DAPSY expresses deepest concern overthe landmark decision of the Federal Court in holding thattwo young people accused of kissing andhugging in a public park can be charged with indecent behavior underSection 8(1) of the Parks (Federal Territory of Putrajaya)By-Laws, 2002 as the said By-law does not infringe Article 5(1) of theFederal Constitution guaranteeing freedom of life.
Media Statement Chong Chieng Jen (Parliament,Thursday): On behalf of DAPSY, I express our deepest concern over the landmarkdecision of the Federal Court in holding thattwo young people accused of kissing andhugging in a public park can be charged with indecent behaviour underSection 8(1) of the Parks (Federal Territory of Putrajaya)By-Laws, 2002 as the said By-law does not infringe Article 5(1) of theFederal Constitution guaranteeing freedom of life. Section8(1) of the By-Laws provides as follows: (1) No person shall behave in anindecent manner in any park.
by
And the interpretation clause definesPark as follows:
"parks" includes public gardens, water bodies, recreation orpleasure grounds, public squares, boulevards, promenades,interchanges, cycle tracks, pedestrian walks, central dividers alongroads, sides of roads, road reserves or any other grounds maintainedor under the jurisdiction of the Perbadanan.
Penalty (Section 10): two thousand ringgit or to imprisonment for a term notexceeding one year or to both and in the case of a continuing offenceto a fine not exceeding two hundred ringgit for every day during whichthe offence is continued after conviction.
This lawagainst indecency covers almost every open public places under thejurisdiction of DBKL.
In thejudgment, the Federal Court posed the rhetorical question:
In England, those acts are acceptable to the people in thatcountry, but is kissing and hugging acceptable to Malaysian citizen?Is the act according to the morality of the Asian people?
And theFederal Court held that kissing and hugging in public places isindecent by the morality of Asian.
Is seems that the Federal Court supports the notion that a moralwrong can be punishable under the law. This goes against thefundamental separation of morality from law, but what is more worryingis the yardstick by which the Court is measuring the standard ofmorality for Asian people and Malaysians.
Though itmay not be in line with the teaching of Islam, kissing and hugging inpublic places has now been accepted by most non-muslims in thiscountry as a normal expression of affection. This is also accepted assuch in most countries in Asia. Even in the conservative China,kissing and hugging in public places nowadays are not deemed asindecent or immoral, much less a prosecutable offence.
Throughoutmy life, I had never known that kissing and hugging in public place isindecent and immoral and I believe I can speak for a majority of theyouth in this era, save for Muslims. In most wedding dinners that weattend in the last few years, the bride and bridegroom are often madeto kiss publicly, to the delights of the guess. No one ever raise theissue that it is indecent to do so. It seems that what was said asmorality of Asian people is more of morality and teaching of theIslamic religion.
Is there ashift in the interpretation of our Constitution by the Federal Courtfrom its previous decision of Che Omar Bin Che Soh in 1988 where theFederal Court then held that our Federal Constitution is secular?
Thisdecision will have a more far-reaching effect than the problems created by Article 121(1A). In the case of Article 121(1A), itcreates problem only in so far as one of the parties is allegedly amuslim subject to Shariah. In the present case, the By-law, nowendorsed by the Federal Courts, will affect all non-muslims. The fearhere is that this decision may embolden the local authorities as wellas other statutory bodies having the authority to pass by-laws toenact all kinds of subsidiary legislations and by-laws enforcingmorality by their own perspective or religious believes. Thisdecision opens an avenue for the creeping Islamisation to becomegalloping Islamisation of Malaysia, where all non-Muslims may besubject to the teachings of Islam.
First isthe tudong issue where all non-Muslims are directed to wear tudong inthe police force. Now is the public kissing and hugging, which thoughaccepted by most non-Muslim Malaysians as a normal expression ofaffection, now found to be indecent. What was previously accepted bymany Malaysians as normal is now treated as immoral and indecent.What will be next? What other statutory bodies may come up with otherlaws on morality imposing its own moral values onto those who do notsubscribe to its moral value? What will happen to the you may kissyour bride, a part of the Christian wedding ritual? Where is thelimitation of these legal enforcement of morality? Will it come a daywhere shaking hands with an opposite sex or even sitting too close,for example within 3 feet, will also be deemed indecent by someover-zealous moral-cum-law enforcers?
In light ofthe far-reaching implication of this decision, we urge that thedecision be referred to the full panel of the Federal Court forreview. There shall also be an amendment to the Parks By-Laws todefine indecency within the context of those acceptable to all sectorsof population, not as define by the whims and fancy of each individuallaw enforcer.
(05/04/2006) *
ChongChieng Jen,DAPSY Deputy Chief Member of Parliament for Bandar Kuching
