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LOCAL GOVERNMENT AUTHORITY AND MORALITY LAW: AN OVERVIEW OF MALAYSIAN POSITION
ZAINAL AMIN AYUB
INTRODUCTION Malaysia practices the doctrine of separation of powers which comprises legislative body, executive body and judicial body. The federal government has the power as list down under List 1, whereby the state government has the power as set out under List 2 of the Federal Constitution. Under the Federal Constitution, local governments are vested with certain powers enacted and enforced within their local jurisdiction. In other words, local governments are given the powers under the law to make subsidiary legislation within their authority. Federal Constitution is regarded as the supreme law of the land. Article 74 of the Constitution provides for the subject matter of federal and State laws, where it states:- 1. Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule). 2. Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List. Under the Ninth Schedule, List II of the Federal Constitution, it enumerates that the power vested in the States inter alia is the power over the local government including (a) local administration; municipal corporations; local, town and rural board and other local authorities; local government services; local rates; local government elections; (b) obnoxious trades and public nuisances in local authority areas, except for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya,. Under article 160 of the Constitution, a local authority is considered as public authority whereby it states that "public authority" means the Yang di-Pertuan Agong, the Ruler or Yang di-Pertua Negeri of a State, the Federal Government, the Government of a State, a local authority, a statutory authority exercising powers vested in it by federal or State law. The power vested to the state and local authority to enact law or by-laws however subject to Article 75 of the Constitution where in the event of any inconsistencies between federal and State laws, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void. In the same vein, local governments or authorities have the power to enact law as enunciated under section 102 of the Local Government Act 1976 which provides:- ‘General power to make by-laws 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- ‘(f) to provide for the establishment, regulation and management of any public park, walk, recreation and pleasure ground, garden, swimming pool, lake stadium, historical building or site, public library, art gallery, museum, public theatre, restaurant, hall, assembly room, botanical or zoological garden or aquarium;’ Thus, the by-laws like Parks (Federal Territory) By-laws 1981 is enacted under the said provision of parent law. Section 8(1) of Parks (Federal Territory) By-laws 1981 reads: ‘Any person found behaving in a disorderly manner in any park commits an offence.’ This is the issue that is going to be discussed, as what is the position in Malaysia in relation to the laws concerning morality and its enforcement by local government bodies, in the light of the recent decision of the Federal Court in the case of Ooi Kean Thong & Siow Ai Wei v. Pendakwaraya. MORALITY AND THE RIGHT TO BE LET ALONE In 1954, there was a report by a committee on Homosexual Offences and Prostitution (Basil Mitchell, 1970), known as the Wolfenden Report. The committee outlined that “our own formulation of the function of the criminal law so far as it concerns the subject of this inquiry. In this field its function, as we see it is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable. It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.” The Wolfenden Committee was appointed to consider the state of British criminal law in relation to homosexuality and prostitution. The Committee submitted its findings in September 1957 and recommended by a 12 to 1 majority that homosexual practices between consenting adults in private should no longer be a crime. As to prostitution, they found unanimously that, while it should not be made illegal, legislation should be introduced to drive it off the streets since public solicitation was an offensive nuisance to third parties.
