Obscene Advertisement

I'm working on the philosophy of media legislation and come across the issue of obscene advertisement. It so happen that I read a comment posted in Utasan Malaysia commenting on how Malaysian artists daringly revealed themselves. In my observation this is a common phenomenon that we see in most of our daily. In yesterday The Star if you look in STARtwo T7, you may see Armani Exchange advert that I consider as a sexy advert, portrying a women with her hand on a man thigh, with unbutton shirt and behind her is a topless man with an unzipped trousers ...well I don't have to elaborate further.
In the US Calvin Klein had been criticised for his advert which some people decsribe as 'borderline pornographic'. And NGO do take legal action against him. I'm wondering why does these sort of advert manage to slip to our printed media? KDN probably need to browse the newspaper and at the same time individu with public spirit need to come forward and point out the danger of letting all this advertisement being printed without control. In Malaysia we have ample law and regulation on obscene materials.

The question is...What happen to these laws?

ROLE OF MONARCHY AND TRADITIONAL RULERS
IN MALAYSIA*
Associate Professor Dr Faridah Jalil
Faculty of Law
Universiti Kebangsaan Malaysia


Introduction
Malaysia is internationally known as a country that subsist and developed based on the system implanted by the British when their occupation of Peninsula Malaya becomes absolute in 1948. In continuance of the system introduced by the British democracy were sowed in the 1957 Federal Constitution; a constitution that provides for Westminster Parliamentary system of government, the doctrine of supremacy of the constitution, independence of judiciary and at the same time preserving the institution of monarchy that had been in place for almost 400 years prior to the British occupation. Thus besides the legislature, executive and judiciary, there is a fourth branch in Malaysia government, namely the monarch.

Evolution of the institution
The institution of monarchy in Malaysia had undergone numerous changes and challenges. Absolute monarchy is history; the constitution transforms the institution into constitutional monarchy, meaning that rulers have to act on advice. Besides the traditional monarchy system, the constitution introduces an institution of elective monarchy, known as the Yang di-Pertuan Agong (YdPA), whom is the supreme head of the Federation. He is appointed among the nine Malay Rulers for a period of five years. All nine rulers will have a chance to become the supreme head. Initially the selection is based on seniority, since all rulers had served as the YdPA, the order is now determined by the order of states who has been the YdPA. If the ruler is a minor, he will automatically be disqualified.

Power of the Monarch
The constitution authorized the YDPA to exercise various functions, namely the custodian of executive power, an arm of Parliament, guardian to the rights of the Malay and religion of Islam . Besides these functions YdPA is the protector to all Malaysian as indicated in the oath of office. These functions are crucial in the survival of the nation and had become the subject of controversy in the relationship between the monarch and executive.
The power of the monarch is exercisable by Him in two ways, firstly, based on his own discretion, which means His Majesty does not has to seek opinion from other authority, secondly, on advice. The advice may come from the head of the government, Cabinet the Conference of Rulers or other offices. When the power has to be exercised on advice the Constitution stipulates that His Majesty is bound by the advised given.

Role of the Monarchy
The power that the monarch may exercise on advice is mainly in regards of forming a government and ensuring that the government functions effectively. Thus the monarch is given the power to appoint the head of government or to withhold the dissolution of legislature. When appointing the head of the government the monarch has to be sensitive to the feeling of the members of legislative assembly, thus he may appoint someone who received the confidence of the member of the legislative assembly. After the 12th election, at least in two states the head of government is appointed against the wishes of the party presidency. The situations become more complex when there is a coalition government. To ascertain the person who likely to command the confidence requires wisdom.
The monarch will have to ensure that the government can take care of the people well being. Thus if there is a request to dissolve the legislature he has to examine the problem that lead to dissolution is genuine. Thus, if the request will lead to further problem the monarch may refuse to give consent for dissolution. This can be seen in the action of the Sultan of Perak in his capacity as defender of the people refused the application of the coalition government to dissolve the legislature when the defection of three assemblymen causes the coalition to loss majority in the assembly.

