JURISPRUDENCE 1 
LAW 531 
 
ASSIGNMENT 1 

Khairunnisa Adibah bt Mohamad Faizal (2016239466) 

Nurul Izzati bt Izham (2016239256) 
Ariff Haiqal bin Jamsari (2016239184) 
 

LWB05C 
 
Madam Maryam Abdullah 
 
QUESTION 1

In an Islamic state, the objective rules of morality Islamic jurisprudence laid down in the
Qur’an and hadith. Could Syariah dictate such law applicable to all non-muslims irrespective
of the fact that such rules have not been codified in civil law.

Jurisprudence may be divided into three branches which are analytical, sociological and
theoretical. The analytical branch articulates axioms, defines terms and prescribes the
methods that best enable one to view the legal order as an internally consistent, logical
system. The sociological branch examines the actual effects of the law within society and the
influence of social phenomena on the substantive and procedural aspects of law. The
theoretical branch evaluates and citizen’s law in terms of the ideals or goals postulated for it.

The Islamic perspective of law’s role in limiting authority stems from Islam’s early days.
During prophetic and Khaliph times, socially governing principles surfaced as direct
interpretations from the ​Quran ​and ​Sunnah. ​With the closing of ​ijtihad generations later,
formal opinions regarding new issues were dealt with in a fashion based on referring to
earlier precedents. However, the authorities were limited in their ability to make formal
opinions by the restriction on direct ​Quranic interpretations (on account of the end of ​ijtihad​).
The authority of a mufti, for example, would not extend beyond applying ​qiyas o​ n to
decisions already made. Thus the mufti existed as an implementer of existing Islamic
precedents. This role is defined as such because of the limitations of Islamic jurisprudence.
Sharia r​ efers to the sacred law of Islam. In Western countries, where Muslim immigration is
more recent, Muslim minorities have introduced ​Sharia ​family law, for use in their own
disputes. Attempts to impose ​Sharia h​ ave been accompanied by controversy, violence, and
even warfare (Second Sudanese Civil War). The recent incidents at the Arab International
Festival have reinforced the poor image of ​Sharia ​inside the United States and its
incompatibility with American culture and law.

Western legal philosophy recognized the limitation that codes of law created in regards to
authority. Thomas Aquinas, in his explanation of natural law (the theory of what law ought to
be and the principle of unchangeable frequencies among various individuals and
circumstances) proposed that the coming about of natural rights limits existent authority. In
other words, since natural law is concerned with things that are inherently common among all
individuals and circumstances, authoritative figures are subject to the same natural rights as
well and thus cannot deviate from what has naturally come to be. Therefore, policies for
instance, that an authoritative figure would wish to establish would have to agree with
principles already naturally in place hence there is a condition on which authority can be
exerted. Another concept that both the West and Islam have embraced is the general concept
of a sovereign authority one who does not obey but is obeyed. Both civilizations have
recognized the existence of such individuals. John Austin introduces this figure into the realm
of utilitarianism where despite the theme of observing the greater well a sovereign does not,
1
by definition need to adhere to the will and desires of the people. ​Sharia ​refers to the sacred
law of Islam. All Muslims believe ​Sharia ​is God’s law, but they have differences between
themselves as to exactly what it entails. Which will be difficult to discern what to apply
2
when, but we’ll labor along for the sake of discussion.

There is no acceptable reason to accuse any non-Muslim law or economic system of lacking
ethical or ideological content, because all social sciences are based on hidden value
judgments which reflect the traditions, ethics and ideals of the man who formulated them.
Western jurisprudence is not an exception to this rule as can be easily seen in the following
3
words written by one of its scholars. There is no wonder if legal systems differ from one
another because of differences in national values. And for this reason, we kept saying , for
quite a long time, that we should not expect different Muslim nations to have one and the
same legal or economic system even if they exert the same afford to comply with the Quran
and Tradition . But, because all Muslims resort to the same legal resources, we expect their
legal systems to have a great deal in common. Likewise, Western legal systems resemble one
4
another; but differ greatly from Islamic ones, because each group has its own origin. All
societies present an entangled mesh of values with many contradictions that never get sorted
out. In America, religion is a particularly tangled strand and despite the Founding Fathers’
clear intention to provide freedom of religion and separation of church and state, some
Americans insist on rearguing the point continuously. In their vehemence they contradict
another typical value that they hold, an irrational worship of the Constitution. But that’s how

