MORALITY AND ETHICS V INVASION OF PRIVACY*
©Shamrahayu A. Aziz**
I. INTRODUCTION
The debate between moral policing and invasion of privacy has started a long time ago and it will never end. Nonetheless, it has to be mentioned at the outset that the debate has no place in Islam. Islam accepts morality as part and parcel of its teachings[1].. In Islam, breach of morality in the form of ma’siah or sins may be penalised though there may not be any form of worldly punishment prescribed by the Quran or Sunnah. In this respect, the state is bestowed with a power to criminalise actions or inactions contrary to the integral parts or fundamentals of the religion by creating ta’zir offences[2]..
“Morality” is conformity with recognised rules of correct conduct, or a character of being virtuous or a system of duties or ethic[3].. Ethics is a set of moral principles concerning the principles of right and wrong behaviour and the goodness or badness of human character[4].. Morality is generally not a formal system. It does not depend on how “rules” are stated. It neither has any formal rule of evidence. Nevertheless, once a moral rule is codified as a rule or law, it has to be followed. This is an accepted notion in Hebraic and Greek law, whereby following the law – divine or man-made law – is part of the highest morality, though divine law is regarded as more superior than man-made law[5].. Morality in this respect is not only religious morality, but includes the social and cultural standard of morality expected to be possessed and professed by each and every individual in the society.
Ethics in modern acceptance has, to some extent, a formal set of rules set forth to govern certain conduct or behaviour, such as theLegal Profession (Practice and Etiquette) Rules 1978[6].. Morality and ethics connote the acceptable standard of conduct or behaviour in a society. Both seem to be similar yet, in modern application they are not in all circumstances the same. The former has a wider scope but has no formal rules, whereas the latter is normally applicable to a particular sector and it is set out in a more formal manner.
“Invasion of privacy” means, unjustified intrusion into one’s personality or intrusion into one’s personal activity. Intruder to privacy is subject to legal action – civil or criminal[7].. This meaning connotes individuals’ personal freedom, where one shall decide for himself of what is good and what is bad.
Before we proceed to the substance of the debate, it is pertinent to confine the meaning of the title. It is perceived that the possible meaning of the topic is that “enforcement of morality and ethics through law is an invasion against the right to privacy or the right to personal freedom”, which include the issue of “conflict between the power of the state to criminalise breach of morality and the right of individuals to personal freedom”. The following discussion is delivered on this proposition, atempting to highlight and discuss the possible arguments in favour of the state to legislate on morality and arguing that morality should continue to exist in the Malaysian social and legal realm. It begins with a brief reflection on the relationship between morality, law and religion.
II. MORALITY, LAW AND RELIGION – A BRIEF REFLECTION
As mentioned above[8]., morality is defined as conformity with recognised rules of correct conduct. The ‘recognised rules’ connote the rules acceptable to the community where one belongs to – whether it is in the form of law or religion – as both, in their own competency provide for ‘rules’ to be adhered to. Thus, it can be said that religion is reflected in the moral values and laws of the society. Both, law and morality meet at one end that is religion.
Lord Denning was quoted to have the belief that religion and law are one and the same. In one occasion, Denning said, “Many people think that religion and law have nothing in common… People who think that have got a wrong idea both of law and of religion…”. According to Denning, law seeks to see that truth is observed and that justice is done between men. What is truth and what is justice is not the product of one’s intellect, but of his spirit. Spirit is the creation of religion from where right deeds would flow[9].. At this point, according to Denning, religion and law meet.[10]. In another occasion, Denning said that morality is rooted in religion, whereby both are inseparable and can never be alienated from law[11]..
Denning’s opinion is consistent with a famous dictum in Taylor’s Case which declared Christianity as part and parcel of the English law and thus criminalised acts inconsistent with the religion[12].. In this respect, law and religion are inseparable.In the same vein, St Thomas Aquinas, the most significant contributor to the development of naturalist theory in the Middle Ages, believed that law is essentially a moral phenomenon[13]., which implies that law is to suit to the society. It is also naturalist’s argument that human nature was a divine creation that would make decision based on the nature of the society that he is living in. Aquinas believed that God is the source of authorities and all human laws must conform to the law of God[14].. Any tyrannical law or law inconsistent with the law of God is not law in its actual sense[15]..
