PUTRAJAYA: The local government has the power to establish by-laws to prosecute citizens who behave disorderly in public, the Federal Court ruled yesterday.

Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim, together with Federal Court judges Datuk Alauddin Sheriff and Datuk Richard Malanjum, unanimously held that the Datuk Bandar of Kuala Lumpur (DBKL) was correct to charge two students for behaving indecently by hugging and kissing at Kuala Lumpur City Centre Park.

The court ruled that Section 8 (1) of the Park By-Laws, the section invoked by the Datuk Bandar to punish persons caught behaving indecently in public was constitutional.

Following the ruling, two students, Ooi Kean Thong, 24, and Siow Ai Wei, 22, will have to defend themselves against the charge levelled against them at the Kuala Lumpur City Hall Court.

Their case is fixed for mention on June 1. Both had pleaded not guilty to committing the offence at the park at 5.20pm on Aug 2 2003.

If convicted, they could be fined not exceeding RM2,000 or jailed up to a year, or both.

Ahmad Fairuz said the (Federal) court's answer to constitutional question referred to them, whether Section 8 (1) is ultra vires the Local Government Act 1976 and infringed Article 5 (1) of the Federal Constitution (relating to freedom of life) was in the negative.

The two students had challenged the validity of Section 8 (1) contending that the Local Government Act 1976 which is the parent act governing local authorities did not empower the Datuk Bandar to make local by-laws on matters of decency.

They alleged that they were given a summons because they refused to bribe the enforcement officers. In January last year, the two officers pleaded not guilty to corruption charges in the Sessions Court and their case is pending.

Counsel S. Selvam, for the students, submitted yesterday that the Datuk Bandar had failed to consider the fact that Malaysia is a multiracial country and that the act of hugging and kissing is an expression of love which should be encouraged.

"The students should be given freedom to live but there was serious infringement by the Datuk Bandar of the two students' fundamental liberty and constitutional rights," he said.

Ahmad Fairuz said: "So, they should be given freedom to live as they like? The constitution allows all citizens to do that (hugging and kissing) even by the roadside, in public park?

"In England, those acts are acceptable to the people in that country but is kissing and hugging acceptable to Malaysian citizens? Is the act according to the morality of the Asian people?"

Selvam replied that there was nothing wrong with hugging and kissing because it was an act to express their love.

He said the Datuk Bandar had created a law which was prejudicial and caused hardship to both students and this was unfair.

Deputy public prosecutor Manoj Kurup argued that it should be left to the trial judge to decide whether the act of hugging and kissing was a disorderly behaviour.

He said there was no need to have specific words in the act to legislate by-laws for a specific purpose.