Film Censorship in the Asia-Pacific Region

Malaysia, Hong Kong and Australia Compared

Saw Tiong Guan

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135080655
• Edition: 1
• Topic: Social Sciences
• Subtopic: Ethnic Studies
• Index: Social Sciences

Film censorship has always been a controversial matter, particularly in jurisdictions with restrictive state-based censorship systems. This book reviews the film censorship system in the Asia-Pacific by comparing the systems used in Malaysia, Hong Kong and Australia. It identifies the key issues and concerns that arise from the design and implementation of the system by examining the censorship laws, policies, guidelines and processes. The book evaluates film practitioners' and censors' opinion of, and experience in, dealing with those issues, and goes on to develop reform proposals for the film censorship system.

1 Introduction

Setting the scene

This book sets out to review the film censorship system in Malaysia; identify the key issues and concerns that arise from the design and implementation of the system and analyse their effects on the film industry; evaluate film practitioners' opinions of, and experiences in, dealing with those censorship issues; and, finally, propose a film censorship system which appears capable of promoting the artistic vibrancy and commercial viability of the Malaysian film industry.

In the attempt to achieve these objectives, reference is made to the experiences of two other jurisdictions: Hong Kong and Australia. Three reasons account for this. First, while their film censorship systems have differences, the overall approach to film censorship in each of these three jurisdictions shares broad similarities. For example, they are ‘state-based’ as opposed to ‘industry-based’ systems, where the censorship of films is overseen by entities established under legislation and with direct connections to government ministries or departments. In contrast, the United States and United Kingdom have not been chosen as the comparative jurisdictions. The former's film censorship system is ‘industrybased’, where film ratings are handled by the Motion Picture Association of America. This is a body formerly known as the Motion Picture Producers and Distributors Association of America, set up in 1922 by the major film studios to resist the government's involvement by creating an arrangement of industry-based self-censorship known as the Production Code or the Hays Code.¹ The ratings currently applicable in the United States are G (General Audiences); PG (Parental Guidance Suggested); PG-13 (Parents Strongly Cautioned); R (Restricted); and NC-17 (No One 17 and Under Admitted). Films rated NC-17 are restricted to adults while films rated R may be viewed by persons at least 17 years of age or children accompanied by a parent or adult guardian. The United Kingdom has an independent non-governmental body, the British Board of Film Classification, formerly known as the British Board of Film Censors (BBFC), established in 1912 by the film industry as an independent entity with the aim of achieving uniformity in film classification, which operates outside the purview and control of both the British government and film industry.² Films may be classified U, PG, 12/12A, 15, 18 and 18R and the BBFC's classification decisions may be overridden by local council authorities. Films classified U, PG and 12 are unrestricted. However, audiences under 12 years of age must be accompanied by an adult in order to watch a 12A film. No one under the age of 15 may watch or purchase a film classified 15 and no one under the age of 18 may watch or purchase a film classified 18. Second, Malaysia, Hong Kong and Australia share the common law tradition, each with an entrenched judicial review process which appears to be the primary legal means by which film practitioners could have recourse to formal remedies to redress grievances caused by censorship of their films. Third, the film industries in Hong Kong and Australia are more vibrant and successful both in artistic and commercial terms than the one in Malaysia. Hong Kong and Australia have seen the production of critically acclaimed films recognized and celebrated internationally since the 1970s and revenues generated at their box offices have been enviable. Therefore, their experiences could provide illuminating comparisons and suggest recommendations for reform. While censorship is only one element underlying the film industry, the research suggests that the existing Hong Kong and Australian censorship systems – which are both transparent and more responsive to film practitioners' needs and the conditions of the industries and the societies – contributed to the vibrancy and achievements of their film industries.

At the outset, it is useful to explain a number of key terms in this book. The term ‘film industry’ is used to encompass the activities of film production, distribution and exhibition; ‘film practitioners’ is used to denote film directors, producers, distributors and exhibitors; while ‘film’ is confined to feature film, documentary and animation produced for commercial public release. This book focuses on censorship of films produced for exhibition in cinemas as well as distribution by way of sales and rental in Digital Versatile Disc (DVD) and Video Compact Disc (VCD) formats. It does not include censorship of films for the purposes of broadcasting on television, which is regulated under different laws.³ The book places primary emphasis on the effects of film censorship and it is important to concede that a host of other factors, including genre, production budget, marketing strategy and popularity of the cast involved in a project, the size of domestic market and the standard of living of the society, and piracy are also likely to play significant roles in determining the viability of a country's film industry, particularly in its commercial sense. It is also noteworthy that there is no correlation between the artistic accomplishment of a film and its commercial realization in the market. In other words, a highly artistic film does not necessarily translate into box office success. The phrase ‘artistic vibrancy and commercial viability of the film industry’ is used to express two distinct realities that appear to be affected by censorship. In regard to the former, censorship can obstruct creative and experimental production, while in regard to the latter, censorship can make films less appealing to audiences and therefore reduce box office revenues.

