TOPIC
7 PUBLICATION OF INFORMATION –
ADVERTISING, BLASPHEMY, RACIAL VILIFICATION
AND OBSCENE PUBLICATION
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 yes 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 government’s 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 consumer’s
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 homosexual’s conversion to
Christianity, which metaphorically attributed homosexual acts
to Jesus Christ. The intention was
to celebrate the
universality of God’s
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 Choudhury’s case (Salman Rushdie’s case) there was an attempt
to prosecute Salman Rushdie and the publishers of the ÂSatanic Verses 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
Sim’s 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 Sim’s case certainly was less serious than Mokhtar
Hashim’s case yet the latter’s 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 Sim’s 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. Cumaraswamy’s 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 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 offender’s 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 accuser’s
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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