By Hafiz Yatim| The Edge Malaysia
The Court of Appeal on Monday (Sept 25) reimposed the ban on a 2013 publication titled Gay is Okay! A Christian Perspective that was ordered by the Home Ministry in 2020, after the High Court had on Feb 22, 2022 lifted the prohibition on the book.
This follows a majority 2-1 decision that allowed the federal government and Home Minister’s appeal against the court decision.
Judges Datuk Wong Kian Kheong and Datuk Azizah Nawawi, who led the panel, are the majority judges who re-imposed the ban, while Datuk M. Gunalan is the dissenting judge.
Wong, in his judgment, said Article 10(1)(a) of the Federal Constitution is different from the position of the Indian Constitution, which stipulated that the government can impose reasonable restrictions.
However, he added that while the Malaysian Constitution stipulates that everyone has the right to freedom of speech and expression, it is subject to the interest of the security, public order or morality, among others.
He said the High Court judge had erred in law, as the minister has the right to impose the ban on the book based on its possible adverse effect on morality and out of public interest, even though the book had been in circulation for seven years before being banned.
Wong said based on the objective evaluation of the court, the contents of the book and its title give a general message that Christians do not prohibit homosexuality.
He further added that the High Court judge had also erred in law by adopting the Universal Declaration of Human Rights, as the international document cannot bypass Article 10(1)(a) of the Malaysian Constitution.
Wong said section 7 of the Publication and Printing Presses Act 1984 (PPPA) shows the intention of the Malaysian Parliament to impose such restrictions on such publications if they were found to be against public order and morality.
The judge also noted that the book’s author Ngeo Boon Lin and publisher Chong Ton Sin did not challenge the constitutionality of section 7 of PPPA, and it was wrong for the High Court judge to consider this.
“The gazette of the ban also provided three reasons in instituting the ban where it stipulated that it may result in likelihood to affect public order and morality,” he said.
Wong said under section 7 of the PPPA, the Parliament had given the minister the power to impose the restrictions under Article 10(1)(a), and the minister has the right to make the decision based on public order and morality.
Furthermore, the judge reasoned that 42 out of 226 pages of the book which allegedly give an alternative view on same sex relationship do not represent the Christian view as a whole.
Wong added that it was reasonable for the minister to see the book as likely to prejudice public order, affect morality and public interests, despite the fact that it was published seven years ago.
In reversing the decision, the majority ordered Ngeo and Chong to pay a total of RM15,000 costs to the government and the minister.
Judicial review and dissenting judgment
Ngeo and Chong filed the judicial review on Feb 17, 2021, to claim that the ban imposed in November 2020 was irrational and disproportionate as no untoward incidents were triggered by the book since its publication over seven years prior to the initial ban.
High Court judge Datuk Noorin Badaruddin had in February 2022 allowed the ban to be removed and ruled that there was no evidence or legal factual basis for the Home Minister’s justification, which formed the basis of the ban.
“He (the minister) must be borne in mind that the book in question relates to homosexuality from a Christian perspective,” the judge said.
The judge said the book ought to be confined to that religion, even if there may be some subjective perception as to its content, evaluation, and worth. Noorin further ruled that after more than seven years in publication, the minister and government failed to show evidence of actual prejudice to public order that had occurred.
Gunalan, in his minority decision on Monday, found that the publication is unlikely to cause prejudice to public order and that the ban is disproportionate to freedom of expression and equal protection of the law.
He also ruled there is procedural impropriety on the part of the minister, as the duo have a right to be heard before the ban was imposed.
Gunalan agreed with the High Court judge’s view that the claims by the minister of affecting public order and interests cannot be sustained.
This is because the book was put up on news portal Malaysiakini before it was published, and there was no evidence that it resulted in negative response to the public.
The appellate judge also agreed with the High Court judge that the minister had failed to justify the ban and there was no evidence produced to show that it is prejudicial to public order.
Counsel Edmund Bon Tai Soon and Michael Cheah appeared for Chong and Ngeo while senior federal counsel Ahmad Hanir Hambaly @ Arwi and Mohammad Salehuddin Md Ali appeared for the minister and the government.
When approached, Bon said his clients are seriously considering filing leave to appeal.
