(Parliament, Thursday): On behalf of DAPSY, I express our deepest concern over the landmark decision of the Federal Court in holding that two young people accused of kissing and hugging in a public park can be charged with indecent behaviour under Section 8(1) of the Parks (Federal Territory of Putrajaya) By-Laws, 2002 as the said By-law does not infringe Article 5(1) of the Federal Constitution guaranteeing freedom of life.

Section 8(1) of the By-Laws provides as follows:

“(1) No person shall behave in an indecent manner in any park.”       

And the interpretation clause defines “Park” as follows:

"parks" includes public gardens, water bodies, recreation or pleasure grounds, public squares, boulevards, promenades, interchanges, cycle tracks, pedestrian walks, central dividers along roads, sides of roads, road reserves or any other grounds maintained or under the jurisdiction of the Perbadanan.

Penalty (Section 10):            two thousand ringgit or to imprisonment for a term not exceeding one year or to both and in the case of a continuing offence to a fine not exceeding two hundred ringgit for every day during which the offence is continued after conviction.

This law against indecency covers almost every open public places under the jurisdiction of DBKL.

In the judgment, the Federal Court posed the rhetorical question:

“In England, those acts are acceptable to the people in that country, but is kissing and hugging acceptable to Malaysian citizen? Is the act according to the morality of the Asian people?”

And the Federal Court held that kissing and hugging in public places is indecent by the morality of Asian.

Is seems that the Federal Court supports the notion that a “moral wrong” can be punishable under the law.  This goes against the fundamental separation of morality from law, but what is more worrying is the yardstick by which the Court is measuring the standard of morality for Asian people and Malaysians.

Though it may not be in line with the teaching of Islam, kissing and hugging in public places has now been accepted by most non-muslims in this country as a normal expression of affection.  This is also accepted as such in most countries in Asia.  Even in the conservative China, kissing and hugging in public places nowadays are not deemed as indecent or immoral, much less a prosecutable offence. 

Throughout my life, I had never known that kissing and hugging in public place is indecent and immoral and I believe I can speak for a majority of the youth in this era, save for Muslims.  In most wedding dinners that we attend in the last few years, the bride and bridegroom are often made to kiss publicly, to the delights of the guess.  No one ever raise the issue that it is indecent to do so.  It seems that what was said as “morality of Asian people” is more of “morality and teaching of the Islamic religion”.

Is there a shift in the interpretation of our Constitution by the Federal Court from its previous decision of Che Omar Bin Che Soh in 1988 where the Federal Court then held that our Federal Constitution is secular?

This decision will have a more far-reaching effect than the problems created by Article 121(1A).  In the case of Article 121(1A), it creates problem only in so far as one of the parties is allegedly a muslim subject to Shariah.  In the present case, the By-law, now endorsed by the Federal Courts, will affect all non-muslims.  The fear here is that this decision may embolden the local authorities as well as other statutory bodies having the authority to pass by-laws to enact all kinds of subsidiary legislations and by-laws enforcing morality by their own perspective or religious believes.  This decision opens an avenue for the creeping Islamisation to become galloping Islamisation of Malaysia, where all non-Muslims may be subject to the teachings of Islam.

First is the tudong issue where all non-Muslims are directed to wear tudong in the police force.  Now is the public kissing and hugging, which though accepted by most non-Muslim Malaysians as a normal expression of affection, now found to be indecent.  What was previously accepted by many Malaysians as normal is now treated as immoral and indecent.  What will be next?  What other statutory bodies may come up with other laws on morality imposing its own moral values onto those who do not subscribe to its moral value?  What will happen to the “you may kiss your bride”, a part of the Christian wedding ritual?  Where is the limitation of these legal enforcement of morality?  Will it come a day where shaking hands with an opposite sex or even sitting too close, for example within 3 feet, will also be deemed indecent by some over-zealous moral-cum-law enforcers?

In light of the far-reaching implication of this decision, we urge that the decision be referred to the full panel of the Federal Court for review.  There shall also be an amendment to the Parks By-Laws to define indecency within the context of those acceptable to all sectors of population, not as define by the whims and fancy of each individual law enforcer.