Friday, 11 April 2014
Application to strike out the charges - Lena's lawyer's arguements
This will help you understand the reason the application to strike out the charges 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 made by the lawyers of Lena Hendry in the application to strike out the charges. Note, that besides the written submission tendered, lawyers also make further oral submissions in support of the application, and to oppose submissions made by the government lawyer, and even in response to questions or points brought up by the Judge. [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 found in the next post.
APPLICANT’S WRITTEN SUBMISSION
1. This is the Applicant’s written submission in respect of her application to set aside, quash and/or permanently stay the charges preferred against her under section 6(1)(b) of the Film Censorship Act 2002.
2. The Applicant’s application vide the Notice of Application No.44-130-11/2013 is that:
a) A declaration that sections 6(1)(b) and 6(2)(a) are not consistent with Articles 8 and 10 of the Federal Constitution and therefore is null and void pursuant to Article 4(1) of the Federal Constitution.
b) The criminal charge against the Applicant in the Kuala Lumpur Magistrates Court Criminal Case No.83-005-09/2013 be set aside and/or quashed and/or permanently stayed.
c) That the Applicant be released and set free.
d) Any other orders/reliefs that this Honourable Courts necessary and fit.
3. The relevant cause papers to the application which will be referred to, all filed herein, are as follows:
(i) Notice of Application dated 25.11.2013.
(ii) Affidavit in Support affirmed by the Applicant on 25.11.2013.
(iii) Affidavit in Reply affirmed by Ooi Chean Ling dated 20.12.2013.
B. Background facts
4. The Applicant was charged on 19.9.2013 for an offence under section 6(1)(b) of the Film Censorship Act 2002. The charge reads as follows:
Bahawa kamu pada 03.07.2013 jam lebih kurang 9.00 malam di Kuala Lumpur and Selangor Chinese Assembly Hall, Jalan Maharajalela, 50460 Kuala Lumpur, di dalam daerah Dang Wangi, di dalam Wilayah Persekutuan Kuala Lumpur didapati menayangkan filem bertajuk No Fire Zone: The Killing Fields of Sri Lanka yang belum diluluskan oleh Lembaga dan dengan yang demikian kamu telah melakukan kesalahan di bawah Seksyen 6(1)(b) Akta Penapisan Filem 2002 dan boleh dihukum di bawah Seksyen 6(2)(a) Akta yang sama.
5. The main issue posed in this application is as follows:
5.1 Section 6(1)(b) read together with section 6(2)(a) of the Film Censorship Act 2002 (“the Act”) is an unreasonable restriction on the right to freedom of speech and the expression under Article 10(1)(a) of the Federal Constitution.
5.2 The said provisions constitute an unreasonable restriction because:
a. they form an unjustified ‘prior restraint’ on the right to freedom of speech and expression by requiring all and any films from being displayed or circulated without the prior approval of the Board of Censors;
b. they amount to a total prohibition or nullification that not merely restricts the right to freedom of speech and expression but goes further to bar the display or circulation of films without the prior approval of the Board of Censors which is an overreaching the permissible limits of restrictions under Article 10(1)(b);
c. they are wholly disproportionate and without a nexus to the objective of the Act that is sought to be achieved and sanctions the arbitrary censorship of films by automatically barring any films even if the films do not threaten the security of the nation or are a threat to public order or morality;
d. the inevitable effect of the said provisions is that it renders the right to freedom of speech and expression illusory and ineffective; and
e. in any event, it is unconstitutional to criminalise a right under the Federal Constitution for its exercise per se only because no prior approval is obtained for it, and without any reference to any intelligible criteria regarding threats to the security of the nation, public order or morality.
5.3 The test we would submit should be adopted by this Honourable Court is to ask whether it is fair and justified that all and any films should be prohibited from display or circulation unless prior approval is obtained. For example, the first Malaysian animated film, Hikayat Sang Kancil, or the cartoons, The Little Mermaid or The Lion King cannot be screened unless the same are approved by the Board. Is this reasonable? Surely these films were never envisaged by our legislators to require prior approval before they are screened. In essence therefore, if the impugned provisions also ‘hit’ at the named films which quite obviously do not threaten security or public order, then the restrictions under section 6(1)(b) read together with section 6(2)(a) must be struck down in its entirety.
