Hew Kuan Yaw v Menteri Dalam Negeri & Ors [2022] 8 CLJ

HEW KUAN YAU v MENTERI DALAM NEGERI & ORS [2022] 8 CLJ

Court of Appeal Putrajaya

Judicial Review

Facts

1. The Appellant is the author of a comic book (“the Book”) published on 18 April 2019.  The title of the Book is Belt and Road initiative for Win.

2. The Book purportedly elucidated the historical backdrop of the ‘Belt and Road Initiative’ (“BRI”) of the Peoples Republic of China and heaped lavish praise on it.  The BRI is an official policy of China to invest in many countries.

3.  Six months later, on 23 October 2019, the Minister for Home Affairs (“the Minister”) banned the Book via a Prohibitory Order (“PO”) published by the Federal Gazette (P.U. (A) 288/2019) pursuant to Section 7 of the Printing Presses and Publications Act 1984 (“Act 301/ PPPA”).

4. All the three versions of the Book in Malay, English and Chinese were banned.

5. The statutory ground under Section 7(1) of Act 301 is that the Book is prejudicial to or likely to be prejudicial to public order and alarm public opinion.

6. However, according to a press released by the Minister, the following reasons were given:

(a) that the Book was published with the intention to promote the ideology of communism and socialism;

(b) that the Book spreads wrong and confusing facts about communists while trying to raise support and sympathy towards the communist struggle; and

(c)  that the Book causes readers especially the younger generation to question the history of Malaysia and dispute the struggle of the past leaders/icons in fighting for independence and nation building.

7.  The learned High Court Judge was of the view that the Minister had not acted irrationally and unreasonably.  Her Ladyship opined that under Section 7 of Act 301, the Minister has absolute discretion to issue a PO and as such cannot be said to have committed an error of law.   Therefore, the judicial review was dismissed.

8.  The Appellant then appealed to the Court of Appeal on the grounds that-

(a) That judicial review is only concerned with the decision-making process but not the merits of the decision.

(b) That in a judicial review application the court should not substitute the decision of the Minister with its own decision.

(c)  That the Minister has absolute discretion in the issuance of the PO under s. 7 of the PPPA.

(d) That the Minister is the best person to make decisions pertaining to public order and the courts should not interfere with its decision.

(e) That in balancing the requirement of public order and the interest of the appellant, more weight should be given to the view of the Minister.

(f) That the learned High Court Judge misdirected herself in holding that the Minister had evidentiary basis for the ban.

(g) That the principles of judicial review in R Rama Chandran v. Industrial Court Of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 were not applied by the learned High Court Judge.

(h)  The learned High Court Judge failed to consider that no incident prejudicial to public order or security or that which alarmed public opinion had occurred since the publication of the book.

(i)  The learned High Court Judge erred in holding that s. 7(1) of the PPPA is valid and constitutional.

(j)That the High Court failed to consider that the PO was not published with the real name of the Minister in the Gazette.

Issue

1. Whether the decision of the Minister under Section 7 of Act 301 is subject to judicial review and to what extent it can be examined on the merits?

2. Whether the High Court is correct in holding that there was proper exercise of ministerial discretion on the facts?

3.  Whether a right of hearing must be accorded before banning the Book?

4. Whether Section 7 of Act 301 should be struck down as unconstitutional?

Ratios 1. The judicial review

(a) Section 7(1) of Act 301 provides that-

“(1) If the Minister is satisfied that any publication contains any article, caricature, photograph, report, notes, writing, sound, music, statement or any other thing which is in any manner prejudicial to or likely to be prejudicial to public order, morality, security, or which is likely to alarm public opinion, or which is or is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to public interest or national interest, he may in his absolute discretion by order published in the Gazette prohibit, either absolutely or subject to such conditions as may be prescribed, the printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of that publication and future publications of the publisher concerned”.

(b) The fact that the Parliament has granted absolute discretion under Section 7 of Act 301 to restrict the publications that are considered undesirable does not necessarily immunise the decision made by the Minister from judicial review.

(c)  The Court of Appeal opined that although the absolute discretion is stipulated under Section 7 of Act 301, the exercise of the discretion of the Minister is still reviewable if it falls within one of the grounds for challenge.

2. The examination on the merits

(a) The Appellant contended that the High Court has taken the traditional approach by stating that the court is only concerned with the decision making process and not the decision itself.

(b) The learned counsel for the Appellant has taken exception to the following passage in the judgment of the High Court:

“[36] After going through the book, even if the court is of the different view with the Minister’s evaluation and decision, the court is reminded time and time again that it should not substitute what it thinks is the correct decision.  What the court is concerned with is not the decision but the decision-making process.  It dies not entail the court substituting its discretion for that of the decisionmaker.  The Government has a right to preserve public peace and order”.

(c)  The Court of Appeal disagreed with the statement by the learned High Court as it is the duty of the court to consider whether the act in question can be challenged for breaching the administrative law principle.

