Saturday, 30 August 2014

Discontinue legal action againts Pornpen Khongkachonkiet, Human Rights Defender


Joint Statement – 25/08/2014

Statement on the Judicial Harassment of Leading Human Rights Defender, Ms.Pornpen Khongkachonkiet

We, the undersigned civil society groups, are gravely concerned about the criminal legal action taken for defamation and libel against the Cross Cultural Foundation, headed by Ms. Pornpen Khongkachonkiet, by the Army’s Task Force 41. Ms. Pornpen, Director of the Cross Cultural Foundation – an organization which monitors and documents cases of torture and ill-treatment in Thailand – received a police warrant on Sunday 24th August 2014. The Thai Royal Police warrant is dated from 8th August. Major General Leekit Katchodnok, acting on behalf of the Army’s Task Force 41, filed a legal suit against Ms. Pornpen for libel and defamation. The army accuses the Cross Cultural Foundation for damaging the reputation of the army by publishing an open letter exposing a claim to torture. According to the warrant Ms. Pornpen must present herself at the Yala Police Station, in southern Thailand, on August 25th.

Ms. Pornpen is a leading Human Rights Defender in Thailand who has been involved in various Human Rights issues both in Thailand and the region, including women’s rights, indigenous rights and preventing forced disappearances.  Her work serves the public interest by ensuring that authorities are held accountable and pressuring authorities to unconditionally respect the Human Rights of all. As Director of the Cross Cultural Foundation, Ms. Pornpen has constantly been monitoring and documenting cases of torture and Human Rights violations in Thailand’s southernmost provinces.

We deem the army’s action to be an unreasonable, arbitrary and heavy handed attempt to silence all torture complaints against authorities. By quashing Ms. Pornpen’s efforts to support torture victims to publicly complain about Human Rights violations by authorities, the army is seeking to make it more than impossible for torture victims to voice their complaints. Moreover, this is a deplorable act by the army as it aims to further intimidate existing and potential victims of human rights violations to not report these violations. Instead of suppressing the work of Human Rights Defenders, such as Ms. Pornpen, the army should investigate all torture complaints and take all necessary measures to resolve the problem of continuing Human Rights violations.

This judicial harassment constitutes a direct infringement of Ms.Pornpen’s right to work as a leading Human Rights Defender in Thailand. As stated in Article 1 of the UN Declaration on Human Rights Defenders “Everyone has the right to (individually and in association with others) promote and to strive for the realization of Human Rights and fundamental freedoms at the national and international level.” We believe that the filing of this criminal legal case against Ms. Pornpen was undertaken with the purpose of intimidation and that it is in response to Ms. Pornpen’s peaceful and legitimate activities to hold authorities to account for cases of Human Rights violations, including torture, in southern Thailand.


We call on the army to:

Immediately and unconditionally withdraw the legal action against Ms. Pornpen. Such legal action against the legitimate work of Human Rights Defenders is against the public interest.

We call on the government to:

Respect the universally recognized rights, duties and obligations of everyone and organizations to highlight information about Human Rights violations and injustices to the public, as is stated in the UN Declaration
on Human Rights Defenders;

Ensure that all persons affected by torture and other human rights violations, including the right to complain which must be respected at all times, receive justice.

Signed by:
1. Union for Civil Liberties
2. Community Resource Centre
3. Human Rights Lawyers’ Association
4. Asia-Pacific Forum on Women, Law and Development
5. Frontline Defenders
6. WOREC (Nepal)
7. National Alliance of Women Human Rights Defenders (Nepal)
8. Protection International

For more information, please contact: Anucha Wintachai +66 830796411 eakucl@gmail.com

Where to go for updates on Lena Hendry?

Now, that there is another website maintained by others that is providing updates on HRD Lena Hendry's case, our efforts are no longer crucial. Do visit  http://komas.org/indefenceoflenahendry/

We would still continue providing relevant material on Lena Hendry and also other Human Rights Defenders(HRDs)... 

 

No Fire Zone: Lena, villain or victim?

By Mariam Mokhtar (First appeared in Free Malaysia Today on July 4th, 2014) Lena Hendry is like any other Malaysian. She […]
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Urgently campaign for Lena Hendry and get more to sign online petition

Remember, the Public Prosecutor can drop the charges…. and time is short..for if the trial starts, it would not last […]

Monday, 28 April 2014

Memorandum handed over to Malaysian Human Rights Commission - 28/4/2014

A memorandum was handed over by members of Malaysian civil society to SUHAKAM (Malaysian Human Rights Commission) today(28/4/2013) with regard the charging of Human Rights Defender Lena Hendry using a law that says that all video that is in your possession, screened must have the approval of the Film Censorship Board of Malaysia.