5.4 This was so held in Romesh Thappar v The State of Madras  2 SCR 594 at 603 [See: Tab 17 of the Applicant’s Bundle of Authorities (“ABOA”)], where the Supreme Court of India stated:
Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, clause (2) of Article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to public security is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent
5.5 The principle in Romesh Thappar was recognized by the Supreme Court in the case of Public Prosecutor v Pung Chen Choon  1 MLJ 566 at 576 [Loose leaf] :
Secondly, we endorse the proposition that, where a law purports to authorize restrictions in language wide enough to cover restrictions both within and without the permissible limits of legislative action, it cannot be upheld, not even so far as it is applied within the constitutional limits, for it is impossible to apply the principle of severability.
D. The Applicant’s Submission
Interpretation of the Constitution
6. As this is an issue regarding the constitutionality of the provision of a law, the method of interpreting the Federal Constitution provisions is relevant. When interpreting the Constitution, it must be kept in mind that it is a living document and that, according to the Supreme Court in Dato’ Menteri Othman Baginda & Anor v Dato’ Ombi Syed Alwi Syed Idrus  1 MLJ 29 at 32 [Tab 4, ABOA].
First, judicial precedent plays a lesser part than is normal in matters or ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way – ‘with less rigidity and more generosity than other Acts’ (see Minister of Home Affairs v Fisher  3 All ER 21). A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord Wilberforce in that case: ‘A constitution is a legal instrument given rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition and rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect of those fundamental rights and freedoms. It is in the light of this kind of ambulatory approach that we must construe our Constitution.
Fundamental rights i.e. the right to freedom of speech and expression under Article 10(1)(a) should be read liberally and broadly whereas restrictions of rights should be read narrowly. The case of Lee Kwan Koh v PP  5 CLJ 631 at 641 [Tab 5, ABOA] states:
The courts of Hong Kong have adopted a similar approach when interpreting their Basic Law. In Leung Kwok Hung v The Hong Kong Special Administrative Region  887 HKCU 1, Li CJ when delivering the unanimous judgment of the Court of Final Appeal said:-
It is well established in our jurisprudence that the courts must give such a fundamental right a generous interpretation so as to give individuals its full measure. Ng Ka Ling v Director of Immigration  2 HKCFAR 4 at 28-9. On the other hand, restrictions on such a fundamental right must be narrowly interpreted. Gurung Kesh Bahadur v Director of Immigration  5 HKCFAR 480 at para. 24. Plainly, the burden is on the Government to justify any restriction. This approach to constitutional review involving fundamental rights, which has been adopted by the Court, is consistent with that followed in many jurisdictions. Needless to say, in a society governed by the rule of law, the courts must be vigilant in the protection of fundamental rights and must rigorously examine any restriction that may be placed on them.
We return home to end our citation of the authorities. In the recent case of Badan Peguam Malaysia v Kerajaan Malaysia  1 CLJ 521, this court in the judgment of Hashim Yusoff FCJ approved, inter alia, the following passage in the judgment of the Court of Appeal in Dr Mohd Nasir Hashim v Menteri Dalam Negeri Malaysia  1 CLJ 19:-
The long and short of it is that our Constitution – especially those articles in it that confer on our citizens the most cherished of human rights – must on no account be given a literal meaning. It should not be read as a last will and testament. If we do that then that is what it will become.
7. There is case law to support this. In Public Prosecutor v Cheah Beng Poh, Louis & 38 Ors  1 CLJ 117 at 118 [Tab 6, ABOA] it was stated
The Court as guardian of the rights and liberties enshrined in the constitution is always jealous of any attempt to tamper with rights and liberties. But the right in issue here i.e. the right to assemble peaceably without arms is not absolute for the Constitution allows Parliament to impose by law such restrictions as it deems necessary in the interest of security and public order. In my view, what the Court must ensure is only that any such restrictions may not amount to a total prohibition of the basic right so as to nullify or render meaningless the right guaranteed by the Constitution.
8. The test when considering the constitutionality of legislative provisions has been laid down by the Court of Appeal in the case of Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor  1 MLJ 261 at 283 [Tab 7, ABOA]:
When the constitutionality of State action; be it legislative (which is not the case here) or administrative; is called into question on the ground that it infringes a fundamental right, the test to be applied is, whether that action directly affects to fundamental rights guaranteed by the Federal Constitution, or that its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory.
9. Any analysis of Article 10(1)(a) should therefore be approached with the intention of upholding the right and then evaluating the restrictions imposed on it. If the restriction is excessive, disproportionate or unreasonable, then it cannot be constitutional. From the point of view of proportionality, every legislative action must be proportionate to the object which it seeks to achieve. This doctrine found footing in Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia  6 MLJ 213 [Tab 8, ABOA] and Sivarasa Rasiah v Badan Peguam Malaysia  3 CLJ 507 [Tab 9, ABOA]. One cannot use a hammer to kill a mosquito. The legislative action must strike a balance between achieving the object of the action and the protection of fundamental rights.
