A painting, a song, a dance and a novel – these are all forms of expression. So too, is a film as art and literature are all forms of expressions.
When a person expresses himself or herself, he or she is exercising his or her freedom of speech and expression. But these are not absolute. Under international human rights law, freedom of speech and expression may be restricted, but must be through law and only if necessary.
The Federal Constitution also allows for restrictions. These must also be proportionate to the objectives that it wants to achieve.
So unless there is law enacted, and the purpose of the law falls within the permitted restrictions, and are proportionate, your freedom cannot be restricted.
When it comes to films, the governing law in Malaysia is the Film Censorship Act.
It says that a person shall not have in his possession or in his custody or under his control, or circulate, exhibit, distribute, display, manufacture, produce, sell or hire, any film or film-publicity material which has not been approved by the Film Censorship Board.
Anyone who contravenes this provision in respect of a film is guilty of an offence, and may be fined not less than RM5,000 and not more than RM30,000, or jailed for a term not exceeding three years, or both.
Activist Lena Hendry was found guilty of this section and fined RM10,000 for screening the documentary film No Fire Zone: The Killing Fields of Sri Lanka without approval of the Censorship Board.
This article is not questioning the good faith of the men and women of the Film Censorship Board, but is it right for a body to decide whether we can exercise our right to freedom of speech and expression before we ourselves are allowed to exercise those rights?
Would this not render our freedom of speech and expression an illusion?
Is having a body that approves a film before it can even be shown, proportionate to the aims of the Act?
Any law that makes state approval a pre-condition to exercising one's freedom should be challenged as violating human rights and deemed unconstitutional.
With such laws, the state decides which part of the film is suitable for public. The state can also decide to censor parts of a film which it does not like or is uncomfortable with.
Instead of using censorship, we should instead emphasise film classification or ratings. The Board already issues film classifications based on the contents of a film to be shown in cinemas. By using a robust film rating system, we would avoid the need for censorship.
But what about obscene films or pornography, you may ask? Surely we must have a law to restrict these?
Yes, the Film Censorship Act already has specific laws to deal with films which are obscene or against public decency.
At the same time, a case can be made where the state intervenes and censors or bans a film it deems as sensitive.
For example, a film whose objective is to incite hatred against certain ethnicities; is there a need for censorship in those instances?
There are laws to deal with such situations without having to censor the film.
However, censorship guidelines have to be clear and specific to avoid a situation where a blanket ban is imposed on all films.
It must be subjected to judicial review by the Courts.
This is to ensure balance is struck between the freedom of speech and expression and the preservation of national security and public order.