1
9 Crone, Patricia, Medieval Islamic Political Thought, Edinburgh University Press, (2005), pp. 308–9
2
Edwards, T, Sharia Law and the U.S. Constitution, (2010)<
www.the-american-catholic.com/2010/06/25/sharia-law-and-the-u-s-constitution/​> accessed 10 November 2018.
3
Ahmed Safi El Din, Ma’alim Addastour al-Islami, Khartium, (1967), pp.12-13
4
Mobdi, Muhsin, Ibn Khaldons, Philosophy of History, George Allen and unwin,London,1957, p. 21
society is meant to be when people elect to be free. Yet this raises the bugaboo of the Islamist
factions, the religious conservatives who see the US as a sworn enemy of their faith.

John Austin introduces this figure into the real of utilitarianism where despite the theme of
observing the greater good; a sovereign does not, by definition need to adhere to the will and
5
desires of the people. In western countries, where Muslim immigration is more recent,
Muslim minorities have introduced ​Sharia f​ amily law, for use their own disputes. Attempts to
impose ​Sharia ​have been accompanied by controversy, violence, and even warfare (Second
Sudanese Civil War). As Roman law is considered to be the source of Western jurisprudence,
question arises as to whether Roman law had any influence over Islamic law has been
discussed by a number of scholars for a period of three centuries. It has been speculative
question from the beginning and scholars were well aware of that fact. The proponents of
6
Roman influence can be divided into two groups; direct influence and indirect influence. The
proponents of direct influence have been advocating the view that Roman law has been
7
directly imported and installed into main body of Islamic law.

Other than that, Lord Devlin’s Shared Morality Test state that public morality provides the
cement of any human society. Thus, the law must make it its primary function to maintain
public morality. However, not all breaches of public morality need to be punished. Conduct
which arouses a widespread feeling of reprobation, a mixture of intolerance, indignation and
disgust deserve to be suppressed by legal coercion in the interest of the integrity of society.

He also laid down four principles of restraint in the way society should use law to enforce
morals which are nothing should punished that which does not lie beyond the limits of
tolerance, the toleration varies from generations to generations, privacy should be respected
and the law is concerned with the minimum and not the maximum standard of behavior.
However, Hart had critics Devlin’s test as the reference should be made to the judgement of
the right-minded man, who can be thought of as the man forming part of the jury. Let
immorality considered as what every right-minded man considers to be immoral. Hart state
that there must be kept in mind by a legislature anxious to protect morality and the State as
expert must come in for wisdom critical thinking.

5
Crone, Patricia, Medieval Islamic political thought, Edinburgh university Press, (2005) pp.308-9
6
Bakhash Shaul, The reign of the Ayatollahs, Basic Books, c 1984, pp. 167-8
7
Samir Amin, “ The Arab Nation: some conclusions and problems”, MERIP Reports, (1978) pp. 3-14
In my opinion, the application of Syariah law is not applicable to non-muslim. Even Islam
promotes human good in all form but it does it with varies measures. All those measures
compatible with human nature and at all times. Thus, the norms and morality sustain the rule
of Syariah.

Question 2

July 2017 Part C Question 1

You are to presume the following facts:

The General Elections are approaching. There is overwhelming popular support from the
rural Muslim community for the adoption of an Islamic Constitution and an Islamic state.
Due to the widespread electoral appeal of the idea, a number of Malay–Muslim political
parties introduced the Federal Constitution (Amendment) Bill 2018 to repeal the existing
Article 4 (on constitutional supremacy) and to substitute it with the following:

“Article 4

The syariah shall be the supreme law of the Federation and any law passed before or after
Merdeka Day which conflicts with the syariah, shall, to the extent of the inconsistency, be
void.”

The Amendment Bill failed to secure the required two-third majority in the Houses of
Parliament as is required by Article 159. The amendment is also opposed by the Majlis
Raja-Raja under Article 38(4) and Article 159(5).

The government is insistent on pushing through its Islamic state agenda. It organised a
number of well-attended political rallies in support of the said amendment. The government
also held a popular referendum at which the Islamic state proposal secured a majority vote.

Subsequent to the positive referendum result, all Muslim cabinet ministers, top civil servants,
top brass of the army and the police and even some judges signed ‘A Solemn Oath’ to
support the transformation of Malaysia into an Islamic state.
Opponents of the Federal Constitution (Amendment) Bill 2018 commenced proceedings in
the High Court for a declaration that the results of the referendum and ‘The Solemn Oath’
cannot be used to oust the amendment procedures of the Constitution.