10. The Court of Appeal in Dr Mohd Nasir bin Hashim at Para 8, 9 and 11 held that the word “reasonable” can be read before the word “restriction” in Article 10(2):
 The other aspect to interpreting our Constitution is this. When interpreting the other parts of the Constitution, the court must bear in mind the all pervading provision of art 8(1). That article guarantees fairness of all forms of State action… It must also bear in mind the principle of substantive proportionality that art 8(1) imports… In other words, not only must the legislative or executive response to a state of affairs be objectively fair, it must also be proportionate to the object sought to be achieved. This is sometimes referred to as ‘the doctrine of rational nexus’… A court is therefore entitled to strike down State action on the ground that it is disproportionate to the object sought to be achieved…
…  Against the background of these principles it is my judgment that the restrictions which art 10(2) empower Parliament to impose must be reasonable restrictions. In other words, the word ‘reasonable’ must be read into the sub-clauses of art 10(1)…
We can read the word ‘reasonable’ before the word ‘restrictions’ in art 10(2)(c).
…  There it is. The court must not permit restrictions upon the rights conferred by art 10 that render those rights illusory. In other words, Parliament may only impose such restrictions as are reasonably necessary. To emphasise, only proportionate legislative response is permissible under art 10(2)(c).
11. The Federal Court in Sivarasa also explained the doctrine:
 The other principle of constitutional interpretation that is relevant to the present appeal is this. Provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively. Take art 10(2)(c). It says that 'Parliament may by law impose … (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality'. Now although the article says 'restrictions', the word 'reasonable' should be read into the provision to qualify the width of the proviso. The reasons for reading the derogation as 'such reasonable restrictions' appear in the judgment of the Court of Appeal in Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia  6 MLJ 213;  1 CLJ 19 which reasons are now adopted as part of this judgment. The contrary view expressed by the High Court in Nordin bin Salleh & Anor v Dewan Undangan Negeri Kelantan & Ors  1 MLJ 343;  1 CLJ 463 is clearly an error and is hereby disapproved. 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.
12. The position in Sivarasa was adopted in the recent Court of Appeal case of Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors  6 MLJ 507 at Para 43 [Loose leaf] where the restriction under section 15(5)(a) of the Universities and University Colleges Act 1971 was found to be unreasonable and in violation of Article 10 of the Federal Constitution.
13. Further, the Federal Court said in Sivarasa that:
 Following the majority decision of this court in Badan Peguam Malaysia v Kerajaan Malaysia, the other provisions of the Constitution must be interpreted in keeping with the doctrine of procedural and substantive fairness housed in art. 8 (1). Thommen J in Shri Sitaram Sugar Co Ltd v Union of India & Ors  3 SCC 223 at p 251 explained the effect of art. 14 of the Indian Constitution which is the equipollent of our art. 8 (1) as follows:
Any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of art. 14 of the Constitution. As stated in EP Royappa v State of Tamil Nadu  4 SCC3 ‘equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch’. Unguided and unrestricted power is affected by the vice of discrimination: Maneka Gandhi v Union of India. The principle of equality enshrined in art. 14 must guide every State action, whether it be legislative, executive, or quasi-judicial: Ramana Dayaram Shetty v International Airport Authority of India  3 SCC 489, 511-12, Ajay Hasia v Khalid Mujib Sehravardi  1 SCC 722 and DS Nakara v Union of India  1 SCC 305.
Accordingly, when state action is challenged as violating a fundamental right, for example, the right to livelihood or the personal liberty to participate in the governance of the Malaysian Bar under art. 5 (1), art. 8 (1) will at once be engaged. When resolving the issue, the court should not limit itself within traditional and narrow doctrinaire limits. Instead it should, subject to the qualification that will be made in a moment, ask itself the question: is the state action alleged to violate a fundamental right procedurally and substantively fair. 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 art. 8 (1).
14. And also at Para 27:
The test here is whether the legislative state action is disproportionate to the object it seeks to achieve. Parliament is entitled to make a classification in the legislation it passes. But the classification must be reasonable or permissible. To paraphrase in less elegant language the words of Mohamed Azmi SCJ in Malaysian Bar v Government of Malaysia  2 MLJ 165, the classification must (i) be founded on an intelligible differentia distinguishing between persons that are grouped together from others who are left out of the group; and (ii) the differentia selected must have a rational relation to the object sought to be achieved by the law in question. And to quote that learned Judge: “What is necessary is that there must be a nexus between the basis of classification and the object of the law in question.” In short, the state action must not be arbitrary. This, then, is the common thread that webs and binds the two limbs of art. 8 (1). Hence the overlap.