The role of the Monarch had always been regarded as ceremonial. This might be true prior to the 2008 election. Recently, there are instances when the monarch comes forward to assert their authority over the conduct of the executive or politicians. This was taken as an exercise of the monarchy rights which comprises of the right to give views and counsel, the right to encourage and motivate, and the right to remind and reprimand. The ruler also call for the notion that ‘the Malay Rulers are just ceremonial emblems for official functions with no vested power’ to be corrected. The new insight of the role of monarch is important since the institution can act as the balance wheel to the executive power.
The monarch can be perceived as apolitical and has no inclination to any parties. The neutrality of the institution is portrayed when members of the legislature and executive have take oath of office before the monarch. Thus they have to heed the monarch advice when he speaks.
Besides caring for the stability of government, the monarch has to care for the people welfare. His Majesty has to ensure that the people can live peacefully, thus if there is any issue that may cause tension the monarch will step in to remind the people on the importance of the different races to built understanding and respect each others rights. The monarch repeatedly reminds Malaysian on ‘social contract’ and the importance to regard themselves as partners and avoids tension that may lead to violence. Even though the YdPA is constitutionally responsible to protect the Malay and religion of Islam, this does not caused other races to be left out.

Conclusion
The monarch in Malaysia will continues to play an important role and this is evident in their success to curb further decline in Malaysian social compact especially at the time of weak political integrity and economic turbulence.

Notes:
*This paper is presented at Conference on Constitutional Law, Sept 11-12, 2009, Washington DC, USA
Art 32 There shall be a supreme head of the Federation to be called the Yang di-Pertuan Agong…
The term monarch refers to Malay Rulers and Yang di-Pertuan Agong. Malay Rulers is the supreme head of the state.
Art 39 reads: The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable, subject to the provision of any federal law and of the Second Schedule, by Him or by the Cabinet or any Minister authorized by the Cabinet, but Parliament may by law confer executive function on other person.
Art 44 states:- The legislative authority of the federation shall be vested in a Parliament, which shall consist of the Yang di-Pertuan Agong and two Majlis (House of Parliament) to be known as the Dewan Negara (Senate) and Dewan Rakyat (House of Representatives).
Art 153
Art 3
The two states are Terengganu and Perlis.
The difficulty is reflected in the state of Perak when the government comprises if a coalition between PAS, PKR and DAP known as Pakatan Rakyat (Citizen Coalition)
The Star, 19 April 2009, Rulers are above politics: Sultan Azlan Shah

The Star, 9 July 2009, Respect Role of Malay Rulers.

Has injustice been rectified? Boonsom Boonyanit

http://archives.thestar.com.my/last365days/default.aspx?query=long+tale+of+the+lost+land
Please see the story as reported in The Star Saturday 13 February 2010.

We believe that the court is the place for us to get justice and has any injustice rectified. However, the casef Boonsom Boonyanit tells a different story. If a case took ages to be resolved you will end up not able to taste the fruit of the your long wait or if you can pluck the fruit it taste bitter.

Thus, thats the reason when Rawls describes about justice he describes not only on legal justice but other forms of justice including distributive and social justice. Legal justice cannot stand alone, it needs the support of the other two forms of justice. Prbably there should be another form of justice i.e. administrative justice. The administrative body has to make sure in conucting their business and affairs everyone is treated fairly and effort are taken not to cause prejudice to the right of the public. In Boonsom case proper examination on the status of land prior to further transaction. People might think justice is served to Boonyamit,but what about those parties who 'bona fide' constitute the chain of the transaction. What will happen to them?

Thinking that it is only the court who may deliver justice is wrong, the whole government machinery must work hand in hand to ensure that the rights of all persons are taken care of. Failure of any of the government machinery is very costly. In Boonyamin case, the company has lost faith to invest in Malaysia.

There must be a serious effort on the government part to ensure that things are in order and other forms of justice is put in place.

The Ethics of Reporting Court Cases

Our newspaper had eagerly published sensational cases daily to the extent of causing uneasiness among the public. Our journalist should give attention to Section 3 of the JUDICIAL PROCEEDINGS (REGULATION OF REPORTS) ACT 1962 (REVISED 1973) ACT 114
which provides:

It shall not be lawful for the proprietor, editor or publisher of a newspaper or periodical to print or publish, or cause or procure to be printed or published—

(a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals; and

(b) (i) in relation to any judicial proceedings for dissolution of marriage, nullity of marriage, judicial separation or restitution of conjugal rights; or

(ii) in relation to any domestic proceedings, any particulars other than the following, that is to say:

(I) the names, addresses and occupations of the parties and witnesses;

(II) the grounds of the application or a concise statement of the charges, the defences and counter charges in support of which evidence has been given;

(III) submissions on any point of law arising in the courts of the proceedings and decision of the court thereon; and

(IV) the judgment of the court and any observations made by the court in giving it:

Provided that nothing in this paragraph shall be held to permit the publication of anything contrary to paragraph (a).

