Obscenity Laws in Malaysia
Content
1.0 INTRODUCTION The Malaysian Federal Constitution grants the right to freedom of speech and expression under A10(1)(a). However, this right is subjected to Clause 2(a). Thus by virtue of the Clause 2(a), obscenity laws have been passed to restrict the freedom of speech and expression in the interest of the morality of our country. To delve into the topic of obscenity laws in Malaysia, this paperwork discusses (1) the necessity of having obscenity laws in justifying the restriction on freedom of speech and expression, (2) the laws that govern obscenity and (3) the application or enforcement of obscenity laws. In this paperwork, the discussion on the application or enforcement of obscenity laws is confined to Penal Code and Film Censorship Act 2002. Besides, the position of obscenity laws in United States will be analysed to be compared with the position in Malaysia. 2.0 THE MEANING OF “OBSCENITY OR “OBSCENE” Obscenity is a carefully crafted legal concept that characterises obscene material.1 However, what amounts to obscenity has been something that is very hard to be specifically defined 2 . An effort has been made in R v Hicklin 3 in defining obscene in which judges considered a work to be obscene if any portion of the material had a tendency to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. The court further ruled that it is up to a magistrate to judge this obscenity by looking at the photographs, and not by taking the opinions of others on the point. This position
1
S.D. Ross,The Law of Journalism and Mass Communication, 2011(3rd Edition) Justice Potter Stewart said, "I can't define pornography, but I know it when I see it." In Jacobellis v. Ohio (1964) 3 L.R. 2 Q.B. 360 (1868) 2
1
has been applied by the local court of Sim Poh Ho v PP4. Thus, it must be adhered that what amounts to obscene is of the court‟s determination. 3.0 NECESSITIES TO REGULATE OBSCENITY LAWS AND THE IMPLICATIONS OF OBSCENITY Harm to the minors has been the main concern that leads to the existence of obscenity laws. Due to the fact that children are not fully responsible moral agents who can think maturely, in terms of the consequences of their acts, it is harmful to the children if they consume pornography or are used as participants in obscene films, videos or in obscene printed materials. Therefore, there is a need to regulate obscenity laws as children lack the capacity to make choices with regard to sexual matters due to their tender age which is not exposed to the reality of world where they might get exploited easily. Besides that, it is necessary to prevent the production of sexually explicit material involving the actual abuse of children to protect the children who are still young and innocent. Regulation of obscenity laws is important to curb the distribution of material which will incite adults to commit sexual offences against children. In this world today, apart from adults, children are also negatively influenced by pornography. To substantiate this point, there is a case where an 11-year-old boy, who could have been acting out from what he had seen in a pornographic movie, raped a 6-year-old girl in a babysitter‟s home5 and another
4
[1966] 1 MLJ 275 Murali, R.S.N. (2013, November 30). 11-year-old boy rapes six-year-old. The Star Online. Retrieved on 11 December, 2013 from, http://www.thestar.com.my/News/Nation/2013/11/30/11yearold-boy-rapessixyearold-Cops-probing-what-could-be-the-youngest-sex-predator-in-the-country.aspx 5
2
case where a teenager who was obsessed with pornography raped his 5 year old niece6. The second implication of obscenity is moral harm to the society where it depraves and corrupts those who produce or consume it. Moral harm is not an unfamiliar idea as it is what most parents have in mind when they censor what their children are allowed to see.7 Those obscene materials tend to encourage readers to regard other people as mere objects of sexual interest, whose feelings and desires do not matter, such as portraying women as sex objects to be used by men for their own satisfaction. To view obscene materials is morally wrong as these materials often exemplify and recommend such behaviour where, specifically, the viewing of women as mere sex objects, rather than as active, full-fledged persons. Due to the moral harm caused by obscenity, it is necessary to have obscenity laws to prevent readers from being depraved and corrupted by sexually oriented publications. Apart from that, laws prohibiting obscenity help to educate consumers of pornography that those materials are morally bad and should avoid viewing or learning from pornography. Thirdly, the effect of allowing obscene materials to be distributed around freely without any restriction exposes third parties to risk of offence or assault, namely, violence against women or rape. Obscene materials, specifically, pornography, encourages violence against women because pornography says that women want to
6
Suresh. (2013, August 27). Pornography obsessed teenager raped his 5-year-old-niece. Malaysia Edition. Retrieved on 11 December, 2013 from http://www.malaysiaedition.net/pornography-obsessed-teenagerraped-5-year-old-niece/ 7 Koppelman, A. (2005, May 5.) Does Obscenity Cause Moral Harm? Columbia Law Review, Vol. 105, 2005; Northwestern Public Law Research Paper No. 05-02.
