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The Bar Council’s views have been sought regarding laws on morality and human behaviour, in light of the case involving the Kuala Lumpur City Hall.

Issues of morality

Morality covers a very wide spectrum of human behaviour. There are types of conduct that are considered unacceptable by most if not all persons in a society at a given time, an example being walking in the nude down the streets. However, there are much larger areas of behaviour that may be objectionable to some but not objectionable to others in any society.

For instance, a couple walking down the streets hugging each other in affection (not uncommonly seen nowadays) may be objectionable to some but perfectly natural to others. What about walking down the streets holding each other’s waists? What about walking down the streets holding hands? Where do we draw the line? Where should the law, if at all, draw the line?

In other words, apart from a few areas of consensus or near consensus, questions of morality or decency can often become a very subjective issue.

Should morality be legislated?

It is not suggested that matters concerning morality or decency should never be legislated. However, apart from the few areas of consensus or near consensus, we should be very slow in legislating morality.

In addition, laws on morality and decency should take into account at least the following:

(a) The starting premise must be that respect be accorded to an individual’s right of personal choice of behaviour, and that adequate space be given for the exercise of this right. Legal restrictions should only be imposed for reasons of public order.

(b) One must not apply the “lowest common denominator” in a society. Restrictions on freedom should not be imposed simply to cater for the most conservative members of any society, the same way that we do not adopt as the standard the views of the most care-free elements in a society.

(c) Such laws (if they are necessary) should be less open-ended and better-defined, to the largest extent possible, so that one can be guided before-hand as to what the law does or does not permit; for how else is one to abide by the law when the subject matter it seeks to regulate involves a high degree of subjectivity?

(d) Such laws (if they are necessary) should be federal in nature, and not be left to the wishes of each and every local authority, nor should they be in the form of subsidiary legislation.

Invoking laws on morality or decency

Laws on decency should only be invoked if the impugned conduct has threatened public order or the public’s sense of decency; and not because it has offended the sense of decency of an individual or some individuals in authority.

What has gone horribly wrong in the case concerning the Kuala Lumpur City Hall is precisely because the authority seeks to invoke a law purporting to regulate decency in a way that a lot of Malaysians find unreasonable or ridiculous. Show of affection by holding hands, hugging and kissing are already common in our cinemas and on television. They do not threaten our society, though some members of our society may find these inappropriate in their view. This is surely insufficient reason to criminalise such conduct.

Most of us understand what is decent and what is not, without any necessity of the law telling us so. Many Malaysians do not want to be hypocritical and to see a person taken to penal task for something that we know in our hearts is well within the permissible limits of conduct in this 21st century.

Dated 5 April 2006

Yeo Yang Poh
Chairman
Bar Council

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