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Malayan Law Journal Reports/2006/Volume 3/Ooi Kean Thong & Anor v Public Prosecutor - [2006] 3 MLJ
389 - 25 April 2006

[2006] 3 MLJ 389

Ooi Kean Thong & Anor v Public Prosecutor

FEDERAL COURT (PUTRAJAYA)
AHMAD FAIRUZ CHIEF JUSTICE, ALAUDDIN AND RICHARD MALANJUM FCJJ
CRIMINAL REFERENCE NO 06-2 OF 2005 (W)
25 April 2006

Administrative Law -- Subsidiary legislation -- By laws ultra vires -- Whether s 102 of the Local Government
Act 1976 wide enough to include the power to legislate that person found behaving in a disorderly manner in
any park commits an offence -- Whether there had been deprivation of applicants constitutional right of free-
dom – Malaysian perspective—Universalism—Cultural Relativism--Federal Constitution art 5(1)

Constitutional Law -- Fundamental liberties -- Equality before the law -- Whether there had been a breach of
Federal Constitution art 8(1)

Statutory Interpretation -- Constitution -- Fundamental liberties -- 'Right to livelihood' -- Whether disallowing

any person from behaving in disorderly manner is a deprivation of one's life or livelihood or reputation -- Fed-
eral Constitution art 5(1)

The applicants were accused of behaving in a disorderly manner, to wit, 'berpeluk dan bercumbu' ('hugging
and kissing') and thus alleged by DBKL to be an offence under s 8(1) of the Parks (Federal Territory) By-
laws 1981 ('the by-law'). The matter was referred to the Municipal Court for its disposal where the applicants
decided not to pay the fines imposed by DBKL. It is still pending there. With the consent of the public prose-
cutor, the applicants brought an issue before the High Court on a constitutional point and requested that the
question be referred to the Federal Court pursuant to s 84(1) of the Courts of Judicature Act 1964. The
issue is whether s 8(1) of Park (Federal Territory) 1981 is ultra vires s 102 of the Local Government Act
1976 and the effect is that the applicants have been deprived of their constitutional right of freedom and
whether the charge against them is contrary to art 5(1) of the Federal Constitution.

Held:

(1) With a written constitution, it should be noted that for a subsidiary legislation to be intra vires, it
must be within the ambit of the parent act as well as not inconsistent with any of the provisions
in the Federal Constitution. Thus, when substantive ultra vires as a ground is relied upon the
function of the court is basically threefold: 'first, to determine the meaning of the words used in
the Act of Parliament itself to describe the subordinate legislation
3 MLJ 389 at 390
which that authority is authorized to make, secondly, to determine the meaning of the subordi-
nate legislation itself and finally to decide whether the subordinate legislation complies with that
description.' -- per Lord Diplock in McEldowney v Forde [1969] 2 All ER 1039 (folld) followed
(see para 17).
(2) Based on the general nature of the first part of s 102 of the Local Government Act 1976
and in particular with the phrase 'as are necessary or desirable for the maintenance of the
health, safety and well-being of the inhabitants or for the good order and government of the lo-
cal authority area' and applying the connectivity test between the objects of the impugned by-
law and s 102, the 'connection contemplated is real and proximate, not far-fetched or problem-
atical'. In other words, the general nature of the section is wide enough to cover such matter as
 Page 2

dealt with in the impugned by-law (see para 24); Public Prosecutor v Pung Chen Choon [1994]
1 MLJ 566 followed.
(3) Paragraph (f) read with paragraph (t) of s 102 of the Local Government Act 1976 is wide
enough to include the power to legislate the impugned by-law. The Parks (Federal Territory)
By-laws 1981 quite obviously were enacted in relation to 'the establishment, regulation and
management of' a public park. Hence, the impugned by-law which makes it an offence for any
person to behave in a disorderly manner in any of the public parks of DBKL is no more than
another rule laid down by DBKL to regulate its public park (see para 28).
(4) In respect of art 5(1), the applicants were never arrested or detained. As such, there is no
question of deprivation of rights, life or personal liberty taking the meaning of that clause in a
narrower sense (see Aminah v Superintendent of Prison, Pengkalan Chepa, Kelantan [1968] 1
MLJ 92 (folld)). Even accepting the broad interpretation of the word 'life' in cl (1) of the said arti-
cle to mean 'right to livelihood' which includes deprivation of one's reputation (see Lembaga
Tatatertib Perkhidmatan Awam, Hospital Besar Pulau Pinang v Utra Badi a/l K Perumal [2000]
3 MLJ 281), the court cannot by any stretch of imagination conclude that by disallowing any
person from behaving in disorderly manner as the impugned by-law stipulates, is a deprivation
of one's life or livelihood or reputation. To do so would result in chaos to our society which is
anathema to the concept of a civilized community (see paras 41, 44).
(5) For now, the court is not considering specifically whether kissing or hugging in the public park
of DBKL is within the ambit of the impugned by-law. That is for the trial court to decide applying
matured consideration and thereafter any aggrieved party to the case has the right of appeal to
the higher courts of this country (see para 43).
(6) Reliance on art 8 has no merit as there is no assertion that the applicants were singled out by
DBKL in relation to the enforcement of the impugned by-law. There was also no allegation that
irrelevant consideration was taken into account when DBKL decided to issue the summons to
the applicants (see para 47).

Pemohon-pemohon dituduh berkelakuan dengan cara tidak sopan, 'berpeluk dan bercumbu' dan oleh itu
dikatakan oleh DBKL sebagai satu kesalahan di bawah s 8(1)
3 MLJ 389 at 391
Undang-Undang Kecil Taman (Wilayah Persekutuan) 1981 ('undang-undang kecil'). Perkara tersebut telah
dirujuk kepada Mahkamah Perbandaran untuk penyelesaiannya di mana pemohon-pemohon memutuskan
untuk tidak membayar denda yang dikenakan oleh DBKL. Dengan persetujuan pendakwa raya, pemohon-
pemohon telah mengemukakan satu persoalan di hadapan Mahkamah Tinggi berhubung perkara per-
lembagaan dan memohon agar persoalan itu dikemukakan ke Mahkamah Persekutuan menurut s 84(1)
Akta Kehakiman Mahkamah 1964. Persoalannya adalah sama ada s 8(1) undang-undang kecil ultra vires s
102 Akta Kerajaan Tempatan 1076 dan akibatnya adalah pemohon-pemohon terkilan akan hak per-
lembagaan berhubung kebebasan mereka dan sama ada pertuduhan terhadap mereka adalah bertentangan
dengan pekara 5(1) Perlembagaan Persekutuan.