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be hurt, forced, and abused8. Those materials also encourage consumers to think that perpetrating sexual assaults is acceptable via scenes or acts in pornography where women get raped and this mind set will tend to remain. Besides drugs and alcohol addiction, one can get addicted to pornography too. A British study finds that addiction to pornography leads to similar brain activity patterns found in alcohol and drug addict9. A scientist, Dr. Valerie Voon said that when an alcoholic sees an ad for a drink, their brain will light up in a certain way and they will be stimulated in a certain way. They are seeing this same kind of activity in users of pornography 10 . Preliminary findings in a separate study from the University of Sydney find that porn addiction is on the rise, due to the ease of access via the internet and other new technologies11. If the consumers of pornography get addicted to porn, it is likely they will have a mind-set where perpetrating sexual assaults is acceptable and this would endanger the females. Due to those implications, it is necessary to have obscenity laws which will at least help to reduce crimes which might be induced by obscenity. 4.0 RELATED LAWS The few laws which govern obscenity in Malaysia are Penal Code, Communications and Multimedia Act 1998, Printing Presses and Publications Act, Indecent Advertisements Act and Film Censorship Act. Under s292 of Penal Code which governs on sale,etc., of other books, etc., it is stated that whoever who sells, distributes or possesses any obscene object like
8
Dworkin, A. (1981). Why Pornography Matters to Feminists. Andrew Dworkin Online Library: Letters from a War Zone. Retrieved from http://www.nostatusquo.com/ACLU/dworkin/WarZoneChaptIVB.html 9 (2013, September 25). Porn addiction changes the brain. Free Malaysia Today. Retrieved on 11 December 2013 from http://www.freemalaysiatoday.com/category/leisure/2013/09/25/porn-addiction-changes-thebrain/ 10 Ibid 11 Ibid
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book or painting12 or imports, exports or conveys any obscene object13 or involves himself in any business relating to obscene objects14 or advertises by any means the person who is involved in any act which is an offence under this section 15 or lastly, offers or attempts to do any act which is an offence under this section16, shall be punished with imprisonment, or with fine, or with both. However, there is an exception provided in this section and will be discussed further in the next subtopic. Under s233(1) of the Multimedia and Communications Act 199817, a person who uses the network facilities or network service or applications service to make, create or solicit and initiate the transmission of any comment, request or other communication which is obscene or indecent and done with the intention to annoy, abuse, threaten or harass another person commits an offence. Next, s4 of Printing Presses and Publications Act 198418 which governs on act of printing press used for unlawful purpose states that any person who prints, produces, causes or permits to be printed or produced by his printing press or machine any publication or document which is obscene or otherwise against public decency shall be guilty of an offence. Section 3 of the Indecent Advertisements Act 1953 which governs indecent or obscene pictures or printed or written matter states it is an offence to affix any picture or printed or written matter which is of an indecent or obscene in nature, on anything in public area for public view.
12
S.292(a) S.292(b) 14 S.292(c) 15 S.292(d) 16 S.292(e) 17 Act 588 18 Act 301 13
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Lastly, section 5(1) of the Film Censorship Act 2002 prohibits the possession of any film or film-publicity material which is obscene or is otherwise against public decency and it is an offence punishable under s5(2) of the Act. 5.0 APPLICATION 5.1 PENAL CODE Penal Code19 lays down some provisions which govern obscenity including s292, s293 and s294. For the purpose of discussion, the paperwork will focus on s292 which contain 5 provisions that govern obscene objects. Previously, this provision has been interpreted as being confined to cases involving obscene objects which are obscene on sight such as books, pamphlets, painting and so on. 20 However, this ambit has been widened to include objects which are not obscene on sight such as films and videos as being held in the case of Mohd Rizal v PP.21 It is pertinent to note that possession of an obscene object alone will not make a person liable under s292 of the Penal Code. As mentioned in the case of Lim Hock Thai v PP22, the possession must be for the purpose of sale, lets to hire, public exhibition, circulation or distribution as provided under s292(a). As decided in the case of KS Roberts v PP23, knowledge is not needed to convict someone for the offence for this offence as it would place intolerable burden on the prosecution. In this case, although it was not proven that the retailer had any knowledge of whether the magazine he was selling contain obscene article, he was convicted. Besides that, the court also held that to be liable for selling obscene book, it is sufficient that only a part of it is obscene.