Lord Devlin’s response was to reject the committee’s position that law has no business with private morality, for he believed, private immorality, contrary to the committee’s argument is injurious to the public. For him, any attempt to resolve questions about the legitimacy of legally enforcing moral obligations by distinguishing immoralities that implicate public interests from those that are merely private was doomed to failure. He further maintained that the morality which the law must enforce should be popular or conventional morality. He also took the view that “morality is based on religion (emphasis added), not only as a matter of history, but also a matter of logic: morals and religion are inextricably linked.” Devlin’s disintegration thesis renders social cohesion unconditionally valuable so that public authorities may suppress anything which a large enough majority strongly perceives to be immoral. Ultimately, it is this view that represents ‘the real threat of tyranny’ (George,1993). Professor Hart in his response took the opposite position, essentially defending the position of the Wolfenden Report and resting his argument on Mill’s famous statement on liberty: “The only purpose for which power can rightly be exercised over any member of civilised community against his will is to prevent harm to others. His own good either physical or moral is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others to do so would be wise or even right.” (Basil Mitchell, 1970) Thus, the Wolfenden Report’s litmus test for legitimate state interference with alleged immorality is whether the act in question would, in itself, damage the interests of non-consenting parties. In the absence of indecency, corruption, or exploitation, the act is a private one beyond the reach of political authority whether immoral or otherwise. In the 1890s, United States Supreme Court Justice Louis Brandeis (1890) articulated a concept of privacy that urged that it was the individual's "right to be left alone." Brandeis argued that privacy was the most cherished of freedoms in a democracy, and he was concerned that it should be reflected in the Constitution. According to Edward Bloustein (1964), privacy is an interest of the human personality. It protects the inviolate personality, the individual's independence, dignity and integrity. Robert Ellis Smith (2000) defined privacy as "the desire by each of us for physical space where we can be free of interruption, intrusion, embarrassment, or accountability and the attempt to control the time and manner of disclosures of personal information about ourselves." As the inner and the outer person, the law and religion, the public and the private all began to be postulated as parts of a world dominated by publicly proclaimed, all-embracing, spiritual belief, jurists and novelists alike began to complain that this kind of public morality was threatening to obliterate the private life of the individual. At a time when the conventional line between what was public and what was private appeared to be wavering and uncertain, Warren and Brandeis (1890) suggested a simple solution. Since what was private was characterized by its close connection with the individual, it was, they argued, peculiarly appropriate for the individual to decide which matters relating to that individual would be considered private and which were in the public domain. However, the issue here is when the act which may be considered as private matters, is done in public places. Two hundred years earlier, Locke (1690) had postulated that the “lives, liberties and estates” of individuals were, as a matter of fundamental natural law, a private preserve, almost literally walled off from public interference.’ Within this private domain, each individual retained absolute rights against outside interferences. THE LAW IN MALAYSIA The issue of law on morality in Malaysia is the question of what is morality, and to what extent it must be regulated. As what have been discussed above, there are theories of morality by Hart which disintegrate morality and law whilst Devlin view it in a different way. What is the position in Malaysia? To begin with, we look back to the talk of the nation case of Ooi Kean Thong & Siow Ai Wei v. Pendakwaraya. In this case, the two applicants were charged under section 8(1) of the Parks (Federal Territory) By-Laws 1981 for behaving in a disorderly manner, to wit, ‘hugging and kissing’ and thus alleged by DBKL to be an offence under the by-laws. Initially the matter was compounded by DBKL and the applicants were supposed to pay the fines imposed. Subsequently they had a change of mind and decided not to pay the fines as they were strongly of the view that they had committed no wrong in law. Section 8(1) of the Parks (Federal Territory) By-Laws 1981 reads “Any person found behaving in a disorderly manner in any park commits an offence” and punishable under section 10 of the same Act. Y.A. Dato’ Richard Malanjum, FCJ at para 25, states that: “Indeed what amounts to ‘behaving in a disorderly manner’ depends on the prevailing circumstances, place and/or period of time. It is a question of fact to be determined by a trier of facts. But just as examples, if some of the users of a public park of a local authority begin to sing loudly in the middle of the night so as to disrupt the sleep of the inhabitants or they begin to remove their clothes in front of young children of the inhabitants or they begin to play a game that may expose the local inhabitants to danger without any regards to their safety, surely these activities are not in consonant with the obligation of a local authority to ensure ‘the maintenance of the health, safety and well-being of the inhabitants or for the good order and government of the local authority area’. Thus, in our view it is within the power of a local authority to legislate a by-law in order to cater for such situations. Surely it is for the health, safety and well-being of the inhabitants