You are asked to advise on the relevance and validity of the Referendum and ‘The Solemn
Oath’ from the Kelsenian point of view.

Discuss:

a) how, when and why does ​grundnorm under a change in Kelsen’s theory of
revolutionary legality; and
(15 marks)
b) whether Hans Kelsen’s theory could apply to the facts of our case.

(15 marks)

In formulating your opinion, you are to disregard constitutional arguments and to concentrate
on jurisprudential approaches.

a) How, when and why does ​grundnorm undergo a change in Kelsen’s theory of
revolutionary legality. (15
marks)

Hans Kelsen (1888-1973) was an Austrian jurist and philosopher of law from the ‘positivist’
school of thought who propounds the idea of “Pure Theory of Law”. The pure theory of law
tries to answer the question of ‘what the law is’ and not ‘what the law ought to be’. The issue
of goodness and badness of the law is not considered in Kelsen’s theory. Kelsen sets up his
theory by first making a fundamental distinction between the “prescriptive” and “descriptive”
aspects of positive law. The purity of law means the law are uncontaminated from any alien
and metaphysical issues such as moral, religion ethics, politics and justice. Hence, the law is
seen as a scientific approach, and not as political matters.
Based on his theory, Kelsen defines law as a norm of action. Norms can be defined as a standard of
conduct of an individual on whether it is legal or illegal. The norms are regulations setting
forth how persons are to behave and positive law is thus a normative order regulating human
conduct in a specific manner. Furthermore, Kelsen also proposed a concept that every norms
are validated by a higher degree of norm until it reached the peak of a norm, known as
grundnorm​. This hierarchy of norms, with ​grundnorm being on top, validates all other norms
below it.

Grundnorm or basic norm is the initial legal hypothesis which exist in juristic thoughts. It is
the supreme and highest rule that stands by itself. There can be no other norm higher than
grundnorm and it cannot be created by another body or authority and it has the power to
validate the entire legal system and imparts validity to the constitution and all other norms
derived from it. ​Grundnorm also functioned as to provide unity to the law. It should be noted
that the constitution of a country cannot be a ​grundnorm​. However, it can be said that
grundnorm transparently stands behind the constitution, giving the constitution needed power
and validity.
8
To exemplify, the court in ​Madzimbamuto v Lardner-Burke held that the unilateral
declaration of independence by Ian Smith is invalid because it is done unconstitutionally
without regards to the colonial power of British. Hence, the constitution created by the new
regime together with any laws created under it shall not be valid. Kelsen's theory of
revolutionary legality seeks to answer how, when, why and under what circumstances one
9
legal system ceases to exist and a new one is created in its place .

Grundnorm c​ an only undergo a change under the political revolution or ​Coup D’état (​ taking
over power by force). In other words, if a revolution is effective, the new regime shall be
considered as valid and automatically a new ​grundnorm is accepted. On the other hand, if a
revolution fails and the order they try to establish is inefficacious in that it is not accepted by
the people, the revolution is considered as treason and an illegal act punishable according to
the old constitution. This can be seen in case of Lahad Datu intrusion happened in 2013,
where a military conflict caused by a group of intruders who tried to create chaos within that

8
[1968] (2) S.A. 284.
9
Tayyab, Mahmud, ‘Kelsen, Constitutions, Coup d’Etats and Courts ‘. ​Seattle University School of Law. United
States. <​https://www.ialsnet.org/meetings/constit/papers/MahmudTayyab%28USA%29.pdf​> accessed 2​nd
December 2018.
 10
area. The incursion failed, and they were detained under SOSMA 2012. The phenomenon of
the revolution shows the significance of the ​grundnorm.​
11
In ​Michell v Director of Public Prosecutions , the Grenada Court of Appeal took the view
that the choice of a ​grundnorm was not dictated inflexibly by effectiveness but was a political
decision. Haynes J laid down four requirements ​in order for there to be a valid and effective
revolution. Firstly, a successful revolution must have taken place. The government is firmly
established administratively. Secondly, the government is in effective control which may
12
conform the people at large. This is illustrated in ​Madzimbamuto which stated that a ​de
facto g​ overnment is one which has effective control over the State and seems likely to
continue to do so. However, the government does not have ​de jure s​ tatus until the court is
able to declare that the government was likely in effective control of the State. Thirdly, the
conformity must be due to popular support, not by mere tacit submission of force nor
sanction needed to be inflicted in order to gain support. Fourthly, the new regime must not be
oppressive, undemocratic and no need to be through dictatorship. This is clarified in the case
13
of ​The State v Dosso , where the court held that the new regime was validly created as it
portrays an effective control over the country. The basis behind the court’s judgment was that
there was no protest on the part of the people as whole when the new government took over
14
the power and imposed martial laws. However, in ​Asma Jilani v Government of Punjab , the
Supreme Court declared it illegal notwithstanding effectiveness. Despite there being effective
control, the imposition of martial law was invalid as Pakistan was an Islamic republic and
Islamic law was thus, an immutable and unalterable norm to which any Pakistani
Government must conform.