The relationship between morality, law and religion in England before the crisis of secularisation or the renaissance to separate religion from the state, was exactly as what had been declared in Taylor’s Case – religion or Christianity was the basis of law. At that moment of time offences against moral was subject to Ecclesiastical Court, the Court which had the jurisdiction to try offences against religion and also offences against moral[16].. The process of secularisation had caused the downfall of the Ecclesiastical Court[17].. Following the crisis of secularisation, the society started to depart itself from Christianity and abandoned their religion and religious conscience. This can be seen in the debate between Lord Patrick Devlin and Professor H.L.A. Hart, the well-known Hart – Devlin Debate. The debate would not arise if the society had not abandoned Christianity.
This Hart – Devlin Debate is mainly on morality or homosexuality in particular, and law relating to personal freedom in England. It began in the 1950s due to rigorous enforcement of law against homosexuality that led to a number on high profile arrests and trials[18].. The publication of Wolfenden Report on 3rd September 1957[19]. had clearly disregarded the relationship between morality, law and religion. The Report recommended that “there must remain a realm of private morality and immorality” that is “not the law’s business”[20].. It proposed that consensual homosexual relations in private should not be criminalised. This report gave rise to two conflicting approaches in the subject that is obvious in Hart – Devlin Debate.
Lord Devlin viewed that society is integrated and subscribed to a common morality. Public morality is good and so valuable that all other goods should sacrifice for its sake[21].. Devlin proposed that society is sanctioned with the right to pass judgment on all matters of morality, especially those necessary to society. Devlin allowed the use of law in order to preserve morality as destruction to public morality is disastrous to the society[22].. Devlin’s argument had shown, to some extent, the relationship between law and morality, though he had not made any reference to the role played by religion in homosexuality.
In his response to Devlin, Hart agreed that erosion to one of the dominant morality in the society is a threat to the society. He however, qualified his view by requiring that the threat must be beyond a mere challenge to the society’s code of conduct. Hart argued that a proof of empirical evidence is necessary in establishing a true threat to the society. In homosexuality, according to Hart, there was no empirical proof of its treacherous nature. Hart, as Devlin did, had not considered any religious foundation in his argument on the permissibility of homosexuality.
Despite that, Devlin and Hart agreed that moral erosion is dangerous to the well-being of a society. Nonetheless, Devlin emphasised on the effect of the erosion to the intangible aspect of a society, such as understanding and tolerant, whereas Hart’s emphasis was on the society’s physical aspect[23].. In this respect, it is relevant to state that in every civilization, there are two important aspects that build up its perseverance; one is the physical development and the other is the spiritual force. The physical development can physically be seen and it is touchable, such as buildings and factories. The spiritual aspect may well be on eyes set, but it is untouchable – such as politeness, good manners, respect, tolerance, patience and so on[24].. Concerning homosexuality, it has clearly become a threat to the society, especially when there is scientific proof that it spreads HIV/AIDS, a desease which so far, has no cure. Many have died or are dying from AIDS. This is yet to count how much money that government and tax payers have to spend for the treatment of HIV patients and how much sacrifice that the family has to give to them and to take care after them.
The position of morality in Islam is obvious and unquestionable. As mentioned earlier[25]., Tawhid (the Oneness of Allah), Shariah (the law of Allah) and akhlaq (morality) are the essentials of Islam. These three essentials of Islam are inseparable and will never change. Each of them must constantly co-exist in order for Islam to be al-deen, the perfect way of life. Morality therefore, forms the integral part of Islam. The sources of authority in Islam, such as the Quran and Sunnah, have given comprehensible illustrations to the position of morality (akhlaq)in the religion[26].. The Quran brings mankind to the way that is most upright, which is conformable to ethical rectitude and beneficial to man’s individual and social life[27].. Verses 22 to 37 of surah al-Isra’ can be described as among the moral precepts founded in the Quran. The verses declare, to the effect that mankind are to worship Allah, be benevolent to their parents, be kind to relatives, the needy and wayfarer, be wise in spending, do not be stingy, stay away from zina[28], not to do shameful deeds that may bring them near to evils acts, be kind to orphan, not to take orphan’s property without due cause, be true in promise, be precise in measuring, do not do anything that one has no knowledge and do not be arrogant and act arrogantly[29].. The Quran condemns the odious evil doers[30].. The Quran may be said as a code for regulating human life as it provides the guidelines or morality to be observed by men in conducting their affairs and dealings with all the creatures.
