A common assertion we hear is Malaysia’s LGBTQ community constantly face discrimination, selective persecution and untold violence, daily. Legal practitioners and activists have asserted that there are laws that promotes the discrimination and selective prosecution of the LGBTQ community.
The recent Federal Court ruling that the Selangor state’s Islamic law criminalising ‘unnatural sex’ is void as being inconsistent with the Federal Constitution is an example in point. Activists and lawyers who support the LGBTQ cause says that the decision gives a ray of hope for a change in the law for the LGBTQ community. Accordingly, their view is that the Selangor Islamic laws criminalizing unnatural sex or laws such as Section 377 of our Penal Code that criminalises consensual homosexual conduct, the carnal intercourse against the order of nature are anti-LGBTQ laws that should not have a place in a modern society like Malaysia. But is it the case that laws and policy on public morality has no place in modern Malaysia?
To address this question more adequately, I refer to the thoughts of the Roman Catholic eminent jurist and philosopher of law, John Finnis in his Natural Law and Natural Rights (Oxford: Clarendon Press, 1980),
In his Natural Law and Natural Rights, Finnis espouse the views of a common good or the common benefit – which comprise ‘a context or framework of mutual respect and trust and common understanding, an environment which is physically healthy and in which the weak can go about without fear of the whims of the strong’ for the enjoyment of human rights. The common good is therefore a social condition that facilitates human fulfilment and human flourishing in all its generalities for the good of everyone.
In talking about public morality in respect of sexual conduct, Finnis eloquently put forth his argument as it relates to the common good or common benefit as he calls it in the following,
Now if it is the case that sexuality is a powerful force which only with some difficulty, and always precariously, can be integrated with other aspects of human personality and well-being – so that it enhances rather than destroys friendship and the care of children, for example – and if it is further the case that human sexual psychology has a bias towards regarding other persons as bodily objects of desire and potential sexual release and gratification, and as mere items in an erotically flavoured classification (e.g., women), rather than as full persons with personal and individual sensitivities, restraints, and life-plans, then there is reason for fostering a milieu in which children can be brought up (and parents assisted rather than hindered in bringing them up) so that they are relatively free from inward subjection to an egoistic, impulsive, or depersonalised sexuality … [T]his is an aspect of the common good and fit matter for laws that limit the boundless exercise of certain rights
According to Finnis, the common good is not the simple competitor of individual rights, involved in a zero-sum game where it gains only at the latter’s expense. Rather, the common good is constituted by a social ethos and by public policy that regards the flourishing of every member of society as of equal worth. It is the duty owe by one member of society to another in the good of practical reasonableness; and by a public order and morality that limit certain freedoms, so as to restrain egoistic human tendencies to have the self’s desires obscure the equality of others and the enjoyment of the benefits of the other.
No doubt, the debate on laws and policies relating to public morality such as the Selangor Islamic law and Sec 377 will abound with many views and justification expressed. Not least proponents who wish for Section 377 to be repealed or at the least, substantially amended. The argument seems to be that the law is out dated and no longer serves the modern realities and circumstance in Malaysia. So, the state should no longer and ought to not regulate the sexual conduct or behaviours of persons whether homosexual or otherwise if consent is present. All that matters is the rights of person to do as they wish, with consent and no harm befalling another.
But Finnis reminds us of another dimension to the argument. And it is precisely because sexual conduct and behaviours are such powerful force that can shape the minds of people especially our young ones to view our fellow human beings, women in particular, as objects of desires or lust or for potential sexual release or gratification rather than as persons with a soul, a spiritual being and of a responsible individuals who would be “relatively free from inward subjection to an egoistic, impulsive, or depersonalised sexuality” – that is a common good that warrants the state to be involve and to ensure children and parents assisted so they may be brought up in well-adjusted manner befitting the good of common society. The state therefore possesses the feasible duty which ought to minimise the corruption of morals of the individual, of community and of society and for the future generations as part of public policy in the common good.
We should note however, the common good is not some abstract independent claims that can be placed in competition with those of ‘particular goods’, whether our possessions, vocation, self-interests or families or associations. Rather, it is what the Cambridge theologian Jonathan Chaplin calls “the aspiration towards a just coordination of particular goods”. Where claims to particular goods, such as equality or even self-sexual rights, undermine the just coordination, the demands and imperatives of the common good take precedence. This will allow for a wide range of valid moral and other claims to be factored into policy debates that will meet the interests and social visions of the many people.
The common good therefore is a part and a parcel of the social ethos and movement towards human flourishing and human fulfilment, that will allow every dutiful citizen to exercise their duty and responsibility towards the other in a respectful and mutual manner thereby allowing all rights and freedom to benefit all. It is in a sense everyone’s responsibility, and consequently of democratic politics not first as a means to self–interest but as an arena in which all citizens find honour and recognition for the mutual benefit of all, including our children and future generations.
It is in this line of social-theological thought that it could very well be argued and with rational basis, there is a place for the state and civil society irrespective of which religious or moral persuasions to ensure laws and policy on public morality should have a firm place in our jurisprudence and national polity for the avoidance of corruption of morals as a part of the common good for the overall wellbeing of our society, our children and of family life and institution.
Mr Eugene Yapp
National Unity Programme Director