DECEMBER 5 — Of late, Malaysia has been showing healthy signs of modernisation by starting to recognise that certain groups of people should be viewed and identified as victims instead of criminals.
The Pakatan Harapan government, most notably, is now studying ways to decriminalise suicide as well as drug possession for personal use.
This, however, begs the question of why there are no attempts to decriminalise the act of watching pornography?
First and foremost, I have to apologise for the way the question is formed, as it may come off as misleadingly vague.
The truth of the matter is pornography is not defined under the Penal Code. It is the word “obscene” that is used instead.
Also, watching something “obscene” may or may not be legal, due to the anomalous situation our archaic laws have placed us in.
For starters, the archaic laws can be found in Section 292 of the Penal Code, which states that:
Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object or document whatsoever.
The provision is a mouthful, but the important point is, if you “possess” anything “obscene”, you are criminally liable.
What makes this provision so archaic? I’ll illustrate my argument with a simple example.
According to this archaic provision, it would have been perfectly legal if you had watched Game of Thrones (GoT) on HBO Go, because you do not “possess” anything “obscene” by merely streaming it.
However, if you are a big fan of the franchise and you have bought the latest Blu-Ray collection, you are now criminally liable for possessing something “obscene.” (For those who have not watched Game of Thrones, it contains many explicit scenes, including homosexual acts. Also, I can’t believe some of you don’t know what it’s about!)
The anomaly is not just limited to the difference between streaming and having hard copies of the “obscene” content. The provision includes soft copies too, i.e. you are in “possession” of “obscene” content if you have downloaded it.
Before you think that this is just another straightforward distinction between downloading and streaming, let’s take a look at another example – WhatsApp. (Yes, that app where baby boomers love sending good morning and every weather-related messages.)
Now, if a person receives a WhatsApp message containing a link to some explicit content, clicking on it would merely open the user’s local browser to stream it.
However, if a person receives a WhatsApp message that has the same video attached to it, clicking on the video means that you are now in possession of it, as the process of clicking on a WhatsApp video involves downloading it.
While both acts are in relation to the same video, the former is legal while the latter is illegal. Such is the ludicrous state of our laws at present.
Having said all that, are we Malaysians mature enough (pun intended) to view “obscene” materials without being policed by the government?
The response from most Malaysians on the recent comment by the National Film Development Corporation Malaysia (Finas) chief executive about censoring Netflix seems to suggest that most Malaysians are not against explicit content, as long as it is only limited to those above 18 years old.
Now, before anyone jumps the gun, I am not saying that addiction to pornography is not an issue. However, if this is not addressed, we will soon be in an awkward situation where drug addicts are given treatment, while “old school” pornography addicts (ie. those who download from the internet or purchase DVDs) are put behind bars.
The worst part is that despite the archaic nature of the provision, it may be abused as a political tool to go after those who try to, say, expose a sex scandal committed by some politician.
This, now, begs the next question: Would Pakatan Harapan be mature enough to address this archaic law despite potential backlash from the religious community, or would they shy away from it like irresponsible parents who refuse to talk about the birds and the bees to their children?
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