Why do issues relating to a film censorship system matter to a country, film industry and society? Three Malaysian film practitioners’ experiences emphasize the significance of this book.

Amir Muhammad, an independent filmmaker, had two of his recent films – Lelaki Komunis Terakhir (The Last Communist, 2006) and Apa Khabar Orang Kampung (Village People Radio Show, 2007) – arbitrarily banned by the authorities while his latest film Malaysian Gods (2008) had its public exhibition in the country prohibited. The filmmaker thus lost an outlet to present his films to audiences and was deprived of the opportunity to recoup the production costs. Society was barred from seeing three thought-provoking films while within the film industry another ‘deterrence’ was firmly put in place to discourage other filmmakers being more critical and experimental with their creative works.

Aziz M. Osman's Fantasia (1992) was banned by the censors upon its completion. The film was only approved for public exhibition four years later, after its title had been changed and extensive alterations had been made to its content. The film was finally released as Fantasi, with its plot, message and theme markedly different from the originally intended version, and the production company suffered substantial financial losses. Tragically, the producer did not live to see his film released.

Tsai Ming-liang, a Malaysian-born internationally acclaimed auteur, chose to make films in Taiwan and France instead of his home country because of censorship concerns.⁴ This has resulted in prestigious award-winning films such as Vive L'Amour (1994) and The Wayward Cloud (2005)⁵ being considered as Taiwanese films in which Taiwanese, rather than Malaysians, can take pride and they are not considered part of Malaysian cinematic culture and heritage in international competition.

This book suggests possible reform to the Malaysian film censorship system by way of amendments to the Film Censorship Act 2002, revision to the censorship guidelines and changes to the censorship process. It also provides film practitioners with an understanding of the potential of judicial review in obtaining remedies against censorship authorities. Additionally, the book provides film regulators with information about the effects of censorship on film practitioners so that in carrying out their duties they will be better positioned to act in a more sensible and responsible manner. While the focus of the analysis remains Malaysian, some possible reforms to the Hong Kong and Australian systems are also outlined.

Structure of the book

This book is structured in three parts. The first part deals with introductory matters, literature about free speech, obscenity and censorship and the Malaysian, Hong Kong and Australian film industries. The second part focuses on the film censorship systems, which are principally made up of censorship laws, guidelines and administrative processes, in the three jurisdictions under study. This part identifies and compares the key issues that arise from the censorship systems and then discusses film practitioners' opinions of, and experiences in dealing with, those issues. From the analysis of the systems on paper and investigation of practice through fieldwork, the third part then considers two alternatives to tackle the adverse effects that the censorship system has on the film industry. These alternatives are applications for judicial review of censorship decisions and reforms to the existing film censorship system.

A total of seven chapters make up the three parts outlined above. Chapters 1 and 2 form the first part. After the introductory chapter, Chapter 2 serves as an introduction to the Malaysian, Hong Kong and Australian film industries in their socio-legal context. Its purpose is to provide readers with an overview of the three jurisdictions and their film industries to better understand the context in which the censorship systems operate. Chapter 2 discusses a brief history of, and the contemporary socio-legal settings in, Malaysia, Hong Kong and Australia. The chapter then looks at the background and development of each of the three film industries and explains the initiatives undertaken by their respective governments. Industry statistics, which include the number of films produced annually, the gross box office revenues, the number of cinema screens and details of cinema admissions are also presented where available.

The second part of the book comprises Chapters 3 to 5. Chapter 3 discusses the film censorship systems in Malaysia, Hong Kong and Australia by outlining the relevant legislation and guidelines. The chapter also elaborates the censorship mechanisms and processes. The comparative analysis of the film censorship laws and guidelines in each of the jurisdictions shows that they display marked differences and Chapter 4 highlights these differences and evaluates their likely effects. These key differences and issues are in regard to:

1 the suitability, competence and independence of film censors in carrying out their duties;

2 the exemption of films from censorship;

3 matters to be taken into account by censors in the course of making censorship decisions;

4 defects in film censorship guidelines;

5 the power of censors to require alteration to be made before a film is approved for exhibition and distribution, and the opportunity to discuss with censors the classification category of a film;

6 the provision of reasons for censorship decisions;

7 the parties to, and procedures of, an appeal against censorship decisions;

8 the availability of judicial review to aggrieved film practitioners.

These issues are intrinsically intertwined and inform the larger question: what are the adverse effects of the film censorship system on the film industry? Together Chapters 3 and 4 provide the basis for further investigation and evaluation of how the systems operate and affect the industries. It is recognized that before any conclusions can be drawn, it is pertinent to explore how these key issues are viewed and responded to by the parties who are most affected by them – the film practitioners and censors.

Chapter 5 thus continues by discussing the results of fieldwork, conducted to obtain film practitioners' opinions of the key issues identified in Chapter 4. Interviews were conducted with 36 film practitioners from Malaysia, Hong Kong and Australia and a representative from each of the censorship authorities. A number of factors account for the choice of conducting in-depth semi-structured interviews for this book. First, interviews with film practitioners (and regulators) appeared very likely to provide the sort of information crucial for the writing of th...