TOPIC 7 PUBLICATION OF INFORMATION – ADVERTISING, BLASPHEMY, RACIAL VILIFICATION AND OBSCENE PUBLICATION
TOPIK 7 11 ABCR3203 Topic 7
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1. Define blasphemy and racial vilification;
2. Explain what obscene publications are; and
3. Evaluate how the law regulates advertisements.
INTRODUCTION
Before we begin this topic, let us read this article first.
Aspects of Censorship
(a) Moral censorship is the means by which any material that contains what the
censor deems to be of questionable morality is removed. The censoring body
disapproves of what it deems to be the values behind the material and limits
access to it. Pornography, for example, is often censored under this rationale. In
another example, graphic violence resulted in the censorship of the 1932
"culturally, historically, or aesthetically significant" movie entitled "Scarface"
originally completed in 1930.
(b) Military censorship is the process of keeping military intelligence and tactics
confidential and away from the enemy. This is used to counter espionage, which is
the process of gleaning military information. Additionally, military censorship
may involve a restriction on information or media coverage that can be released to
the public. This is also considered acceptable by even democratic governments as
necessary for the preservation of national security.
(c) Political censorship occurs when governments are holding back secret
information from their citizens. The logic is to prevent the free expression
needed to revolt. Democracies do not officially approve of political censorship
but often endorse it privately. Any dissent against the government is thought to
be a „weakness‰ for the enemy to exploit. Campaign tactics are also often kept
secret.
(d) Religious censorship is the means by which any material objectionable to a
certain faith is removed. This often involves a dominant religion forcing
limitations on less dominant ones. Alternatively, one religion may shun the
works of another when they believe the content is not appropriate for their faith.
(e) Corporate censorship is the process by which editors in corporate media outlets
intervene to halt the publishing of information that portrays their business or
business partners in a negative light. Privately owned corporations in the
business of reporting the news also sometimes refuse to distribute information
due to the potential loss of advertiser revenue or shareholder value which
adverse publicity may bring. (Source: Adapted from http://en.wikipedia.org/
wiki/Censorship Retrieval date: Sept 25).
Do you think the above types of censorship have been implemented in Malaysia?
If Âyes' under what law and in which situation?
7.1 LAW ON ADVERTISING
The advertising industry is the lifeblood of the communications industry, without
which, the industry would not survive. There is no overall or comprehensive law
and policy on advertising practices in Malaysia. The governmentÊs approach on
advertisement is to regulate particular advertisements. There are two types of
laws that govern advertisements.
(a) Statutes that relate to the content, substance and the mode of advertising.
Examples of the first type are:
(i) Emblems and Names (Prevention of Improper Use) Act this statute
prohibits the improper use of certain emblems and names for example
the Public Seal of the Federation.
(ii) The Food Act 1963 this statute was passed to protect the public
against health hazards and fraud in the preparation, sale and use of
food. It contains guidelines on advertisements for example on
packaging, description, quality, age or effect.
(iii) Indecent Advertisement Act 1953 is a statute which prohibits any
advertisement which is obscene or indecent. This Act was passed to
suppress indecent advertisement.
(iv) Trade Description Act 1972 contains prohibition on wrong
description of goods in the course of trade, false and misleading
indications as to the price of goods. Generally it deals with
merchandise marking.
(b) Statutes that govern certain professions, deals with restrictions imposed on
certain professionals with regard to advertising. For example, the Legal
Profession Act prohibits the advertisement of lawyers. The same exists for
architects, engineers and doctors.
(i) Other than laws in the form of statutory regulation, self regulation in
the form of code of conduct plays an integral part towards control of
advertising activities. The Malaysian Code of Advertising Practice,
administered by Advertising Standards Authority (ASAM) in essence
states that advertisements should not exploit the consumerÊs lack of
experience or knowledge. The code contains specific rules on certain
products such as alcohol. Besides the Malaysian Code of Advertising
Practice, there are a few other codes relevant to the advertising
industries.
(ii) Advertising Code administered by the Ministry of Information. This
code is applicable to commercial advertisements aired in radio and TV stations.
(iii) Content Code issued by the Malaysian Communications and
Multimedia Content Forum (CMCF) under the Communications and
Multimedia Act 1998. The content code applies to all advertisements
communicated electronically, including traditional broadcasting. The
code applies to all parties bound by the Act.
(iv) Guidelines for the Application & Issuance of the Made in Malaysia
Certificate (MIM) this is under the control of the „Perbadanan
Kemajuan Filem Nasional Malaysia‰ (FINAS).
(v) To qualify as a „Made-in-Malaysia‰ advertisement, it has to have at
least 80% local content and be made in Malaysia.
(vi) Film Censorship Guidelines issued by the Film Censorship Board
has its own guidelines on advertisements.
However, these codes do not operate like law and their implementation is
minimal. For example, compliance to the Malaysian Communications and
Multimedia Content Code is not mandatory. The advantage for those who
comply with them is a defence against any action taken against them.
Section 98 of the Communications and Multimedia Act 1998 provides:
(1) / compliance with a registered voluntary industry code shall not be
mandatory. (2) Compliance with a registered voluntary industry code shall be a
defence against any prosecution, action or proceeding of any nature, whether in
a court or otherwise, taken against a person (who is subject to the voluntary
industry code) regarding a matter dealt with in that code.
7.2 BLASPHEMY
Blasphemy is the defamation of the name of one or more gods. These may
include using sacred names as stress expletives without intention to pray or
speak of sacred matters. Sometimes blasphemy is used loosely to mean any
profane language, for example in "With much hammering and blasphemy, the
locomotive's replacement spring was finally fitted."
In a broader sense, blasphemy is irreverence toward something considered sacred
or inviolable. In this broader sense the term is used by Sir Francis Bacon in the
Advancement of Learning, when he speaks of "blasphemy against learning".
Many cultures disapprove of speech or writing which defames the deity or deities
of their established religions and these restrictions have the force of law in some
countries.
7.2.1 Historical Background to the Crime of Blasphemy
Generally, blasphemy is a crime against religion. It refers to whatever comments
or information published that annoy the feelings of the believers of a religion. To
„blaspheme‰ means to „speak impiously or irreverently of God or sacred things.
It also means to „speak evil of God or sacred things‰. Blasphemy therefore,
means impious or irreverent utterance or action concerning God or sacred things
or the crime of assuming to oneself the rights or qualities of God.
Historically, this crime originated from England. In England, you cannot publish
words which show disrespect toward God and the Anglo-Christian Churches.
However, this offence of blasphemy does not offer protection to other religions
(in England).
It is not blasphemous to deny a certain religion but it is blasphemous to attack „in
tone and spirit‰ so as to insult and ridicule the feelings of the believers.
Now, let us refer to this case below:
Whitehouse v. Lemon (Gay News Case) Gay News published a poem entitled „The Love That Dares To Speak Its
Name‰. It was about a homosexualÊs conversion to Christianity, which
metaphorically attributed homosexual acts to Jesus Christ. The intention was
to celebrate the universality of GodÊs love and in doing so he referred
explicitly to the acts of sodomy and fellatio. The court held this to be an
offence of blasphemous libel in that they unlawfully and wickedly published
or caused to be published a blasphemous libel concerning the Christian
religion. This case was held to be blasphemy because the material shocks and
outraged the religious feelings of Christians.