Diputuskan:

(1) Berdasarkan perlembagaan bertulis, perlu ditekankan bahawa untuk suatu perundangan sub-
sidiari itu menjadi intra vires, ia hendaklah terangkum dalam skop akta utama dan juga konsis-
ten dengan mana-aman peruntukan dalam Perlembagaan Persekutuan. Oleh itu apabila ultra
vires yang substantif sebagai satu alasan digunakan fungsi mahkamah pada amnya terbahagi
kepada tiga: 'first, to determine the meaning of the words used in the Act of Parliament itself to
describe the subordinate legislation which that authority is authorized to make, secondly, to de-
termine the meaning of the subordinate legislation itself and finally to decide whether the subor-
dinate legislation complies with that description.' -- oleh Lord Diplock dalam McEldowney v
Forde [1969] 2 All ER 1039 diikut (lihat perenggan 17).
(2) Berdasarkan sifat am bahagian pertama s 102 Akta Kerajaan Tematan 1971 dan khususnya
ungkapan 'as are necessary or desirable for the maintenance of the health, safety and well-
being of the inhabitants or for the good order and government of the local authority area' dan
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dengan menggunakan ujian kesalinghubungan antara objek-objek undang-undang kecil yang

dipersoalkan dan s 102, 'connection contemplated is real and proximate, not far-fetched or
problematical'. Dalam erti kata lain, sifat am seksyen itu adalah luas untuk merangkum perkara
sedemikian sepertimana yang dikendalikan dalam undang-undang kecil yang dipersoalkan ter-
sebut (lihat perenggan 24); Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566 diikut.
(3) Perenggan (f) dibaca dengan perenggan (t) s 102 Akta Kerajaan Tempatan 1976 adalah luas
meliputi kuasa untuk menggubal undang-undang kecil yang dipersoalkan. Undang-Undang
Kecil Taman (Wilayah Persekutuan) 1981 dengan jelas digubal berkaitan dengan 'the estab-
lishment, regulation and management of' taman awam. Justeru itu, undang-undang kecil yang
dipersoalkan yang menjadikan ia satu kesalahan terhadap sesiapa yang berkelakuan dengan
cara tidak sopan dalam mana-mana taman awam DBKL adalah cuma satu lagi peraturan yang
dibentangkan oleh DBKL untuk mengawal taman awam (lihat perenggan 28).
(4) Berhubung perkara 5(1), pemohon-pemohon tidak ditangkap atau ditahan. Oleh itu, tiada per-
soalan tentang kehilangan hak-hak, kehidupan atau
3 MLJ 389 at 392
kebebasan peribadi dengan mengambil maksud fasal itu secara terhad (lihat Aminah v Super-
intendent of Prison, Pengkalan Chepa, Kelantan [1968] 1 MLJ 92). Jikapun dengan menerima
tafsiran luas perkataan 'life' dalam kl (1) artikel tersebut bermaksud 'right to livelihood' yang ter-
masuklah kehilangan reputasi seseorang (lihat Lembaga Tatatertib Perkhidmatan Awam, Hos-
pital Besar Pulau Pinang v Utra Badi a/l K Perumal [2000] 3 MLJ 281 (folld)), mahkamah tidak
boleh memutuskan bahawa dengan tidak membenarkan sesiapa berkelakuan dengan cara
tidak sopan seperti undang-undang yang dipersoalkan tetapkan, adalah suatu yang melenyap-
kan kehidupan atau punca pendapatan atau reputasi seseorang itu. Dengan berbuat demikian
akan mengakibatkan keadaan kelam kabut dalam masyarakat ini yang dikutuk dalam konsep
masyarakat yang bertamadun (lihat perenggan 41, 44).
(5) Buat masa ini, mahkamah tidak akan menimbangkan dengan khusus sama ada bercium atau
berpeluk di taman awam DBKL terangkum dalam undang-undang kecil yang dipersoalkan itu.
Ia adalah untuk mahkamah perbicaraan untuk membuat keputusan dengan menggunakan per-
timbangan yang matang dan seterusnya mana-aman pihak yang terkilan dalam kes itu mempu-
nyai hak untuk merayu ke mahkamah tertinggi negara ini (lihat perenggan 43).
(6) Pergantungan pada perkara 8 tiada merit kerana tiada penegasan bahawa pemohon-pemohon
dipilih oleh DBKL berkaitan penguatkuasaan undang-undang kecil yang dipersoalkan. Tiada
juga pengataan bahawa pertimbangan tidak relevan telah diambilkira apabila DBKL memutus-
kan untuk mengeluarkan saman kepada pemohon-pemohon tersebut (lihat perenggan 47).

Notes
For cases on by laws ultra vires, see 1 Mallal's Digest (4th Ed, 2005 Reissue) paras 890-892.
For cases on equality before the law, see 3(1) Mallal's Digest (4th Ed, 2003 Reissue) paras 1768-1784.
For cases on constitution generally, see 11 Mallal's Digest (4th Ed, 2002 Reissue) paras 1705-1717.

Cases referred to
Aminah v Superintendent of Prison, Pengkalan Chepa, Kelantan [1968] 1 MLJ 92
Comptroller General of Inland Revenue v NP [1973] 1 MLJ 165 (refd)
Kruse v Johnson [1898] 2 QB 91 (refd)
Lembaga Tatatertib Perkhidmatan Awam, Hospital Besar Pulau Pinang v Utra Badi a/l K Perumal [2000] 3
MLJ 281
McEldowney v Forde [1969] 2 All E R 1039
Nadarajah v PP [2000] 4 MLJ 373 (refd)
3 MLJ 389 at 39
Legislation referred to
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Courts of Judicature Act 1964 s 84(1)

Federal Constitution arts 5(1), 8
Interpretations Acts 1948 and 1967 s 26
Local Government Act 1976 ss 63, 101, 102, 102(f)
Palm Oil (Research Cess) Order 1979
Palm Oil Research and Development Act 1979 ss 2, 14 (1)
Parks (Federal Territory) By-Laws 1981 ss 8(1), 10

Selvam Shanmugam (Selvam Shanmugam & Partners) for the applicant.

Manoj Kurup (Deputy Public Prosecutor, Attorney Gweneral's Chambers) for the respondent.

Richard Malanjum FCJ (delivering judgment of the court):

INTRODUCTION
[1] The matter before us is a reference by the High Court Kuala Lumpur (Criminal Division) pursuant to s
84(1) of the Courts of Judicature Act 1964. The question posed reads:

Sama ada s 8(1) Undang-Undang Kecil Taman (Wilayah Persekutuan) 1981 adalah ultra vires s 102 Akta Kerajaan
Tempatan 1976 dan kesannya telah melucut kebebasan diri kedua-dua Pemohon disisi Perlembagaan, dan sama ada
tuduhan terhadap pemohon-pemohon adalah bertentangan dengan perkara 5(1) Perlembagaan.