of a local authority to disallow users of its public park behaving in a disorderly manner. The critical words used in the impugned by-law are ‘behaving in a disorderly manner’ and not in such explicit terms as submitted by learned counsel. The by-law does not specifically state that ‘kissing and hugging’ in a public park is an offence per se. Anyway, whether such acts are within the ambit of the phrase ‘behaving in a disorderly manner’ is not an issue before the Court.” Besides, the power vested to the state and local authority to enact law or by-laws is however subject to Article 75 of the Constitution where in the event of any inconsistencies between federal and State laws, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void. Hence, it was the learned defence counsel submission also in this case that the impugned by-law itself (i.e. Parks (Federal Territory) By-laws 1981, section 8(1)) is unconstitutional as it impinges on the constitutional rights of the applicants as enshrined in Articles 5 and 8 of the Constitution. To make things clear, article 5 of the Federal Constitution reads as follows: ‘(1) No person shall be deprived of his life or personal liberty save in accordance with law.’ Moreover, article 8 clauses (1) and (2) state to this effect: ‘(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. The Federal Court in addressing the contention of the learned defence counsel on clause 5 (1) opined that even accepting the broad interpretation of the word ‘life’ in clause (1) of the said Article to mean ‘right to livelihood’ which includes deprivation of one’s reputation, the Federal Court, while referring to the case of Lembaga Tatatertib Perkhidmatan Awam v Utra Badi a/l K Perumal [2000] 3 MLJ 281, cannot conclude that by disallowing any person from behaving in disorderly manner as the impugned by-law stipulates, is a deprivation of one’s life or livelihood or reputation. To do so would result in chaos the society which is abhorrence to the concept of a civilized community. Furthermore, Dato’ Richard Malanjum, FCJ state at paragraph 45 and 48 that:- “In respect of the rights referred to under the limb of personal liberty of the said clause, we do not think it is necessary for us to dwell too much into the jurisprudential aspect of it. Suffice it to stress here that the by-law is intended to apply only in the public parks of DBKL. Surely as the keeper of its public parks DBKL is entitled to lay down the rules to regulate their uses and more so in this case where the Act provides such power to DBKL. Hence, if a person does not wish to be subject to such regulations, as for instance, not to behave in disorderly manner, he or she is not obliged to enter any of the public parks to do what he or she wants to do. It would therefore be quite illogical to insist entry into the public park and then demanding unqualified personal liberty. The interest of other users who are equally entitled to invoke Article 5 (1) must also be respected….Accordingly it is our judgment that the impugned by-law does not infringe any of the rights as enshrined in Articles 5 or 8 of the Constitution.” Looking at the case above, it is pertinent to note that the question of morality and indecency act is only as regards to any of those acts done in public places. So, what is considered as public places? Under the Interpretation Act 1948 and 1967, section 3 of the Act provides that "public place" includes every public highway, street, road, bridge, square, court, alley, lane, bridle way, footway, parade, wharf, jetty, quay, public garden or open space, and every theatre, place of public entertainment of any kind or other place of general resort to which admission is obtained by payment or to which the public have access. Meanwhile, under section 2 of the Local Government Act 1976 "public place" means any open space, parking place, garden, recreation and pleasure ground or square, whether enclosed or not, set apart or appropriated for the use of the public or to which the public shall at any time have access. On the contrary, private place is not defined by our statute. However, term which is not defined by the statute may take regular dictionary meaning. This is based on the decision of the court in the case of State v. Yokley, 91 Wn. App. 773, 959 P.2d 694 (1998), where it was held that undefined terms in a statute take their regular dictionary meaning. According to the definition developed by the courts, a “private place” is deemed to be a place which is not open to anyone without the permission of the person who occupies it in a permanent or temporary manner. Conversely, a place is classified as public if it is accessible to everyone, without specific permission from any person whatsoever, whether access to it is permanent and unconditional or subject to certain conditions. Further, “private place” is a separate place from others; solitary; personal; secret; not having a public or official character as defined in New Webster’s Dictionary (1991). Briefly, Oxford dictionary defined private as belonging to or for the use of one particular person or group only. United States courts indirectly classify certain places as private places as was decided in the case of State v. Glas, No. 19111-7-III, (July 5, 2001. State of Washington) where Sweeney J stated that “Voyeur statutes that define voyeurism in outmoded terms of intrusion into "private" places, such as homes, changing rooms, or other like places”. Previously, in Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), the court held that people preserve their bodily privacy by wearing clothes in public and undressing in private. It makes no sense to protect the privacy of undressing unless privacy while clothed is presumed. Our interpretation gives effect to a legislative intent to protect the right of people to control the exposure of their bodies to public view. The statute protects people, not places. To put it the other way round, the law may control as to what extent