From this case, you can see that blasphemy is not a crime of disbelief or
irreverence. It will not be blasphemy unless it is outrageously indecent or
scurrilous. How is this determined? This is determined by looking at the
circumstances, surroundings and the likelihood of the publication causing public
outrage. This requirement however, is very difficult to do and is considered to be
one of the defects of this branch of the law.
7.2.2 Fundamental Defects of Blasphemy
The fundamental defects of blasphemy can be seen as follows.
(a) Its ambit is too wide this refers to the difficulty in determining whether a
publication might cause public outrage or not especially in the modern
world where religious sentiments are lower.
(b) Issue of sincerity of the publisher is irrelevant for example in the Gay
News case the writer was very sincere and wanted to express a
„modernised‰ application of the religion but was held to be blasphemous.
(c) This area of the law only protects the Christian religion. In England, this
offence is not extended to other religions. In The ChoudhuryÊs case (Salman
RushdieÊs case) there was an attempt to prosecute Salman Rushdie and the
publishers of the ÂSatanic VersesÊ for blaspheming the Islamic religion but it
failed. The court refused to extend the application of this offence of
blasphemy to religions other than Christianity for a simple reason that it
would open a floodgate of action. The question of what „beliefs‰ to be
protected would have to be dealt with due to the vast number of beliefs. In
1985 there was a proposal made by the Law Commission (in the UK) that
the law should be extended to cover all religions but the UK Parliament has
yet to take up these suggestions. There are also suggestions that this area of
the law should be abolished due to the lack of prosecution in this area.
This offence also exists in other jurisdiction. In Australia the offence of
blasphemous libel exists in a number of statutes:
Section 574 of the NSW Crimes Act: „it will not be an offence of blasphemy if the
publication is by way of argument or statement and not for the purpose of scoffing or
reviling, nor for violating public decency/‰
Section 119(3) of the Tasmanian Criminal Code: „it is not blasphemous for a person to
express in good faith and in decent language, or to attempt to establish by argument
used in good faith and in decent language, any opinion whatsoever upon any
religious subject.
In Malaysia, we recognise the importance of other religions besides Islam. Article
3 of the Federal Constitution provides that the religion of the Federation is Islam.
However Article 11 provides the freedom to profess any other religion.
Section 298 of the Penal Code make it an offence to utter words, make any sound or
make gesture with deliberate intent to wound the religious feelings of any person.
Section 298A refers to acts that cause disharmony, disunity, enmity and hatred on
religious grounds either through words spoken or written; or by signs; or visible
representations are punishable upon conviction with imprisonment of not less than
two years but not exceeding five years.
7.3 RACIAL VILIFICATION
What is racial vilification? To „vilify‰ means to defame, to degrade, to morally
debase. The offence of racial vilification refers to the act of inciting racial hatred,
to say or encourage serious hatred or ridicule towards person or group of persons
because of their race, colour, nationality or ethnic religion. There are various
legislations that deal with racial vilification.
Examples:
(a) In Malaysia, the statute that governs this offence is the Sedition Act 1948.
Section 2 of the Sedition Act 1948 states that the word „seditious‰ refers to
the act, speech, words, publication or other thing that has a seditious
tendency. Section 3 further provides that:
A "seditious tendency‰ is a tendency to promote feelings of ill-will and
hostility between different races or classes of the population of Malaysia; /
(b) Provision in the Internal security Act 1960 on subversive publication or document.
Section 22 states that a publication or document is considered „subversive‰
when it is calculated or likely to lead to a breach of the peace or to promote
feelings of hostility between different races or classes of the population.
7.4 OBSCENE PUBLICATION
What is obscene publication? „Obscenus‰ means filthy, indecent or abominable.
Obscene refers to things that are objectionable, offensive or conduct tending to
corrupt public morals. An article shall be deemed to be obscene if its effect taken
as a whole will tend to „deprave and corrupt persons who are likely to read or
hear the article‰.
The test for obscenity can be found in the case of R v. Hicklin where the court
said that the question to be asked is „whether the tendency of the matter charged
as obscenity is to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands such publication might fall‰. If the
answer is yes then such publication is obscene. This is a subjective test which
depends on the circumstances of each case (eg. custom, religion, surrounding
circumstances, etc).
(a) Provision in the Penal Code
Section 292 of the Penal Code provides that:
„Whoever (a) / for purposes of sale / has in his possession any obscene
book, / shall be punished with imprisonment for a term which may extend
to three months, or with fine, or with both.‰
SELF-CHECK 7.1
1. What is blasphemy and racial vilification?
2. Why is it important to protect ourselves against racial vilification?
ACTIVITY 7.1
Read the extracts of the cases below and form your views on the protection
and rationale for these laws.
CASES
(i) Mamat bin Daud & 2 Ors v. The Government of Malaysia [1988] 1 CLJ 11
The petitioners were charged for an offence under section 298A of the Penal Code
where under that section it was provided that „whoever by words, either spoken or
written or by signs, or by visible representations, or by any act, activity or conduct, or
by organising, promoting or arranging, any activity, or otherwise in any other manner
(a) causes, or attempts to cause, or is likely to cause disharmony, disunity, or feelings
of enmity, hatred or ill-will; or (b) prejudices, or attempts to prejudice, or is likely to
prejudice, the maintenance of harmony or unity, on grounds of religion, between
persons or groups of persons professing the same or different religions, shall be
punished with imprisonment for a term of not less than 2 years and not more than 5 years.‰
The petitioners were charged under the section for doing an act which is likely to
prejudice unity amongst persons professing the Islamic religion. They were alleged to
have acted as unauthorised Bilal, Khatib and Imam at a Friday Prayer held on May 13,
1983 at Kampung Kenanga, Wakaf Tapai in the District of Kuala Terengganu without
being so appointed under the Terengganu Administration of Muslim Law Enactment
1955 the State Law relating the administration of all matters concerning the religion
of Islam and the religious Courts.
„The gist of the offence is the doing of anything on the ground of religion which is
likely to cause disunity or disharmony between people professing the same religion
or different religions, because under Article 11 Clause (5) of the Federal Constitution,
freedom of religion does not authorise any act contrary to general law relating to
public order, public health or morality. The wording of the subsection (1) is so wide
that it comprehends almost every act which can be construed as causing or likely to
cause disharmony or disunity, or prejudicing the maintenance of harmony or unity on
grounds of religion. Although the manner of the commission of the acts has been
minutely spelt out, the nature of the acts themselves which is intended to be
prohibited requires particularisation, as has been implicitly done in all the original
offences under Topic XV of the Penal Code, viz. Section 295 (injuring or defiling a
place of worship with intent to insult the religion of any class of persons), Section 296
(Disturbing a religious assembly), Section 297 (Trespassing on burial places etc.) and
Section 298 (Uttering words or making gestures with deliberate intent to wound the
religious feelings of any person)‰ (at p. 16 of the report).