[2] On 3 April 2006, we gave our oral decision. We answered the question posed in the negative. Conse-
quently, we directed that the matter should be remitted back to the High Court for further action.
[3] At the outset and before going any further, it is appropriate for us to highlight one pertinent point. In order
to avoid any confusion as to the scope and extent of our decision on the question posed, we wish to state
that the issue before us is one of pure law, namely, whether a subsidiary legislation is ultra vires the enabling
provision of the parent act. We were not expected to make and we did not make (and we emphasize here
that we did not make) any finding of fact on the merit or demerit of the allegations contained in the summons
served on the applicants. To have done so, even by way of remark or conjecture, would have been highly
prejudicial and improper as that would tantamount to usurping the function of the trial court which
3 MLJ 389 at 394
will ultimately have to deal with the matter. Indeed for now as the case is still pending it would be clearly sub-
judice to embark on any further discussion as to how the case should be determined.

THE SUMMONS
[4] For the purpose of this judgment and to better understand the circumstances that led the reference to this
court, it is apposite to reproduce the allegations contained in the summons served on the applicants by De-
wan Bandar Kuala Lumpur ('DBKL').
[5] The summons states:

Bahawasanya kamu pada 2 Ogos 2003 lebih kurang jam 5.20 petang di bawah rimbunan pokok-pokok di Taman Kuala
Lumpur City Centre, Kuala Lumpur, Wilayah Persekutuan telah didapati berkelakuan tidak sopan iaitu berpeluk dan
bercumbu dengan seorang lelaki Ooi Kean Thong (No KP: 811119-07-5149) dan dengan yang demikian kamu telah
melakukan satu kesalahan di bawah s 8(1) Undang-Undang Kecil Taman (Wilayah Persekutuan) 1981 yang boleh
dihukum di bawah s 10 Undang-Undang yang sama.

And
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Bahawasanya kamu pada 2 Ogos 2003 lebih kurang jam 5.20 petang di bawah rimbunan pokok-pokok di Taman Kuala
Lumpur City Centre, Kuala Lumpur, Wilayah Persekutuan telah didapati berkelakuan tidak sopan iaitu berpeluk dan
bercumbu dengan seorang wanita Siow Ah Wei (No KP: 830323-05-5392) dan dengan yang demikian kamu telah
melakukan satu kesalahan di bawah s 8(1) Undang-Undang Kecil Taman (Wilayah Persekutuan) 1981 yang boleh
dihukum di bawah s 10 Undang-Undang yang sama.

[6] From our reading of the allegations in the summons it is clear that the applicants were accused of behav-
ing in a disorderly manner, to wit, 'berpeluk dan bercumbu' ('hugging and kissing') and thus alleged by DBKL
to be an offence under s 8(1) of the Parks (Federal Territory) By-laws 1981 ('the by-law').
3 MLJ 389 at 395
[7] Initially, the matter was compounded by DBKL and the applicants were supposed to pay the fines im-
posed. Subsequently they had a change of mind and decided not to pay the fines as they were strongly of
the view that they had committed no wrong in law.
[8] The matter was therefore referred to the Municipal Court for its disposal. It is still pending there. With the
consent of the public prosecutor, the applicants brought an issue before the High Court on a constitutional
point and requested that the question be referred to this court.

THE CONTENTIONS
[9] Before us, learned counsel for the applicants submitted several grounds some of which gave us some
difficulties in comprehending as they were not formulated in the way we expected from counsel appearing
before the apex court of this country. The burden is made heavier in this case since the onus is on the appli-
cants to show that the by-law is ultra vires (see McEldowney v Forde [1969] 2 All E R 1039). Moreover the
actual subject matter in this case, although premature for consideration before us, could attract substantial
public interest. Hence it would have been quite reasonable for learned counsel to seek for assistance from
such body as the Bar Council so that at least its representative could have been present to hear what tran-
spired before us since it has been also the practice of the Bar Council to issue public statements pertaining
to decisions of the courts involving individual rights.
[10] The gist of the points raised by learned counsel for applicants were as follows:

(i) that the powers given to local authorities which include DBKL under s 102 of the Local
Government Act 1976 ('the Act') and in particular paras (a)-(u) therein do not include the
power to make by-law relating to 'indecent' behavior. Learned counsel strenuously argued that
the words 'indecent act' do not appear in any of the paragraphs of the section and in conse-
quence thereof the applicants' constitutional rights have therefore been infringed contrary to
arts 5(1) and 8 of the Federal Constitution ('the Constitution') since they are denied of their
freedom to live in the way they want and DBKL is unfair to them. In fact learned counsel, when
asked by the court which limb of art 5 of the Constitution he was relying upon, responded that it
was the first limb that is the deprivation of life; and
(ii) that DBKL in legislating the by-law had glaringly infringed art 5(1) of the Constitution as it failed
to take into consideration that Malaysia is a multiracial country thus hugging and kissing in pub-
lic places should not be deemed wrong and as acts of indecency. Instead, learned counsel
suggested that such expression of love should be encouraged.
[11] The learned deputy public prosecutor ('DPP') in his exhaustive written submissions contended that s
102 of the Act amply supports the validity of the by-law. He also referred to several sections in the Act such
as ss 63, 101 and 102 of the Act and argued that these provisions lent support to the validity of the by-law.
3 MLJ 389 at 396
[12] The learned DPP further submitted that for specific purpose or for special interest a local authority may
also enact by-laws pursuant to s 102(f) of the Act which reads:

to provide for the establishment, regulation and management of any public park, walk, recreation and pleasure ground,
garden, swimming pool, lake stadium, historical building or site, public library, art gallery, museum, public theatre, res-
taurant, hall, assembly room, botanical or zoological garden or aquarium;
 Page 6

[13] Hence, it was argued that under s 102(f) it was therefore within the power of DBKL to regulate the use of
any of its own public park.
[14] In respect of art 5 of the Constitution, the learned DPP reiterated that the applicants were never arrested
or detained. As such, he submitted that the allegations in the summons for behaving in a disorderly manner
in the public park of DBKL should not be interpreted as an infringement of the applicants' personal liberty un-
der the Constitution.