The law being used is certainly against human rights... and it certainly will further restrict communication between people in society - To now additionally need to get approval by the Film Censorship Board...


(1) No person shall-
(a) have in his possession or in his custody or under his control; or
(b) circulate, exhibit, distribute, display, manufacture, produce, sell or hire,
any film or film-publicity material which has not been approved by the Board- Section 6(1) FILM CENSORSHIP ACT 2002

And, mind you 'film' and 'film publicity material' is defined so widely that it cover even moving power-point presentations shown as a slide show..., recordings of speeches, forums, etc...It will also include training videos that deal with human rights and worker rights...

"film" includes the original or duplicate of the whole or any part of-
(a) a cinematograph film; and (b) a videotape, diskette, laser disc, compact disc, hard disc and other record,
of a sequence of visual images, being a record capable of being used as a means of showing that sequence as a moving picture, whether or not accompanied by sound; - Section 3, FILM Censorship Act 2002


Faribel Maglin Fernandez's photo.

Faribel Maglin Fernandez's photo.The memorandum was received by Human Rights Commissioner, James Nayagam



Friday, 25 April 2014

Lena - a Human Rights Defender





15 April :- No Stay, Court insists on proceeding with trial despite Appeal to the Court of Appeal

On 15/5/2014, Lena Hendry's lawyers applied for a STAY, an application to postpone the trial until the Court of Appeal heard her application to strike out the Charge. [As you may be aware, the High Court, on 11/4/2014, dismissed the application to strike out the Charge - and the Appeal to the Court of Appeal was made] See -11 April 2014 - What happened in court? Next Court Date:- Tuesday(15/4/2014)

Lena Hendry's dad underwent a surgery, and was in the Intensive Care Unit(ICU), and naturally Lena was with him and was not able to attend court on 15/4/2014.

Given this fact, the court granted did not begin with the trial, and fixed 16/5/2014 as the next date.

Below is a drawing by one of those in solidarity with Lena Hendry..


Tuesday, 15 April 2014

OMCT and FIDH calls you to action in defence of Lena Hendry

Malaysia: Dismissal of the motion filed by Ms. Lena Hendry to strike out the charges against her

New information
MYS 001 / 0713 / OBS 064.5
 Judicial harassment
Malaysia
April 14, 2014

The Observatory for the Protection of Human Rights Defenders, a joint programme of the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH), has received new information and requests your urgent intervention in the following situation in Malaysia.

New information:

The Observatory has been informed by reliable sources about the dismissal of the motion filed by Ms. Lena Hendry, Programme Coordinator of the human rights NGO Pusat KOMAS[1], to strike out the charges that were filed against her under the Film Censorship Act 2002 in relation to the organisation of a private screening of the documentary film called “No Fire Zone, the Killing Fields of Sri Lanka[2].
 
According to the information received, on April 11, 2014, Kuala Lumpur High Court Judge Kamardin Hashim dismissed Ms. Lena Hendry’s application after ruling that the charges imposed a restriction reasonable and proportional against free speech. The Court found that the restrictions imposed by the Film Censorship Act were not in contradiction of Article 10(2)(a) of the Federal Constitution, which allows laws to impose restrictions on a person's freedom of speech in the interest of public security, order and morality.

The Judge also ordered the case to proceed in the Magistrate's Court. Meanwhile, Ms. Hendry’s counsel said he would appeal to the Appeal Court against the decision.

Background information:

In the evening of July 3, 2013, Pusat KOMAS, together with the KL & Selangor Chinese Assembly Hall Civil Right Committee (KLSCAH CRC), organised a private screening of “No Fire Zone” directed by British Director Callum Macrae. About 30 minutes after the start of the screening, about 30 officials from the Home Affairs Ministry, immigration, and police entered the Chinese Assembly hall and requested to check the film. The organisers negotiated with them to allow the screening to continue and enter after the screening was over.

However, after the screening, officials insisted on checking the identity cards of all participants before they left the venue. The KDN requested a copy of the film, which was provided by the organisers. They also ordered the organisers - Ms. Anna Har, a member of KOMAS Board of Director, Mr. Arul Prakkash, KOMAS Executive Director, and Ms. Lena Hendry - to go to the Dang Wangi police station. The three asked whether they were being arrested, to which the officers replied no. However, during their interrogation, they were informed that they were placed under arrest. They were questioned for almost three hours by the investigating team from the Home Affairs Ministry.

