The Kedah Muslim Scholars Association's (PUK) complaint to Kuala Lumpur City Hall (DBKL) reportedly triggered the withdrawal of the permit issued for a second run of the play, The Vagina Monologues by Eve Ensler. Its first run was sold-out.

Informed sources state that a copy of the script was dutifully submitted to DBKL at its request, soon after the PUK complaint. Consequently, the permit that was issued prior to the making of the complaint was revoked by the licensing department of DBKL. According to reports, the basis for the revocation was alleged to be obscenity.

It is remarkable that the permit holder was not given the right to be heard before the revocation of the permit. The right to be heard, the much revered audi alteram partem rule, a rule of natural justice, was slighted by a lesser adjudicating body. That by itself warrants a remedy.

What is in danger of being unspoken by this act of censorship by DBKL, the issue at stake, is whether women's speech o­n sexuality is obscene? It would appear so to the PUK and DBKL, apparent vigilantes of public morality and decency. The policing of public morality and decency ends in censorship in order to protect community values.

The traditional legal test for obscenity has its roots in an oft-quoted judicial opinion of 1868. In R v Hicklin, the test of obscenity is "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences ..."

Never mind that nobody talks like this anymore.

Never mind that the people who rushed to see the play did not complain of being 'depraved and corrupted', as subject-viewers of the alleged obscenity.

Never mind that we should allow discerning adults to be 'depraved and corrupted' if they should so desire.

Just who is this community which the law is supposed to be protecting?

Moral conservatives and even lawyers may want to say a thing or two in support of public morality and decency. That may be beside the point. The point may well be about the inability of this genre of laws as they are presently framed and understood, to keep up with contemporary debates o­n women's sexuality.

Female construction of sexuality

The Vagina Monologues , as I understand it, is about the female construction of knowledge, or women's perspectives o­n sexuality, taking seriously women's life experiences. It is women's speech o­n sexuality.

'Women-speak' is thus concerned not o­nly with what is known about women, but how knowledge about women is derived.

The complaint is, women's knowledge and experiences are often invisible and unimportant in mainstream theory and knowledge. The world is interpreted and defined from a male point of view which takes itself to be neutral, universal and objective.

As women speak out and fight back, it became apparent that the claims of neutrality and objectivity could not be sustained. To persist o­n validating knowledge from male experiences o­nly, then becomes an exercise of power to control and define which men have always had.

The concerns of women by and large are still treated in politics as merely 'women's issues', different from and less important than politics generally because they concern the private sphere. Sexuality ('sexuality' being wider than just 'sex') issues including domestic violence, sexual harassment, marital rape, for example, are 'private' matters and not seen as the proper subject matter of 'true politics' and the realm of the public sphere.

The exclusion from the public sphere has led women's knowledge and experiences to be excluded from the political community which has formulated knowledge and theory (including legal theory) o­n women's sexuality.

I cite an example in the recent past of women's efforts in engaging the state o­n the draft law o­n domestic violence. In o­ne of the Joint Action Group of women's organisations (JAG) roundtable meeting with government representatives, JAG's proposal to recognise marital rape as an instance of domestic violence was rejected by the attorney-general's representative o­n the basis of a religious objection of a particular persatuan ulama .

Non-consensual sex

It was entirely unclear if there is indeed an undisputed religious sanction to non-consensual sex in a Muslim marriage. In my legal literacy rounds with women then, Muslim women instructed me that women are not in a position to say 'no'. Women who refused their husband sex would have the curses of angels until the morning.

The ulama 's position in the women's campaign may have been informed by this perception of sexuality which to my mind has not investigated women's life experiences (Muslim and non-Muslim) of non-consensual sex in the situation of established marriage (as the legal site for sex in this example).

Upon hindsight, women's rights advocates had not fully accessed disputations in hadith literature or Muslim traditional thinking related to the ulama 's position o­n the issue or re-work the analysis of links between sexuality, religion and women's subordination and discrimination.

It is all the more sad that the AG's representative accepted the ulama 's protest without question. It was easy, it was politically expedient perhaps, even if this alleged Muslim position may have impaired the rights of women beneficiaries (Muslim and non-Muslim) which the domestic violence law sought to protect.

The incapacity to say 'no' or in determining the conditions of intimacy, enforced by such or similar cultural or religious values may have contributed to the variety of ills women face in the private-sexual sphere. o­ne instance of this is the increasing number of wives contracting HIV-AIDS from their husbands.

Sexual language

There are disagreements as to how language was used in The Vagina Monologues to discuss women's sexuality. It may be a complaint of artistic direction. It may be a case of an artistic portrayal of taboo words because 'good women' do not talk about such things as a matter of course.

The message may be that women should overcome the fear of naming their personal physical body parts to be able to begin to talk about sexuality. The choice and use of language are a case of expression. These issues are embryonic for women.

Women's speech o­n sexuality explores the link among others, to the oppression of women through sexual subordination. If women's oppression occurs through sex, then in order to end women's oppression in its many manifestations, the way we, women and men think and talk and act about sex must be changed.

As o­ne writer has put it, if women are socially defined such that female sexuality cannot be lived or spoken or felt or even somatically sensed, then there is no such thing as a woman as such, there are o­nly walking embodiments of men's projected needs. (Catherine A MacKinnon. Signs: Journal of Women in Culture and Society . 1982)

One of the difficulties of centering censorship in women's speech o­n sexuality is the harm to the women's cause by suffocating the environment in which women should be free to explore ideas about sexuality.

Debate and controversy

The issue of women's sexuality has seen raging debates and controversies since the 1980s in several countries. There are different approaches. Malaysia's political debate o­n this issue and more so the legal system are not yet committed to any particular response in relation to the several approaches concretised for the last 20 years or so in other jurisdictions.

There are broad principles which have informed the different approaches. It is important to look at the substance of the speech in relation to the historical context of oppression of women. The analysis must notice who is speaking and whose voices are heard. We must take into account exclusions and power exercised o­n a group basis. These principles would help in the development of a new understanding of the types of harm which justify restricting or censoring speech.

To cite a legal response a 1992 Canadian case in R v Butler which doubted the 1868 R v Hicklin test speaks of the 'internal necessities' test. This test protects a work if undue exploitation of sex is not its main object. Thus even if it can be alleged that the work or a play may by itself constitute the undue exploitation of sex it is protected from censorship, if it can be viewed in context as intending to serve a wider purpose. The purpose may be artistic, literary or educational.

While the 1992 Canadian case is related to pornography as opposed to obscenity, the opinion expressed therein reflects the direction of contemporary judicial thinking which may lend us some assistance in developing responses.