https://straight-from-my-desk.blogspot.com/2023/03/it-is-tan-sri-dr-zukis-job-isnt-it.html

[1] A woman was turned away by a hospital

On 13 February, a woman had been playing badminton in Kampar, Perak.

She experienced severe stomach pain. She could hardly walk.

Clad in her sports shorts, she was rushed to the Kampar hospital.

She was turned away because it was ‘impolite for her to wear shorts’.  She had to change into trousers before she was admitted.

In both these cases a dress code was cited as the reason for the denial of service. Both issues concerned government installations.

They attracted wide media coverage.

[2] IGP’s statement

The Inspector General of Police said the public dress code was based on a directive from the Chief Secretary to the Government.

However, he said, the dress code could be relaxed based on the type of emergency faced by the complainant.’¹Star published on Saturday 04, February at 10:16 a.m.

Is the Chief Secretary of the Government entitled to issue dress codes and thereby unwittingly deny a person’s right to service?

[3] Can government installations have a legal right to turn people away based on their dressing?

Suppose a woman has suffered a head injury. She is rushed to the hospital, clad only in her underclothes.

Based on the Kampar hospital directive, that patient can be turned away because there is a need to be polite.

So the life of the person is not important. Being polite is more important.

Suppose an attempted rape has occurred. The victim, in a complete state of disarray and undress, rushes into a police station to report the incident.  Can she be turned away?

Both complaints relate to women.

[4] What does the law say about that?

In 1995, Malaysia ratified the Convention on the Elimination of All forms of Discrimination Against Women²item 1753 It is an international treaty.

Again, there is an internationally accepted Code of Conduct for Law Enforcement Officials.³ It arose by reason of a resolution passed on 17 December 1979, by the United Nations General Assembly No. 169 Articles 1 and 2 of the Code state:

“Law enforcement officials shall at all times fulfill the duties imposed upon them by law, by serving the community and by protecting all persons against illegal acts”.

“… Law enforcement official shall respect and protect human dignity and uphold the human rights of all persons.”

[5] There is a similar convention for medical professionals

Every doctor takes the Hippocratic oath. The doctor swears that “The health of my patient will be my first consideration’.⁴ Malaysia is surprisingly not a signatory to the international Convention on Human Rights called the ‘International Covenant on Economic, Social and Cultural Rights’ (ICESR).  Article 12.2 (d) states the need for, “the creation of conditions which would ensure to all medical service and medical attention in the event of sickness… [and] …

It would be ridiculous to argue that “My patient’s dress code should be my first concern”.

[6] The Malaysian Constitution

Article 8(1) states that:

‘[All] persons are equal before the law and are entitled to equal protection of the law.’

Under Article 5(1):

‘[No] person shall be deprived of his life or personal liberty save in accordance with the law.’

[7] What is the meaning of the phrase ‘save in accordance with the law’?

Could a police station or a hospital say: “Under our rules, you cannot enter our installation unless you wear a decent dress”?

In 2010, in a case called Sivarasa Rasiah, the Malaysian Federal court ruled that “in accordance with the law” meant a law must be ‘fair and just’ and not, a law that was, ‘arbitrary or unjust’.⁵ Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 CLJ 507 [see paragraph 20].

If a dress code was arbitrary or unjust’, that would violate fundamental rights.⁶ Ibid: see paragraph 19 of the judgment

[8] Two questions arise from this proposition

Q-1: Can the Government stop people from entering government installations based on a dress code?

Q-2: Is a Government Dress Code within the Constitution?

If what the IGP says is correct, it was the Chief Secretary of the Government who had made these laws. 

Most Government  Dress Codes are instructions to the Civil Service: e.g. Government Service Circular No. 2/1985 directs how civil servants (not all citizens) must dress.

[9] Under the principle in the Sivarasa Rasiah case, is such a law  ‘fair’ or ‘just’?

A law that prevents a patient from approaching a hospital or a member of the public from approaching a police station cannot be ‘fair’ or ‘just’. 

Such directives offend the fundamental liberties in Articles 5 and 8 of the Constitution.

[10] The Federal Court has also ruled on what the word  ‘life’ means

What has all this have to do with a woman who enters a police station – or a hospital – with a pair of shorts? It has to do with the concept of what is ‘life’.

Several cases have ruled that the ‘right to life’ in Article 5 (1) was ‘more than mere animal existence’. 

One Indian Supreme Court judge, Justice Bhagwati,⁷ in the Indian Supreme Court case of Francis Coralie vs Union of India AIR  [1981] AC 746 at page 753 asked:-

“Is the ‘right to life’ limited only to ‘protection of limb, of faculty”, or, ‘does it go further?”

Bhagwati J explains it in this way:

“[The] right to life includes the right to live with human dignity and all that goes along with it …”.

Several Malaysian cases have accepted this position.⁸ FC in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771 and Lee Kwan Woh v PP [2009] 5 CLJ 631 at p. 643 para [14]. The late justice Gopal Sri Ram, speaking for the Malaysian Court of Appeal in a case called Utra Badi followed Mr Justice Bhagwati.  He said:  “It is a fundamental right of every person within the shores of Malaysia to live with common human dignity.” Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumah [2000] 3 CLJ 224.

You will note that Bhagwati J spoke about “bare necessities of life”.

Are not police protection and medical assistance from a hospital, ‘bare necessities of life’?

If a hospital has rules that exclude that right, those rules do not give ‘dignity’ to a member of the public. These dress codes are in breach of the Federal Constitution.

[11] Equality and Article 8

As a multicultural nation, in Malaysia, there is a co-mingling of different communities and adherents of different creeds.

What is accepted by one community could be discouraged in another.

This creates difficulties and quiet tensions.

In a case called Muhamad Juzaili, the Court of Appeal dealt with cross-dressing Muslim men.⁹ Muhamad Juzaili Bin Mohd Khamis & Ors v State Government Of Negeri Sembilan & Ors [2014] MLJU 1063  There, the court dealt with the idea of ‘constitutional equality’.¹⁰ Malaysian Constitution, Article 8(1) [equivalent to the Indian Article 14 of the Indian Constitution

It ruled that a guarantee of equality meant that “different people in different situations cannot be treated in the same way”.¹¹ Venkateshwara caters vs State of Andhra Pradesh and others [1993] 3 SER section 6, page 6378.

[12] Let us apply this test:

If a person in one community thought wearing shorts was improper, that does not mean that every lady dressed in shorts in another community was, therefore, ‘improper’, ‘impolite’ or ‘immoral’.

Some government departments have begun to make moral policing rules. This is based on their view of what is proper. 

Now that may be appropriate for a place of worship.

When such a dress code is extended to a government installation, everything changes.

In a government installation set up to deal with emergencies, high standards of dressing do not apply.

If they do, they attack the fundamental liberties guaranteed by the Constitution.

In a government installation, a person is in need of emergency assistance. It is illegal to deny that need.

We are becoming more radicalised.

Moral policing is on the rise.

We need to face these communal issues and speak about them openly.