Moreover, a different ruling was given by the court in the case of ​Begum Nusrat Bhutto v The
15
Chief of the Army Staff , whereby the court had temporarily recognized the new regime for
the purpose of maintaining law and order as to allow proper election to be held.

As for Malaysian perspective, a revolutionary attempt had once be made by militant group
called Al-Ma’unah. The judgment of this case can be seen in ​Public Prosecutor v Mohd Amin

10
Security Offences (Special Measures) Act 201
11
​[1985] L.R.C. Const. 127
12
Note 1 at 8.
13
Pak L.D. [1958] S.C. 533
14
1972 PLD SC 139
15
PLD (1977) SC 657
 16
Mohd Razali , where the court held that the accused and his group were liable for waging
17
war as against the Yang di-Pertuan Agong, and sentenced to death mandatory. To relate
with Kelsen’s theory, it is safe to conclude that this militant group has failed all 4 elements of
successful revolution, and hence, shall be considered as a mere treason.

In conclusion, Kelsen believes that when a revolution occurs, that is when the old laws cease
to be effectively enforced and laws promulgated by the rebels are enforced instead. There
must not be a total disregard of the ​grundnorm and neither is there a need for universal
adherence to it. However, when a ​grundnorm ceases to derive a minimum amount of support,
it ceases to be the basis of the legal order. It will be replaced by any other norm which obtains
support. The phenomenon of the revolution shows the significance of the ​grundnorm​.

b) Whether Hans Kelsen’s theory could apply to the facts of our case. (15
marks)

Kelsen’s basic norm becomes important in the event of a revolution. Kelsen says that a
revolution occurs whenever the legal order is replaced in an illegitimate way, in a way not
prescribed by the former order. When there is a change in a legal system, the ​grundnorm
accepts this change. However, it must fulfill all the four requirements laid down under
18
Michell v Director of Public Prosecutions .

The facts above are the Amendment Bill proposed by the a number of Malay–Muslim
political parties failed to secure the required two-third majority in the Houses of Parliament
and opposed by the Majlis Raja-Raja under the Federal Constitution. A political revolution
were made as Article 4 of the Federal Constitution were amended by the Federal Constitution
(Amendment) Bill 2018 in an unlawful way. This can be seen when the government were

16
[2002] 5 MLJ 406
17
See 121 of the Penal Code.
18
Note 4 at 10.
adamant in handling several political rallies and a popular referendum to push the Islamic
state agenda. Not only that, the majority of Muslim cabinet ministers, top civil servants, top
brass of the army and the police and judges signed ‘A Solemn Oath’ to support the
transformation of Malaysia into an Islamic state.

19
According to the theory based on ​State v Dosso , the judgment held that 1958 Martial law
imposition is a peaceful revolution which is not resisted or opposed by the common people.
This clearly shows that the people are happy with this change, thereafter this revolution or
martial law is legal as long as it satisfies the common people. It was also held that 1958
constitution, replacing the old legal order; 1956 constitution, was the new legal order and the
validity of laws and the correctness in the judicial decisions would be determined according
to it.

In applying to the facts above, the Federal Constitution (Amendment) Bill 2018 failed to
obtain a validity in law with regards to abrogating Article 4 of the Federal Constitution. In
Dosso​, The Supreme court held that as the 1956 constitution was abrogated therefore FCR
(frontier crimes regulation) 1901 was still in force in accordance with the laws (continuance
in force) order, 1958. Although he revolution made by the Malay–Muslim political parties
failed to secure the required two-third majority in the Houses of Parliament and Majlis
Raja-Raja, it shows that it satisfies the common people at large i.e. all Muslim cabinet
ministers, top civil servants, top brass of the army and the police and even some judges
supported the the transformation of Malaysia into an Islamic state.