Since the religion functions as to direct and regulate all aspects of the affairs in life with ethical norms, it has been described as a “legalistic” religion[31].. The description, in this context, is acceptable as Islam has detailed out all the rules in human ethical affairs, either through the verses in the Quran or the hadith of the Prophet (SAW). The Prophet (SAW) was reported to have said, which means that, the finest act of a son is to be good to his parent and righteousness is to have good morals and vice is what rankles in the heart[32].. The Prophet (SAW) also said, which means, men who break the ties of brotherhood shall not enter paradise[33].. In another hadith, the Prophet (SAW) said, which means, feeling of jealousy is prohibited and mankind are all brothers[34].. A guide to ethical relationship between men is illustrated in a hadith of the Prophet (SAW) which means, it is unlawful for Muslims that he should keep his relations estranged with his brother beyond three days[35].. In another hadith the Prophet (SAW) has clarified the ethical behaviour of men, that means, avoid suspicion, for suspicion is the gravest lie in talk and do not be inquisitive about one another and do not spy upon one another and do not feel envy with each other, and nurse no malice, and nurse no aversion and hostility against one another. And be fellow brothers and the servants of Allah[36].. The Prophet (SAW) has also mentioned the ethic in commercial transaction, which means, do not grudge and do not bid him out for raising the price and do not nurse aversion or enmity and do not enter into a transaction when the others have entered into that transaction and be as the fellow-brother and servants of Allah[37]..
To summarize, Islam is a perfect way of life, which moulds one’s life with the principles of individual and social behaviour through divine revelation and it does not precinct the private life of individuals alone[38].. But with the Western domination, Muslims have come to forget many aspects of their religious teaching[39]., separating morality from religion is one of them. Even the movement to secularise religion has gone farther to deny the existence of God[40]..
Where do we, Malaysians, stand on the issue of morality, religion and law? Where are we heading?
III. MORALITY AND PERSONAL FREEDOM IN MALAYSIA
The debate on enforcement of morality in Malaysia inflamed only in these recent years. The incident that sparks the debate is none other than the enforcement of Shariah decency law[41].. Most debate thus far, is focused on Shariah decency law, rather than the issue of morality in general. It must be noted that Shariah is not the only law enforcing morality and decency in the country.
Morality is deeply rooted in the Malaysian society. A Malay proverb says, “hidup dikandung adat, mati dikandung tanah” (in life one is surrounded with customs, after death one is surrounded with soil). Another proverb, “biar mati anak, jangan mati adat” (it is better to loss a child than to abandon a custom). Custom or adat, by definition is the accepted conduct or behaviour in a society and it has the force of law[42]. and customs are closely related to moral values which are parts of public morality of Malaysians[43].. Morality and custom have the same root – that is religion, Islam or otherwise. Morality and custom are traditional and indigenous to the Malaysian social and legal system.
It must be mentioned that the first vision of the nation in Wawasan 2020 (Vision 2020) is to have, among others, a developed nation which is persistent in moral and ethics values[44].. Furthermore, the observance of decency is enshrined in the fifth pillar of Rukun Negara[45]., the Malaysian national ideology[46].. Though Rukun Negara does not seem to have a binding legal effect, it has been acknowledged in a number of cases. For instance, the court recognised significant role of Rukun Negara in the system and dismissed the application to enforce a judgment against a gambler as gambling is
injurious to public welfare and it is against the pillar in Rukun Negara[47]..