„I accept that to allow any Muslim or groups of Muslims to adopt divergent practices
and entertain differing concepts of Islamic religion may well be dangerous and could
lead to disunity among Muslims and therefore, could affect public order in the States‰
(at page 21 of the report).
„Firstly it is to be noted that there is no mention of any specific religion in Section
298A. Thus the provisions will embrace an act or conduct of a Muslim, Hindu,
Buddhist or Christian. Secondly, the act or conduct must be one which causes or
likely to cause disharmony, disunity, or feelings of enmity, hatred or ill-will or
prejudices, or attempts to prejudice, or is likely to prejudice, the maintenance of
harmony or unity between persons or groups of persons professing the same or
different religions. Thirdly, it would appear that the act or conduct must have some
connection with the practices or purported practice of a religion.‰ „ The right of every
person to propagate and to practise his religion is restricted by Clause (5) of Article 11
of the Federal Constitution in that the right conferred does not authorise any act
contrary to „any general law relating to public order, public health or morality‰. The
law referred to in that clause is a law which seeks to preserve „public order‰, „public
health‰ and/or „morality‰. In Regina v. Harrold [1971] 19 DLR (3d) 471 the subject of
challenge was the City of Vancouver anti-noise by-law. The accused was a member of
a religious group who was convicted under the by-law for being in a group chanting
transcendental sounds to the accompaniment of drums and cymbals on the streets of
Vancouver. On appeal it was held that the by-law could apply to the religious group
in so far as it extended to prohibit them from carrying out their bona fide religious
activities. On further appeal it was however held that the conviction should be
restored and that the law was of general application and was not in any way directed
to religious freedom or interference and all persons should comply with the by-law‰
(at page 23 & 24 of the report).
(ii) Public Prosecutor v. Param Cumaraswamy [1986] 1 CLJ 101
In this case Mr. Cumaraswamy was charged for having uttered seditious words at a
press conference called by him on behalf of the Bar Council on the 24th July, 1985. The
statement was made by him at a press conference which he later distributed copies of
the same to reporters who were present. The local press carried the story the next
morning. Mr. Cumaraswamy was charged by the Public Prosecutor under section 4(1)
of the Sedition Act 1948 which states that (1) Any person who- (a) does or attempts to
do, or makes any preparation to do, or conspires with any person to do, any act which
has or which would, if done, have a seditious tendency; (b) utters any seditious words;
(c) prints, publishes, sells, offers for sale, distributes or reproduces any
seditious publication; or
(d) imports any seditious publications, shall be guilty of an
offence. Section 3 of the same Act states that „seditious tendency‰ is a tendency (a)
to bring into hatred or contempt or to excite disaffection against any Ruler or against
any Government; (to excite the subjects of any Ruler or the inhabitants of any territory
governed by any Government to attempt to procure in the territory of the Ruler or
governed by the Government, the alteration, otherwise than by lawful means, of any
matter a by law established;
(c) to bring into hatred or contempt or to excite
disaffection against the administration of justice in Malaysia or in any State; (d) to
raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or
of the Ruler of any State or amongst the inhabitants of Malaysia or of any State; or (e)
to promote feelings of ill-will and hostility between different races or classes of the
population of Malaysia; or
(f) to question any matter, right, status, position, privilege,
sovereignty or prerogative established or protected by the provisions of Part III of the
Federal Constitution or Articles 152, 153 or 181 of the Federal Constitution.
The statement that was made by Mr. Cumaraswamy reads:
„This is an open appeal to the Pardons Board by the Council to reconsider the Petition of
Sim Kie Chon commutation of his death sentence. Sim lost all his avenues through the
courts. While courts cannot review his case the Pardons Board can. What is disturbing and
will be a source of concern to the petitioner is the manner in which the Pardons Boards
exercise its prerogative. Though the prerogative of pardon is not justifiable before the
courts yet surely it cannot be absolute under a system of government committed to justice
and the Rule of Law. Even, prerogative must be exercised with some uniform.
In the case of Mokhtar Hasim he was found guilty of discharging a firearm and killing
another. Further, his trial was treated as a security case and tried under the Essential
Security Regulations. No doubt he had a licence for his firearm. In SimÊs case he was
charged for merely in possession of firearm. He had no licence. He was tried for an offence
under the Internal Security Act which carries the mandatory death sentence. There was no
evidence before the court that he was involved in any subversion or organised violence for
which the Internal Security Act was enacted to prevent and suppress. Hence Sim should
never have been charged under the Internal Security Act. On the strength of the evidence
before the court if it was not for the legislative direction on the court to pass mandatory
death sentence no court, in the exercise of its discretion would have sentenced him to
death. This is a factor the pardons Board could have taken into consideration.
On records before the courts SimÊs case certainly was less serious than Mokhtar HashimÊs
case yet the latterÊs sentence was commuted. The people should not be made to feel that in
our society today the severity of the law is meant only for the poor, the meek and the
unfortunate whereas the rich, the powerful and the influential can somehow seek to avoid
the same severity.
I therefore appeal to the Pardons Board to review SimÊs petition on humanitarian grounds
and in the name of justice and good conscience and commute his sentence‰ (at page 124 of
the report).
The court in this case had to consider whether the above statement had a seditious
tendency based on section 3. N.H. Chan J in his judgment at p. 128, stated, „ In my
judgment I do not think that words which were used to point out to the Pardons Board
that the people should not be made that the Board was discriminating between Mokhtar
Hashim and Sim Kie Chon are words which were likely to create discontent or
dissatisfaction among people... the statement was not likely to create such sentiments
against Authority a requirement which I feel is implicit in the definition of the words
„discontent‰ and „disaffection‰. „Disaffection means disloyalty, enmity and hostility
against Authority. In the same way, „discontent‰ means disaffection against Authority.
Therefore, „to raise discontent or disaffection‰ among the people means to create
discontent or disaffection among the people against Authority. Consequently, the
assertion of a grievance or compliant which tends to create discontent must be directed at
Authority for it to be seditious. I do not think it can be said that the statement was likely to
create discontent among the people against Authority.
In my judgment, I do not think that there was such a feeling against Authority among
the people. „Authority‰ in this regard means the Yang di-Pertuan Agong, the Rulers,
the Government and the administration of justice....Mr. CumaraswamyÊs passage was
pointing out to the Pardons Board that the people should not be made to feel that the
Board was discriminating between „the poor, the meek and the unfortunate‰ and the
„the rich, the powerful and the influential‰. Mr Cumaraswamy was certainly not
trying to promote ill-will and hostility between the different classes of the population.
In fact, he was urging the Pardons Board not to create the feeling or impression
among the population that the Board was discriminating between the different
classes.‰
The court in this case held that „In this country, just as in every country there cannot
be absolute freedom when we speak of fundamental rights (or human rights). In all
common law countries, whether we have the Dicey Rule of Law or a Bill of Rights or a
written constitution, freedom is not an absolute right but is actually freedom under
the law.‰
No offence under this section found.