20
In the case ​of Asma Jilani v State of Punjab , the case concerns the imposition of martial law
through a new constitution upon the State of Punjab. Despite there being effective control in
that it gained the support of the people at large, the imposition of martial law was untenable
as Pakistan was an Islamic republic and Islamic law was thus, an ‘immutable and unalterable
norm’ which means as indestructible ​grundnorm to which any Pakistani Government must
conform.

This may be interpreted by the judiciary in order to define what law should be for a state. A
successful regime does not define law, the real interpretation must come from the judiciary to

19
Note 6 at 10.
20
Note 7 at 11.
interpret it. The Supreme Court in case critically lay down the principle of the theory of law,
the court stated that law itself is not a legal concept for. The judiciary must remain
independent, unaffected by the change of regimes of its transitional period. Although there
were several changes in the administrative powers, the judiciary under a pre-revolution
constitution still retains its power and remains in existence and can thus, effectively operate.

Before the revolution to be recognized as a valid and effective revolution, it must first fulfil
21
the four requirements under ​Michell’s c​ ase. Firstly, a successful revolution must have taken
place. The government is firmly established administratively. Secondly, the government is in
effective control which may conform the people at large. Thirdly, the conformity must be due
to popular support, not by mere tacit submission of force nor sanction needed to be inflicted
in order to gain support. Fourthly, the new regime must not be oppressive, undemocratic and
no need to be through dictatorship.

In applying to the facts of this case, although it failed to secure the required two-third
majority in the Houses of Parliament and Majlis Raja-Raja, the transformation of Malaysia
into an Islamic state were supported by majority of Muslim cabinet ministers, top civil
servants, top brass of the army and the police and even some judges. It satisfies the public at
large, showing the public support on the new amendment. There is also an overwhelming
22
popular support from the rural Muslim community. This is clarified in ​Dosso , where the
court held that the new regime was validly created as it portrays an effective control over the
country. If a revolution is effective, then the new amendment i.e. the Federal Constitution
(Amendment) Bill 2018 shall be considered as valid and automatically a new ​grundnorm is
accepted. The old order, which in this case is Article 4 of the Federal Constitution ceases and
the new order becomes efficacious because individuals at large behave in conformity with the
abrogation.

In conclusion, the application of Kelsen’s theory in this issue achieve its revolutionary
legality.

21
Note 4 at 10.
22
Note 3 at 13.
Question 3

On 17th February, 2016, Tan Heng Sem, a homosexual 55 year old surgeon, was hosting two
homosexual acquaintances, Samuel Sado, age 31 and Chee Chun Ho, age 40, at his apartment
in Damansara Heights.

At 3.20 a.m, police officers from Bangsar police station stormed into Heng Sem’s house. This
was because the police had received a telephone call from an unknown source, that “an
Indian male was going crazy with a butcher’s knife" in that house. The police entered the
unlocked house with their weapons drawn.

Corporal Johan Jambu was the first to enter the home and when he kicked the bedroom door
open, Corporal Johan reported seeing Heng Sem and Johan having anal sex in the bedroom.

Heng Sem challenged the police for entering his home. Heng Sem and Samuel were arrested
and were charged under section 377A and section 377B of the Penal Code.

On the evening of 3rd April 2016, the Malaysian transgender community hosted and held a
dinner and beauty contest for the trans women community. At about 10.30 p.m, the Federal
Territories Islamic Department (JAWI) raided the event. JAWI had carried out the raid
without any warrant issued and gate crashed the closed-door dinner event without police
personnel accompanying them, on the grounds that it violated a fatwa against beauty pageants
that were gazetted for transgender Muslim women.

There were 10 JAWI personnel along with several people from the media that took part in the
raid. They forced captured the transgender organiser, Mira Sorak, as well as lawyer-turned
activist Celup Kasim.

As a parliamentary researcher, you are to draft a report as to whether the actions of the police
and JAWI in their moral policing are excessive and abusive. Include in your report about the
whether the morality of law is an issue best left to society to dictate or should it be resolved
through regulation of the promulgated laws.
Answer

The issue arises concern the actions of the police and JAWI in their moral policing are
excessive and abusive. In order to discuss such issue in question is excessive or abusive we
must first determine that Instead of raising false issues of religious imposition, the proper
agenda for discussion here is the perennial one of law and morality. Is it the business of the
state to use the blunt instrument of the law to enforce moral propriety? Or should individual
autonomy and freedom be preserved?