WHETHER THE IMPUGNED BY-LAW IS ULTRA VIRES s 102 OF THE ACT

[15] On the first point submitted by learned counsel for the applicants, it is very much premised on the princi-
ple of substantive ultra vires with constitutional implication upon invalidation while the other is directly on a
constitutionality issue.
[16] In the area of public law and in particular administrative law, there are judicial pronouncements, local
and foreign, which provide for the grounds to rely upon in relation to judicial control of subsidiary legislation.
One such ground is whether the parent act or the subsidiary legislation is constitutional or in conformity with
the provisions of the Constitution. If it infringes the Constitution itself or any constitutional provision then it is
struck down for that reason. But it has to be borne in mind that the courts have been consistently applying
the presumption of constitutionality in favour of impugned statutory provision and to succeed the onus is
therefore on the party asserting otherwise to show (see Public Prosecutor v Pung Chen Choon [1994] 1 MLJ
566; Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128).
Malaysian perspective
This article will address the issue of whether the Malaysian government1 could argue that, as far as these
instruments are concerned, (ILO 169, ICCPR, ICESCR, the Indigenous Peoples' Declaration) there is noth-
ing to compel the state to comply with the minimum international standards on human rights in general and
the indigenous peoples' rights. This article will further discuss the Malaysian government's perspective on the
concept ofhuman rights. With regard to sovereignty, this article will also analyse the legal standing of the Ma-
laysian government's view, that the issue ofthe protection ofindigenous peoples' rights, or any other human
rights in general, is a domestic issue within its exclusive controL This article will demonstrate how Malaysia
due to its existing human rights perspective, has refused to assume any legal obligations, under either trea-
ties or customary international law, to observe international standards.
The Malaysian government, especially under the leadership of Dr Mahathir,I 4 viewed the conflict, between
Western and Asian values, under international law, as a conflict between universal human rights and domes-
tic sovereignty. IS This conflict often arose, when international legal instruments sought to impose human
rights norms on local cultures. To the government, human rights are a new form of colonialism with the po-
tential to destroy the inherent diversity of cultures and move global society towards cultural homogenization.
'6 While it remains difficult to arrive at consensus on the substantive contents of Asian values, Malaysian per-
spective on human rights (the contents and approach) is claimed to be similar to that of many other Asian
countries,17 reflective ofAsian values '8 that are culturally acceptable to Malaysia.
The main critique of the claim of universality is that universal human rights are an insidious method by domi-
nant Western powers, to gain indirect Control and influence over the politics and economies of Asian
states.24 Dr Mahathir regarded Western powers as engaging in what he called, "economic colonialism"25,
which, according to Dr Mahathir, is much more insidious than other forms of colonialism, and which have left
many developing countries even more dependent on the western powers than when they were colonies.26
Dr Mahathir drew this analogy when he said that conditions placed upon International Monetary Fund
bailouts to developing countries, during the East Asian currency crisis, were equivalent to economic colonial-
ismY In another specific context,28 against USA allegations that Malaysia's political system is anti-demo-
cratic and that the country does not respect universal human rights, Dr Mahathir replied that a reversion to
colonization was the USA's motivation, as a means to weaken, manipulate and control the country.29
On the approach to human rights, the Malaysian government has also argued that international standards
ofhuman rights are not applicable to Malaysia because of two main factors.39 Firstly, there is an over-em-
 Page 7

phasis on the rights of the individual as opposed to the rights of the community. Excessive individual free-
dom, according to the Malaysian government, leads to a decay in moral values and weakens nations, lead-
ing to the rise of new fonns ofracism and xenophobia, manifested in violence.4o Secondly, international
standards of human rights, for example the UDHR41, also give greater priority to civil and political human
rights than economic rights, and are thus alien to Malaysian traditions and cultures.42 Anti-colonialism, the
struggle for national independence and nationbuilding, has dominated Malaysian human rights perspective.
Social, cultural, and developmental rights have all been given greater significance by Malaysia.43 To a cer-
tain extent, civil and political rights are luxuries in a nation striving to develop its economy and national iden-
tity and stability.44 Although Malaysia regards all human rights as indivisible and independent, it has
stressed that the right to development is a fundamental and inalienable right and realization of civil and politi-
cal rights is impossible without enjoyment of economic, social and cultural rights.45
Despite the government's perspective on human rights, there is a demand46 for the Malaysian government
to observe international standards in promoting human rights. With regards to the human rights and funda-
mental freedoms of indigenous peoples, Malaysian delegations at the Seventh Meeting of the Conference of
Parties to the Biodiversity Convention47 made a strong stand against the demand for the government's ob-
servance of its international obligations to indigenous peoples. The issue was in respect of Article 8(j) of the
Convention.48 The Malaysian delegations were adamant that the terms, "to respect, preserve and maintain
knowledge, innovation, practices of indigenous and local communities" in Article 8(j) be subject to national
laws, rather than change the text to make the clause subject to international laws. They argued that because
there were no international laws in existence on the matter of indigenous knowledge, it would be useless to
obligate the government to them.49 This is also a matter of state sovereignty: the state has a right to choose
what it wishes to be bound by within the territories over which it has exclusive contro1.50 They further ar-
gued that international law could be subject to the North's (West's) biased rules such as those under the
World Trade Organization which would ultimately be detrimental to indigenous peoples.51
REJECTION OF UNIVERSALISM AND ADOPTION OF ASIAN VALUES
In Malaysia, the Federal Constitution does not refer to the words "human rights", but guarantees "fundamen-
tal liberties" as enshrined in Part 11. 8 The essence and the concept of human rights can be said to be incor-
porated in the Federal Constitution by the Proclamation of Independence declared by the first Prime Minister,
Tunku Abdul Rahman on Independence Day.9 It says, "". the nation shall be founded upon the principle of
liberty and justice and ever seeking the welfare and happiness of the people".".10 However, the context of
the human rights guarantees in Malaysia has two main features. It is the rejection of universal human rights II
because of their Western values and the adoption of Asian values,12 which appear to have their origins in
the Confucian tradition.13

Asian values, economic development and authoritarian government

The concept of Asian values and its linkage to authoritarian government as a condition for economic growth
in Asia have made the expression suspicious for someY In Malaysia, the requirement of political stability in
order to achieve successful economic growth is often cited in order to legitimize government action that in-
cludes the invoking and use of emergency laws like the Internal Security Act 1960.53 Under this legislation,
preventive detention is legitimized in addition to the existing restriction on freedom of expression 54 and as-
sembly. 55 These safeguards are required in order for the nation to maintain public order and political stabil-
ity. Thus, Malaysia emphasizes stability and enforced social cohesion as an important aspect of the funda-
mental core ofAsian values.56 This position is similar to what Ghai describes as the Asian approach on hu-
man rights as inclusive of strong authoritarian government, with less emphasis on individual rights, and more
on the rights of the community. 57