(iii) Mohamed Ibrahim v. Public Prosecutor (1963) 29 MLJ 289
„The appellant who could read English had in his possession 65 copies of the book,
Tropic of Cancer, which was found under the counter of his shop by police officers on
September 22, 1962. The copies together with others which had been sold were
bought on September 8, 1962. The appellant was charged for having in his possession
for purposes of sale 65 obscene books in contravention of section 292 of the Penal
Code, and convicted on October 23, 1962. On November 8, there was published in the
Government Gazette an Order by the Minister of the Interior under section 4 of the
Control of Imported Publications Ordinance prohibiting the importation of the Tropic
of Cancer‰ (at page 289 of the report).
The arguments put forward by the appellant were:
1. The book was not obscene;
2. The appellant was not in possession of the books;
3. The appellant had no knowledge of the nature or contents of the book.
The court in this case held that:
1. The test of obscenity is whether the tendency of the matter charged is to deprave
and corrupt those whose minds are open to such immoral influences and into
whose hands a publication of this sort may fall based on the test set up in R v.
Hicklin.
2. „The point is whether the tendency of the „tropic of Cancer‰ is to deprave and
corrupt those whose minds are open to such immoral influences and into whose
hands it may fall. There is no question of corrupting the minds of learned persons
devoted to literary studies or to psychological research. The book, however, is
published in what is called „paper back‰ form and its local price is less than $3.
On the cover it stated: „this is a complete and unexpurgated Grove Press edition
originally published at $7.50‰, that is about $22 Malayan. It is thus on sale at a
price which brings it within the reach of the great majority of the reading public,
that is to say a public which includes not only the old and the learned but also the
young and the thoughtless, those who read books for pleasure and not for moral
edification or for intellectual improvement. It is the effect on the minds of such
persons that is to be considered.
The book is somewhat difficult to describe in brief. It purports to be a sort of
picturesque autobiography of a male person with no very apparent means of
support who spends his time uttering reflections on metaphysical matters which
may be profound but are certainly not very intelligible in brief intervals between
acts of sexual intercourse with numerous prostitutes. These episodes of sexual
relationship are described in terms of very great indecency and with a tedious
and somewhat almost meaningless repetition of two or three words which are not
usually seen in print, even in dictionaries, and which indeed are generally only to
be seen scrawled on the walls of public conveniences.
To the strong-minded the effect of reading the book would no doubt be a feeling
of revulsion. To the philosopher it might suggest some question as to whether
there were any limits to the depth to which human nature could fall. But to the
ordinary reader, particularly the young reader, it is calculated to convey and
instil the impression that casual and frivolous indulgence of the sexual instinct is
something of no importance and indeed nothing more than a joke. When such a
seed is implanted in the mind the resulting growth can only be depravity and
corruption.
Having thus come to the conclusion that the Magistrate was right in holding that
the „Tropic of Cancer‰ is an obscene book‰ (at page 291 & 292 of the report).
The appellant also argued that he is ignorant of the English language and that
therefore he was ignorant of the contents of the book but the court held that as
one of the objects of section 292 of the Penal Code is to protect those members of
the public who may be tempted to buy and so expose themselves to the
corrupting influences of obscene books, that section must be strictly interpreted
and mens rea and intention are not of the essence of the offence.
(iv) KS Roberts v. Public Prosecutor [1970] 2 MLJ 137
Judgment by Raja Azlan Shah J (at page 138 of the report).
„The appellant was convicted for an offence under section 292(a) of the Penal Code
viz. Publicly exhibiting for sale an obscene book, to wit one copy of Majalah Filem
Malaysia, October 1969 issue. He was fined $60/- in default 2 weeks imprisonment. I
dismissed the appeal against conviction and intimated that I would give my reasons
later. I now proceed to do so.‰
Majalah Filem Malaysia is an approved publication but an article appearing in it
offends against the recognised standards of propriety and is therefore obscene. That is
not challenged.
One of the grounds of appeal is that the publication is an approved publication by the
Government and therefore not an obscene publication. CounselÊs argument is that a
publication which contains an obscene article is not obscene because it is an approved
publication. I think there is a fallacy in the argument. In my view the word
„approved‰Ê strong as it is, cannot be read without any qualification. We boast of
being a free democratic country but that does not mean that we are not subject to law.
The impunged article is clearly obscene and a publication is an obscene publication
even if only a part of it is obscene.
The conviction is impugned on another ground that the appellant has no knowledge
that the publication is obscene as he is only a retailer and therefore not expected to
know what is contained in every publication. The argument is based on the false
premise that before a person is found guilty of selling or keeping for sale any obscene
publication, the prosecution must prove that he „knows‰ that the publication is
obscene. In a case under section 292(a) of the Penal Code, knowledge that the
publication is obscene need not be proved. If the law is otherwise it would place an
intolerable burden on the prosecution. The difficulty of obtaining legal evidence of the
offenderÊs knowledge of the obscenity of the publication has made the liability strict.
Absence of knowledge may only be taken in mitigation of sentence.
A third ground of appeal is that the learned magistrate had failed to direct his mind
as to the identification of the appellant. The evidence shows that the police constable
(P.W. 1) who raided the shop saw the impugned publication displayed for sale but
when giving evidence in court he had failed to identify the accused. The investigation
officer (P.W. 3) in his testimony said that in the course of investigation he went to the
said shop where he saw the accused and that he checked the business license, which
he produced as Exhibit P.3. The said license discloses the name of the accused.
Identification is a fact or circumstances which must be proved against an accused
before it can be relied upon and used against him. A fact or circumstances is held to
be proved only when it fulfils the definition of the word „proved‰ given in section 3
of the Evidence Ordinance. The evidence of identification is as much subject to this
definition as any other kind of evidence but it would appear to me that in assessing
the evidence of identification the trial court does not apply the tests provided in this
section. It is true that an absolute certainty is not required but the court has to test the
evidence with prudence and accept it only when it is so highly probable that its truth
can safely be accepted. The test excludes from its orbit blind faith of a true believer,
because prudence and credulity do not go together.
In my view and so is the view of the lower court the evidence of identification has
fulfilled this test. There is sufficient evidence to establish the accuserÊs identity.
Appeal dismissed.‰
? There is no overall or comprehensive law and policy on advertising practices
in Malaysia.
? There are two types of laws that govern advertisements. Firstly, there are
statutes that relate to the content, substance and the mode of advertising and
secondly statutes that govern certain professions.
? Other than laws in the form of statutory regulation, self regulation in the form
of code of conduct plays an integral part towards control of advertising
activities.
? Blasphemy is a crime against religion.
? It is not blasphemous to deny a certain religion but it is blasphemous to attack
„in tone and spirit‰ so as to insult and ridicule the feelings of the believers.
? The offence of racial vilification refers to the act of inciting racial hatred, to
say or encourage serious hatred or ridicule towards person or group of
persons because of their race, colour, nationality or ethnic religion.
? Obscene refers to things that are objectionable, offensive or conduct tending
to corrupt public morals. An article shall be deemed to be obscene if its effect
taken as a whole will tend to „deprave and corrupt persons who are likely to
read or hear the article‰.