The Western approach of the legal morality is based on the law that only as a series of
rules of conduct, rules which derive their authority in the courts, not from their obligatory
moral character, but from the legal character with which they are clothed through recognition
by the common law.

The enforcement of morality poses the question as to how far should law enforce
morality. This can be divided into two distinct views, firstly is liberalism.

Liberalism proclaims that the freedom of individual choice, but accepts that
interference with individual freedom may be necessary, provided that it is justified and
voluntary. If an act merely conjures moral sentiment, it should not be incriminated. Thus, if
an individual chooses to do an act that does not harm others, then the State cannot interfere.
The law should not intervene in matters of private moral conduct more than necessary to
preserve public order and to protect citizens against what is injurious and offensive.

Supporters of legal liberalism assert that it is not the business of the law to trespass
into matters of private moral conduct. Legal coercion can only be justified for the purpose of
preventing harm to others. Unless there is a deliberate attempt to equate the sphere of crime
with that of sin, there must remain a sphere of private morality that is best left to the
individual’s conscience. The so-called “moral majority” (the existence of which is extremely
problematic to prove) has no moral right to dictate to the minority how it ought to live.
 Individuals have a right to the widest possible autonomy and freedom of choice,
unless their conduct causes detriment to the society of which they are a part. In a democracy,
value pluralism must be allowed. People have a “right to be wrong” on personal matters.

23
Based on the case of ​Lawrence and Garner v Texas (2003) the defendant was
caught in the act of homosexuality and was charged under the Texas anti-sodomy law. He
contended that the law was unconstitutional for interfering with the right of expression.
However, during the proceeding, homosexuals were described as self-destructive,
disease-prone, and promiscuous. The court held that morality is not a ground to incriminate
an act.

Applying this to the recent situation where Corporal Johan Jambu was the first to
enter the home and kicked the bedroom door open and charged Heng Sem and Samuel were
arrested and were charged under section 377A and section 377B of the Penal Code, this
situation would be considered as unnecessary and brutal as morality is right of the people and
it is not the business of the law to trespass into matters of private moral conduct. Thus
Section 377A and section 377B of the Penal Code which concern with the ​carnal intercourse
against the order of nature should not exist. Moreover, by commiting anal sex inside their
house does not harm others as it is done privately.
However it should be noted that Liberalism do have criticisms especially it is arguable
that the state function is to promote virtuous life. If the state can promote physical health by
insisting on fluoride in the water and vaccinations in childhood, why would it is not their
power to promote the moral health of the society. Thus it is arguable that the act of Heng Sem
and Samuel is affecting the moral health of the society thus it justify section 377A and
section 377B of the Penal Code.

Second view is based on authoritarianism that provides paternalistic view of law as a

tool for social control and protection of the people. The State is allowed to interfere with the
private lives of the citizens, and may do so especially to prevent the individual from harming
himself.

23
539 U.S. 558 (2003)
 This issue is further explains in Hart-Devlin Debate which critically discuss the issue
of the morality enforcement in public and private life of an individual. The Wolfenden
24
Committee Report on Homosexual Offences and Prostitution appeared in 1957 and
recommended changes in the law. Some of the recommendations became the basis of the
25
Sexual Offences Act 1967, decriminalising certain homosexual practices in specified
circumstances. Thus, intense debate followed, producing points of view which tended to
polarise around the arguments stated by Hart and Lord Devlin.

The philosophy of the Wolfenden Report was based upon the determining the
function of the criminal law was to preserve public order and decency, to protect the citizen
from what is offensive or injurious and to provide sufficient safeguards against exploitation
and corruption of others. Next is to say that a crime is ‘an act punished by the State’ does not
explain what a crime is as distinguished from a ‘sin’. So unless a deliberate attempt is to be
made by society, acting through the agency of the law to equate the sphere of crime with that
of sin, there must remain a realm of private morality and immorality which is not the law’s
business.

Lord Devlin, who had shown himself to be in favour of easing the penalties for some
homosexual crimes, rejected the basic philosophy of the Wolfenden Committee Report. The
criminal law of England has from the very first concerned itself with moral principles. The
smooth functioning of society and the preservation of order require that a numb of activities
26
should be regulated this has been derive based on the case of ​Knuller v DPP [1973].​ Hart,
who in subsequent debate tended to focus on the individual rather than on the society,
rejected Devlin’s approach and argued that it is not morally permissible to enforce the views
of morality. He drew particular attention to the flaws in Devlin’s argument that those who
deviate from conventional sexual morality might be in other ways hostile to society.

