Zainah Anwar
Matter of conscience, not policing

WE all agree that having sex in public is indecent and should be punishable by law. I am sure our lawmakers had precisely this in mind when they drafted by-laws governing indecent behaviour in parks.

But what about walking hand-in-hand? What about sitting together on a park bench; a peck on the cheek; a spontaneous hug? Are such acts indecent?

Remember the three young women who, seeking fame and fortune in Kuala Lumpur, entered the Miss Petite Malaysia contest, only to be unceremoniously hauled off the stage for "indecent behaviour"?

Remember the female pub singer who was charged with insulting Islam by being in a place that served alcohol? Never mind that the boys in the band were let off.

Remember the case of the two schoolmates, a boy and a girl, who were caned 25 times for the "crime" of talking to each other in public?

And, of course, we all remember the infamous raid on a fancy club in Kuala Lumpur last year when 100 young Muslim patrons were detained for several hours and subjected to verbal abuse and humiliation in a lock-up.

Whose rights have been violated in these cases? Who has been harmed? Is the enforcement of public morality so important that the state can justify dedicating resources to the surveillance, enforcement and prosecution of public displays of affection — displays that endanger no one?.

We are obsessed with the need for clear definitions of morality laws and guidelines for their enforcement, and with good reason. Every time these laws are enforced, the public is outraged. We are outraged not because couples have been caught having sex in parks — they haven't. We're outraged because we do not believe the state has any moral or legal right to intrude into the personal choices citizens make about their lives and how they conduct themselves.

These are just the stories that have hit the headlines. For a long time now, Malaysian Muslims have resigned themselves to living with the "indecent behaviour" and khalwat (close proximity) provisions of the Syariah Criminal Offences law.

Thousands have been charged with one "offence" or another, and in order to avoid public humiliation, they have quietly paid fines for actions any reasonable person would think acceptable for courting couples:
• Sitting together on a bench in a shopping complex with the man having his arm on the woman's back;
• Holding the woman's waist while walking in a shopping complex;
• Sitting closely and holding hands;
• Sitting on a bench with the woman leaning on the man's shoulder;
• Sitting in the dark under a tree in a park;
• Sitting on a bench in the dark by a lake.

Housing and Local Government Minister Datuk Seri Ong Ka Ting has been tasked with drafting guidelines on what constitutes indecent behaviour, which will be used by local government enforcement officers.

The minister might want to know that the lines have already been drawn for Malaysian Muslims, and that these lines are now being extended arbitrarily to compel obedience from other citizens.

The issue is not that the state has no right to make laws governing indecent behaviour. The issue is what constitutes indecent behaviour such that it should become a matter of public law. The fact that we are constantly outraged shows that we can't reach a consensus on what constitutes indecent behaviour in public. The differences of opinion aren't just between Muslims and citizens of other faiths, but differences among Muslims themselves.

Without public consensus, public morality laws in the end become unenforceable. Consider Iran, which has had 26 years of Islamic rule.

The fact that we are constantly outraged shows that we can't reach a consensus on what constitutes indecent behaviour in public.

Despite constant moral policing in the streets, offices and university campuses, many Iranians say that the state's morality laws have failed to create a more pious, moral and obedient ummah.

One university professor said his students today were far more promiscuous than they were during the time of the Shah. When simple pleasures in life (such as going out to a movie, a restaurant, having a walk in the park) are all forbidden if the couple is not married, then the natural alternative would be to get together behind closed doors and create one's own entertainment.

Wearing the hijab is compulsory in Iran, and yet there's more hair displayed on the streets of Teheran than Kuala Lumpur. Young women are defying the rule by pushing their hijab as far back as possible and letting their long hair fly out at the back.

When I was last there two years ago, the young women I met were discussing their latest act of defiance — to wear short winter coats above the knees, with a waist band that they could pull tight to emphasise their shape.

Twenty-six years of compulsory hijab law, designed to hide the evil temptations of a woman's hair and shape, has created not moral obedience, but defiance. And because the defiance has been so widespread, Teheran's moral police have largely given up enforcing the law.

Legal philosophy offers several approaches to enforcing morality. First is the "harm to others" test. A distinction must be made between sin which should remain a matter of private conscience and crime which causes harm to others.

Second is the "public morality" test. Only conduct that arouses widespread disapprobation — a mixture of intolerance, indignation,and disgust — needs to be suppressed by the law.

Third, a "critical morality" test. Since there is no unanimity on what constitutes immoral conduct in a modern society, any legal intervention in matters of private conscience must be based on a thorough empirical collection and investigation of all facts, and a critical analysis of the consequences.

Fourth, a "calculus of factors" test. This considers the danger posed by any activity to oneself and to others. It also considers the economy of factors needed for detection and pursuit, equality of treatment, the nature of the sanction, possible hardship caused by the sanction, and the possible side-effects.

In the end, any attempt to impose the morality of a single group on everyone else — and to translate that morality into criminal law that is then imposed, not on the believers who do not need it, but on those who reject it — is doomed to failure.

Without public consensus on what constitutes indecent behaviour that merits public law, the state might be better off spending its resources on educating its citizens more effectively to do the morally right thing for, the right reason.