Blasphemy
Obscene publication
Corrupt
Racial vilification
Deprave
Vilify
TOPIK 7 11 ABCR3203 Topic 7
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1. Define blasphemy and racial vilification;
2. Explain what obscene publications are; and
3. Evaluate how the law regulates advertisements.
INTRODUCTION
Before we begin this topic, let us read this article first.
Aspects of Censorship
(a) Moral censorship is the means by which any material that contains what the
censor deems to be of questionable morality is removed. The censoring body
disapproves of what it deems to be the values behind the material and limits
access to it. Pornography, for example, is often censored under this rationale. In
another example, graphic violence resulted in the censorship of the 1932
"culturally, historically, or aesthetically significant" movie entitled "Scarface"
originally completed in 1930.
(b) Military censorship is the process of keeping military intelligence and tactics
confidential and away from the enemy. This is used to counter espionage, which is
the process of gleaning military information. Additionally, military censorship
may involve a restriction on information or media coverage that can be released to
the public. This is also considered acceptable by even democratic governments as
necessary for the preservation of national security.
(c) Political censorship occurs when governments are holding back secret
information from their citizens. The logic is to prevent the free expression
needed to revolt. Democracies do not officially approve of political censorship
but often endorse it privately. Any dissent against the government is thought to
be a „weakness‰ for the enemy to exploit. Campaign tactics are also often kept
secret.
(d) Religious censorship is the means by which any material objectionable to a
certain faith is removed. This often involves a dominant religion forcing
limitations on less dominant ones. Alternatively, one religion may shun the
works of another when they believe the content is not appropriate for their faith.
(e) Corporate censorship is the process by which editors in corporate media outlets
intervene to halt the publishing of information that portrays their business or
business partners in a negative light. Privately owned corporations in the
business of reporting the news also sometimes refuse to distribute information
due to the potential loss of advertiser revenue or shareholder value which
adverse publicity may bring. (Source: Adapted from http://en.wikipedia.org/
wiki/Censorship Retrieval date: Sept 25).
Do you think the above types of censorship have been implemented in Malaysia?
If Âyes' under what law and in which situation?
7.1 LAW ON ADVERTISING
The advertising industry is the lifeblood of the communications industry, without
which, the industry would not survive. There is no overall or comprehensive law
and policy on advertising practices in Malaysia. The governmentÊs approach on
advertisement is to regulate particular advertisements. There are two types of
laws that govern advertisements.
(a) Statutes that relate to the content, substance and the mode of advertising.
Examples of the first type are:
(i) Emblems and Names (Prevention of Improper Use) Act this statute
prohibits the improper use of certain emblems and names for example
the Public Seal of the Federation.
(ii) The Food Act 1963 this statute was passed to protect the public
against health hazards and fraud in the preparation, sale and use of
food. It contains guidelines on advertisements for example on
packaging, description, quality, age or effect.
(iii) Indecent Advertisement Act 1953 is a statute which prohibits any
advertisement which is obscene or indecent. This Act was passed to
suppress indecent advertisement.
(iv) Trade Description Act 1972 contains prohibition on wrong
description of goods in the course of trade, false and misleading
indications as to the price of goods. Generally it deals with
merchandise marking.
(b) Statutes that govern certain professions, deals with restrictions imposed on
certain professionals with regard to advertising. For example, the Legal
Profession Act prohibits the advertisement of lawyers. The same exists for
architects, engineers and doctors.
(i) Other than laws in the form of statutory regulation, self regulation in
the form of code of conduct plays an integral part towards control of
advertising activities. The Malaysian Code of Advertising Practice,
administered by Advertising Standards Authority (ASAM) in essence
states that advertisements should not exploit the consumerÊs lack of
experience or knowledge. The code contains specific rules on certain
products such as alcohol. Besides the Malaysian Code of Advertising
Practice, there are a few other codes relevant to the advertising
industries.
(ii) Advertising Code administered by the Ministry of Information. This
code is applicable to commercial advertisements aired in radio and TV stations.
(iii) Content Code issued by the Malaysian Communications and
Multimedia Content Forum (CMCF) under the Communications and
Multimedia Act 1998. The content code applies to all advertisements
communicated electronically, including traditional broadcasting. The
code applies to all parties bound by the Act.
(iv) Guidelines for the Application & Issuance of the Made in Malaysia
Certificate (MIM) this is under the control of the „Perbadanan
Kemajuan Filem Nasional Malaysia‰ (FINAS).
(v) To qualify as a „Made-in-Malaysia‰ advertisement, it has to have at
least 80% local content and be made in Malaysia.
(vi) Film Censorship Guidelines issued by the Film Censorship Board
has its own guidelines on advertisements.
However, these codes do not operate like law and their implementation is
minimal. For example, compliance to the Malaysian Communications and
Multimedia Content Code is not mandatory. The advantage for those who
comply with them is a defence against any action taken against them.
Section 98 of the Communications and Multimedia Act 1998 provides:
(1) / compliance with a registered voluntary industry code shall not be
mandatory. (2) Compliance with a registered voluntary industry code shall be a
defence against any prosecution, action or proceeding of any nature, whether in
a court or otherwise, taken against a person (who is subject to the voluntary
industry code) regarding a matter dealt with in that code.
7.2 BLASPHEMY
Blasphemy is the defamation of the name of one or more gods. These may
include using sacred names as stress expletives without intention to pray or
speak of sacred matters. Sometimes blasphemy is used loosely to mean any
profane language, for example in "With much hammering and blasphemy, the
locomotive's replacement spring was finally fitted."
In a broader sense, blasphemy is irreverence toward something considered sacred
or inviolable. In this broader sense the term is used by Sir Francis Bacon in the
Advancement of Learning, when he speaks of "blasphemy against learning".
Many cultures disapprove of speech or writing which defames the deity or deities
of their established religions and these restrictions have the force of law in some
countries.
7.2.1 Historical Background to the Crime of Blasphemy
Generally, blasphemy is a crime against religion. It refers to whatever comments
or information published that annoy the feelings of the believers of a religion. To
„blaspheme‰ means to „speak impiously or irreverently of God or sacred things.
It also means to „speak evil of God or sacred things‰. Blasphemy therefore,
means impious or irreverent utterance or action concerning God or sacred things
or the crime of assuming to oneself the rights or qualities of God.
Historically, this crime originated from England. In England, you cannot publish
words which show disrespect toward God and the Anglo-Christian Churches.
However, this offence of blasphemy does not offer protection to other religions
(in England).
It is not blasphemous to deny a certain religion but it is blasphemous to attack „in
tone and spirit‰ so as to insult and ridicule the feelings of the believers.
Now, let us refer to this case below:
Whitehouse v. Lemon (Gay News Case) Gay News published a poem entitled „The Love That Dares To Speak Its
Name‰. It was about a homosexualÊs conversion to Christianity, which
metaphorically attributed homosexual acts to Jesus Christ. The intention was
to celebrate the universality of GodÊs love and in doing so he referred
explicitly to the acts of sodomy and fellatio. The court held this to be an
offence of blasphemous libel in that they unlawfully and wickedly published
or caused to be published a blasphemous libel concerning the Christian
religion. This case was held to be blasphemy because the material shocks and
outraged the religious feelings of Christians.
