Che Soh v PP[87] has often been bandied about to justify the claim that the precepts of Islam do not and cannot play a significant role in shaping the government policies.  While is it arguable that many other religions share the same moral precepts of Islam, the Court in Meor Atiqulrahman Bin Ishak Dan Lain-Lain v Fatimah Bt Sihi Dan Lain-Lain[88] stated that the position of Islam in Malaysia is higher than any other religions,[89] and that the natural meaning of  Islam cannot be restricted to only rituals and ceremonies.[90]  The Court also stated that it should also be the duty of the State to prevent and prohibit sinful and immoral acts.[91]  Therefore, in consonant with Article 3 of the Federal Constitution, there should not be any opposition to the actions of “moral policing” done by the local authorities.  Moreover, Malaysia should also not be zealous in following international trends concerning the liberal acceptance of homosexuality.     

With regards to the discriminatory legal provisions,  the issue is whether those legal provisions should be abolished.  The western liberal approach seems to be this approach. With due respect to the approaches taken in other jurisdictions, other approaches that could be tried are by adding extra provisions into the law to balance the equilibrium and also, by taking equal concerns at other forms of immorality.  For instance, if the focus is on massage parlours, what about spas and premises with sauna that have been aggressively advertised on the internet as “havens” for the gay community?  These premises should be reminded that by allowing them to be registered and licensed under the law, it does not give them a carte blanche to freely indulge in immoral acts.  Another area that needs to be improved is law enforcement.  When a person has been arrested, could the arrestee argue that since there are other people who  have not been arrested, his arrest would therefore be null void since it violates his right to equality ?  This sort of defence, if accepted, would obviously cripple the criminal justice system.  On the hand, the authorities should be particularly sensitive to this point, rather than brushing it aside as a non-issue. 

In both western and Islamic studies of jurisprudence,[92] the right to privacy has been protected and lauded as an essential and indispensable right.  Therefore, the legal enforcers should be trained in the practical aspects of respecting this right.   Malaysia might not want to follow the minority decision in R v Brown[93] in the UK, or the decision in the recent Canadian case[94] where the Canadian High Court found for the proponents of liberalism by declaring that the existence of swingers’ clubs is legally valid since it passed John Stuart Mill’s ‘harm to others’ test’.[95]  Nevertheless, respecting and protecting the right to privacy is essential in safeguarding the dignity of the individual.


 

[1] Noraini Abd. Jalil, “Perubatan Cara Tradisi Melayu”, http://pkukmweb.ukm.my/~ahmad/tugasan/s3_99/noraini.htm

[2] Azuzay Zamani, “Traditional Practices in Post Natal Care: The Malay Community in Malaysia”, TSMJ, Volume 2 , 2001, http://www.tcd.ie/tsmj/2001/2001pdf/traditional.pdf

[3] http://www.naturaltherapies.com/index.php?option=displaypage&Itemid=89&op=page&SubMenu=

[4] The Malay Mail, page 1, February 22, 2006.

Chicks: female prostitutes; ducks: male prostitutes

[5] V.Vasudevan and Minderjeet Kaur, “The message on massage parlours is clear:They are little more than a front for female and male prostitution”,  New Straits Times, May 19, 2006

[6] Rex v Captain Douglas Marr[1946] 1 MLJ 77

[7] [1995] 2 SLR 783

[8] [1987] 2 MLJ 311

[9] Amnesty International, “MALAYSIA, Human Rights Undermined:  Restrictive Laws in a Parliamentary Democracy”,  in Chapter 5, http://web.amnesty.org/library/Index/ENGASA280061999?open&of=ENG-MYS

[10] [1998] 1 CHRL 136

[11] Ibid, para 24

[12] Tengku Abdullah Ibni Sultan Abu Bakar & Ors v Mohd Latiff Bin Shah Mohd & Ors and Other Appeals [1996] 2 MLJ 265

[13] Ibid, pp 310

[14] The Ritz Hotel Casino Ltd v Datu Seri Osu Haji Sukam [2005] 6 MLJ 760

[15] ibid, paras 4 and 5

[16] Ibid, paras 6,7,8,9 and 10

[17] [1991] 2 MLJ 484

[18] Ibid, pp. 485

[19] Ibid, pp. 486

[20] ibid

[21] Daily Express, 29 July 2005, http://www.dailyexpress.com.my/print.cfm?NewsID=36072

[22] [2005]1MLJ 551

[23] [2006] 1 MLJ 90

[24] Section 372A:exploiting any persons for purposes of prostitution; section 372A:persons living in or trading on prostitution; section 372B:soliciting for purposes of prostitution; section 373: suppression of brothels.