19
Act 574 Lim Hock Thai v PP [1981] 2 MLJ 212 21 [2008] 3 MLRH 675 22 Ibid.2. 23 [1970] 2 MLJ 137 20
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S292(b) provides that a person will be liable for importing or exporting any obscene object for the purposes mentioned above. A person who takes part or receives profits from any business involving obscene objects will be punished as well as stipulated under s292(c). Apart from that, a person who advertises or makes known by any means that any person is engaged or ready to engage in any acts provided above will be held liable under s292(d). Besides, advertisements that reveal that obscene object can be procured from or through any person are also prohibited. The test to make the publisher of the advertisement liable is discussed in the case of Sim Poh Ho v PP24. In this case, the publishers advertised in the newspaper an advertisement which was alleged to be revealing the person from whom the obscene objects can be procured. The court acquitted the accused on the ground that the words of the advertisement are not clear enough to make a person certain that he or she will obtain an obscene object upon answering the advertisement. Thus, the test is that the wordings used in the advertisement must be in ordinary and natural meaning produce the implications that whoever answers that advertisement will definitely procure an obscene object. As provided under s292(e), an attempt or offer to do any act as mentioned above is considered as an offence. Section 292 of the Penal Code as discussed above does not apply to obscene objects which are used bona fide for religious purposes. To conclude, whoever found guilty under s292 will be punished with imprisonment for a term which may extend to three years, or with fine or with both.
24
[1966] 1 MLJ 275
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5.2 FILM CENSORSHIP ACT The Film Censorship Act25 which governs on obscene films under s5 states that no person shall possess26 or circulate, exhibit or sell27 any film or film-publicity material which is obscene or is otherwise against public decency. FCA exists specifically to cater for films of an obscene or lewd nature but it does not mean prosecution under the Penal Code under the provisions of section 292(a) is precluded28. Contrary to Penal Code where possessing an obscene object is not an offence, it is an offence to possess an obscene film under FCA or else that person shall be punished under s5(2) of the same Act. Possession was discussed in the case of Low Ming Kiat lwn PP29 where the court held that the fact that appellant had care and control over the counter where the confiscated materials were exhibited and the close proximity between appellant and the confiscated DVDs too, it could be inferred that the accused had possession over the pornographic DVDs which were confiscated. However, possession is not the sole requirement under s5 of FCA. In the case of PP v Lee Swee Sing30, it was mentioned that to establish a prima facie case under s5(1)(a) of FCA, prosecutor must prove that the accused had possession over the films which were confiscated, the identity of the confiscated materials must be ascertained when brought up to court and all of the confiscated materials(DVDs and VCDs) are obscene materials. However, the accused in that case, even possession was proven by being at the stall at all material times with the confiscated materials, 25
Act 620 S5(1)(a) of Film Censorship Act 27 S5(1)(b) of Film Censorship Act 28 Mohd Rizal v PP [2008] 3 MLRH 675 29 [2010] 8 MLRH 221 30 [2008] 3 MLRH 227 26
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was acquitted as the untitled confiscated VCDs and DVDs were not marked and there was a possibility that the materials are mixed up with other materials kept in the store where the second element was no fulfilled. Another reason was due to the random screen testing of confiscated materials carried out by the officers where it cannot be concluded that the confiscated materials are obscene materials. The court regarding this element applied the case of PP v Chung Wan Li31where it was held that the screening of each and every of the VCDs is necessary to determine whether they were obscene films. Again in PP v Kok Seong Yoon, the accused was acquitted though it can be proven that he had control over the confiscated DVDs which were alleged to be pornographic. However, the court, applying the case of PP v Chung Wan Li, held that there was no screen testing carried out at all during the trial to prove all confiscated DVDs are obscene, as required to establish a prima facie case under s5(1) of FCA and thus, the accused was discharged. However, there are exceptions where under s2(1) of FCA, this Act does not apply to the Federal Government or the Government of any State or under s2(2). This Act is also not applicable to any film transhipped within Malaysia for delivery at a place outside Malaysia 32 or films which are not intended to be circulated or distributed in Malaysia33. 6.0 THE POSITION IN UNITED STATES The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech, or of the press.” It
31
[2006] 2 MLJ 170 S2(2)(b) of Film Censorship Act 33 S2(2)(c) of Film Censorship Act 32
9