At about 2 am, the three KOMAS representatives were finally released on police bail after their statement was recorded. Reportedly, they were arrested under Section 6 of the 2002 Film Censorship Act.

On July 1, 2013, Ms. Lena Hendry had received a call from the Censorship Board of the Ministry of Home Affairs, who asked the organisers to stop the screening because the film had not gone under censorship. She had replied that the screening was private and upon invitation only.

Furthermore, there were also attempts by the Sri Lankan Embassy in Malaysia to stop the screening. They faxed a letter to the KLSCAH asking them not to screen the documentary.

On September 19, 2013, the Home Ministry and Attorney General Chamber (AGC) filed a charge against Ms. Lena Hendry under Section 6 of the 2002 Film Censorship Act, which says that no one should screen any film or related publicity materials that have not been approved by the Censorship Board. Judge Ashraf Razal Abdul Manan granted her bail of 1,000 ringgit (about 233 euros).

Subsequently Ms. Lena Hendry’s lawyers filed an application before the High Court challenging the charges against Ms. Hendry under the 2002 Film Censorship Act, on grounds that they violate the Federal Constitution.

If convicted, Ms. Hendry faces up to three years’ imprisonment and/or a fine between 5,000 ringgit (about 1,163 euros) and 30,000 ringgit.

Action requested:

Please write to the authorities in Malaysia, urging them to:

i. Put an end to any act of harassment, including at the judicial level, against Ms. Lena Hendry as well as against all KOMAS members and all human rights defenders in Malaysia;

ii. Ensure in all circumstances that KOMAS and its members as well as all human rights defenders in Malaysia are able to carry out their legitimate activities without any hindrance and fear of reprisals;

iii. Conform with the provisions of the UN Declaration on Human Rights Defenders, adopted by the General Assembly of the United Nations on December 9, 1998, especially:
- its Article 1, which states that “everyone has the right, individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels”, as well as
- its Article 12.2, which provides that the State shall “take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of his or her rights”;

iv. Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international human rights standards and international instruments ratified by Malaysia.

Addresses:

·       Dato' Sri Mohd Najib bin Tun Abdul Razak, Prime Minister, Prime Minister’s Office Malaysia, Main Block, Perdana Putra Building, Federal Government Administrative Centre, 62502 Putrajaya, Selangor, Malaysia. Fax: + 60 3 8888 3444, Email: ppm@pmo.gov.my
·       Mr. Ahmad Zahid Hamidi, Minister of Home Affairs, Ministry of Home Affairs, Blok D1 & D2, Kompleks D, Pusat Pentadbiran Kerajaan Persekutuan, 62546 Putrajaya, Malaysia. Fax: +60 3 8889 1613 /8889 1610, Email: webmaster@moha.gov.my
·        Tan Sri Hasmy Agam, Chairman of the Human Rights Commission of Malaysia (SUHAKAM), Tingkat 11, Menara TH Perdana, Jalan Sultan Ismail, 50250 Kuala Lumpur, 50250 Kuala Lumpur, Malaysia; Fax: +60 3 2612 5620; Email: humanrights@suhakam.org.my; hasmyagam@suhakam.org.my
·       H.E. Mr. Mazlan Muhammad, Ambassador, Permanent Representative of Malaysia to the United Nations in Geneva, International Centre Cointrin (ICC), Bloc H (1st floor), Route de Pré-Bois 20, 1215 Geneva 15, Switzerland. Fax: +41 22 710 75 01. Email: malgeneva@kln.gov.my
·       Embassy of Malaysia in Brussels, 414 A avenue de Tervueren, 1150 Woluwe-Saint-Pierre, Belgium, Fax: + 32 2 762 50 49. Email: malbrussels@kln.gov.my

Please also write to the diplomatic missions or embassies of Malaysia in your respective country as well as to the EU diplomatic missions or embassies in Malaysia.

***
Geneva-Paris, April 14, 2014

Kindly inform us of any action undertaken quoting the code of this appeal in your reply.

The Observatory, an OMCT and FIDH venture, is dedicated to the protection of Human Rights Defenders and aims to offer them concrete support in their time of need.

To contact the Observatory, call the emergency line:
·       Tel and fax OMCT + 41 (0) 22 809 49 39 / + 41 22 809 49 29
·       Tel and fax FIDH + 33 (0) 1 43 55 25 18 / +33 1 43 55 18 80


[1] Pusat KOMAS has existed since 1993 and it has been on the forefront of the advocacy for democracy & human rights in Malaysia through creative media. They have highlighted many human rights issues involving grassroots communities.
[2] The documentary details allegations of war crimes committed during the civil war in Sri Lanka in 2009.