From this case, you can see that blasphemy is not a crime of disbelief or
irreverence. It will not be blasphemy unless it is outrageously indecent or
scurrilous. How is this determined? This is determined by looking at the
circumstances, surroundings and the likelihood of the publication causing public
outrage. This requirement however, is very difficult to do and is considered to be
one of the defects of this branch of the law.
7.2.2 Fundamental Defects of Blasphemy
The fundamental defects of blasphemy can be seen as follows.
(a) Its ambit is too wide this refers to the difficulty in determining whether a
publication might cause public outrage or not especially in the modern
world where religious sentiments are lower.
(b) Issue of sincerity of the publisher is irrelevant for example in the Gay
News case the writer was very sincere and wanted to express a
„modernised‰ application of the religion but was held to be blasphemous.
(c) This area of the law only protects the Christian religion. In England, this
offence is not extended to other religions. In The ChoudhuryÊs case (Salman
RushdieÊs case) there was an attempt to prosecute Salman Rushdie and the
publishers of the ÂSatanic VersesÊ for blaspheming the Islamic religion but it
failed. The court refused to extend the application of this offence of
blasphemy to religions other than Christianity for a simple reason that it
would open a floodgate of action. The question of what „beliefs‰ to be
protected would have to be dealt with due to the vast number of beliefs. In
1985 there was a proposal made by the Law Commission (in the UK) that
the law should be extended to cover all religions but the UK Parliament has
yet to take up these suggestions. There are also suggestions that this area of
the law should be abolished due to the lack of prosecution in this area.
This offence also exists in other jurisdiction. In Australia the offence of
blasphemous libel exists in a number of statutes:
Section 574 of the NSW Crimes Act: „it will not be an offence of blasphemy if the
publication is by way of argument or statement and not for the purpose of scoffing or
reviling, nor for violating public decency/‰
Section 119(3) of the Tasmanian Criminal Code: „it is not blasphemous for a person to
express in good faith and in decent language, or to attempt to establish by argument
used in good faith and in decent language, any opinion whatsoever upon any
religious subject.
In Malaysia, we recognise the importance of other religions besides Islam. Article
3 of the Federal Constitution provides that the religion of the Federation is Islam.
However Article 11 provides the freedom to profess any other religion.
Section 298 of the Penal Code make it an offence to utter words, make any sound or
make gesture with deliberate intent to wound the religious feelings of any person.
Section 298A refers to acts that cause disharmony, disunity, enmity and hatred on
religious grounds either through words spoken or written; or by signs; or visible
representations are punishable upon conviction with imprisonment of not less than
two years but not exceeding five years.
7.3 RACIAL VILIFICATION
What is racial vilification? To „vilify‰ means to defame, to degrade, to morally
debase. The offence of racial vilification refers to the act of inciting racial hatred,
to say or encourage serious hatred or ridicule towards person or group of persons
because of their race, colour, nationality or ethnic religion. There are various
legislations that deal with racial vilification.
Examples:
(a) In Malaysia, the statute that governs this offence is the Sedition Act 1948.
Section 2 of the Sedition Act 1948 states that the word „seditious‰ refers to
the act, speech, words, publication or other thing that has a seditious
tendency. Section 3 further provides that:
A "seditious tendency‰ is a tendency to promote feelings of ill-will and
hostility between different races or classes of the population of Malaysia; /
(b) Provision in the Internal security Act 1960 on subversive publication or document.
Section 22 states that a publication or document is considered „subversive‰
when it is calculated or likely to lead to a breach of the peace or to promote
feelings of hostility between different races or classes of the population.
7.4 OBSCENE PUBLICATION
What is obscene publication? „Obscenus‰ means filthy, indecent or abominable.
Obscene refers to things that are objectionable, offensive or conduct tending to
corrupt public morals. An article shall be deemed to be obscene if its effect taken
as a whole will tend to „deprave and corrupt persons who are likely to read or
hear the article‰.
The test for obscenity can be found in the case of R v. Hicklin where the court
said that the question to be asked is „whether the tendency of the matter charged
as obscenity is to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands such publication might fall‰. If the
answer is yes then such publication is obscene. This is a subjective test which
depends on the circumstances of each case (eg. custom, religion, surrounding
circumstances, etc).
(a) Provision in the Penal Code
Section 292 of the Penal Code provides that:
„Whoever (a) / for purposes of sale / has in his possession any obscene
book, / shall be punished with imprisonment for a term which may extend
to three months, or with fine, or with both.‰
SELF-CHECK 7.1
1. What is blasphemy and racial vilification?
2. Why is it important to protect ourselves against racial vilification?
ACTIVITY 7.1
Read the extracts of the cases below and form your views on the protection
and rationale for these laws.
CASES
(i) Mamat bin Daud & 2 Ors v. The Government of Malaysia [1988] 1 CLJ 11
The petitioners were charged for an offence under section 298A of the Penal Code
where under that section it was provided that „whoever by words, either spoken or
written or by signs, or by visible representations, or by any act, activity or conduct, or
by organising, promoting or arranging, any activity, or otherwise in any other manner
(a) causes, or attempts to cause, or is likely to cause disharmony, disunity, or feelings
of enmity, hatred or ill-will; or (b) prejudices, or attempts to prejudice, or is likely to
prejudice, the maintenance of harmony or unity, on grounds of religion, between
persons or groups of persons professing the same or different religions, shall be
punished with imprisonment for a term of not less than 2 years and not more than 5 years.‰
The petitioners were charged under the section for doing an act which is likely to
prejudice unity amongst persons professing the Islamic religion. They were alleged to
have acted as unauthorised Bilal, Khatib and Imam at a Friday Prayer held on May 13,
1983 at Kampung Kenanga, Wakaf Tapai in the District of Kuala Terengganu without
being so appointed under the Terengganu Administration of Muslim Law Enactment
1955 the State Law relating the administration of all matters concerning the religion
of Islam and the religious Courts.
„The gist of the offence is the doing of anything on the ground of religion which is
likely to cause disunity or disharmony between people professing the same religion
or different religions, because under Article 11 Clause (5) of the Federal Constitution,
freedom of religion does not authorise any act contrary to general law relating to
public order, public health or morality. The wording of the subsection (1) is so wide
that it comprehends almost every act which can be construed as causing or likely to
cause disharmony or disunity, or prejudicing the maintenance of harmony or unity on
grounds of religion. Although the manner of the commission of the acts has been
minutely spelt out, the nature of the acts themselves which is intended to be
prohibited requires particularisation, as has been implicitly done in all the original
offences under Topic XV of the Penal Code, viz. Section 295 (injuring or defiling a
place of worship with intent to insult the religion of any class of persons), Section 296
(Disturbing a religious assembly), Section 297 (Trespassing on burial places etc.) and
Section 298 (Uttering words or making gestures with deliberate intent to wound the
religious feelings of any person)‰ (at p. 16 of the report).