restricts government less in that it provides no protection to some types of speech and only limited protection to others.34. Obscenity apparently is unique in being the only type of speech to which the Supreme Court has denied First Amendment protection without regard to whether it is harmful to individuals to protect the social interest in order and morality. The Supreme Court has allowed one exception to the rule that obscenity is not protected by the First Amendment: one has a constitutional right to possess obscene material “in the privacy of his own home35”. This is different from Malaysia: it is illegal to possess obscene film even for private use under Film Censorship Act. To make someone liable under obscenity laws in United States, the court has established a test which must be fulfilled. This test is being referred to as the Miller test or the three-part test36. (a) whether the “average person applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Referring to this test, to be obscene, pornography must, at a minimum, “depict or describe patently offensive „hard core‟ sexual conduct.” This is different from the position in Malaysia where such test is not being applied. This can be explained by the fact that the community standards and values are extremely different in Malaysia as compared to the United States. Furthermore, the religion of the Federation of Malaysia is Islam which views pornography as indecent and terms it as faahisha(shameful deeds) in the Quran regardless of whether the 34
Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979). United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973). 36 Miller v. California, 413 U.S. 15, 27 (1973). 35
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pornography is of patently offensive or not.37 To conclude, obscenity laws vary from a country to another, depending on its local perceptions, standards and values.
37
n.d, Defining pornography in Islam, Retrieved From http://www.zawaj.com/articles/pornography_whatis.html.
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7.0 ANALYSIS AND CONCLUSION The availability of pornography films online has largely reduced the effectiveness of the obscenity laws in discouraging the people from watching pornography. In our country, it is correct to say that we can equate pornography with obscenity. The existence of variety laws reflects our position that we are against pornography as it is against the values and morality of our country. However, online viewing of pornography is not illegal in our country. The websites are accessible. Thus, the existence enforcement of obscenity laws has been questioned for they are to certain extent, obsolete and impractical. Restriction is a must to freedom of expression for unfettered freedom is anarchy. Thus, obscenity laws are here to stay to avoid our people from being mentally corrupted. Having said so, it is highly dependent on self-control and the guidance from the parents to deter our young generations from being swayed to immorality by obscenity. Awareness of the public of the effects of obscene materials must be created. Obscenity laws must also be reviewed from time to time to ensure they are updated and practical; in line with contemporary social values and standards.
12
1
S.D. Ross,The Law of Journalism and Mass Communication, 2011(3rd Edition) Justice Potter Stewart said, "I can't define pornography, but I know it when I see it." In Jacobellis v. Ohio (1964) 3 L.R. 2 Q.B. 360 (1868) 2
1
has been applied by the local court of Sim Poh Ho v PP4. Thus, it must be adhered that what amounts to obscene is of the court‟s determination. 3.0 NECESSITIES TO REGULATE OBSCENITY LAWS AND THE IMPLICATIONS OF OBSCENITY Harm to the minors has been the main concern that leads to the existence of obscenity laws. Due to the fact that children are not fully responsible moral agents who can think maturely, in terms of the consequences of their acts, it is harmful to the children if they consume pornography or are used as participants in obscene films, videos or in obscene printed materials. Therefore, there is a need to regulate obscenity laws as children lack the capacity to make choices with regard to sexual matters due to their tender age which is not exposed to the reality of world where they might get exploited easily. Besides that, it is necessary to prevent the production of sexually explicit material involving the actual abuse of children to protect the children who are still young and innocent. Regulation of obscenity laws is important to curb the distribution of material which will incite adults to commit sexual offences against children. In this world today, apart from adults, children are also negatively influenced by pornography. To substantiate this point, there is a case where an 11-year-old boy, who could have been acting out from what he had seen in a pornographic movie, raped a 6-year-old girl in a babysitter‟s home5 and another
4
[1966] 1 MLJ 275 Murali, R.S.N. (2013, November 30). 11-year-old boy rapes six-year-old. The Star Online. Retrieved on 11 December, 2013 from, http://www.thestar.com.my/News/Nation/2013/11/30/11yearold-boy-rapessixyearold-Cops-probing-what-could-be-the-youngest-sex-predator-in-the-country.aspx 5
2