[25] [2005] 2 MLJ 25

[26] Ibid, para 12 and 13

[27] [1994] 3 MLJ 61

[28] [2005]6 MLJ 193

[29] Wayne Arnold, “Quietly, Singapore Lifts its Ban on Hiring Gays”, International Herald Tribune, 4 July 2003

[30] AFP. December 16, 2004

[31] Dr. Balaji Sadasivan, http://app.sprinter.gov.sg/data/pr/2004111090.htm

[32] Lim Chin Chong v Public Prosecutor [1998] 2 SLR  794

[33] section 25, Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[34] Rule 27, Massage Establishments (Federal Territory) 1980

[35] Section 3 of both  Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003 and Massage Establishments (Federal Territory) 1980

[36] Sections 21,22,23 and 24 of the Massage Establishments (Federal Territory) 1980, and sections 17, 18 and 19 of the  Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[37] sections 16 of the Massage Establishments (Federal Territory) 1980

[38] section 12 of the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[39] section 21(a) of the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[40] section 21(b) of the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[41] section 15 of the Massage Establishments (Federal Territory) 1980, and  section 14(1) and (2) of the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[42] section 25(1)(a) of the Massage Establishments (Federal Territory) 1980, and section 22(1)(a) of the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[43] ibid

[44] section 22(1) of the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[45] section 21(a) of the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[46] section 21(b) of the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[47] section 21(c) of the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[48] section 21(d) of the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[49]section 6(2) of the Beauty and Health Establishments (Federal Territory of Kuala Lumpur) By-Laws 2003

[50] Act 559

[51] Section 47

[52] Act 560

[53] Act 560, Section 2:an offence punishable with imprisonment for one year  or more

[54] Act 560

[55] Act 593

[56] Ooi Kean Tong and Siow Ai Wei v Public Prosecutor, http://www.kehakiman.gov.my/jugdment/fc/latest/Ooi%20Kean%20Thong%20N%20Anor%20v%20PP-J.htm

[57] The Sun, Wed. April 5, 2006, pp.1

[58] Ooi Kean Tong and Siow Ai Wei v Public Prosecutor , Supra, at no. 60,  para 22

[59] Ibid, paras 23, 24 and 28

[60] Ibid, para 44

[61] Cf. ibid, para 25

[62] Compare with the Online petition, “Malaysians against moral policing”, http://www.ipetitions.com/petition/Moral_Policing/

[63] The Star,Tuesday 18 April 2006,  pp 6; see also Berita Harian, 18 April 2006, pp 1 and 2

[64] Berita Harian,Ibid, pp 2

[65] Article 8, Federal Constitution of Malaysia

[66] Article 153, Federal Constitution of Malaysia

[67] [2005]3 MLJ 681

[68] Ibid, para 5

[69] Ibid, para 18

[70] ibid

[71] Ibid, para 19

[72] [1976] 2 MLJ 128

[73] Ibid, pp 129 and 130

[74] Ibid, pp 130

[75] [1987] 2 MLJ 165

[76] Ibid, pp166

[77] Ibid

[78] Ibid, pp 167

[79] Ibid, pp 168

[80] Ibid , pp 169

[81] Ibid, pp 171

[82] Ibid, pp 172

[83] Rosliwati Ramly, “Distribution of Free Condoms a Health Issue, Not Syariah Related – IKIM”, July 20, 2005, BERNAMA, http://www.bernama.com/bernama/v3/printable.php?id=145955

[84] The Ritz Hotel Casino Ltd v Datu Seri Osu Haji Sukam [2005] 6 MLJ 760, supra at 5, Para 10, pp 765

[85] HLA Hart, “Law, Liberty and Morality”, Stanford University Press, 1972

[86] Jane Perlez, “Within Islam’s Embrace, a Voice for Malaysia’s Women”, Feb 19, 2006, The New York Times, http://www.un-instraw.org/revista/hypermail/alltickers/en/0411.html

See also Nik Abdul Aziz Nik Mat, “Apabila Sisters In Islam Kuasai Anak-Anak PM”, April 17, 2006, Harakah, http://harakahdaily.net/v06/index.php?option=com_content&task=view&id=1889&Itemid=60

[87] [1988] 2 MLJ 55

[88] [2000] 5 MLJ 375

[89] Ibid, pp 382

[90] Ibid, pp 385

[91] Ibid, pp 386

[92] http://www.quran.org.uk/articles/ieb_quran_rights.htm#RTP

[93] [1993] 2 All ER 75

[94] R v Kouri [2005] SCC 81

[95] John Stuart Mill, “On Liberty”, http://www.bartleby.com/130/4.html

 

 

 

 

 

 

 

 

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