15. From the above cases, the following conclusions can be drawn:
a) Any permitted restriction to a citizen’s right to freedom of speech and expression under Article 10(2)(a) of the Federal Constitution must be read restrictively;
b) A restriction of a citizen’s right to freedom of speech and restriction by Parliament must be reasonable; and
c) A restriction in being reasonable must be tested for proportionality under Article 8(1) of the Federal Constitution.
Violation of a Constitutional Right
16. In determining the validity of a state action with regards to constitutional rights, the Supreme Court in Dewan Undangan Negeri Kelantan & Anor v Nordin Salleh & Anor  1 CLJ 72 (Rep) [Tab 10, ABOA] held at 81g-h, 82b, 86i-87a, 87e-h that the Court must consider whether the State action:
a) directly affects the constitutional rights; or
b) its inevitable effect or consequence on the constitutional rights is such that it makes their exercise ineffective or illusory.
17. All that the Court is concerned with is the impugned law’s effect on the constitutional right.
See: Nordin Salleh at 80f-h
The Right to Freedom of Speech and Expression
18. Under international human rights treaties such as the International Covenant on Civil and Political Right (“ICCPR”), the State has two distinct obligations in relation to the rights of its citizens:
a) Negative obligations – Obligations to note interfere unjustifiably with the rights of citizens, for example, the right to life and right to fair trial.
b) Positive obligations – Obligations to protect citizens in the exercise of their rights and to prevent infringement of these rights. For example, freedom from slavery and torture, freedom of assembly and freedom of speech and expression.
19. The right to freedom of speech and expression is guaranteed by our Federal Constitution. It is not absolute and is limited by concerns for “the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence”.
See: Article 10(2)(a) of the Federal Constitution
20. As a freedom, it is submitted that only narrowly construed and necessary restrictions can be imposed.
21. It is emphasised that the right to freedom of speech and expression is one which it is in the public interest that individuals should possess; an essential element in any democratic society.
22. In looking at the right itself protected under Article 10(1)(a) of the Federal Constitution, it states:
every citizen has the right to freedom of speech and expression
23. Article 10(2)(a) of the Federal Constitution then states:
Parliament may by law impose such such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.
24. The provision only allows restrictions and not outright total prohibitions or nullification. Sequentially, Article 10 gives every citizen the right to freedom of speech and expression and then allows for restrictions to that right. The language used here is extremely important.
25. Emphasis must be placed on the word “restriction”. Black’s Law Dictionary at p353 [Tab 1, ABOA] defines “restriction” as – a limitation or qualification.
26. Limitation is in turn defined by Black’s Law Dictionary at p947 and p1341 [Loose leaf] as – 1. The act of limiting; the state of being limited. 2. A restriction.
27. “Restriction” is synonymous to “limitation”.
28. In summary, with regards to the right to freedom of speech and expression:
a) Only parliament can, by law, restrict the right;
b) The right can only be restricted, not prohibited; and
c) Restrictions must be made on the following basis:
i) in the interest of security of the Federation or any part thereof;
ii) in the interest of friendly relations with other countries;
iii) in the interest of public order or morality;
iv) protect the privileges of Parliament or of any Legislative Assembly; or
v) provide against contempt of court, defamation, or incitement to any offence.
29. Therefore, freedom of speech and expression can never be restricted unless it falls within the exceptions of Article 10(2)(a) of the Federal Constitution.
30. The Applicant submits that there are 5 reasons why section 6(1)(b) read together with section 6(2)(a) of the Act amounts to an unreasonable restriction of the right to freedom of speech and expression.
E. The 5 reasons
1st reason: Prior restraint on the right to freedom of speech and expression
31. Section 6, found under Part III of the Act [Loose leaf], states:
Unapproved film or film-publicity material
6. (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.
(2) Any person who contravenes subsection (1) commits an offence and shall be liable on conviction—
(a) in respect of any film, to a fine of not less than five thousand ringgit and not more than thirty thousand ringgit or to imprisonment for a term not exceeding three years or to both; or
(b) in respect of any film-publicity material, to a fine of not less than one thousand ringgit and not more than ten thousand ringgit.