Source: OMCT Website

Saturday, 12 April 2014

11 April 2014 - What happened in court? Next Court Date:- Tuesday(15/4/2014)



11 April 2014
At the High Court before the Judge Yang Arif Tuan Haji Kamardin bin Hashim for the decision of Lena's application to strike out the charge against her. 
Edmund Bon and Joshua Tay represented the Applicant while Deputy Public Prosecutor Jean Sharmila represented the Respondent. 
Watching briefs were also held by the Malaysian Bar (Shalini Ragunath) and SUHAKAM (Siti Kasim).

After considering submissions from both Applicant and Respondent, the learned Judge dismissed the application and ordered for Lena Hendry's trial in the Magistrates Court to proceed. He held that section 6(1) read with section 6(2) of the Film Censorship Act 2002 is a reasonable and proportionate restriction to the freedom of speech and expression guaranteed in Article 10 of the Federal Constitution. 

In delivering his decision, he stated that section 6(1)(b) is not a provision to outlaw all types of films, however all films need to be assessed by the Censorship Board in order to protect public interest and order.

In light of this decision, Lena Hendry is looking to prepare and file a Notice of Appeal in the Court of Appeal by Monday. 

Lena Hendry will also make the application to stay the Magistrates Court trial pending the disposal of the appeal in the Court of Appeal on Tuesday(15/4/2014)

Next Court Date: - 15/4/2014(Tuesday)
Venue:- Magistrate Court No. 6 
Trial scheduled to begin - but Lena's lawyers will be applying for a stay pending the appeal to the Court of Appeal. 

Supporters in court which included Ivo Apostolov from European Union, and a lecturer from Nottingham College
It is important that we continue to show solidarity for Lena Hendry..

When BERNAMA and mainstream media carries reports when HRDs lose...?


And, naturally BERNAMA, the Malaysian National News Agency would report this, and it was done both in Bahasa Malaysia and English. If on the other hand, if Lena Hendry had managed to strike out the charge, it would not have been surprising if BERNAMA or even the other mainstream media in Malaysia would have reported.

The report also does not really lay out the reasons why the application to strike out was made - but matters that support the government's move of charging Lena Hendry under this draconian Act was mentioned. Biased? 

Bernama of course did not see fit to report on the Joint Statement issued by 116 groups on 2/10/2013, DROP THE CHARGES AGAINST MALAYSIAN HUMAN RIGHTS DEFENDER LENA HENDRY NO TO PRE-CENSORSHIP OR PRIOR APPROVAL FOR USAGE OF FILM/VIDEOS 

or the numerous other statements by various groups...but whenever the human rights defender 'loses' in court, one should expect coverage BERNAMA and some other mainstream media - that is common for Malaysia, where HRDs, civil society, trade unions and the people have little or no space in main stream media

International Commission of Jurists(ICJ) -“Subjecting Lena Hendry to criminal prosecution simply for screening a documentary violates her rights and contravenes Malaysia’s obligations to uphold freedom of expression,”

‘Drop charges against Pusat Komas’ Lena’, says HRW (FMT News)

Amnesty International :- Stop persecution of activist Lena Hendry

ARTICLE 19, ALIRAN, PROHAM, NUBE,WH4C & 111 Others say Drop Charges against Lena Hendry

Malaysia

Lena Hendry fails to strike out charge over film on Sri Lanka atrocities – Bernama

April 11, 2014
A Community Communication Centre programme coordinator failed to set aside a charge alleging that she had screened a documentary that had not been approved by the Film Censorship Board.

Lena Rasathi Hendry was charged in the Magistrate's Court last September 19 for screening an uncensored film, No Fire Zone: The Killing Fields of Sri Lanka at the Kuala Lumpur and Selangor Chinese Chamber of Commmerce Hall at Jalan Maharajalela in Kuala Lumpur at 9pm on July 3, 2013.

The charge under Section 6(1)(b) of the Film Censorship Act 2002 carries a jail term of up to three years or a fine of up to RM30,000 or both, upon conviction.

She subsequently filed a motion to the High Court to strike out the charge on grounds that it violated Article 10 and Article 8 of the Federal Constitution.

On November 25, she was granted a stay of her case, pending outcome of the application.

High Court Judge Kamardin Hashim in dismissing Lena's application today, said the imposition of restrictions by the Film Censorship Board was not ultra vires under Clause 10(2)(a) of the Federal Constitution and was emphasised in Clause (4(1) of the same Constitution.