There is however little evidence that authoritarian governance and the suppression of political and civil rights
are beneficial in encouraging economic development.5R The significance of economic development as a le-
gitimate concern is now being used as a justification to deny some human rights.59 In most cases, develop-
ment policies become a "source" ofhuman rights violations when indigenous peoples are forced to leave their
land for development projects, or deprived of their means oflivelihood.60
 Page 8

Further, the government's approach to human rights in order to achieve economic development does not
necessarily guarantee an equitable distribution of the benefits of such growth. The Malaysian government,
and other Asian governments, may point to the right to development61 which is also an inalienable human
right held by all citizens, however, how the right to development of other people within the state needs to be
balanced against the rights of the Orang Asli at least needs to be acknowledged.62 In general, the standards
of education and health have improved in Malaysia over the last few decades, together with an overall reduc-
tion in income inequality and an increase in per capita income.63 However, in the context of indigenous peo-
ples, evidence shows that unequal income distribution, especially between the Malay indigenous and non-
Malay indigenous have made the Orang Asli in Peninsular Malaysia the most marginalized peoples in Malay-
sia.64 Sir Han Singer has developed a "redistribution of the fruits of growth" theory. Singer is of the view that
redistributing growth would mean adding to the incomes and assets of the poor without having to take away
from anyone else. That is, the income ofthe poorest must increase more rapidly than it would by growth and
trickle-down alone.65 However, successful application of this theory in the context of the Orang AsH is yet to
be seen. The true objective behind the Asian governments' reason for justifying the circumvention of human
rights, suggesting that it is primarily to protect and enrich only small political-economic elites through state
capitalism.71 These political-economic elites who normally use state-owned enterprise as their "vehicles" are
far more likely to be engaged in commercial extraction than in carrying out the public duties entrusted to
them. Thus, there is similarity between Asian values as discussed earlier and the practice of state capitalism
through the argument that the state always has a desire to maintain its control and sovereignty over national
resources. Arguably, in some ways these represent Asian values of non-interference as opposed to Asian
values which seem to have considerable respect for human rights. In the light of this, it can be argued that
the economic argument for ignoring human rights is outdated and fatuous and that the cultural relativity argu-
ment is merely a convenient cover for the government's self-seeking aspirations.72 The power relationship
between the state and the people in majority Asian countries is overwhelmingly in favor of the state while the
state is avoiding confronting the responsibility of widespread human rights abuses.73

The argument about domestic sovereignty by the Malaysian government and other Asian governments is in
fact founded on international law principles. The UN Charter74 set forth the principle of state sovereignty and
equality among member states and established the domestic sovereignty of states over their internal affairs
and the principle of non-interference in internal affairs.75 In 1948, the UN General Assembly adopted the
UDHR based on the recognition of the inherent dignity and ofthe equal and inalienable rights ofall members
ofthe human family as the foundation of freedom, justice, and peace in the world.76 These rights, while de-
pendent for protection on co-operative enforcement by nation states, were to be recognized with no distinc-
tion to be made over which nation state a person be\ongs.77 The two goals, sovereign absolutism (under the
UN Charter), and individually held and universally recognized human rights (under the UDHR) have in prac-
tice often been difficult to reconcile. In 1960, the UN adopted the Declaration on the Granting of Independ-
ence to Colonial Countries and Peoples78 where sovereign absolutism and respect for human rights co-ex-
isted. The Declaration provides:

All states shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal
Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the
internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.19

Arguably, human rights are universal conceptually because the rights of humans do not depend on an indi-
vidual's nationality and so the protection of these rights cannot be limited to the jurisdiction of anyone state.
Thus, the concept of universal human rights is inherently non-Western and consequently accords no privi-
leges to Westerners.so While the concepts of human rights are universal, the application of these rights
within each society and culture will vary. This position is acknowledged in the Vienna DeclarationSI where
the significance of different cultural backgrounds is to be borne in mind, for instance, by the international hu-
man rights supervisory bodies when they apply the relevant treaty.S2 However, caution is needed so that too
much weight is not given to the arguments of states seeking to assert their own authoritarian rule and to
avoid their obligations83 to protect human rights.84 Ghai explains: ... a unifonn Asian perspective on human
 Page 9

rights is that it is the perspective of a particular group, that of the ruling alites ... What unites these elites is
their notion of governance and the expediency of their rule ... political systems they represent are not open or
democratic, and their piblicly expressed views on human rights are an emanation of these systems, of the
need to justify authoritarianism and occasional repression ... The pervasive use of draconian legislation like
administrative detention, disestablishment of societies, press cencorship, and sedition, belies claims to re-
spect alternative views, promote a dialogue, and seek consensus ... "5

Cassese argues that the adoption of authoritarian structures in domestic political systems, leads developing
countries to look upon law in a manner different from that currently viewed in the West.86 Law is not primar-
ily a contractual undertaking endowed with binding force; rather it is a means of exercising social control that
must give way to power whenever a superior state interest makes it imperative to disregard legal obligations.
Law is one of the instruments for exercising authority.87 To developing countries, international law is rele-
vant to the extent that it protects governments from undue influence by other states, and is important in
bringing about social change, with more equitable conditions, stimulating economic development.88 State
sovereignty thus becomes their strategy in international relations, to assert their authoritarian rule, and to
avoid developing countries' obligations to protect human rights.

Despite of the earlier discussions on how Asian values are distinguishable from the Western values (non-
Asian values), at least one similarity could be identified between the two in the context of indigenous peoples'
rights towards lands and natural resources. This is with regard to states' attitudes towards the Indigenous
Peoples' Declaration.89 One of the reasons90 for rejection of the Indigenous Peoples' Declaration by the
USA, Canada, New Zealand, and Australia was that the Indigenous Peoples' Declaration expanded the free,
prior and informed consent requirement too broadly. They were concerned that the broad scope may include
requirements for the state to consult with indigenous peoples about every aspect oflaw that might affect them
and could be tantamount to giving the indigenous peoples' group, "veto power against any legitimate deci-
sions of a democratic and representative government."91 The basis of the claims of these states is the right
of their elected legislative bodies to make the final decision over the use ofresources within the states. Thus,
there is a strong similarity between Western values and the Asian values, at least in this context when all
these states uphold domestic sovereignty over universal human rights.

Justifying adoption of asian values

At the same time, the concept of Asian values in Malaysia ought not to be dismissed simply due to consider-
ations of its tendency to be misused by the state. This is because there are legitimate differences in values at
stake,92 for example in Islam, that are not merely ways of thinking about things, but are ways ofliving.93 The
right to religion for Muslims best illustrates this argument. Article 18 of the UDHR provides that everyone
should have the right to freedom of thought, conscience and religion, including the right to change religion.94
In Malaysia, the right to religion is provided in Article 11(1) of the Federal Constitution. Having reading Article
11, it appears that the notion of"apostasy" is not clearly provided for in the provisions.95 Thus, to include the
right to apostatise, as part of the right to religion for a Muslim under Article 11 is a matter of interpretation
ofArticle II and whether Article 18 UDHR can be used to interpret Article 11 to provide for apostasy.

