By Rahmat Khairulrijal | New Straits Times
The Court of Appeal today has restored the ban on the distribution of the controversial book Gay is OK! A Christian Perspective in the country.
A three-member bench appellate court led by Judge Datuk Azizah Nawawi in a split 2-1 decision allowed the government’s appeal against the lower court decision last year, which had allowed a judicial review by the publisher and author of the book to set aside the banning order by the Home Ministry.
Judge Datuk Wong Kian Kheong when reading the majority ruling said the ban imposed by the Home Ministry was in line with the law, rational, and did not violate natural justice.
He said there was a possibility that the title and the content of the book may prejudice public order, moral values, and public interests.
“Article 10(2)(a) of the Federal Constitution gives Parliament the power to make laws to restrict the freedom of expression and freedom of speech if necessary to maintain public order and morality.
“We are satisfied that the book’s entire contents and its title gives a general message that the homosexuality is not prohibited by Christianity.
“Even though there were no incidents for the past seven years since the publication of the book (September 2013), this does not disabuse the existence of likelihood of prejudicial to public order, morality, and public interest,” he said.
Meanwhile, Judge Gunalan Muniandy when reading the dissenting judgment said the lower court was right to lift the ban due to it being irrational and in breach of natural justice.
He agreed with the High Court’s decision that the Home Ministry failed to show evidence of actual prejudice to public order.
“There is no such evidence being adduced to show that the book was prejudicial to public order,” he said.
The court also set RM15,000 in costs to be paid to the appellants.
On Feb 22, last year, High Court Judge Datuk Noorin Badaruddin allowed a judicial review filed by the book’s publisher and its author Gerakbudaya Enterprise and Ngeo Boon Lin, respectively.
She ruled that the government failed to show evidence of actual prejudice to public order that had occurred.
She said there was no evidence and/or legal factual basis for the minister’s justification which formed the basis of the ban.
Gerakbudaya and Ngeo had filed their legal action through law firm Messrs AmerBON at the High Court here on Feb 17, 2021.
In their legal action, they claimed that the Home Minister had no legal and factual basis to impose the ban as it is not likely for the book to be prejudicial to public order, morality, and public interest.
They claimed that the ban was irrational and a disproportionate violation of their right to freedom of speech and expression and the right to equal treatment under the Federal Constitution.
The applicants said there were no untoward incidents caused by the book which has been in publication for over seven years, adding that Part One of the book had already been published in the period from 2010 to 2011.
They said the Home Minister had failed to provide reasons as to how the book was likely to be prejudicial to public order and identify the parts deemed prejudicial.
The two applicants also claimed that they came to know of the ban from online media reports published on Dec 18, 2020 following a media statement issued by the Home Affairs Ministry chief secretary Datuk Wan Ahmad Dahlan Abdul Aziz on the same day.