(3) This section shall not apply to any film or film-publicity material in respect of which a certificate of exemption has been issued under subsection 8(3) so long as any conditions subject to which the certificate is issued are complied with.
32. Section 6(1)(b) read together with section 6(2)(a) of the Act is an unjustified “prior restrain” to the freedom of speech and expression because before a citizen can exercise his or her right to freedom of speech and expression, approval must first be obtained from the Board. There are no exceptions to the types of film that requires the approval of the Board.
33. As such, the primary right of the freedom of speech and expression has become secondary, with the requirement of an approval as a form of ‘prior restraint’ the primary provision.
2nd reason: Total Prohibition of the Right to Freedom of Speech and Expression, not a mere restriction
34. The Applicant submits that section 6(1)(b) read together with section 6(2)(a) of the Act amounts to a complete prohibition and not merely a reasonable restriction, of the right.
35. Part III of the Act is headed “Control of Films and Film-Publicity Materials”. By “control” it is meant – to regulate or govern.
36. And by regulate, it means:
a) an “implied continued existence of that which is to be regulated or governed”;
b) where it is regulating ‘traffic’ – “the power given...for ‘regulating the movement of traffic’, does not extend to closing the central reservation of a dual carriageway, thus causing a long diversion”; and
c) “to adjust by rule, method, of established mode; to direct by rule of restriction; to subject to governing principles of laws. To correct by control; to control, govern or direct by rules of regulations; to adjust in respect of time, quantity, etc with reference to standard or purpose.”
See: Stroud’s Judicial Dictionary of Words and Phrases, 6th Edition, Tab 2 ABOA
37. In effect, no person shall circulate, exhibit, distribute, display, manufacture, produce, sell or hire, any film or film-publicity material which has not been approved by the Board of Censors.
38. The case of Municipal Corporation of the City of Toronto v Virgo  HOL 88 states at 93 [Tab 11,ABOA]:
No doubt the regulation and governance of a trade may involve the imposition of restrictions on its exercise both as to time and to a certain extent as to place where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their Lordships think there is a marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed.
39. Section 6(1)(b) read together with section 6(2)(a) of the Act is a total prohibition to the freedom of speech and expression because it prohibits the act of circulate, exhibit, distribute, display, manufacture, produce, sell or hire any film which has not been approved by the board. There are no exceptions to the types of film except only under section 6(3) of the Act which only applies under very limited circumstances and still subject to the Board. Every film is required by law to have the approval of the Board before it is considered “legal”.
40. Further, section 6(1)(b) read together with section 6(2)(a) of the Act makes it mandatory for any citizen to obtain an approval from the Board before he or she can do anything under section 6(1)(b) of the Act. Should he or she do anything under section 6(1)(b) of the Act, it becomes a criminal offence under section 6(2)(a) of the Act.
41. In other words, the exercise of the right is made subject to the dictates of the Board. The law criminalises the right when it is exercised without the Board’s approval and thus is a prohibition on the right to freedom of speech and expression before it may be exercised.
42. The Indian Supreme Court in the case of Kameshwar Prasad and Ors v The State of Bihar And Anor 1962 AIR 1166 SC at Para 13 had to determine the constitutionality of rule 4-A of the Bihar Government Servants' Conduct Rules, 1956 (“the said Rule”) in relation to the Right to Assembly.
a) In Kameshwar, the Government of Bihar, by notification, introduced the said Rule which read “4-A. Demonstrations and strikes. - No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.”: (pg 1167)
b) The six appellants, who were employees under the Bihar State Government, filed a petition before the High Court of Patna under Art. 226 of the Indian Constitution challenging the validity of the said Rule on various grounds including, inter alia, that it interfered with the right to assemble peaceably and without arms, guaranteed by art. 19(1)(b) of the Indian Constitution: (pg 1167 & 1168)
c) The Indian Supreme Court proceeded to determine whether a “demonstration” fell within the confines of art. 19(1)(b) of the Indian Constitution. It meticulously held as at pgs 1170 – 1171:
…a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Art. 19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles…It is needless to add that from the very nature of things a demonstration may take various forms; It may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art. 19(1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.
d) The Supreme Court then considered whether the said Rule was an unreasonable restriction, thus not permitted by art. 19(3) of the Indian Constitution: (pg 1171). The Court decided at pg 1172 that:
The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration - be the same however innocent and however incapable of causing a breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result…We would therefore allow the appeal in part and grant the appellants a declaration that r. 4A in the form in which it now stands prohibiting "any form of demonstrations” is violative of the appellants' rights under Art. 19(1)(a) & (b) and should therefore be stuck down.