On this issue, the Malaysian court has pronounced that apostasy is not a profession of religion and thus
should not be considered as part of the right to profess a religion under Article 11(1) and in pronouncing
thus, the High Court in the case ofDaud bin Mama/96 did not refer to the UDHR for guidance.97 Even if the
High Court in this case were invited to apply Article 18 of the UDHR, 1 would reckon that it would be turned
down because of the contradictions involved towards the teaching of Islam.98This has been demonstrated
by Judge
Faiza Tamby Chick in the case ofUna Joy.99 In this case the Court has heard the argument that Article 18 UDHR can be used to inter-
pret Article II to provide for apostasy but has rejected such argument. IOO On this issue, Donnelly takes the view that prohibition of
apostasy has a deeply rooted doctrinal basis and therefore should be approached with a certain prima facie tolerance as it is a relatively
isolated deviation from the international norm. 101 The Malaysian court's attitude towards the UDHR can also be seen in the case of
Merdeka Universiti o2 and Mohamad Ezam. IOJ
 Page 10

Many Muslim countries, in fact, do not favor the UDHRI04 and, on 5 August 1990,45 foreign ministers ofthe
Organization ofthe Islamic Conference adopted the Cairo Declaration on Human Rights in Islam,05 to serve
as a guide for the Organization's member states in matters of human rights. All rights and freedoms stipu-
lated in the Declaration are subject to the rulings of Islamic Syariah as the sole source of the Declaration.l(J6
Cairo Declaration upholds freedom of religion when it provides "it is prohibited to exercise any form of com-
pulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to athe-
ism"107. The rights to marriage are subject to religious lawlO8 and women are guaranteed equality with re-
spect to dignity, and has her own rights to enjoy as well as duties to perform, and has her own civil entity and
financial independence, and the right to retain her name and lineage. 1M

Conclusion
Adoption of the rights listed under the international human rights instrument depends significantly upon the
legislative implementation in the country. The Malaysian Federal Constitution does not impose on the na-
tional court cognisance of the international human rights laws in any of its provision. International law on hu-
man rights is not part of the law of the country and the Malaysian judiciary cannot assume parliament's
power to make law. When Malaysia applies a dualist approach, there may be a gap between international
standards and domestic legislation. International treaties, even when ratified, do not always and automati-
cally become part of domestic law and are sometimes ignored by public officials, and are inapplicable in the
courts.

Thus, individual rights and freedoms of the peoples in Malaysia will be protected or violated because of what
exists or what is lacking within the state and not because ofwhat is said or done within international law and
international institutions. An international regime on the nature of human rights can offer no more than guid-
ing principles concerning the protection of indigenous peoples. The details of these principles and their spe-
cific application in domestic settings need to be undertaken through the process of negotiation between the
society and state. The ability of a state to effectively discharge its responsibilities in the area of human rights
depends predominantly on the strength of its domestic institutions and its perspective on human rights.

This article has demonstrated the Malaysian government's perspective on human rights and international
law. The Malaysian human rights perspective involves the rejection of universal human rights as a Western
concept, and the adoption ofAsian values. The Malaysian government has also argued that international
standards of human rights are not applicable to Malaysia because of the over-emphasis on the rights of the
individual as opposed to the rights of the community. International standards ofhuman rights, for example the
UDHR, also give greater priority to civil and political human rights, and are thus alien to Malaysian traditions
and cultures. This article has also demonstrated that Malaysia relies heavily on the state's sovereign right in
dealing with demands for its government to observe international standards in promoting human rights in
general and those of the indigenous peoples, in our context.

[17] Another and more commonly relied upon is whether the subsidiary legislation is ultra vires the parent act
or briefly put, whether it is beyond the scope or ambit of the parent act. This is described as substantive ultra
vires. But we hasten to add that in Malaysia with a written constitution it should be noted that for a subsidiary
legislation to be intra vires it must be within the ambit of the parent act as well as not inconsistent with any of
the provisions in the Constitution. Thus, when substantive ultra vires as a ground is relied upon the function
of the court is basically threefold: 'first, to determine the meaning of the words used in the Act of Parliament
itself to describe the subordinate legislation which that authority is authorized to make, secondly, to deter-
mine the meaning of the subordinate legislation itself and finally to decide whether the subordinate legislation
complies with that description.' per Lord Diplock in McEldowney's case.
3 MLJ 389 at 397
[18] There are of course other grounds available for judicial control of subsidiary legislation such as the rule
against retrospectivity, non-exclusion of judicial intervention, non-imposition of charge or financial levy
through administrative regulation, unreasonableness, bad faith and procedural ultra vires. However, the re-
sultant effects of these do not necessarily end up in the invalidation of a subsidiary legislation. Rather, they
are inclined to limit the applicability of such subsidiary legislation. Anyway, as the grounds relied upon in the
 Page 11

present case are limited to substantive ultra vires and on constitutionality these other grounds are therefore
not particularly relevant.
[19] It is also interesting to note the skepticism in the success rate of any challenge to a subsidiary legisla-
tion. It is pegged very much to the attitude of the courts. One academician puts the judicial attitude as being
'indulgent, rather than a critical, attitude, towards delegated legislation, and it is only rarely that a court will
hold a regulation ultra vires On the whole, one can say that judicial review of delegated legislation is more of
a symbolic value rather than of much practical value.' (see Administrative law of Malaysia and Singapore --
MP Jain (3rd Ed) at pp 90-91; Kruse- v Johnson [1898] 2 QB 91). This view of course was premised on the
outlook of the courts in Britain in particular with the obiter of Lord Guest in McEldowney's case at p 1060
when he disagreed with the contention that it was for the prosecution to show that the regulation was intra
vires of the parent act. Instead, the converse should be the true position and he concluded by saying this:

In the absence of any such challenges of the validity of regulations made in virtue of statutory power, it must be plain
that the task of a subject who endeavours to challenge the validity of such a regulation is a heavy one

[20] Reverting to the present case on the challenge against the by-law premised on the substantive ultra
vires, the critical question is whether the impugned by-law is covered by or within the scope of s 102.
[21] Section 102 reads:

General power to make by-laws In addition to the powers of making by-laws expressly or impliedly conferred upon it by
any other provisions of this Act every local authority may from time to time make, amend and revoke by-laws in respect
of all such matters as are necessary or desirable for the maintenance of the health, safety and well-being of the inhabit-
ants or for the good order and government of the local authority area and in particular in respect of all or any of the
following purposes --

The impugned by-law 8(1) reads:

Mana-mana orang yang didapati berkelakuan dengan cara tidak sopan dalam sesuatu taman adalah melakukan suatu
kesalahan.