In the Malaysian legal history morality, law and religion are interrelated. This is obvious in a Malay proverb, which says, “adat bersendi hukum, hukum bersendi syarak”, (custom stands on law, the law stands on Shariah). Another Malay proverb that gives a similar implication on the relationship is that, “adat bersendi syarak, syarak bersendi adat” (custom stands on Shariah and Shariah stands on the custom). As being preserved in Malay proverb, the principles contained therein may be regarded as forming part of the traditional and indigenous Malaysian philosophy and ideology that should not be abandoned only for the sake of a ‘change’ or ‘renaissance’. It shall not be bent to conform to the so-called universal standard of personal freedom, as there is no such ‘universal standard’ in all matters. Samuel P. Huttington argued in his “Clash of Civilizations” that there is no ‘universal standard’, including in matters regarding human right[48].. The states themselves shall determine the standard in governing the nation. In the same breath, the European Court of Human Rights, while deciding on the grounds of restrictions to freedom of expression guaranteed by art. 10 of the European Convention on Human Rights and Fundamental Freedoms 1950, expressed the view that it is up to the individual states to adopt and to apply any limitations to freedom of expression[49].. By analogy, morality thus, should be measured according to the standard of each society by taking into consideration the history, legal or otherwise, and the circumstances in a particular state, such as the custom, religions and social structure. The so-called universal standard of human right or personal freedom in particular, may not be suitable to our local society.
From constitutional law point of view, it must be mentioned that Islam is the religion of the Federation[50].. To declare Islam as the religion of the Federation is a clear indication that morality should be assumed to have significant place in the Malaysian system – legal or social. This is because Islam, as mentioned earlier, accepts morality as one of its essentials. The constitutional status of Islam may be accepted as a tacit proof that Islam is the accepted ideology of the nation[51].. Having said that, it is thus reasonable to suggest that rules regulating morality demonstrated in Islamic teachings is acknowledged as the main criterion in deciding matters concerning morality, so long it does not interfere with the adherents of other religions to practice their religions. As for the Muslims, they have no choice but to adhere to their personal law, the religion that accepts morality as one of its essentials. In this respect, the ‘integral test’[52]. in Fatimah Sihi[53] is relevant. In applying this test to issues pertaining to morality, it must be proved that certain act is against the integral parts of the religion. Integral parts means, necessary parts that would make the whole religion complete. As mentioned earlier, Islam is a religion that stands on three components – tawhid, shariah and akhlaq – which are complementing each other. These three components must always co-exist. Lacks of any of it would make the religion incomplete.
One may argue that to make Muslims be subjected to their personal law of morality is discriminatory against Muslims by virtue of art. 8 of the Federal Constitution. There are two simple answers to this argument. The first is because Muslims are bound to follow their religion. This first answer would lead to the second answer, whereby the discrimination is not unconstitutional. This is because the Constitution itself, by virtue of Clause (5)(a) of art. 8 allows a classification be made on the ground of personal law.
Having the above discussion in mind, it thus follows that, in observing morality Muslims are bound with their personal law. Therefore, there should not be the so-called ‘personal freedom’ in morality.
Personal freedom has been accepted as among the supreme freedom in a democratic society[54].. It connotes the right to speak and the right to do whatever one wants to. In the context of our discussion, (whether enforcement of morality is against invasion of privacy) the precise idea behind privacy is that men should be given a space for himself and his god – that there should be an area inaccessible to anyone, including the state, except god. Morality thus should be protected and preserved. At the same time, in any democratic country, personal freedom must be given a space.
The importance of privacy is not denied. Albeit, personal freedom is not always absolute, it is subject to restrictions to be imposed by the state. Hart and Devlinin their debate agreed that erosion to morality may bring harm to the society. They differ only in the end result – the prohibition of homosexuality.
While men are complex set of selves, they are integrated into a whole, as JJ Rousseau’s famous saying in his Social Contract, “Man is born free; yet everywhere he is in chains”[55].. This statement connotes that it is impossible for man to stand alone. Everywhere he goes he is chained to the society where he belongs to. Agreeing that, we must draw a line, in the form of legislation, between what is private and what is public. This line shall depend on the time, place and circumstances that may include the religious and social values accepted in the place.