43. The Applicant submits that similar principles apply for the right to freedom of speech and expression under Article 10(1)(a) of the Federal Constitution.
44. As explained above, Article 10 does not allow for a total prohibition of the Right, only reasonable restrictions, and as stated in Public Prosecutor v Cheah Beng Poh, Louis & 38 Ors  1 CLJ 117 at 118 [Tab 6, ABOA]:
…the Court must ensure is only that any such restrictions may not amount to a total prohibition of the basic right so as to nullify or render meaningless the right guaranteed by the Constitution.
45. And in Siva Segara v Public Prosecutor  2 MLJ 212 at 214 [Tab 13, ABOA], Justice Abdul Hamid Omar CJ stated at page 214 that:
And that in the interpretation of a Statute its language must be read in what seems to be its natural sense – Vacher & Sons Ltd v London Society of Compositors. The learned judge also observed that:
“The court as a guardian of the rights and liberties enshrined in the Constitution is always jealous of any attempt to tamper with rights and liberties… the right in issue here i.e. the right to assemble peacefully without arms is not absolute for the Constitution allows Parliament to impose by law such restrictions as it deems necessary in the interest of security and public order… what the court must ensure is only that such restrictions may not amount to a total prohibition of the basic right so as to nullify or render meaningless the rights guaranteed by the Constitution.”
46. The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive. It is subject to the supervision by this Court. The Court watches and guards the fundamental rights guaranteed by the Constitution and in exercising its function it has the power to set aside an Act of the Legislature if it is in violation of the freedoms guaranteed by the Constitution.
See: Chintaman Rao v The State of Madhya Pradeshram  SCR 759 at 766 [Tab 14, ABOA]
47. The European Court of Human Rights offers guidance as to what constitutes ‘law’ for the purposes of restricting the fundamental rights of citizens. The case of Silver and others v United Kingdom [Tan 15, ABOA] has this to say at Para 88:
a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able...to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail...A law which confers a discretion must indicate the scope of that discretion.
48. It is humbly submitted that the requirement to obtain approval for any film under section 6(1)(b) of the Act, and by extension the offence of displaying without a permit under section 6(2)(a) of the Act are unconstitutional in main because it overreaches the permissible restriction allowed for under Article 10 (2) (a) of the Federal Constitution. Every film is required by law to have the approval of the Board of Censors before it is considered “legal”. Consequentially, no film may be displayed without an approval. There are no distinctions; it is a blanket ban. From a common sense point of view, it would be manifestly unreasonable to allow a person to display to the public his own wedding video unless he gets approval from the Board. And yet this is conceivable within the purview of sections 6(1)(b) and 6(2)(a) of the Act. Whether or not this law is enforced is irrelevant; the display is illegal and there is enforcement power given deem it unlawful and put a stop to it. This cannot be what Parliament intended. Following the principle in Romesh Thappar explained above, section 6(1)(b) of the Act should be struck down.
3rd reason: Section 6(1)(b) read together with section 6(2)(a) of the Act is disproportionate and without a nexus to the objective of the Act that is sought to be achieved
49. It is disproportionate to impose an approval requirement for all films without distinction. The provisions in section 6(1)(b) and 6(2)(a) of the Act are in pith and substance a blanket restriction on the right to freedom of expression and speech. If the restriction is disproportionate to the object sought to be achieved, it is also unreasonable and therefore, unconstitutional. The ‘classification’ that is Section 6(1)(b) and 6(2)(a) of the Act is arbitrary and indifferent to all who assemble, peaceably or not.
50. Following Sivarasa Rasiah v Badan Peguam Malaysia  3 CLJ 507 [Tab 9, ABOA], any state action that limits the right in Article 10 (1) (a) must:
a) Have a legitimate object pursuant to Article 10 (2) (a);
b) employ measures which have a rational nexus with the legitimate objective; and
c) employ measures which are proportionate to the legitimate objective which it seeks to achieve.
51. There is no rational connection between section 6(1)(b) of the Act and Article 10(2)(a) of the Federal Constitution. Put another way, there is no rational nexus between the requirement to obtain an approval to display a film and the safeguarding of interest of security of the Federation, friendly relations with other countries, public order or morality, protect the privileges of Parliament or any Legislative Assembly, to provide against contempt of court, defamation, or incitement to any offence. Any restriction should therefore cater to this. However, section 6(1)(b) read together with section 6(2)(a) of the Act diminishes the right to freedom of expression and speech itself. The absence of an approval will deem the display of a film unlawful. To put it into perspective:
a) The lack of approval will deem the display of a film unlawful even if it does not fall under any of the exceptions in Article 10(2)(a) of the Federal Constitution; and
b) As a result the person displaying the film will be guilty of an offence.
