The grounds of decision of Ariff Yusof J in the SIS book banning case.

High Court Judge Tuan Mohamad Ariff bin Md Yusoff on Monday, 25th January 2010 quashed a decision of the Home Minister banning the book Muslim Women and the Challenges of Islamic Extremism. Click here for a copy of the judgment in SIS Forum (Malaysia) v Dato Seri Syed Hamid Albar bin Syed Jaafar Albar, [2009] Application for Judicial Review No. R3-25-347-2008.

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 also stated (though in obiter, perhaps) that it was not the position in Malaysian law that the mere ratification of an international human rights treaty could give rise to a legitimate expectation that the government would act in accordance with that treaty. The treaty must be translated into domestic law first, by Parliament, before it would have the force of law.

All eyes will now be on the same judge, who will decide on Friday, 29th January 2010 on another book banning case – that of K. Arumugam’s Tamil book, March 8 regarding the violent clashes in Kampung Medan on 8th March 2001. UPDATE: That decision is here.

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

Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices...

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