On a National Day like today, what better time to bring up the topic of freedom, the Malaysian Bar issued a statement concerning the recent action of the Ministry of Home Affairs which borders on the opposite of freedom.
On two separate occasions in the span of approximately three months apart — the raid on 11 Swatch stores and seizure of items in various shades of the rainbow on 13 to 15 May 2023, and the recent raid on Toko Buku Rakyat and seizure of two books on 18 August 2023 (“impugned actions taken by MOHA”). The explanations reported to have been given in support of the actions taken by MOHA are purportedly based on “public complaints” made, and the actions taken were reported to be premised on the Printing Presses and Publications Act 1984.
The Bar said section 7 of the PPPA must be read in its context — that any purported prohibition is only applicable upon it having been gazetted in accordance with the PPPA prior to any action being taken by the Minister of MOHA.
On 10 August 2023, three months after the raid on 11 Swatch stores and seizure of items in various shades of the rainbow on 13 to 15 May 2023, only then did MOHA gazette a Printing Presses and Publications (Prohibition of Undesirable Publications) Order 2023 (“Prohibition Order”) against the “publication related to Lesbian, Gay, Bisexual, Transgender, Queer and + Plus (“LGBTQ+”)”. The Prohibition Order, which was gazetted, stated that “any form appearing on Swatch watches of any collection including the boxes, wrappers, accessories or any other related things”, is not permitted lawfully. Based on MOHA’s Media Release dated 10 August 2023, the Prohibition Order is said to be premised on the grounds of morality, and public and national interests, in preventing the spread of elements that “promote, support, and normalise the LGBTQ+ movement which is not acceptable by the general public in Malaysia”.
The legality of the raids and seizures remains questionable and is of course subject to challenge in the court of law.
What is crystal clear is that under the PPPA, the Minister of MOHA is first expected to make an order published in the gazette regarding the prohibition of any undesirable publications. Without a gazette in place prohibiting such “undesirable publications”, any raid and seizure carried out by MOHA would most likely be unlawful and excessive.
Previous cases in Malaysia have decided on this issue in a similar vein. The facts in Berjaya Books Sdn Bhd & Ors v Jabatan Agama Islam Wilayah Persekutuan & Ors (“Berjaya Books”) is similar to the most recent impugned actions taken by MOHA. In Berjaya Books, when the authorities raided the bookstore and seized several books, the publications were not subject to any prohibition by MOHA at the material time. MOHA only made a prohibition order via a gazette which was only issued three weeks after the raid. The Malaysian High Court has held in the past that the PPPA must be read harmoniously with the Malaysian Federal Constitution (“FC”), in particular Article 7, so as to avoid any conflict that would result in the provisions of the statute being applied retrospectively. The Malaysian High Court held that a statute must be read prospectively in order to provide certainty to persons affected and to prevent those similarly circumstanced from being retrospectively criminally liable. The High Court’s decision was later affirmed by the Malaysian Court of Appeal.
Back on 27 August 2015, MOHA also issued an order under the PPPA banning the Bersih 4 T-shirts and publications in relation to the Bersih 4 rally. The Malaysian Court of Appeal held that the order issued by MOHA back then was unreasonable, and accordingly quashed MOHA’s order.
The Bar President Karen Cheah pointed out that citizens of the country are fully entitled to expect as a matter of certainty that the consequences of words uttered and/or conduct undertaken at the material time it was made and/or carried out, are based on current and existing laws of the land; and that the goalpost cannot be changed arbitrarily by laws put in place at a later date. Surely, the rakyat is not expected to foresee what changes would be made to the law by the government of the day, after such words were uttered or conduct was undertaken.
The impugned actions taken by MOHA relating to the above-mentioned Swatch and Toko Buku Rakyat incidents are merely the latest events reported in a long-standing list.
She noted while PPPA is still in existence in the Malaysian legislative context, this just means that not all publications can be published without consequence and that proper and lawful steps need to be taken by MOHA in compliance with the rule of law, before these steps can be in force and enforced.
The Malaysian Bar said it continues to advocate that MOHA must understand how the law works and the application of the provisions of the PPPA. Any exercise of their powers must be within the purview and limits provided under the PPPA. Powers under the PPPA are not all-encompassing but subject to qualifications and pre-requirement compliances. As such, MOHA must exercise its powers within the confines of the rule of law.
It also views the explanations given by the Minister of MOHA pertaining to why such raids and seizures were made with respect to the Swatch and Toko Buku Rakyat incidents as unsatisfactory and lacking in substance, especially in view of the due legal process that has to be followed.
MOHA needs to explain the legality, necessity, and proportionality of the impugned actions taken which resulted in the restriction and potential prohibition of, among others, freedom of expression, equality, and deprivation of property in contravention of Articles 8, 10 and 13 of the FC.
A long-term solution that the Malaysian Bar reiterates is its call for the total repeal of the PPPA. It is an obsolete and repressive piece of legislation that is no longer relevant in a democratic society. The PPPA is notorious for being used and abused by authorities for political mileage, and to intimidate and threaten parties in order to make them succumb to one particular view, which may be seen as threatening the power play and securing the position of the government of the day.
The Malaysian Bar urges the Unity Government to repeal the PPPA, and instead establish an independent body to regulate the publications industry, including that of the press, where fundamental liberties enshrined under our FC are preserved and the oversight body of any publications are to be in alignment with the FC.