"The onus is on the applicant to show how her rights had been violated or how she was discriminated against under Article 8 of the Federal Constitution. Her reluctance to do so will only end in a full stop for her application.

"The issue is, how are we going to monitor the contents of a film if it is not first screened by an independent body like the Board. Hence the practicality of Section 6(1)(b) of the Film Censorship Act 2002," said the judge.

Kamardin also ordered the case to proceed in the Magistrate's Court.

Meanwhile, counsel Edmund Bon said he would appeal to the Appeal Court against the decision.

Deputy public prosecutor Jean Sharmila Jesudason appeared for the prosecution. – Bernama, April 11, 2014. - from Malaysian Insider, 11/4/2014, Lena Hendry fails to strike out charge over film on Sri Lanka atrocities – Bernama



Koordinator Program Gagal Ketepi Tuduhan Tayang Filem Belum Diluluskan

KUALA LUMPUR, 11 April (Bernama) -- Koordinator program di Pusat Komunikasi Masyarakat (Kosmas) Lena Rasathi Hendry Jumaat gagal mengetepikan tuduhan terhadapnya berhubung penayangan filem yang belum diluluskan Lembaga Penapisan Filem (LPF).

Ketika menolak permohonan Lena, Hakim Mahkamah Tinggi Kamardin Hashim berkata pertuduhan yang dibuat mengikut Seksyen 6 (1)(b) dan Seksyen 6 (2)(a) Akta Penapisan Filem 2002 adalah pembatasan terhadap hak istimewa untuk bersuara dan berkadaran dengan tujuan dan matlamat yang ingin dicapai oleh Akta Penapisan Filem.

Kamardin berkata pembatasan itu tidak bercanggah atau 'ultra vires' mengikut Fasal 10 (2)(a) Perlembagaan Persekutuan, oleh itu menurutnya peruntukan-peruntukan tersebut tidak wajar dibatalkan menurut Fasal (4)(1) Perlembagaan Persekutuan.

"Tanggungjawab pemohon untuk menunjukkan bagaimana haknya telah dicabuli oleh Seksyen 6 (1)(b) dan Seksyen 6 (2)(a) Akta Penapisan Filem 2002, menunjukkan haknya telah didiskriminasikan di bawah Artikel 8 Perlembagaan Persekutuan, keengganan pemohon untuk membuat demikian akan menemui titik noktah dalam permohonannya.

"Persoalannya bagaimanakah kita mengetahui cerita sebenar dalam sesebuah filem sekiranya filem itu tidak ditayang oleh badan bebas seperti LPF. Oleh itu prosedur yang diperuntukkan di bawah Seksyen 6 (1) (b) Akta Penapisan Filem 2002 adalah munasabah," kata hakim itu.

Kamardin turut memerintahkan kes itu diteruskan dengan perbicaraan di Mahkamah Majistret sehingga selesai.

Peguam Edmund Bon yang mewakili Lena memaklumkan pihaknya akan memfailkan rayuan berhubung keputusan itu di Mahkamah Rayuan dalam masa terdekat.

Lena memfailkan permohonan untuk mengetepikan tuduhan itu pada 25 Nov tahun lepas.

Pada 19 Sept tahun lepas, wanita itu dihadapkan ke Mahkamah Majistret atas tuduhan menayang dokumentari bertajuk 'No Fire Zone: The Killing Fields of Sri Lanka' tanpa mendapat kelulusan LPF.

Dia didakwa melakukan kesalahan itu di Dewan Perhimpunan Cina Kuala Lumpur Selangor di Jalan Maharajalela di sini pada 9 malam, 3 Julai 2013.

Tuduhan mengikut Seksyen 6(1)(b) Akta Penapisan Filem 2002 itu membawa hukuman penjara hingga tiga tahun atau didenda sehingga RM30,000 atau kedua-duanya jika sabit kesalahan.

Pendakwaan dikendalikan Timbalan Pendakwa Raya Jean Sharmila Jesudason.-- BERNAMA

High Court rules against activist charged with screening controversial documentary (Star, 11/4/2014)

To get a sense of the arguments that were tendered in support and against this application, see 

Application to strike out charges - skeletal submission in response by government lawyer

Updated: Friday April 11, 2014 MYT 5:32:44 PM

High Court rules against activist charged with screening controversial documentary

KUALA LUMPUR: The High Court here dismissed a human rights activist's bid to quash charges against her for screening a controversial documentary, ruling the charges imposed a reasonable restriction against free speech.

Justice Kamardin Hashim dismissed Pusat Komas programme coordinator Lena Hendry's application to set aside two charges against her under the Film Censorship Act 2002.