case where a teenager who was obsessed with pornography raped his 5 year old niece6. The second implication of obscenity is moral harm to the society where it depraves and corrupts those who produce or consume it. Moral harm is not an unfamiliar idea as it is what most parents have in mind when they censor what their children are allowed to see.7 Those obscene materials tend to encourage readers to regard other people as mere objects of sexual interest, whose feelings and desires do not matter, such as portraying women as sex objects to be used by men for their own satisfaction. To view obscene materials is morally wrong as these materials often exemplify and recommend such behaviour where, specifically, the viewing of women as mere sex objects, rather than as active, full-fledged persons. Due to the moral harm caused by obscenity, it is necessary to have obscenity laws to prevent readers from being depraved and corrupted by sexually oriented publications. Apart from that, laws prohibiting obscenity help to educate consumers of pornography that those materials are morally bad and should avoid viewing or learning from pornography. Thirdly, the effect of allowing obscene materials to be distributed around freely without any restriction exposes third parties to risk of offence or assault, namely, violence against women or rape. Obscene materials, specifically, pornography, encourages violence against women because pornography says that women want to
6
Suresh. (2013, August 27). Pornography obsessed teenager raped his 5-year-old-niece. Malaysia Edition. Retrieved on 11 December, 2013 from http://www.malaysiaedition.net/pornography-obsessed-teenagerraped-5-year-old-niece/ 7 Koppelman, A. (2005, May 5.) Does Obscenity Cause Moral Harm? Columbia Law Review, Vol. 105, 2005; Northwestern Public Law Research Paper No. 05-02.
3
be hurt, forced, and abused8. Those materials also encourage consumers to think that perpetrating sexual assaults is acceptable via scenes or acts in pornography where women get raped and this mind set will tend to remain. Besides drugs and alcohol addiction, one can get addicted to pornography too. A British study finds that addiction to pornography leads to similar brain activity patterns found in alcohol and drug addict9. A scientist, Dr. Valerie Voon said that when an alcoholic sees an ad for a drink, their brain will light up in a certain way and they will be stimulated in a certain way. They are seeing this same kind of activity in users of pornography 10 . Preliminary findings in a separate study from the University of Sydney find that porn addiction is on the rise, due to the ease of access via the internet and other new technologies11. If the consumers of pornography get addicted to porn, it is likely they will have a mind-set where perpetrating sexual assaults is acceptable and this would endanger the females. Due to those implications, it is necessary to have obscenity laws which will at least help to reduce crimes which might be induced by obscenity. 4.0 RELATED LAWS The few laws which govern obscenity in Malaysia are Penal Code, Communications and Multimedia Act 1998, Printing Presses and Publications Act, Indecent Advertisements Act and Film Censorship Act. Under s292 of Penal Code which governs on sale,etc., of other books, etc., it is stated that whoever who sells, distributes or possesses any obscene object like
8
Dworkin, A. (1981). Why Pornography Matters to Feminists. Andrew Dworkin Online Library: Letters from a War Zone. Retrieved from http://www.nostatusquo.com/ACLU/dworkin/WarZoneChaptIVB.html 9 (2013, September 25). Porn addiction changes the brain. Free Malaysia Today. Retrieved on 11 December 2013 from http://www.freemalaysiatoday.com/category/leisure/2013/09/25/porn-addiction-changes-thebrain/ 10 Ibid 11 Ibid
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book or painting12 or imports, exports or conveys any obscene object13 or involves himself in any business relating to obscene objects14 or advertises by any means the person who is involved in any act which is an offence under this section 15 or lastly, offers or attempts to do any act which is an offence under this section16, shall be punished with imprisonment, or with fine, or with both. However, there is an exception provided in this section and will be discussed further in the next subtopic. Under s233(1) of the Multimedia and Communications Act 199817, a person who uses the network facilities or network service or applications service to make, create or solicit and initiate the transmission of any comment, request or other communication which is obscene or indecent and done with the intention to annoy, abuse, threaten or harass another person commits an offence. Next, s4 of Printing Presses and Publications Act 198418 which governs on act of printing press used for unlawful purpose states that any person who prints, produces, causes or permits to be printed or produced by his printing press or machine any publication or document which is obscene or otherwise against public decency shall be guilty of an offence. Section 3 of the Indecent Advertisements Act 1953 which governs indecent or obscene pictures or printed or written matter states it is an offence to affix any picture or printed or written matter which is of an indecent or obscene in nature, on anything in public area for public view.