Although man has reason, he must be guided through law in order to fulfill his potential as a creature of God and the law must take a coercive form[56].. After all, law is made for common good[57].. For instance, obscene stuff should be prohibited as it would deprave and corrupt those whose minds are open to such immoral influences[58].. Legislation criminalising breach of morality therefore, plays legitimate role in maintaining a moral environment conducive to virtue and inhospitable to at least some forms of vice[59].. Just as the state can prevent private activity in order to protect its natural ecology, so it may legitimately legislate law as to protect its “moral ecology”[60]..
As far as the position of law regulating personal freedom and morality in Malaysia is concerned, it is almost clear. In a case involving obscene publication under section 292(a) of the Penal Code[61]., Raja Azlan Shah J. (as he then was) pronounced that, “We boast of being a free democratic country but that does not mean that we are not subject to law”[62]..
To some contemporary ‘liberal’ thinkers, breach of morality should not be punished as it is generally victimless crime. For instance, a “deviant sexual intercourse between consenting adults”[63]. is, they argue, a victimless crime as both parties have consented to the act. This crime thus, has no real or tangible victim and therefore, in their opinion, it is unjust to prohibit victimless crimes. Such argument misses some important points. Victims in crime against morality are sometimes intangible, but the point is, there are victims. The public at large, future generations and the religions are the victims of the crime. The effects of the crime may not be immediate, but have negative implications that may gradually occur and explode in the society. Let us take this situation as an example – a married man and a woman commit adultery, and consequently, the woman conceived and delivered a child. The child is illegitimate. The man is under no obligation to maintain the child. If the man dies intestate, the child gets not a single cent from the estate of the man. In addition, the man’s wife and legitimate children (if any) and the members of the society are also affected, either emotionally or physically. The victim of the crime may not be apparent in a short-term, but it will surely appear in the long-term. If the illegitimate child is abandoned, the cost of maintaining and upbringing the child is borne by the society. The child may commit incest in future if he does not know who is his father. (I believe, it is not Islam alone that prohibits adultery and fornication, other religions do condemn these sinful acts). Last, but not, it must be mentioned that training in virtue through the fear of punishment is a discipline provided by the law.[64].
IV. MORALITY IN THE MALAYSIAN LAW
As mentioned earlier, the position of morality is deeply rooted in the Malaysian society. Discussion in the following paragraphs will try to highlight some provisions of law, including the Federal Constitution, that consider morality as one of its essential ingredients.
The word “morality” appears twice in the Federal Constitution, one in art. 11(5), which states that the right to profess, practice and propagate a religion shall not contrary to, inter alia, morality. The other is in art. 10(2), a provision that allows Parliament to create law imposing restriction on the right to freedom of speech and expression on the grounds of, among others, public order or morality. This provision thus, empowers the Parliament to preserve public morality against personal freedom. In other words, Parliament may restrict personal freedom if public morality is at stake. ‘Public morality’ refers to the ideals or general moral beliefs of a society or actions of an individual that affect others[65]..
The incorporation of the word ‘morality’ into the Constitution could be regarded as significant recognition to the role of morality in building our nation.
The Constitution also mentions about the code of ethics that shall always be observed by the judges during his tenure. The breach of the code may lead to his dismissal from the service[66].. This implies that judges are expected to posses certain behaviour suitable to his post.
In criminal law, the Penal Code provides for provisions on offences affecting decency and moral. It is stated in Chapter XIV of the Code[67].. Those offences are mainly relating to dissemination of obscene publications[68]., obscene act[69]. and obscene songs[70].. Apart from these offences, Penal Code also penalises deviant sexual acts, such as incest[71]. and unnatural offences, which include buggery with animal, carnal intercourse against the order of nature, outrages of decency (in public or in private) and inciting a child to an act of gross indecency[72]..
In Criminal Procedure Code, strict regard to decency shall be observed in making a search, whereby body search of a woman is to be made by another woman[73]..
In the law of contract, section 24(e) of the Contract Act prohibits any contract in which its consideration is immoral, or opposed to public policy[74].. A promise to marry by a married man, for instance, is void for it is against morality and public policy.[75].