"The charges impose a limit against the freedom of speech and expression which is reasonable and proportional with the objectives and goals of the Act," said Justice Kamardin.

The court found that the restrictions were not in contradiction of Article 10(2)(a) of the Federal Constitution, which allows laws to impose on a person's freedom of speech in the interest of public security, order and morality.

Justice Kamardin disagreed with counsel Edmond Bon's submission that the provisions under the Act constituted an unreasonable restriction as they formed an unjustified "prior restraint" on the right of speech and expression by prohibiting films from being displayed or circulated without prior approval of the Censorship Board.

"The question is: how do we ascertain the contents of a film, if it is not screened before an independent body like the Censorship Board?

"Considering documentaries and even cartoons are not free of negative and pornographic content, the Act is thus reasonable," read Justice Kamardin, in his 36-page grounds, on Friday.

He also stated that the burden fell on the applicant (Hendry) to prove how her rights were violated by the charges.

"Failure to do so will put a full-stop to the application," said Justice Kamardin.

Programme coordinator for a human rights group Pusat Komas Lena Hendry claimed trial in a Magistrate's Court on Sept 19 to screening No Fire Zone, a documentary that had not been approved by the Censorship Board.

Under Section 6(1)(b) of Film Censorship Act, 2002, Hendry faces up to three years' prison or a fine not exceeding RM30,000, if convicted.

Hendry filed the application to the High Court registry to quash the charge on Nov 25, last year.

On July 3, 2013, three Pusat Komas activists - Anna Har, Arul Prakkash and Hendry - were arrested in a raid by the Home Ministry, when they attempted to screen the controversial documentary No Fire Zone at the Kuala Lumpur Selangor Chinese Assembly Hall, here.

The film No Fire Zone, directed by British national Callum Macrae, explores the oppression by the Sri Lankan government against Tamils in the island country. - Star Online, 11/4/2014, High Court rules against activist charged with screening controversial documentary

Friday, 11 April 2014

Application to strike out charges - skeletal submission in response by government lawyer

This will help you understand the reason advanced to oppose the application to strike out the charges which was made by Lena Handry, and give you some understanding of the matters that were raised in court before decision was handed down

Below, is the the written submissions in response to Lena lawyer's submission [ see Application to strike out the charges - Lena's lawyer's arguements] made by the government lawyer in the application by Lena Hendry to strike out the charges. Note, that besides the written submission tendered, lawyers also make further oral submissions [This application was dismissed by the High Court on 11/4/2014 - and there may be an appeal filed soon by Lena Hendry to the Court of Appeal] 

The submission of the government lawyer, opposing this application is as follows.

SKELETAL HUJAHAN BALASAN KEPADA HUJAHAN PEMOHON
(Skeletal Submissions in Response to the Applicant's Submission} -my translation of title in Malay

1.   The words of Article 10 begin with a restriction:
“Subject to clauses 2, 3 and 4 –
(a)  Every citizen has the right to freedom of speech and expression;…
(2) Parliament may by law impose –
(a) on the rights conferred in paragraph (a) of Clause (1)
(i)       such restrictions as it deems necessary or expedient in the   interest of the security of the Federation or any part thereof,
(ii)      friendly relations with other countries
(iii)     public order or morality and;
(iv)     restrictions designed to protect the privileges of Parliament or of any Legislative Assembly,
(v)      or to provide against contempt of court, defamation, or incitement to any offence.
My Lord, has decided in the case of  Dato’ Seri Anwar Ibrahim v PP [2013] 3 CLJ 1043 that:
[4] “Article 10(1)(b) of the Federal Constitution confers rights of…but subject to restrictions necessary or expedient in the interest of the security of the Federation or any part thereof or of public order. In other words, that freedom…is not an absolute right.”
[5] Whereas, art 4(1) thereof provides that the Federal Constitution is the supreme law of Malaysia and any laws passed after 31 August 1957 (Merdeka Day) which is inconsistent with the Federal Constitution shall, to the extent of the inconsistency, be void. But, the validity of any laws shall not be questioned on the ground that, inter laia, it imposes such restrictions as are mentioned in art 10(2) thereof.”
[14]…Even civic experience has shown that rights cannot be absolute because they have to balance against one another. This process of balancing against one another, entails as of necessity, placing limits on the extent to which these rights are enjoyed.”
In Sahara India Real Estate Corp Ltd & Ors v Securities & Exchange Board of India [2012] 6 MLJ 772 it was held regarding freedom of expression:
“Freedom of expression is one of the most cherished values of a free democratic society. It is indispensable to the operation of a democratic society whose basic postulate is that the government shall be based on the consent of the governed. But, such a consent implies not only that the consent shall be free but also that it shall be grounded on adequate information, discussion and aided by the widest possible dissemination of information and opinions from diverse and antagonistic sources. Freedom of expression which includes freedom of the press has a capacious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any Section of the population. It also includes the right to receive information and ideas of all kinds from different sources. In essence, the freedom of expression embodies the right to know. However, under our Constitution no right in Part III is absolute. Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government. Underlying our Constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict. Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against, other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of freedom of expression as it is for other values. Consequently, free speech, in appropriate cases, has got to correlate with fair trial. It also follows that in appropriate case one right (say freedom of expression) may have to yield to the other right like right to a fair trial.