Devlin states that, until now, the criminal law has been based upon certain standards
of behaviour or moral principles which society requires to be observed, and that their breach
is an offence not merely against the person who is injured, but against society as a whole.

24
Report of the Committee on Homosexual Offences and Prostitution​, Cmnd. 247, (London, 1957)
25
Sexual Offences Act 1967
26
[1973] AC 435
Devlin poses three questions, to which the answers given constitute the essence of his stance
against the philosophy of the Wolfenden Committee Report.

Morals are always a matter for private judgment rather than public morality.
Wolfenden takes for granted the existence of a public morality, which condemns, ​inter alia,​
homosexuality and prostitution. Each member of a community has ideas about good and evil;
these ideas cannot be kept private from the society in which he or she lives. If persons
attempt to create a society in which there is no fundamental agreement about good and evil,
they will fail. Society is held together by the invisible bonds of common thought. If the bonds
of common thought are too far relaxed, members of the community will drift apart. A
common morality is part of the bondage. That bondage is a part of the price of society.
Mankind needs society and it must pay its price.

There is a right to pass judgment that can be used as weapon of the law to enforce it.
Society may use the law to preserve morality in the same way as it uses it to safeguard
anything else that is essential to its existence. It is not possible to set theoretical limits to the
State’s power to legislate against immorality. Society has the right to use its laws to protect
itself from internal or external dangers, as evidenced by the law of treason. An established
morality is as necessary to the welfare of society as is good government. If no common
morality is observed, society will disintegrate; indeed, the loosening of moral bonds is a
prelude to such disintegration. Society is justified in taking steps to preserve its moral code,
and there can be no theoretical limits to this process.

However, it is necessary to discuss how society’s moral judgments ought to be

ascertained. Safe guidelines need to be establish has to ensure the judgment was not out of
moral conscious. Reference should be made to the judgment of the right-minded man, who
can be thought of as the man forming part of the jury. Let immorality be considered as what
every right-minded man considers to be immoral. However Hart argued that the reasonable
man test to measure morality cannot be used as a greater degree of detailed of knowledge is
needed to justify intervention of the law. Moreover, The definition of harm is further broaden
by Hart to include phychological harm

In relating this to our question, committing anal sex and organising dinner and beauty
contest for the trans women community can be regarded as injuring the morality of the
society as those who deviate from conventional sexual morality might be in other ways
hostile to society and caused mental harm as mentioned by Hart. Society may use the law to
preserve morality in the same way as it uses it to safeguard anything else that is essential to
its existence. Thus it can be justified that morality of law is an issue best left to be be resolved
through regulation of the promulgated laws.

We can conclude that morality of law is an issue best left to be resolved through
regulation of the promulgated laws as it is the duty the government to promote virtuous life of
the society. As committing anal sex and publicly promoting transgender community through
dinner and beauty contest, may cause injury to the society psychologically as ‘harm to others’
may include physical and psychological harm.

Finally, are the actions commited by the police during the arrest and JAWI raid is
excessive and brutal? The police response to the call stating an Indian male was going crazy
with a butcher’s knife" in that house. The police acted on the call and went into the house
with weapon drawn believing there is probably cause as the suspect is armed with a butcher
knife. Unfortunately, the call was false and it appears that Ham Seng and Samuel is
commiting an offence under section Section 377A and section 377B of the Penal Code.
Police officers, of necessity, exercise moral choices called “professional discretion” in
deciding whether or not to make an arrest. The proper use of this discretion requires police to
be educated and well-trained in order to make sound and professional judgments in the course
of their duties. Believing the law prohibit such act, he made a decision to arrest such person
which in my opinion is within their jurisdiction and not abusive.

However, the act of the officers of JAWI is to be contrast with the act of police as the
JAWI officers had carried out the raid without any warrant issued and gate crashed the
closed-door dinner event without police personnel accompanying them. This is not within
their power to done it in such way. This is as discussed earlier that safe guidelines need to be
establish to ensure the judgment was not out of moral conscious. In my opinion, the act done
by the JAWI officers was abusive and excessive as they had acted not within the law.