In family law, Section 5(2) of the Married Women and Children (Maintenance) Act 1950 (Revised 1981), disqualifies a wife who is living in adultery to allowance from her husband. Living in adultery is an immoral act. Section 53 of the Law Reform (Marriage and Divorce) Act 1976 states that breakdown of marriage is a sole ground for divorce. In a petition for divorce, the court is allowed to have regard to the fact that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent[76].. In a petition for divorce when adultery is alleged the Act also requires the third person, the adulterer, be named as co-respondent and provides that he may be condemned in damages[77].. If the court is satisfied that adultery between the respondent and co-respondent has been proved, the petitioner may be awarded with such damages[78]., even if the petition for divorce against the respondent is dismissed or adjourned[79].. For instance, in Tan Wat Yan[80] the court awarded damages amounting to RM 70,000.00 to the petitioner!
V. CONCLUSION
As has been mentioned at the beginning, this debate will never end. It shall stop only when there is willingness on the part of those against moral law to come back to religious conviction and place the trust in the authorities of religion and also the willingness of the sectors in society to sacrifice their personal freedom for public interest. Deleting morality from the Malaysian system for the sake of personal freedom is almost impossible as morality is a deeply imbued value in the Malaysian system, legal or public realm. Damage to the deeply rooted values would cause destruction to the whole nation. Last but not least, it must be mentioned that pursuing on this kind of debate would lead us to no triumph. It will simply bring us to the same direction as the West has been directed – to abandon religion and to cause destruction to its values rooted in the nation.
* A paper prepared for debate session in the 13th Malaysia Law Conference, 16 -18 November 2005, (14 – 16 Syawal 1426), organised by the Bar Council Malaysia at Kuala Lumpur
** Lecturer, Islamic Law Department, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia. The author would like to thank Prof. Dr. Abdul Aziz Bari and Dr. Mohd. Hisham Mohd. Kamal for their ideas and suggestions towards the writing of this paper and thank you to Prof. Dr. Abdul Aziz Bari for bringing to the author’s attention some of the important books referred to in this paper
[1] Islam is a perfect way of life. It is established on three important essentials – the oneness of Allah (Tawhid), the law of Allah (shariah) and morality (akhlaq). For further reading on this subject see for example, Syed Muhammad Naquib al-Attas, Islam and Secularism, International Institute of Islamic Thought (ISTAC), Kuala Lumpur, 1993, esp. at 51 – 95 Akhlaq or adab (ethic) is particularly relevant to this present debate on morality and ethic against the invasion of privacy
[2] For further reading on Islamic criminal law, see A.Q. Oudah Shaheed (Abdul Qadir Awdah), Criminal Law of Islam,S. Zakir Aijaz (Trans.), International Islamic Publishers, Delhi, (in 4 volumes), 2000.
[3] Black’s Law Dictionary, 7th edition, 1999, at 1025
[4] Concise Oxford Dictionary, 10th edition, 1999, at 489
[5] Dennis Llyod, The Idea of Law, Penguin Books, Baltimore, 1964, at 53 – 55, esp. at 55
[6] See for example, a recent Kuala Lumpur High Court’s decision in Balakrishnan Devaraj v. Patwan Singh Niranjan Singh & Anor;Civil suit No. S3-22-903-2000. The court decided that the agreement to ‘tout’ entered into by the parties is void ab initio as it is against rule 51 and 52 of the Legal Profession (Practice and Etiquette) Rules 1978. The court also decided that the Rules is a law that must be followed though it was not directly passed by the Parliament. The agreement was also void as it is against section 24(e) of the Contract Act 1950, where the consideration (‘touting’) in the contract is against public policy. The court disagreed with an earlier decision on ‘touting’ in Koid Hong Keat v Rhina Bhar[1989] 3 MLJ 238
[7] Black’s Law Dictionary, at 829
[8] See above, note 3
[9] Iris Freeman, Lord Denning A Life, Hutchinson, London, 1993, at 213
[10] Ibid
[11] Id. at 404
[12] R v Taylor [1676] 1 vent. 293. reported in English Report 86, at 189.