[22] In submitting before us, the learned counsel for the applicants said (verbatim):

In the absence of specific words as to the by-laws on the indecent act, non-acceptable human conducts, indiscipline, ill-
mannerism and to prohibit act such as kissing, hugging and immoral act was missing in s 102 from paragraph (a) to (u),
we submit that s 8(1) Undang-Undang Kecil Taman (Wilayah Persekutuan) 1981 was ultra vires s 102 paragraph (a)
to (u) of the Local Government Act 1976. The Datuk Bandar had infringed fundamental liberty against the applicants
under art 5(1) of the Federal Constitution.

[23] With respect, we are of the view that learned counsel for the Applicants took a simplistic approach and
failed to appreciate the general aspect of s 102. Indeed there are two parts in that section. The first part is
general in nature while the second is on specific areas. But learned counsel only focused on the second limb
in his submission. Obviously, it did not occur to him the existence of s 26 of the Interpretations Acts 1948
and 1967 which provides that 'where power is conferred to make subsidiary legislation for a general pur-
pose and also for any particular purposes incidental thereto, the enumeration of the particular purposes shall
not derogate from the generality of the power conferred with reference to the general purpose.
[24] Bearing therefore in mind the threefold function of this court in determining an issue as in the present
case, we are of the view that based on the general nature of the first part of the section and in particular with
the phrase 'as are necessary or desirable for the maintenance of the health, safety and well-being of the in-
habitants or for the good order and government of the local authority area' and applying the connectivity test
between the objects of the impugned by-law and s 102 the 'connection contemplated is real and proximate,
 Page 12

not far-fetched or problematical' (see Public Prosecutor v Pung Chen Choon. In other words, the general na-
ture of the section is wide enough to cover such matter as dealt with in the impugned by-law.
[25] Indeed what amounts to 'behaving in a disorderly manner' depends on the prevailing circumstances,
place and/or period of time. It is a question of fact to be determined by a trier of facts. But just as examples, if
some of the users of a public park of a local authority begin to sing loudly in the middle of the night so as to
disrupt the sleep of the inhabitants or they begin to remove their clothes in front of young children of the in-
habitants or they begin to play a game that may expose the local inhabitants to danger without any regards
to their safety, surely these activities
3 MLJ 389 at 400
are not in consonant with the obligation of a local authority to ensure 'the maintenance of the health, safety
and well-being of the inhabitants or for the good order and government of the local authority area'. Thus, in
our view it is within the power of a local authority to legislate a by-law in order to cater for such situations.
Surely, it is for the health, safety and well-being of the inhabitants of a local authority to disallow users of its
public park behaving in a disorderly manner.
[26] We also note that in fact the critical words used in the impugned by-law are 'berkelakuan dengan cara
tidak sopan' or in the English translation 'behaving in a disorderly manner' and not in such explicit terms as
submitted by learned counsel. The by-law does not specifically state that 'kissing and hugging' in a public
park is an offence per se. Anyway, whether such acts are within the ambit of the phrase 'behaving in a disor-
derly manner' is not an issue before us.
[27] From the submission of learned counsel, our impression is that he assumes that the allegations in the
summons served on the applicants is a reflection of the meaning and purpose of the impugned by-law when
in fact they are only allegations levelled by DBKL which in law is still required to prove them not only as facts
but that those proved facts are within the meaning of and satisfy the ingredients of the by-law. It is also trite
law that since the matter is criminal in nature to secure a conviction the burden of proof upon DBKL is be-
yond reasonable doubt.
[28] We are also in agreement with the learned DPP that para (f) read with para (t) of s 102 is wide enough
to include the power to legislate the impugned by-law. From our overall reading of the provisions in the
Parks (Federal Territory) By-laws 1981, it is quite obvious that they are enacted in relation to 'the establish-
ment, regulation and management of' a public park. For instance, under by-law 3, it is an offence to commit
any of the acts stated therein such as in item (f) 'climbs any wall, fence, structure or tree' or in item (v) 'uses
any indecent or offensive language or behaves in an indecent or offensive manner'. Hence, the impugned
by-law which makes it an offence for any person to behave in a disorderly manner in any of the public parks
of DBKL is no more than another rule laid down by DBKL to regulate its public park.
[29] Learned counsel for the applicants placed much reliance on the decision of this court inPalm Oil Re-
search and Development Board Malaysia & Anor v Premium Vegetable Oils Sdn Bhd and another appeal
[2005] 3 MLJ 97 to buttress his argument. But with respect, the facts and the specific nature of the provision
of the legislation considered in that case set it apart from the present case. The issue before the court was
whether the Palm Oil (Research Cess) Order 1979 promulgated by the Minister was ultra vires the parent
act namely, the Palm Oil Research and Development Act 1979 in relation to the levying and collection of
cess by the appellant from palm oil millers in respect of both crude palm oil ('CPO') and crude palm kernel oil
('CPKO') from the kernel of oil palm fruits. Attention of the court was focused on ss 2 and 14(1) of the
1979 Act juxta-positioned to the relevant provisions in the 1979 Order.
3 MLJ 389 at 401
[30] Section 2 of the 1979 Act reads:

In this Act, unless the context otherwise requires:

'Board' means the Malaysian Palm Oil Research & Development Board established under s 3;
'Minister' means the Minister for the time being charged with the responsibility for the oil palm industry;
'palm oil' means oil, whether in crude or further processed form, extracted from oil palm fruits and
seeds.
 Page 13

[31] Section 14(1) states:

The Minister may, after consultation with the Board and with the Minister of Finance, make orders for the imposition,
variation or cancellation of a research cess on palm oil; and the orders may specify the nature, the amount and rate
and the manner of collection of the cess.