52. Therefore, by no stretch of the imagination, can a requirement for approval to display film, if it does not fall under any of the exceptions in Article 10(2)(a), have any relationship with:
a) the interest of security of the Federation or any part thereof;
b) the interest of friendly relations with other countries;
c) the interest of public order or morality;
d) protecting the privileges of Parliament or of any Legislative Assembly; or
e) providing against contempt of court, defamation, or incitement to any offence.
53. The provisions do not meet the object they are there to achieve. Parliament is only allowed by law to impose restrictions, not prohibitions on a citizen’s right to freedom of speech and expression. Sections 6(1)(b) and 6(2)(a) of the Act prohibit this right, without indicating any scope whatsoever, for example, the type of films or the type of audience.
i) The Supreme Court of India in Himat Lal K. Shah v Commissioner of Police, Ahmedabad And Another  1 SCC 227 [Tab 16, ABOA] declared rule 7 of the Rules of Processions and Public Meetings inconsistent with article 19(1)(b) of the Indian Constitution (which is equipollent to our Article 10) which guarantees the right to assemble peacefully and without arms.
ii) The grounds of the decision are that (at Para 39, 43 and 88):
A. The rule does not give any guidance to the Commissioner of Police as to the circumstances in which he can refuse permission to hold a public meeting to give an arbitrary discretion to an officer is an unreasonable restriction.
B. Without the necessity of giving reasons for either a refusal or permission, it will be possible for him under the guise of powers given to discriminate.
iii) Himat Lal was cited in approval by Hamid Sultan JCA in his dissenting judgment in Nik Noorhafizi bin Nik Ibrahim & Ors v Public Prosecutor  6 MLJ 660 [Loose leaf] at Para 114(c).
4th reason: The right to freedom of speech and expression is rendered illusory and ineffective
54. Section 6(1)(b) with section 6(2)(a) purport to be a restriction that is necessary and expedient under the right to freedom of expression and speech. However, it has the effect of taking away the right.
55. The provisions allow for any person to be punished for displaying film without approval, whether or not the film is not in the interest of security of the Federation, damages friendly relations with other countries, affects public order or morality, affects the privileges of Parliament or any Legislative Assembly, in contempt of court, is defamatory, or incites any offence. The provisions enable an arbitrary use of power.
56. Given its plain and ordinary meaning, to “regulate” simply means to restrict or limit the right. The Applicant submits here that to “regulate” implies a rule to be regulated. To deny access to the entire rule therefore is not “regulating” logically speaking. The regulating of a right is to be distinguished from the prohibition of it. It cannot be the case that restrictions can nullify the substantive right in Article 10 (1) (a). Otherwise this right would be illusory. It is submitted that any restriction must uphold the right it strives to regulate. It must be consistent with the purpose, intent and spirit of the right to freedom of expression and speech.
57. A restriction cannot be a total deprivation of that right, on paper or in practice. Yet section 6(1)(b) read together with section 6(2)(a) of the Act makes it impossible for a person to exercise his or her right to freedom of expression and speech without the approval of the Executive authority, the Board of Censors. The right is then rendered illusory, the exercise thereof a crime.
5th reason: Criminalisation of the right to freedom of speech and expression
58. Special attention should be given on why it is disproportionate to criminalise the exercise of the right. Criminalising the exercise of the right without an approval simpliciter violates the constitutional right as the offence is purely not for having an approval from the Board, and does not relate to any of the exceptions under Article 10(2)(a) of the Federal Constitution.
59. This principle was recognised by Hamid Sultan JCA in Nik Noorhafizi where in relation to Section 27 of the Police Act [Loose leaf], his Lordship found that Article 10 does not permit to criminalise an assembly which is not licensed. The same principle would apply to the present case. Although it was dissenting, the powers of the Police Act 1967 were found to be constitutional because, as stated by Apandi Ali JCA (as his Lordship then was):
 Section 27(2) of the PA 1967 read with art 10(1)(b) and 10(2) provide various considerations for the police to take into account if they have to reject a particular application. We have to stress that the police would have to issue the licence under s 27(2) of the PA 1967 unless the assembly or the like is viewed to be prejudicial to security or to excite a disturbance of the peace. Barring these limited criteria for refusal, we cannot emphasise enough that the police must issue the licence as applied for.