OUGHT THE CHRISTIAN USED THE WORD ALLAH

Since the judgment of Justice Lau Bee Lan was reported in the newspaper, thousands words had been uterred by the Malaysian decision on the worthy of the decision. Everybody is entitled to their own viewpoint, nevertheless in an issue that touches the very heart of the Malaysian community, the interest of the Malaysian community should be the prime considerations.

Thus leaving aside the interest of a section of the community who eagerly pressed for the right to use the kalimat, exploration on the laws and regulations that involved in answering whether the Catholic Church ought to use the kalimat is vital.

We should starts with the Constitution, the highest law of the land, the Muslim ( I mean here the general public used Art 11 as the ground in restricting the usage of the kalimat "Allah", The Catholic Church on the other hand argued that the restrictions is unconstitutional and violates the freedom of religion.

Thus both parties are relying on the same Art 11. However, if we closely read clause (5) of Art 11, which reads, this act does not authorise any act contrary to any general law relating to public order, public health and morality. Thus, this will bring us to one conclusion, namely, if in the exercise of religous freedom we're bound to violate any restrictions imposed by any law passed by Parliament on the grounds of public order, public security or moral, such act is prohibited. The case of Halimatussaadiah [1992] explains on this point. A lady was prohibited from wearing purdah, because government secrets and interests must be protected at all cost.

Now we move to the legislations that might restrict the usage of the kalimat "Allah" by the Catholic Church, the Penal Code in s 298A on Causing etc, disharmony, disunity, or feelings or enmity, hatred or ill-will, or prejudicing, etc., the maintenance of harmony or unity, on grounds of religion, provides;

(1) 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, or assisting in 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 two years and not more than five years.


The provision also states in clause (7) that, It shall not be a defence to any charge under this section to assert that what the offender is charged with doing was done in any honest belief in, or in any honest interpretations of, any precept, tenet or teaching of any religion.

However, we shouldn't impute any criminal intent on the Catholic Church at this stage.

Secondly, Sedition Act 1948 (rev 1969) in s.4 (1) provides that, 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 publication,

shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both, and, for a subsequent offence, to imprisonment for a term not exceeding five years; and any seditious publication found in the possession of the person or used in evidence at his trial shall be forfeited and may be destroyed or otherwise disposed of as the court directs.

While s.3(1)define seditious tendency "is a tendency -

(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;

(b) 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 as 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;

(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 Article 152, 153 or 181 of the Federal Constitution."

Realising the response of the Muslim community on the issue, there is a strong probability that the usage of the Kalimat Allah by the Catholic Church had promote feelings of ill-will and hostility between different races or classes of the population of Malaysia. If we carefully read the statement made by the Catholic Church since the bringthe matter the the court they are fully aware of the sentiment of the Muslims.

in s 7 (1) ,on the power of the Minister to impose conditions on publications that he considers as "undesirable publications that reads:
(1) If the Minister is satisfied that any publication contains any article, caricature, photograph, report, notes, writing, sound, music, statement or any other thing which is in any manner prejudicial to or likely to be prejudicial to public order, morality, security, the relationship with any foreign country or government, or which is or is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to public interest or national interest, he may in his absolute discretion by order published in the Gazette prohibit, either absolutely or subject to such conditions as may be prescribed, the printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of that publication.

And finally, in a law that I myself call upon to be abolished, Internal Security Act 1960 (Rev 1972), section 22 provides for the Prohibition of printing, sale, etc., of documents and publications.

(1) Where it appears to the Minister charged with responsibility for printing presses and publications that any document or publication -

(a) contains any incitement to violence;

(b) counsels disobedience to the law or to any lawful order;

(c) 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; or

(d) is prejudicial to the national interest, public order, or security of Malaysia, he may by order published in the Gazette prohibit either absolutely or subject to such conditions as may be prescribed therein the printing, publication, sale, issue, circulation or possession of such document or publication.

(2) An order under subsection (1) may, if the order so provides, be extended so as -

(a) in the case of a periodical publication, to prohibit the publication, sale, issue, circulation, possession or importation of any past or future issue thereof; and

(b) in the case of a publication which has or appears or purports to have issued from a specified publishing house, agency or other source, to prohibit the publication, sale, issue, circulation or importation of any other publication which may at any time whether before or after the date of the order have or appear or purport to have issued from the specified publishing house, agency or other source.

Thus, considering all the above lega lprovisions, it is quite difficult the perceive that the restriction of the use of the word "Allah"is unconstitutional since Art 11 (5) permits restrictions on any act contrry to any general law relating to public order, public health or morality.

I stand to be corrected.

FARIDAH