[13] H. McCoubrey, The Development of Naturalist Legal Theory, Croom Helm, London, 1987, at 55
[14] Id. at xvi
[15] Ibid
[16] William Holdsworth, History of English Law, Sweet and Maxwell, London, 1956, vol. 1, at 580 – 598; Syed Muhammad Naquib al-Attas, Islªm and Secularism, International Institute of Islamic Thought and Civilisation (ISTAC), Kuala Lumpur, 1993, at. 2 – 3.
[17] William Holdsworth, History of English Law, vol. 1, at 580 – 598
[18] For example, the Montagu Case. See <http://www.algebra.com/algebra/about/history/Gay-rights.wikipedia >as retrieved on 5 Oct 2005
[19] Report of the Committee on Homosexual Offenses and Prostitution, Cmd 247 (H.M.S.O.), London, 1957
[20] Ibid. See also Kenneth Kinnis, Philosophical Issues in Law, Prentice Hall, New Jersey, at 44 and Duncan J. Rithcher, “Social Integrity and Private ‘Immorality’ – the Hart-Devlin Debate Reconsidered” at <http://www.humboldt.edu/-essays/ritcher.html > viewed on 10 September 2005
[21] Lord Devlin wrote,
“if men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far and relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price.”
Patric Devlin, The Enforcement of Morals, Oxford University Press, London, 1965, at 9
[22] Id., at 11
[23] For further reading on the Debate, see for example, Robert P. George, Making Men Moral: Civil Liberties and Public Morality, Clarendon Press, Oxford, 1993
[24] For further reading on the subject, see Yusuf Qardawi, Islam the Future Civilisation, El-Falah Foundation (Trans), El-Falah Foundation, Cairo, 1419H/1998. Thanks to Tuan Haji Abu Hanifah, Senior Academic Fellow at Ahmad Ibrahim Kulliyyah of Laws for bringing the book to the author’s attention
[25] See above, note 1
[26] For instance, the Quran, surah al-Isra’ (17): especially verses 23 – 49. There are also hadith of the Prophet (SAW) describing the adab or ethic of men, for example, Kitab al-Birr wa Sillah wa al-Adab, Sahih Muslim, Dar Ihya’ al-Turath al-Arabi, Beirut, 2000, at 1091 – 1102; Kitab al-Adab, Sahih Bukhari, Dar al-Salam, Riyadh, 1999, at 1045 – 1083
[27] al-Quran, surah al-Isra’ (17) : 9
[28] Zina is an Arabic word to signify unlawful sexual relationship between man and woman who are not husband and wife, irrespective of whether of them is married to another person or not; hence it denotes both, ‘adultery’ and ‘fornication’ in the English senses of these terminologies.
[29] Al-Quran, surah al-Isra’ (17): 22 - 37
[30] al-Quran, surah al-Isra’ (17) : 38
[31] Id. at xvii
[32] Sahih Muslim, hadith no. 2553
[33] Id., hadith no. 2556
[34] Id., hadith no. 2559
[35] Id., hadith no. 2560
[36] Id., hadith no. 2563
[37] Id., hadith no. 2564. For other relevant hadith, see Sahih Bukhari, Kitab al-Adab, Dar al-Salam, Riyadh, 1999, at 1045 – 1083
[38] S. Abul A’la Maududi, Islamic Law and Constitution, Islamic Publications (Pvt.) (Ltd.), Lahore, at 94
[39] Sayyed Hossein Nasr, A Young Muslim’s Guide to the Modern World, The Islamic Texts Society, Cambridge, 1993, at 143
[40] Ibid.