12
S.292(a) S.292(b) 14 S.292(c) 15 S.292(d) 16 S.292(e) 17 Act 588 18 Act 301 13
5
Lastly, section 5(1) of the Film Censorship Act 2002 prohibits the possession of any film or film-publicity material which is obscene or is otherwise against public decency and it is an offence punishable under s5(2) of the Act. 5.0 APPLICATION 5.1 PENAL CODE Penal Code19 lays down some provisions which govern obscenity including s292, s293 and s294. For the purpose of discussion, the paperwork will focus on s292 which contain 5 provisions that govern obscene objects. Previously, this provision has been interpreted as being confined to cases involving obscene objects which are obscene on sight such as books, pamphlets, painting and so on. 20 However, this ambit has been widened to include objects which are not obscene on sight such as films and videos as being held in the case of Mohd Rizal v PP.21 It is pertinent to note that possession of an obscene object alone will not make a person liable under s292 of the Penal Code. As mentioned in the case of Lim Hock Thai v PP22, the possession must be for the purpose of sale, lets to hire, public exhibition, circulation or distribution as provided under s292(a). As decided in the case of KS Roberts v PP23, knowledge is not needed to convict someone for the offence for this offence as it would place intolerable burden on the prosecution. In this case, although it was not proven that the retailer had any knowledge of whether the magazine he was selling contain obscene article, he was convicted. Besides that, the court also held that to be liable for selling obscene book, it is sufficient that only a part of it is obscene.
19
Act 574 Lim Hock Thai v PP [1981] 2 MLJ 212 21 [2008] 3 MLRH 675 22 Ibid.2. 23 [1970] 2 MLJ 137 20
6
S292(b) provides that a person will be liable for importing or exporting any obscene object for the purposes mentioned above. A person who takes part or receives profits from any business involving obscene objects will be punished as well as stipulated under s292(c). Apart from that, a person who advertises or makes known by any means that any person is engaged or ready to engage in any acts provided above will be held liable under s292(d). Besides, advertisements that reveal that obscene object can be procured from or through any person are also prohibited. The test to make the publisher of the advertisement liable is discussed in the case of Sim Poh Ho v PP24. In this case, the publishers advertised in the newspaper an advertisement which was alleged to be revealing the person from whom the obscene objects can be procured. The court acquitted the accused on the ground that the words of the advertisement are not clear enough to make a person certain that he or she will obtain an obscene object upon answering the advertisement. Thus, the test is that the wordings used in the advertisement must be in ordinary and natural meaning produce the implications that whoever answers that advertisement will definitely procure an obscene object. As provided under s292(e), an attempt or offer to do any act as mentioned above is considered as an offence. Section 292 of the Penal Code as discussed above does not apply to obscene objects which are used bona fide for religious purposes. To conclude, whoever found guilty under s292 will be punished with imprisonment for a term which may extend to three years, or with fine or with both.