2.   Counsel has put forward 5 reasons why s 6(1)(b) of the said Act is unconstitutional by using the ‘reasonableness test’ that is widely used in India in accordance with the wordings of its constitution; and lately accepted by the Appellate courts of this country as being the law.
(i)           Prior Restraint
(ii)          Total Prohibition
(iii)        Disproportionate test
(iv)         Is the right to freedom of speech and expression rendered illusory and ineffective?
(v)          Criminalization of the right to freedom of speech and expression
The following are arguments in answer to these questions:
3.   Blanket Ban v Blanket Approval
·         Supreme Court decision of PP v Pung Chen Choon [1994] 1 MLJ discusses the term ‘blanket ban’. I specifically refer to pages:
(i)           574 – what is the correct approach to adopt in determining whether the impugned legislation violates the fundamental rights guaranteed…does it make the exercise of that right ineffective or illusory?
(ii)          575 – But, with regard to Malaysia, when infringement of the Right of freedom of speech and expression is alleged, the scope of the courts inquiry is limited to the question whether the impugned law comes within the orbit of the permitted restrictions.
(iii)        576 -  It is well settled that if certain provisions of the law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction.
(iv)         579,580 – how to decide whether a particular piece of legislation comes within the orbit of the permitted restrictions under Art 10(2)(a)? The objects of the impugned law must be sufficiently connected to the subjects enumerated under Art 10(2)(a). The connection contemplated must be real and proximate, not far-fetched or problematical.
·         Condition precedent to the exercise of the right in section 6 of the Film Censorship Act is that the film or film publicity material must be approved by the Board; this is the due process of the law. Does this precondition:
(i)           make a person’s right under Art 10 ineffective or illusory?
(ii)          does this law come within the orbit of the permitted restrictions?
In C. Sakthivel v Commissioner of Police, Commissioner Office, Egmore, Chennai (High Court of Madras) [2010] 8 MLJ 877 it was held at para 53:
“The fundamental freedom under Art 19 (1)(a) (equivalent to Malaysian Art 10) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency.”
(iii)        Does the construction of the law (with regard to the intention of Parliament) render this law unconstitutional?
In Mohd Hilman’s case [2011]6 MLJ 507, Mohd Hishamuddin JCA held at para 41:
“The appellants argue that there is nothing in the UUCA or in the Ministers speech in moving the Bill in Parliament, as reported in the Hansard, to suggest or indicate that s 15(5)(a) of the UUCA was meant to protect public interest or public morality.”
At para 52
This is not so with regard to this case as can be seen from the relevant excerpts from Hansard from where we understand the intention of Parliament with regard to friendly relations with other countries, public order and morality;
(i)           From 6 December 2001
(ii)          From 13 December 2001; pages 40, 42, 44, 51, 52, 54,

(iv)         Is the connection between Art.10(2)(a) and section 6, far-fetched or problematical? Is it reasonable?
In this regard I also quote from the Federal Courts Decision in Sivarasa’s case (2010] 3 CLJ 507 cited by learned counsel at page 9 of his submission:
“The correct position is that when reliance is placed by the state to justify a statute under one or more of the provisions of art 10(2), the question for determination is whether the restriction that the particular statute imposes is reasonably necessary and expedient for one or more of the purposes specified in that article.”

·         I also invite the court to look at the relevant provisions under the Film Censorship Act 2002.
(i)           S.4 – Establishment of the Board of Censors
-      Schedule 2(1)
-      Schedule 3
(ii)          S 6(1)(b) – Unapproved Film
(iii)        Steps that need to be followed:
-      S 9 (1)(a) – Submission of film for censorship
-      S 10 – Decision of the Board
(iv)         Optional Steps that follow
-      S 21(1) – Appeal
-      S 22(1) – Appeal Committee
-      S 23 - Powers of Appeal Committee
-      S 24 - Board must give effect to Appeal Committee’s decision
-      S 25 – Exemption from Minister
-      S 8 - Permit given if owner does not intend to exhibit film in Malaysia for films brought in from out of Malaysia; or if films are only for private viewing.