„I accept that to allow any Muslim or groups of Muslims to adopt divergent practices
and entertain differing concepts of Islamic religion may well be dangerous and could
lead to disunity among Muslims and therefore, could affect public order in the States‰
(at page 21 of the report).
„Firstly it is to be noted that there is no mention of any specific religion in Section
298A. Thus the provisions will embrace an act or conduct of a Muslim, Hindu,
Buddhist or Christian. Secondly, the act or conduct must be one which causes or
likely to cause disharmony, disunity, or feelings of enmity, hatred or ill-will or
prejudices, or attempts to prejudice, or is likely to prejudice, the maintenance of
harmony or unity between persons or groups of persons professing the same or
different religions. Thirdly, it would appear that the act or conduct must have some
connection with the practices or purported practice of a religion.‰ „ The right of every
person to propagate and to practise his religion is restricted by Clause (5) of Article 11
of the Federal Constitution in that the right conferred does not authorise any act
contrary to „any general law relating to public order, public health or morality‰. The
law referred to in that clause is a law which seeks to preserve „public order‰, „public
health‰ and/or „morality‰. In Regina v. Harrold [1971] 19 DLR (3d) 471 the subject of
challenge was the City of Vancouver anti-noise by-law. The accused was a member of
a religious group who was convicted under the by-law for being in a group chanting
transcendental sounds to the accompaniment of drums and cymbals on the streets of
Vancouver. On appeal it was held that the by-law could apply to the religious group
in so far as it extended to prohibit them from carrying out their bona fide religious
activities. On further appeal it was however held that the conviction should be
restored and that the law was of general application and was not in any way directed
to religious freedom or interference and all persons should comply with the by-law‰
(at page 23 & 24 of the report).
(ii) Public Prosecutor v. Param Cumaraswamy [1986] 1 CLJ 101
In this case Mr. Cumaraswamy was charged for having uttered seditious words at a
press conference called by him on behalf of the Bar Council on the 24th July, 1985. The
statement was made by him at a press conference which he later distributed copies of
the same to reporters who were present. The local press carried the story the next
morning. Mr. Cumaraswamy was charged by the Public Prosecutor under section 4(1)
of the Sedition Act 1948 which states that (1) Any person who- (a) does or attempts to
do, or makes any preparation to do, or conspires with any person to do, any act which
has or which would, if done, have a seditious tendency; (b) utters any seditious words;
(c) prints, publishes, sells, offers for sale, distributes or reproduces any
seditious publication; or
(d) imports any seditious publications, shall be guilty of an
offence. Section 3 of the same Act states that „seditious tendency‰ is a tendency (a)
to bring into hatred or contempt or to excite disaffection against any Ruler or against
any Government; (to excite the subjects of any Ruler or the inhabitants of any territory
governed by any Government to attempt to procure in the territory of the Ruler or
governed by the Government, the alteration, otherwise than by lawful means, of any
matter a by law established;
(c) to bring into hatred or contempt or to excite
disaffection against the administration of justice in Malaysia or in any State; (d) to
raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or
of the Ruler of any State or amongst the inhabitants of Malaysia or of any State; or (e)
to promote feelings of ill-will and hostility between different races or classes of the
population of Malaysia; or
(f) to question any matter, right, status, position, privilege,
sovereignty or prerogative established or protected by the provisions of Part III of the
Federal Constitution or Articles 152, 153 or 181 of the Federal Constitution.
The statement that was made by Mr. Cumaraswamy reads:
„This is an open appeal to the Pardons Board by the Council to reconsider the Petition of
Sim Kie Chon commutation of his death sentence. Sim lost all his avenues through the
courts. While courts cannot review his case the Pardons Board can. What is disturbing and
will be a source of concern to the petitioner is the manner in which the Pardons Boards
exercise its prerogative. Though the prerogative of pardon is not justifiable before the
courts yet surely it cannot be absolute under a system of government committed to justice
and the Rule of Law. Even, prerogative must be exercised with some uniform.
In the case of Mokhtar Hasim he was found guilty of discharging a firearm and killing
another. Further, his trial was treated as a security case and tried under the Essential
Security Regulations. No doubt he had a licence for his firearm. In SimÊs case he was
charged for merely in possession of firearm. He had no licence. He was tried for an offence
under the Internal Security Act which carries the mandatory death sentence. There was no
evidence before the court that he was involved in any subversion or organised violence for
which the Internal Security Act was enacted to prevent and suppress. Hence Sim should
never have been charged under the Internal Security Act. On the strength of the evidence
before the court if it was not for the legislative direction on the court to pass mandatory
death sentence no court, in the exercise of its discretion would have sentenced him to
death. This is a factor the pardons Board could have taken into consideration.
On records before the courts SimÊs case certainly was less serious than Mokhtar HashimÊs
case yet the latterÊs sentence was commuted. The people should not be made to feel that in
our society today the severity of the law is meant only for the poor, the meek and the
unfortunate whereas the rich, the powerful and the influential can somehow seek to avoid
the same severity.
I therefore appeal to the Pardons Board to review SimÊs petition on humanitarian grounds
and in the name of justice and good conscience and commute his sentence‰ (at page 124 of
the report).
The court in this case had to consider whether the above statement had a seditious
tendency based on section 3. N.H. Chan J in his judgment at p. 128, stated, „ In my
judgment I do not think that words which were used to point out to the Pardons Board
that the people should not be made that the Board was discriminating between Mokhtar
Hashim and Sim Kie Chon are words which were likely to create discontent or
dissatisfaction among people... the statement was not likely to create such sentiments
against Authority a requirement which I feel is implicit in the definition of the words
„discontent‰ and „disaffection‰. „Disaffection means disloyalty, enmity and hostility
against Authority. In the same way, „discontent‰ means disaffection against Authority.
Therefore, „to raise discontent or disaffection‰ among the people means to create
discontent or disaffection among the people against Authority. Consequently, the
assertion of a grievance or compliant which tends to create discontent must be directed at
Authority for it to be seditious. I do not think it can be said that the statement was likely to
create discontent among the people against Authority.
In my judgment, I do not think that there was such a feeling against Authority among
the people. „Authority‰ in this regard means the Yang di-Pertuan Agong, the Rulers,
the Government and the administration of justice....Mr. CumaraswamyÊs passage was
pointing out to the Pardons Board that the people should not be made to feel that the
Board was discriminating between „the poor, the meek and the unfortunate‰ and the
„the rich, the powerful and the influential‰. Mr Cumaraswamy was certainly not
trying to promote ill-will and hostility between the different classes of the population.
In fact, he was urging the Pardons Board not to create the feeling or impression
among the population that the Board was discriminating between the different
classes.‰
The court in this case held that „In this country, just as in every country there cannot
be absolute freedom when we speak of fundamental rights (or human rights). In all
common law countries, whether we have the Dicey Rule of Law or a Bill of Rights or a
written constitution, freedom is not an absolute right but is actually freedom under
the law.‰
No offence under this section found.