24
[1966] 1 MLJ 275
7
5.2 FILM CENSORSHIP ACT The Film Censorship Act25 which governs on obscene films under s5 states that no person shall possess26 or circulate, exhibit or sell27 any film or film-publicity material which is obscene or is otherwise against public decency. FCA exists specifically to cater for films of an obscene or lewd nature but it does not mean prosecution under the Penal Code under the provisions of section 292(a) is precluded28. Contrary to Penal Code where possessing an obscene object is not an offence, it is an offence to possess an obscene film under FCA or else that person shall be punished under s5(2) of the same Act. Possession was discussed in the case of Low Ming Kiat lwn PP29 where the court held that the fact that appellant had care and control over the counter where the confiscated materials were exhibited and the close proximity between appellant and the confiscated DVDs too, it could be inferred that the accused had possession over the pornographic DVDs which were confiscated. However, possession is not the sole requirement under s5 of FCA. In the case of PP v Lee Swee Sing30, it was mentioned that to establish a prima facie case under s5(1)(a) of FCA, prosecutor must prove that the accused had possession over the films which were confiscated, the identity of the confiscated materials must be ascertained when brought up to court and all of the confiscated materials(DVDs and VCDs) are obscene materials. However, the accused in that case, even possession was proven by being at the stall at all material times with the confiscated materials, 25
Act 620 S5(1)(a) of Film Censorship Act 27 S5(1)(b) of Film Censorship Act 28 Mohd Rizal v PP [2008] 3 MLRH 675 29 [2010] 8 MLRH 221 30 [2008] 3 MLRH 227 26
8
was acquitted as the untitled confiscated VCDs and DVDs were not marked and there was a possibility that the materials are mixed up with other materials kept in the store where the second element was no fulfilled. Another reason was due to the random screen testing of confiscated materials carried out by the officers where it cannot be concluded that the confiscated materials are obscene materials. The court regarding this element applied the case of PP v Chung Wan Li31where it was held that the screening of each and every of the VCDs is necessary to determine whether they were obscene films. Again in PP v Kok Seong Yoon, the accused was acquitted though it can be proven that he had control over the confiscated DVDs which were alleged to be pornographic. However, the court, applying the case of PP v Chung Wan Li, held that there was no screen testing carried out at all during the trial to prove all confiscated DVDs are obscene, as required to establish a prima facie case under s5(1) of FCA and thus, the accused was discharged. However, there are exceptions where under s2(1) of FCA, this Act does not apply to the Federal Government or the Government of any State or under s2(2). This Act is also not applicable to any film transhipped within Malaysia for delivery at a place outside Malaysia 32 or films which are not intended to be circulated or distributed in Malaysia33. 6.0 THE POSITION IN UNITED STATES The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech, or of the press.” It
31
[2006] 2 MLJ 170 S2(2)(b) of Film Censorship Act 33 S2(2)(c) of Film Censorship Act 32
9
restricts government less in that it provides no protection to some types of speech and only limited protection to others.34. Obscenity apparently is unique in being the only type of speech to which the Supreme Court has denied First Amendment protection without regard to whether it is harmful to individuals to protect the social interest in order and morality. The Supreme Court has allowed one exception to the rule that obscenity is not protected by the First Amendment: one has a constitutional right to possess obscene material “in the privacy of his own home35”. This is different from Malaysia: it is illegal to possess obscene film even for private use under Film Censorship Act. To make someone liable under obscenity laws in United States, the court has established a test which must be fulfilled. This test is being referred to as the Miller test or the three-part test36. (a) whether the “average person applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Referring to this test, to be obscene, pornography must, at a minimum, “depict or describe patently offensive „hard core‟ sexual conduct.” This is different from the position in Malaysia where such test is not being applied. This can be explained by the fact that the community standards and values are extremely different in Malaysia as compared to the United States. Furthermore, the religion of the Federation of Malaysia is Islam which views pornography as indecent and terms it as faahisha(shameful deeds) in the Quran regardless of whether the 34
Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979). United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973). 36 Miller v. California, 413 U.S. 15, 27 (1973). 35
10
pornography is of patently offensive or not.37 To conclude, obscenity laws vary from a country to another, depending on its local perceptions, standards and values.
37
n.d, Defining pornography in Islam, Retrieved From http://www.zawaj.com/articles/pornography_whatis.html.
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7.0 ANALYSIS AND CONCLUSION The availability of pornography films online has largely reduced the effectiveness of the obscenity laws in discouraging the people from watching pornography. In our country, it is correct to say that we can equate pornography with obscenity. The existence of variety laws reflects our position that we are against pornography as it is against the values and morality of our country. However, online viewing of pornography is not illegal in our country. The websites are accessible. Thus, the existence enforcement of obscenity laws has been questioned for they are to certain extent, obsolete and impractical. Restriction is a must to freedom of expression for unfettered freedom is anarchy. Thus, obscenity laws are here to stay to avoid our people from being mentally corrupted. Having said so, it is highly dependent on self-control and the guidance from the parents to deter our young generations from being swayed to immorality by obscenity. Awareness of the public of the effects of obscene materials must be created. Obscenity laws must also be reviewed from time to time to ensure they are updated and practical; in line with contemporary social values and standards.
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