·         How could the provisions of section 6 (1)(b) of the FCA 2002 be said to be arbitrary if when the Boards decision is appealable under section 21 of the said act; whereby the decision of the Board can be varied or reversed. There is the option of censorship on certain parts and even when there is a full or partial denial of exhibition the Board shall furnish in writing its reasons for requiring the alteration or for the refusal (s 10). Is this not fair procedure?  As it was held in Sivarasa’s case at para 18;
“The violation of a fundamental right where it occurs in consequence of executive or administrative action must not only be in consequence of a fair procedure but should also in substance be fair, that is to say, it must meet the test of proportionality housed in the second, that is to say, the equal protection limb of Art8(1).”

·         Are we to accord ‘blanket approval’ to all films produced in the country and brought from out the country; wait for it to raise issues on public morality, public disorder, and affect friendly relations with other countries and then take steps to censor or ban the film altogether? Where then is the balance of the people’s right against one person’s rights? Isn’t there a necessity of placing limits on the extent to which these rights are enjoyed?

·         There is no total prohibition of basic rights under section 6(1)(b) of the said act so as to nullify or render meaningless the right guaranteed under Art 10 of the FC. On the other hand, there is regulation and due process of the law which must be followed before that right can be exercised.

4.   I also refer Yang Arif to the case cited by learned counsel at pg 17,18 of his submission; whereby the Indian case of Kameshwar Prasad is discussed. Laws that place a ‘ban on every type of demonstration’, were deemed to be in violation of the appellants rights under Art 19(1)(a) of the Indian Constitution. Counsel also cites the case of PP v Cheah Beng Poh, Louis & 38 Ors and Siva Segara discussing ‘total prohibition’.

·         Section 6(1)(b) of the said act is not a ‘ban on every type of movie, documentary or the like, neither is it a ‘total prohibition’ of displaying or exhibiting a movie. It is merely a procedure that has to be followed; it is a censor, a filter to safeguard our people’s interest, our children’s interest, our morale, our values. Section 6(1)(b) has not kept movies such as ‘Die Hard’ and ‘Terminator’ from public screening. It’s not as if we can’t watch ‘Sex in the City’ either. We do, but with proper censorship that is deemed suitable by the Board of Censorship for Malaysian viewers. We also watch documentaries of wars and famine and subject to proper censorship. Counsel also gives an example of a person not being allowed to display his wedding video before getting approval from the board. The applicants view is narrowed to the rights of one person alone. If one persons wedding video is decent, doesn’t mean another will not abuse the rights and display a notorious one.  Imagine the consequences of removal of s 6, our society will be plagued with a dearth of pornography, violence and racial incitements. A blanket approval will bring serious consequences to the society.
·         Counsel has put forward a number of cases from third world Commonwealth countries around the world (Zimbabwe, Zambia, Ghana, Tanzania) that have found laws pertaining to assembly and association to be ultra vires the Constitution of said country. Freedom of expression has been deemed to be far more fundamental than these laws in the said countries. One cannot compare the viewing of a film as being the same as street protests or demonstrations. Street protests or demonstrations, assemblies, associations and the like are instances where you cannot expect or suspect what human behavior will transpire on these occasions. It may be in some instances unconstitutional to do so, save in accordance with law. But, films, these are things that are controllable, programmed. Images that will not change, images that have been captured, immortalized you may say into a story, documentary, a movie that can influence a persons mind, behavior, his morals, and temperament. These films have the power to reach every single citizen through a tv screen, invade their homes and their lives. Films are not on level ground with street demonstrations or peaceful assemblies. We cannot use the ‘reasonable’ test by comparing what’s reasonable for ‘peaceful assembly’ to a film titled “No Fire Zone: The Killing Fields of Sri Lanka’.

5.   Cases that will be cited in support of arguments:
(i)           PP v Phua Keng Tong & Anor [1986] 1 SLR 168
(ii)          Ng Chye Huay & Anor v PP [2005] SGHC 193
(iii)        PP v Taw Cheng Kong [1998] 2 SLR 410
(iv)         Nik Noorhafizi Bin Nik Ibrahim & Ors v PP




Bertarikh pada   19  haribulan   Mac   2013

    (JEAN SHARMILA JESUDASON)
Timbalan Pendakwa Raya,
WILAYAH PERSEKUTUAN
KUALA LUMPUR