[32] Meanwhile the relevant parts of the 1979 Order stipulates:

(2) In this Order 'palm oil miller' means a person who carries on the business of extracting oil from oil palm fruits and/or
seeds.
(3) Every palm oil miller shall pay a cess of four ringgit for every metric ton or part of a metric ton of crude palm oil pro-
duced by him

[33] The critical questions that confronted the court in that case was whether the imposition of cess on CPO
and CPKO consistent with s 14(1). For CPO, it was in the affirmative but negative for CPKO. The basic rea-
soning of the court is that the 1979 Act and the 1979 Order only made reference to seed and not kernel hav-
ing accepted that seed and kernel could not be one and the same. Hence, if kernel was intended and not the
whole seed, then the 1979 Act and the orders made thereunder would have contained clear words to that
effect. 'In my view, the distinction between the seed and the kernel has to be expressed in clear terms for the
purpose of imposing cess on CPKO. In the absence of such clear words, it would be unfair and inappropriate
to construe the relevant provisions as having the effect of imposing cess on CPKO. In the circumstances, I
find sufficient merit in respondent counsel's contention that levying cess on CPKO is, by itself, ultra vires the
1979 Act. And I may add, it is also ultra vires the 1979 Order', per Steve Shim (CJ Sabah & Sarawak).
[34] It should be noted that before making the distinction between seed and kernel the court also examined
the difference in the process of extracting oil from the respective items.
[35] We say that the rationale in the foregoing case cannot be applied to the present case simply because
the scopes of the provisions under consideration deal with different subjects. Further as discussed above, s
102 has not only the general proviso but there is also para (f) as well which is wide enough to encompass
the impugned
3 MLJ 389 at 402
by-law whereas s 14(1) of the 1979 Act is specific in definition as to the meaning of 'seed' not being synony-
mous to 'kernel'. One of their Lordships (Gopal Sri Ram JCA) in that case was also of the view that 'a provi-
sion in a statute conferring power on a member of the executive to enact subsidiary legislation must be con-
strued strictly. This is particularly so where the subsidiary legislation is one that imposes a financial levy --
call it a tax or charge or cess or whatever you may -- upon the whole or any section of the public.' In the pre-
sent case, there is no issue of imposing any form of tax or levy. Thus, the heavy reliance by learned counsel
on that case is quite misplaced.
[36] Accordingly, we say that the impugned by-law is intra vires s 102 of the Act.

WHETHER THE IMPUGNED BY-LAW OR ITS EFFECT INFRINGES THE RIGHTS ENSHRINED IN ARTS
5 AND 8 OF THE FEDERAL CONSTITUTION
[37] We note that in the question posed there is no reference to art 8. However, in his submission, learned
counsel for the applicants made reference to it. Thus, we will consider it albeit briefly.
[38] Learned counsel approached the issue in two prongs. Firstly, he said that as the impugned by-law is ul-
tra vires s 102 enforcing it thus infringes the rights enshrined in art 5 of the Constitution. As we have now
concluded that the impugned by-law is intra vires s 102, such surmise by learned counsel is unfounded as
art 5 ends with a proviso of 'save in accordance with law' which has been judicially interpreted to confine only
to 'enacted law' and excludes general concepts of law such as natural justice (see Comptroller General of
 Page 14

Inland Revenue v NP [1973] 1 MLJ 165). As we find the enacted by-law to be valid, there is therefore no
question of any infringement of the rights enshrined therein.
[39] Secondly, learned counsel submitted that the impugned by-law itself is unconstitutional as it impinges on
the constitutional rights of the applicants as enshrined in arts 5 and 8 of the Constitution.
[40] The relevant clause in art 5 reads:

(1) No person shall be deprived of his life or personal liberty save in accordance with law.

Article 8 cll (1) and (2) state:

(1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens
on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment
to any office or employment under a public authority or in the administration of any law relating to the
acquisition, holding or disposition of property or the establishing or carrying on of any trade, business,
profession, vocation or employment.

3 MLJ 389 at 403

[41] In respect of art 5(1) it was the contention of the learned DPP and not challenged by learned counsel for
the applicants that the applicants were never arrested or detained. As such, we agree with the learned DPP
that there is no question of deprivation of rights, life or personal liberty taking the meaning of that clause in a
narrower sense (see Aminah v Superintendent of Prison, Pengkalan Chepa, Kelantan [1968] 1 MLJ 92).
[42] As earlier on alluded to, learned counsel for the Applicants insisted without elaboration that there was
deprivation of life. He went on to say that the applicants should not be restrained from doing what they were
accused of (that is kissing and hugging) as it was only an expression of love.
[43] At the risk of being repetitive, we again say that we are only determining whether the impugned by-law,
which deals with prohibiting any person from behaving disorderly in the public park of DBKL, is ultra vires the
Act or unconstitutional. For now, we are not considering specifically whether kissing or hugging in the public
park of DBKL is within the ambit of the impugned by-law. That is for the trial court to decide applying matured
consideration and thereafter any aggrieved party to the case has the right of appeal to the higher courts of
this country.
[44] Reverting to cl 5(1), we say that even accepting the broad interpretation of the word 'life' in cl (1) of the
said article to mean 'right to livelihood' which includes deprivation of one's reputation (see Lembaga Tatater-
tib Perkhidmatan Awam, Hospital Besar Pulau Pinang v Utra Badi a/l K Perumal [2000] 3 MLJ 281), we can-
not by any stretch of imagination conclude that by disallowing any person from behaving in disorderly man-
ner as the impugned by-law stipulates, is a deprivation of one's life or livelihood or reputation. To do so would
result in chaos to our society which is anathema to the concept of a civilized community.
[45] In respect of the rights referred to under the limb of personal liberty of the said clause, we do not think it
is necessary for us to dwell too much into the jurisprudential aspect of it. Suffice it to stress here that the by-
law is intended to apply only in the public parks of DBKL. Surely, as the keeper of its public parks, DBKL is
entitled to lay down the rules to regulate their uses and more so in this case where the Act provides such
power to DBKL. Hence, if a person does not wish to be subject to such regulations, as for instance, not to
behave in disorderly manner, he or she is not obliged to enter any of the public parks to do what he or she
wants to do. It would therefore be quite illogical to insist entry into the public park and then demanding un-
qualified personal liberty. The interest of other users who are equally entitled to invoke art 5(1) must also be
respected.
[46] As regards art 8, judicial pronouncement on the scope of this article has been 'that 'equality before the
law' requires that the cases of all potential defendants to criminal charges shall be given unbiased considera-
tion by the prosecuting authority and that decision whether or not to prosecute in a particular case for a par-
ticular offence should not be indicated by some irrelevant consideration. Article 8(1) does not forbid discrimi-
nation in punitive treatment between one class of individuals and
3 MLJ 389 at 404
 Page 15

[47] Hence, the reliance on art 8 by learned counsel in our view has no merit as there is no assertion that
the applicants were singled out by DBKL in relation to the enforcement of the impugned by-law. There was
also no allegation that irrelevant consideration was taken into account when DBKL decided to issue the sum-
mons to the applicants.
[48] Accordingly, it is our judgment that the impugned by-law does not infringe any of the rights as enshrined
in arts 5 or 8 of the Constitution.

CONCLUSION
[49] For the foregoing reasons, we answered the question posed in the negative and directed that the matter
be reverted to the High Court for further action.