any person may expose their bodies to public view. As regard to public places, Oxford dictionary (1992) defined “public place” as places provided especially by central or local government, for the use of people in general; public place; open or known to people in general. Public is not private; and it is pertaining to a whole community; open or free to all; or common (New Webster’s Dictionary, 1991). To be brief, a public place is anywhere that members of the public have the right to go, or anywhere people invite them to go. Streets, public squares, shopping centres, schools and sports arenas are all public places where people may freely go. Thus, park is one of the “public places” where the manners and behaviours of the people can be regulated by the local government or authorities. Concerning as to what amount to indecency, Oxford dictionary defined “indecent” as offending against accepted standard of decency or morality; or obscene. The United States Supreme Court in Miller v. California 413 U.S. 15 (1973) held that; to be obscene, a judge and/or a jury must determine:
In Malaysia, indecency is also not defined by the courts, except for gross indecency. Abdul Wahab J states that in case of Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor [1998] 4 MLJ 742 at page 757; Every person may have a different view of what is indecent. Our individual perception of what is indecent depends upon our upbringing, which includes religious, cultural and family values. Considering the racial, cultural and religious diversity in Malaysia, Parliament has seen fit to legislate, not against all acts that a particular individual perceives as indecent, but against those generally accepted as grossly indecent. This was agreed by Eusoff, the Chief Justice as he then was in the same case of Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara, Malaysia & Anor [1999] 2 MLJ 241 when he said at page 247; As to what act constitutes indecency or gross indecency, the legislature itself has seen it fit not to give it a definition, but has left it entirely to the court to determine. It is not possible to define what is an indecent or grossly indecent act. As the High Court judge in this case had stated in his judgment: ‘Every person may have a different view of what is indecent. Our individual perception of what is indecent depends upon our upbringing, which includes religious, cultural and family values.’ In brief, what constitutes “indecent” may not be an easy task to define, but it is for the society to decide as what amount to indecent in that particular community. SUGGESTIONS AND CONCLUSION As a conclusion, it is the responsibility of the state to protect the well being of its society. In Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973), the United States Supreme Court referred to Chief Justice Warren as stated, there is a ‘right of the Nation and of the states to maintain a decent society.’ Henceforth, it is quite unwelcome when Housing and Local Government Minister Datuk Seri Ong Ka Ting told local authorities not to send enforcement officers to spy on courting couples. The council by-laws should only be enforced if the cases were "extreme" and "very obvious" and if there were public complaints that someone was naked in the park or someone had stripped. Ong had said his ministry would define "indecent act" and draft guidelines for councils after discussions with ministries such as the Tourism Ministry and the Women, Family and Community Development Ministry. It will then be endorsed by the National Council of Local Governments (Hamidah Atan, 2006). If the standards of what amount to indecency are only when someone strip or naked in public, is this acceptable by our society? It is therefore suggested that in defining morality and indecency in our society, the paramount consideration is the religion, that is, the religion as the overriding principles to define morality and to what extent it must be regulated. In Islam and classical Christianity, the issue of separating morality from religion does not arise, for morality carries with it a sense of sin and this can only emanate from a religion. This is not to suggest however that all religions share the same concept of morality. Besides, as prescribed under article 3 of Federal Constitution, Islam is the religion of the Federation, values of Islamic principles should also be taken into consideration in formulating as what amount to morally right and decency, not to forget to respect all of other religion teachings and beliefs that must be upheld in multi-racial and plural society. Furthermore, Malaysia has what is known as The Five Principles of Nationhood or Rukunegara where it has five basic principles to be adhered and respected by Malaysian and the last but not least principle is good behavior and morality. Rukunegara was formulated after the racial riots of May 13, 1969, in an attempt to base the national philosophy on unity and progressiveness (as a whole), whereby concepts which are universal and acceptable to all Malaysian citizens, regardless of ethnic origin or religious affiliation, were adopted as the ideology of the country. The principles enshrined in the Rukunegara were officially introduced on Aug 31, 1970, in the hopes that it would strengthen national unity in Malaysia's multicultural society. On the other hand, a definite definition of what is decent and moral may not be needed as a statute is not unconstitutionally vague merely because it cannot be predicted with complete certainty at which point conduct would be prohibited, as was decided in the case of City of Seattle v. Abercrombie, 85 Wn. App. 393, 399-400, 945 P.2d 1132 (1997). It is sufficient that a criminal statute defines the criminal offence with sufficient definiteness that ordinary people can understand what is proscribed or forbidden, and that it provides ascertainable standards of guilt sufficient to preclude arbitrary enforcement.
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