Censoring the Censors in the WTO - Southwestern Law School

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44 J. Int’l Media & Entertainment Law Vol. 3, No. 1 her latest album hit platinum sales there in October 2009, the very month in which she was scheduled to perform in Malaysia. As one Malaysian writer noted, though, for some Malaysians, “questions remain about whether Malaysia’s conservative stance truly protects the sanctity of the country’s culture, or is on the path to Taliban-land.” 151 In addition to ruling on whether a majority of a WTO member’s population must support a moral belief asserted by a member attempting to justify a trade restriction under the public morals exception and if so, what evidence would be sufficient to establish their beliefs, WTO panels and the Appellate Body could be called upon to answer three other major questions regarding the public morals exception. These questions are: (1) Can a WTO member rely on the public morals exception to 151. Farrah Hamid, Is Malaysia’s “Boom Boom Pow” on Entertainment a Danger Zone, elanthemag.com, Sept/ 29, 2009, available at http://www.elanthemag.com/ index.php/site/blog_detail/is_malaysias_boom_boom_pow_on_entertainment_a_ danger_zone (accessed Dec. 21, 2009). As an aside, in October 2009, a Shariah (Muslim) court in Malaysia affirmed the caning of a young Muslim woman, Kartika Sari Dewi Shukarno, for drinking a beer in public. Appeals Court Upholds Malaysia Woman’s Caning for Drinking Beer, cnn.wire.blogs.cnn.com, Sept. 21, 2009 available at http://cnnwire.blogs.cnn.com/2009/09/29/appeals-court-upholds-malaysia-womanscaning-for-drinking-beer (accessed Dec. 21, 2009). While Islamic law bans the drinking of alcohol in public (Tom Henheffer, Malaysian Model Caned for Drinking, mcleans. ca, Oct. 22, 2009, available at http://www2.macleans.ca/2009/10/22/malaysian-modelcaned-for-drinking (accessed Dec.21, 2009)) and 60% of Malaysia’s population is Muslim (Appeals Court Upholds Malaysia Woman’s Caning for Drinking Beer, cnn.wire. blogs.cnn.com, Sept. 21, 2009 available at http://cnnwire.blogs.cnn.com/2009/09/29/ appeals-court-upholds-malaysia-womans-caning-for-drinking-beer (accessed Dec. 21, 2009)), the general consensus in Malaysia (and certainly the members of a number of Muslim women’s organizations in Malaysia) is that Ms. Shukarno’s caning sentence was unnecessarily harsh. See, e.g., Malaysia Delays Caning of Muslim Model for Drinking Beer Until After Ramadan, dailymail.co.uk, Aug. 24, 2009, available at http://www.dailymail.co.uk/news/worldnews/article-1207643/Muslim-model-woman- Malaysia-caned-caught-drinking-beer.html (accessed Dec. 21, 2009); Julia Zappei, Malaysia: Woman to Be Caned for Drinking Alcohol, New Straits Times, July 22, 2009, reprinted Muslim Women Living Under Muslim Law, wluml.org, available at http://www.wluml.org/node/5443 (accessed Dec. 21, 2009); Tom Henheffer, Malaysian Model Caned for Drinking, mcleans.ca, Oct. 22, 2009, available at http://www2. macleans.ca/2009/10/22/malaysian-model-caned-for-drinking (accessed Dec. 21, 2009) (“According to Hamidah Marican, executive director of Sisters of Islam, which works to strengthen women’s rights in Malaysia, ‘Kartika’s case . . . has caused damage to Malaysia’s reputation as a model Muslim country.”). Some of the people protesting Shukarno’s sentence have noted that a man recently had been sentenced to only 30 days in prison for drinking alcohol in public. See, e.g., Julia Zappei, Malaysia: Woman to be Caned for Drinking Alcohol, New Straits Times, July 22, 2009, reprinted Muslim Women Living Under Muslim Law, wluml.org, available at http://www.wluml.org/ node/5443 (accessed Dec. 21, 2009). A Muslim supporter of Shukarno’s sentence perhaps elucidated the Shariah court’s motivation for imposing such a harsh sentence when he stated “Sharia in Malaysia is not strong, so maybe Kartika is the first person to help spark the needed change [.]” Henheffer, Malaysian Model Caned for Drinking, mcleans. ca, Oct. 22, 2009, available at http://www2.macleans.ca/2009/10/22/malaysian-modelcaned-for-drinking (accessed Dec. 21, 2009). 3058-088-3pass-02_Wright-r03.indd 44 6/30/2010 12:02:00 PM
Censoring the Censors in the WTO 45 restrict entry of a product or service in a specific local territory where a majority of the local population objects to that product or service on a moral ground, if only a minority of the national population objects to that product or service; (2) Must adults who are officially or unofficially denied the right to vote in a WTO member that raises a public morals defense in a WTO dispute proceeding be taken into account in a determination of whether a majority of the people in that nation supports the moral belief being asserted by that member; and (3) Can a WTO member rely on the public morals exception to justify a restriction imposed on a product or service from a particular nation that is based solely on a humanitarian (as opposed to a moral) concern for people living in that nation With respect to the first of these three questions, for example, seven Indian states banned the movie The Da Vinci Code on the ground that the movie’s message that Jesus could have married Mary Magdalene and fathered a child with her and their descendants live today would offend their Christian populations. 152 The Supreme Court of India refused to approve a law banning the movie from all of India. 153 However, if India had instead imposed an import ban enforceable by customs officials only in the seven states in question and another WTO member had challenged that ban in the WTO, it isn’t clear whether India could have prevailed under the public morals exception, even if it had been able to demonstrate that a majority of people living in those states would have been morally offended by the movie. With respect to the second of these questions, consider the fact that, in Saudi Arabia, which joined the WTO in 2005, 154 women recently have been granted the right to shop unadorned by their burkas 155 and unattended by their husbands or other male family members 156 (assuming their husband or another male relative has granted them the permission to do so) in the many new shopping malls that are spouting up all around 152. India court Blocks Da Vinci Ban, news.bbc.co.uk, June 13, 2006, available at http://news.bbc.co.uk/1/hi/entertainment/5074578.stm (accessed Dec. 30, 2009); see also Chinese Ban Da Vinci Code Movie, BBC News, Aug. 6, 2006, available at http:// news.bbc.co.uk/2/hi/entertainment/5059658.stm (accessed Dec. 21, 2009) (noting that the film also had been banned in Fiji, Pakistan, and some Indian states)). 153. Id. 154. World Trade Organization, Members, http://www.wto.org/english/thewto_e/ whatis_e/tif_e/org6_e.htm (accessed Dec. 17, 2009). 155. Ebey Soman, The Head-covering of Muslim Women and the Issues and Controversies Surrounding It, May 5, 2008, http://www.relijournal.com/Islam/The-Burqa- Facts—Issues.119799. 156. Id. 3058-088-3pass-02_Wright-r03.indd 45 6/30/2010 12:02:00 PM
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