Wednesday, September 3, 2014

Wrong charge, wrong conviction

If you have been following the news on Malaysia's prosecution of a group of naturists who went nude on a deserted and remote beach of Penang, you will know that six of them have been convicted and sentenced to one month's jail and fine of Malaysian Ringgit 5,000.00. The remaining four have claimed trial.

A group of nudists that included Malaysians, Singaporeans, Burmese, an Indian and a Filipino gathered in May this year on a remote beach in Penang for what they grandiloquently called the Penang International Nude Games Extravaganza. Activities that included a running relay on the beach and kettle bell workouts round a campfire were carried out. Subsequently, someone in the group posted a video of what happened on the beach on vimeo and the video went viral in Malaysian social media. It caught the attention of the Chief Minister of Penang and because it happened in Penang, the ruling party in Malaysia took the opportunity to lash out at Penang which is ruled by an Opposition Party. There was a huge exchange between the Chief Minister and the Federal Government, both parties condemning the incident and in the meanwhile, Muslim groups in this Muslim-majority state lodged police reports.

We must bear in mind that the incident was seen by absolutely nobody. The nudists got clearance from the park security who even got food for them. When the furore blew up in Malaysia, the park watchman claimed he tried to get them to dress up when all of them went nude but they refused. This of course defies belief since no nudist in Malaysia would dare to go naked against the express orders of a park watchman especially when they were staying overnight on the beach and they needed the help of the watchman and the boatman to get them back to civilization.  And a simple phone call from the park watchman would have brought a battalion of policemen to the beach. Don't forget, this is Malaysia where the police spring to life when there is a nude scene while they seem to slumber through murder and robbery cases. The fact that there was no objection from the watchman can also be seen from the fact that the nudists planned another event at the same place scheduled for 5 December this year. If the watchman had raised any objection not only would they not have dared to stay overnight on the beach and continued their activities the next day, they would certainly not have planned for another event later this year at the same place. Even the authorities were sceptical of the watchman's claim. It was reported that the police spotted from the video someone who looked like the watchman helping the nudists with the campfire. The police must have pretty sharp eyes; I don't see it myself.

So, nobody saw the nudists when they were in Penang and complaints were only made two months after the event when Muslim groups saw the video and lodged police reports. Let's examine the charge against the accused in the Magistrate's Court.

Except for one participant of the Nude Games who uploaded the video online and had an additional charge against him which I won't be dealing with, all participants were charged under Section 294(a) of the Malaysian Penal Code. I understand from one of the accused who claimed trial that there are no other charges. Section 294 reads:

Leaving (b) aside, the section under which they are charged, reads, "Whoever, to the annoyance of others, does any obscene act in any public place shall be punished..."

I have not researched the matter and I have never had occasion to deal with this area of the law but I believe where the accused were at on the remote beach in Penang would constitute a "public place". However, if my memory isn't faulty, I believe case law is clear that mere nudity does not constitute an "obscene act". Doing relay runs or workouts in the nude cannot be considered obscene acts. When you take a shower in your bathroom, you are not doing an obscene act in a private place.

The other pertinent point is the words of the section are clear. "Whoever, to the annoyance of others, DOES any obscene act..."

It is clear that the act committed must be contemporaneous with the causing of annoyance to others. Who were annoyed by the act so that they filed police reports? The Muslim groups. When were they annoyed? Two months or so after the event. They were annoyed after they saw a video posted online. Notice that the verb, "does", is in the present tense. If the annoyance of others arose from something someone did two months ago, this section does not apply at all.

It is quite obvious that the purpose of this section which is titled "OBSCENE SONGS" was intended to punish rowdy sailors who sang obscene songs and ballads and probably performed lewd and obscene acts to the annoyance of the general public. It is also an appropriate section for flashers who expose themselves to women with intent to outrage their modesty, possibly as a perverted means of satisfying their warped sexual craving.  It is not meant for nudists who go naked on a deserted beach and have taken every precaution not to be seen by others and are in fact not seen by anybody at all.

I understand from one of the accused that at least two of the four who are claiming trial are seriously considering throwing in the towel at the next mention on 16 October. I cannot attest to the accuracy of what I have been told but one of them is purported to have said that she was worried that the Malaysian government would never let them go even if they are not guilty of the offence for which they are charged. This is very sad. I cannot believe the Malaysian government for all its faults (and there are many) would go so far as to tamper with justice. If there is a lacuna in the law and the Malaysian government is so concerned about ensuring that public nudity of any sort is made a serious offence, it is for Parliament to enact statutory provisions criminalizing the act. The nudists should not be made a scapegoat whatever the political agenda of the government may be. As matters stand, I cannot see how the charge against the accused can possibly stand.

No comments:

Post a Comment