(iii) Mohamed Ibrahim v. Public Prosecutor (1963) 29 MLJ 289
„The appellant who could read English had in his possession 65 copies of the book,
Tropic of Cancer, which was found under the counter of his shop by police officers on
September 22, 1962. The copies together with others which had been sold were
bought on September 8, 1962. The appellant was charged for having in his possession
for purposes of sale 65 obscene books in contravention of section 292 of the Penal
Code, and convicted on October 23, 1962. On November 8, there was published in the
Government Gazette an Order by the Minister of the Interior under section 4 of the
Control of Imported Publications Ordinance prohibiting the importation of the Tropic
of Cancer‰ (at page 289 of the report).
The arguments put forward by the appellant were:
1. The book was not obscene;
2. The appellant was not in possession of the books;
3. The appellant had no knowledge of the nature or contents of the book.
The court in this case held that:
1. The test of obscenity is whether the tendency of the matter charged is to deprave
and corrupt those whose minds are open to such immoral influences and into
whose hands a publication of this sort may fall based on the test set up in R v.
Hicklin.
2. „The point is whether the tendency of the „tropic of Cancer‰ is to deprave and
corrupt those whose minds are open to such immoral influences and into whose
hands it may fall. There is no question of corrupting the minds of learned persons
devoted to literary studies or to psychological research. The book, however, is
published in what is called „paper back‰ form and its local price is less than $3.
On the cover it stated: „this is a complete and unexpurgated Grove Press edition
originally published at $7.50‰, that is about $22 Malayan. It is thus on sale at a
price which brings it within the reach of the great majority of the reading public,
that is to say a public which includes not only the old and the learned but also the
young and the thoughtless, those who read books for pleasure and not for moral
edification or for intellectual improvement. It is the effect on the minds of such
persons that is to be considered.
The book is somewhat difficult to describe in brief. It purports to be a sort of
picturesque autobiography of a male person with no very apparent means of
support who spends his time uttering reflections on metaphysical matters which
may be profound but are certainly not very intelligible in brief intervals between
acts of sexual intercourse with numerous prostitutes. These episodes of sexual
relationship are described in terms of very great indecency and with a tedious
and somewhat almost meaningless repetition of two or three words which are not
usually seen in print, even in dictionaries, and which indeed are generally only to
be seen scrawled on the walls of public conveniences.
To the strong-minded the effect of reading the book would no doubt be a feeling
of revulsion. To the philosopher it might suggest some question as to whether
there were any limits to the depth to which human nature could fall. But to the
ordinary reader, particularly the young reader, it is calculated to convey and
instil the impression that casual and frivolous indulgence of the sexual instinct is
something of no importance and indeed nothing more than a joke. When such a
seed is implanted in the mind the resulting growth can only be depravity and
corruption.
Having thus come to the conclusion that the Magistrate was right in holding that
the „Tropic of Cancer‰ is an obscene book‰ (at page 291 & 292 of the report).
The appellant also argued that he is ignorant of the English language and that
therefore he was ignorant of the contents of the book but the court held that as
one of the objects of section 292 of the Penal Code is to protect those members of
the public who may be tempted to buy and so expose themselves to the
corrupting influences of obscene books, that section must be strictly interpreted
and mens rea and intention are not of the essence of the offence.
(iv) KS Roberts v. Public Prosecutor [1970] 2 MLJ 137
Judgment by Raja Azlan Shah J (at page 138 of the report).
„The appellant was convicted for an offence under section 292(a) of the Penal Code
viz. Publicly exhibiting for sale an obscene book, to wit one copy of Majalah Filem
Malaysia, October 1969 issue. He was fined $60/- in default 2 weeks imprisonment. I
dismissed the appeal against conviction and intimated that I would give my reasons
later. I now proceed to do so.‰
Majalah Filem Malaysia is an approved publication but an article appearing in it
offends against the recognised standards of propriety and is therefore obscene. That is
not challenged.
One of the grounds of appeal is that the publication is an approved publication by the
Government and therefore not an obscene publication. CounselÊs argument is that a
publication which contains an obscene article is not obscene because it is an approved
publication. I think there is a fallacy in the argument. In my view the word
„approved‰Ê strong as it is, cannot be read without any qualification. We boast of
being a free democratic country but that does not mean that we are not subject to law.
The impunged article is clearly obscene and a publication is an obscene publication
even if only a part of it is obscene.
The conviction is impugned on another ground that the appellant has no knowledge
that the publication is obscene as he is only a retailer and therefore not expected to
know what is contained in every publication. The argument is based on the false
premise that before a person is found guilty of selling or keeping for sale any obscene
publication, the prosecution must prove that he „knows‰ that the publication is
obscene. In a case under section 292(a) of the Penal Code, knowledge that the
publication is obscene need not be proved. If the law is otherwise it would place an
intolerable burden on the prosecution. The difficulty of obtaining legal evidence of the
offenderÊs knowledge of the obscenity of the publication has made the liability strict.
Absence of knowledge may only be taken in mitigation of sentence.
A third ground of appeal is that the learned magistrate had failed to direct his mind
as to the identification of the appellant. The evidence shows that the police constable
(P.W. 1) who raided the shop saw the impugned publication displayed for sale but
when giving evidence in court he had failed to identify the accused. The investigation
officer (P.W. 3) in his testimony said that in the course of investigation he went to the
said shop where he saw the accused and that he checked the business license, which
he produced as Exhibit P.3. The said license discloses the name of the accused.
Identification is a fact or circumstances which must be proved against an accused
before it can be relied upon and used against him. A fact or circumstances is held to
be proved only when it fulfils the definition of the word „proved‰ given in section 3
of the Evidence Ordinance. The evidence of identification is as much subject to this
definition as any other kind of evidence but it would appear to me that in assessing
the evidence of identification the trial court does not apply the tests provided in this
section. It is true that an absolute certainty is not required but the court has to test the
evidence with prudence and accept it only when it is so highly probable that its truth
can safely be accepted. The test excludes from its orbit blind faith of a true believer,
because prudence and credulity do not go together.
In my view and so is the view of the lower court the evidence of identification has
fulfilled this test. There is sufficient evidence to establish the accuserÊs identity.
Appeal dismissed.‰
? There is no overall or comprehensive law and policy on advertising practices
in Malaysia.
? There are two types of laws that govern advertisements. Firstly, there are
statutes that relate to the content, substance and the mode of advertising and
secondly statutes that govern certain professions.
? Other than laws in the form of statutory regulation, self regulation in the form
of code of conduct plays an integral part towards control of advertising
activities.
? Blasphemy is a crime against religion.
? It is not blasphemous to deny a certain religion but it is blasphemous to attack
„in tone and spirit‰ so as to insult and ridicule the feelings of the believers.
? The offence of racial vilification refers to the act of inciting racial hatred, to
say or encourage serious hatred or ridicule towards person or group of
persons because of their race, colour, nationality or ethnic religion.
? Obscene refers to things that are objectionable, offensive or conduct tending
to corrupt public morals. An article shall be deemed to be obscene if its effect
taken as a whole will tend to „deprave and corrupt persons who are likely to
read or hear the article‰.
Blasphemy
Obscene publication
Corrupt
Racial vilification
Deprave
Vilify
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