[41] See Abdul Aziz Bari, “Penguatkuasaan Undang-undang Jenayah Syariah di Malaysia; Satu Perspektif Perlembagaan”, paper presented in Seminar Penguatkuasaan Undang-undang Moral di Malaysia (Seminar on Enforcement of Moral Law) organised by Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, on 17 May 2005, at Gombak. For the constitutional position of Shariah decency law, see Abdul Aziz Bari, Islam dalam Perlembagaan Malaysia, Intel Multimedia and Publication, Petaling Jaya, 2005, at 141 – 153
[42] Black’s Law Dictionary, at 390
[43] For further reading, see Wan Arfah Hamzah & Ramy Bulan, An Introduction to the Malaysian Legal System, Fajar Bakti Sdn. Bhd., Shah Alam, 2003, especially at 151 – 180
[44] <http://www.pmo.gov.my/website/webdb.nsf/vALLDOC/434FD713455D583B48256BC900309773 >as retrieved on 6 Oct 2005 - “Malaysia sebagai negara maju sepenuhnya - satu takrif”
[45] Rukun Negara was initiated in the aftermath of 13 May incident as to preserve racial harmony and social stability in the country
[46] See <http://www.parlimen.gov.my/transfer/Ringkasanperpaduan.pdf > as retrieved on 25 September 2005
[47] The Ritz Hotel Casino Ltd & Anor v Datu Seri Osu Hj Sukam [2005] 3 CLJ 390, at 393. Other cases that took into consideration the status of Rukun Negara are Public Prosecutor v Z [1995] 4 CL 383, Village Holdings Sdn Bhd v Her Majesty The Queen In Right Of Canada [1987] 1 LNS 80 and Ng Kok Jooi v Public Prosecutor [1974] 1 LNS 105
[48] see <http://www.alamut.com/subj/economics/misc/clash.html > as retrieved on 9 Sep 2005
[49] Otto-Preminger-Institut v Austria (1995) 19 EHRR, [1994] ECHR 13470/87
[50] Article 3(1) of the Federal Constitution.
[51] Abdul Aziz Bari, Islam dalam Perlembagaan Malaysia, Intel Multimedia and Publication, Petaling Jaya, 2005, at 12
[52] The ‘integral test’ in this context refers to a test whether certain act is the integral part of religion or not
[53] Fatimah Sihi & Ors v Meor Atiqulrahman Ishak & Ors [2005] 2 CLJ 255
[54] Report of Malaya Constitutional Commission1957, para. 161 mentions that the purpose of Part III (Fundamental Liberties) of the Federal Constitution is to establish a free and democratic way of life
[55] <http://www.class.uidaho.edu/eng258_1/rousseau/JJRSocial.htm > as retrieved on 13 Mar 2005
[56] H. McCoubrey, The Development of Naturalist Legal Theory, note. 13, at 51
[57] Ibid
[58] Mohamed Ibrahim v Public Prosecutor [1963] 1 MLJ 289, at 291
[59] Robert P. George, Making Men Moral, note 23, at 158
[60] Ibid..
[61] Section 292(a) of the Penal Code provides,
“Whoever – sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation make, produces or has in possession any obscene book, pamphlet, paper, drawing, painting representation or figure or any other obscene object whatsoever; or (b)… … shall be punished with imprisonment for a term which may extent to three years, or with fine, or with both”.
[62] KS Roberts v Public Prosecutor [1970] 2 MLJ 137, at 138
[63] Black’s Law Dictionary, at 378.
[64] H. McCoubrey, The Development of Naturalist Legal Theory, note 13, at 48
[65] Black’s Law Dictionary, 1025
[66] Federal Constitution, Article 125(3)
[67] The title of the Chapter reads, “Offences affecting the Public Health, safety, convenience, decency and morals”
[68] Penal Code, sections 292 and 293
[69] Penal Code, section 294(a)
[70] Penal Code, section 292(b)
[71] Penal Code, section 376A and 376B
[72] Penal Code, sections 377 to 377E
[73] Criminal Procedure Code, section 19(2)
[74] See above, note 7, Balakrishnan Devaraj v Patwan Singh Niranjan Singh & Anor,Civil suit No. S3-22-903-2000.
[75] Spiers v Hunt [1908] 1 KB 729; Wilson v Carnley [1908] 1 KB 729.
[76] Law Reform (Marriage and Divorce) Act 1976, section 54(1)
[77] Law Reform (Marriage and Divorce) Act 1976, section 58(1)(2)
[78] Law Reform (Marriage and Divorce) Act 1976, section 58(3)(b)
[79] Law Reform (Marriage and Divorce) Act 1976, section 59(1)
[80] Tan Wat Yan v Kong Chiew Meng [1994] 3 CLJ 676
*This paper was delivered at the 13th Malaysian Law Conference.
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