SIS Book Ban – Court of Appeal decision

Court of Appeal’s 1st judgment on book bans is one affirming the lifting of the ban on the book by Sisters in Islam.

 

The Grounds of Judgment for the Court of Appeal in Dato Seri Syed Hamid bin Syed Jaafar Albar (Home Minister) v SIS Forum (Malaysia) regarding the High Court’s overturning of the ban on the book Muslim Women & The Challenges of Islamic Extremism are now available.

Click here for a copy.

You will recall from our post dealing with the High Court Judgment that this was the first Court case challenging a book ban under the Printing Presses and Publications Act 1984. The case was also significant for a number of other reasons:

The decision appears to be the first to deal with a ban of a book under the Printing Presses and Publications Act 1984. Reported cases under this Act previously dealt with the refusal of newspaper/magazine permits or prosecutions for the publication of false news (see in particular the case of Penang Chief Minister Lim Guan Eng).

The only other reported Malaysian case dealing with the seizure of a banned book is from the 70s where the book Lenin was seized and impounded by a police officer suspecting that it would be prejudicial to public order (see Chong Chong Wah v Sivasubramaniam [1974] 1 MLJ 38).

The decision is also significant in that it applies two very recent Federal Court decisions. The first, Sivarasa Rasiah v Badan Peguam Malaysia, is a very wide ranging judgment which should be read in its entirety. Suffice to say that it provides, amongst other things, that restrictions to the fundamental liberties in Part 2 of the Federal Constitution must be “reasonable” to pass the scrutiny of the Courts.

The other, Darma Suria Risman Shah v Minister for Home Affairs, provides that even where legislation leaves it to the “satisfaction” of a Minister to make a determination, it is for the Court to objectively determine whether there are sufficient facts for a “reasonable” Minister to have held that the acts of the applicant there were against public order.

The Court of Appeal has essentially upheld the Judge’s reasonning. Abdul Wahab Patail JCA, who delivered the unanimous judgment of the Court, said this of the statement by the Minister that he was satisfied that the Book was prejudicial to public order:

“To be satisfied that the Book was prejudicial to public order in the face of the fact there was no prejudice to public order in the two years the Book was in circulation, is in such outrageous defiance of logic that it falls squarely within the meaning of Wednesbury unreasonableness, and of irrationality.”

As in the last time, all eyes are now again on the Court of Appeal who will consider on Monday the appeal by K Arumugam against the ban on his book, March 8.

LB: Shanmuga is one of several co-counsel – with other LoyarBurokkers – who acted for SIS and Arumugam.

Update: See also Is Book Banning Justified?