(d) In the case of Dato’ Seri Syed Hamid Syed Jaafar  Albar (Menteri Dalam Negeri) v SIS Forum (Malaysia) [2012] 9 CLJ 297 where in this case the book in question was circulated for 2 years before it was banned on the ground of being prejudicial to the public order.  The Court acknowledged the administrative law maxim that judicial review is only concerned with the decision making process and not the decision itself.

(e)  The court in the abovementioned case ruled that the review of the decision-making process is not limited to determining whether the different overt steps in the process had been complied, and that the court has a duty to intervene if the decision was ultra vires or unfairly or unjustly exercised.

(f)   In this recent case, the learned High Court judge was not prohibited from examining the evidence in order to assess whether the Minister’s decision to impose to ban the Book under Section 7(1) of Act 301, it was nonetheless an unreasonable exercise of power or was irrational and in defiance a Minister in a similar situation would not have made the same decision.

3.    The exercise of the discretion

(a) The Court of Appeal opined that the learned High Court judge did not thoroughly examined the supporting evidence for the PO.  Her Ladyship seemed to have already accepted the reasoning given by the Minister in affidavit without critical thought.

(b) Based on the affidavit of the Minister, several allegations about the content of the Book which covered a very wide range of historical events from the time of the Malacca Sultanate to the time of the launch of BRI.

(c) In paragraph 9.10 of the affidavit the Minister claimed that the Book leads the youth to question the success of the nation’s leaders in the fight for independence.

(d) Further in paragraph 9.11, the Minister averred that the Book will lead to racial conflict since the Book did not consider the sensibility of the country’s multiracial and multireligious population.

(e) The Court of Appeal stated that there is nothing offensive in the book that incites racial animosity, offends anyone’s religious or racial feelings, or causes racial tension as claimed in the Minister’s affidavit.

(f)   The Minister in his affidavit failed to point out any material in the Book that may act as a spark in a powder keg which would endanger the public interest by inciting racial unrest, disharmony and riot.

(g) The fact that the comic book in this present case was in circulation for some six months is likely to spark racial disharmony or riots were not given a sufficient consideration by the learned High Court judge.

(h)  Also, the learned High Court judge did not consider one of the pertinent reasons given by the Minister which the book was likely to be prejudicial to public order was because of the 81 police reports lodged against it.

(i) In a nutshell, the Court of Appeal ruled that based on the affidavit given by the Minister, there was no evidence to suggest prejudice to public order or likelihood thereof that allowed the power given to the Minister, i.e the discretion given under section 7(1) of Act 301.

4.     Right of hearing

(a) The learned counsel for the Appellant contended that the fact that no right of hearing was given to the Appellant before the PO was issued is a ground for quashing the ban.

(b) The Appellant sent two letters of appeal to the Minister but received no reply.

(c)  The Court of Appeal referred to the recent case of Dato’ Seri Syed Hamid Syed Jaafar Albar (Menteri Dalam Negeri) v SIS Forum Malaysia [2012] 9 CLJ 297 where in this case the court opined that the right to be heard does not apply to administrative decisions.

(d) Further, in the case of Islamic Renaissance Front Bhd v The Minister of Home Affairs [2020] 5 MLJ 399, it was ruled that the failure to give a right of hearing was a ground to quash the decision of the Minister.  However, the decision was reconciled with the view stated in the case of Sepakat Efektif Sdn Bhd v Menteri Dalam Negeri & Anor [2015] 2 CLJ 328 where the court in Islamic Renaissance did not expressed that the right to be heard before the imposition of the ban is absolute as it can be excluded on national security grounds.  The Minister is however have the duty to consider whether it should be given.

(e)  In this recent case, the Court of Appeal agreed with the view stated in Sepakat Efektif  as when time is of the essence, it might not be appropriate to grant a right of hearing.  However in this case, no harm would have been done in giving the Appellant a right of hearing.

5.  The validity of Section 7(1) of Act 301

(a) The learned counsel for the Appellant contended that the word reasonable must be read together with Article 10(2) of the Federal Constitution which allows the Parliament to impose restrictions on the freedom of speech and expression.  Article 10(2) of the Federal Constitution provides that-

“Freedom of speech, assembly and association

10 (2) Parliament may by law impose –

 (a) on the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence;

(b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof or public order;

 (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality”.

(b) The Court of Appeal opined that the Minister’s action can be questioned if it breaches the administrative law principles regarding the power given to the Minister.

(c)  Therefore, the Court of Appeal held that there is no reason to struck down Section 7(1) of Act 301as unconstitutional.

Decision

1. The appeal was allowed and the decision of the High Court was set aside.

2. The Court of Appeal granted prayers of the judicial review application and awarded costs of RM 1, 000.00 to the Appellant.

Key Take Away

1.  Under the administrative law principles, although the Minister is granted with absolute discretion under Section 7(1) of Act 301, the Minister’s action could be questioned if it is against the administrative principles.

2.  Act 301 was introduced by the Parliament in order to control all types of publications, whether it is printed in the country or imported from the abroad.  This Act also provides power to the Minister to undesirable publications as stipulated under Section 7.

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