This is unlike section 6(1)(b) read together with section 6(2)(a) of the Act where there is no provision for consideration as to when the Board may give approval.
60. The provisions do not make any intelligible differentia with regards to the type of film. Whether the film is a documentary or purely educational is hit. The provision covers everything from pornography to news and to documentaries. The Act itself is silent as to the criteria required for an approval by the Board. If for example, like the section 27(2) of the Police Act 1967, where an application for a license is made, the Officer in Charge needs to be satisfied the assembly, meeting or procession is not likely to be prejudicial to the interest of the security of Malaysia or any part thereof or to excite a disturbance of the peace, he shall issue a license specifying the name of the licensee and defining the conditions upon which such assembly, meeting or procession is permitted; there are criteria laid down for the granting of the license. But there is none under section 6(1)(b) read together with section 6(2)(a) of the Act.
61. The commonwealth courts have also consistently held that the Legislature cannot in regulation of freedom of speech, assembly and association criminalise the exercise of such right per se.
62. Such criminalisation is also disproportionate and ultra vires of the Constitution for it overreaches the permitted limits of regulation under the Constitution. In Chintaman Rao v The State of Madhya Pradeshram  SCR 759 [Tab 14, ABOA], it was held that the language employed in the impugned law was wide enough to cover restriction both within and outside the limits of constitutionally permissible legislative action affecting the guarantee of fundamental rights and so long as the possibility of the statute being applied for the purposes not sanctioned by the Constitution cannot be ruled out, the section must be struck down as ultra vires of the Constitution. The case of Romesh Thappar v The State of Madras  SCR 594 [Tan 17, ABOA] is also of relevance. The legislative power being subjected to fundamental rights, the Legislature cannot indirectly take away or abridge the fundamental rights which it cannot do directly
The commonwealth cases
63. In Zimbabwe in the case of Re Munhumeso  1 LRC 282 [Tab 18, ABOA], the Supreme Court unanimously found that section 6 of the Law and Order (Maintenance) Act (Cap 65) to be inconsistent with the Constitution’s guarantee of the freedom of assembly.
64. The relevant parts of section 6 of the Law and Order (Maintenance) Act (Cap 65) are reproduced here:
(2) Any person who wishes to form a procession shall first make application in that behalf to the regulating authority of the area in which such procession is to be formed, and if such authority is satisfied that such procession is unlikely to cause or lead to a breach of the peace or public disorder, he shall, subject to section ten, issue a permit in writing authorising such procession and specifying the name of the person to whom it is issued and such conditions attaching to the holding of such procession as the regulating authority may consider necessary to impose for the preservation of public order”.
(6) Any person who convenes, directs or takes part in a public procession for which a permit under subsection (2) has not been obtained shall be guilty of an offence and may be arrested without warrant, and shall be liable to a fine not exceeding two hundred dollars or to imprisonment for a period not exceeding one year.
65. Section 21 of Zimbabwe’s Constitution states as follows:
(1) Except with his own consent or by way of parental discipline, no person shall be hindered in his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties or trade unions or other associations for the protection of his interests.
(3) Nothing contained in or done under the authority of any law shall be held to be in contravention of subsection (1) to the extent that the law in question makes provision –
(a) in the interests of defence, public safety, public roder, public morality or public health;
...except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
66. At page 292 of the report, the Court held:
The test in determining whether an enactment infringes a fundamental freedom is to examine its effect and not its object or subject matter. If the effect of the impugned law is to abridge a fundamental freedom, its object or subject matter will be irrelevant.
Section 6 of the Act is plainly at variance with the enjoyment of the freedoms of expression and assembly protected under ss 20 and 21 of the Constitution. It imposes a prohibition on the right to take out a public procession unless permission is first applied for and obtained from a regulating authority. It empowers a regulating authority to whom such an application has been made to issue directions which may amount to an absolute ban, irrespective of any consideration of the procession causing an obstruction to the free flow of traffic...
67. Further at page 294 of the report, the Court cited four factors to hold the impugned provisions unconstitutional as follows, the fourth of which is immediately relevant for purposes of the appeals herein:
First, the discretionary power of a regulating authority is uncontrolled. He may, under s 6(1), issue a direction prohibiting the right to form a public procession upon a ground not related in any way to conditions of public safety or public order. There is no definition of the criteria to be used by the regulating authority in the exercise of his discretion. It may be gravely misplaced and made the instrument for the arbitrary suppression of the free expression of views...
...Second, before imposing a ban on a public procession the regulating authority is not obliged to take into account whether the likelihood of a breach of the peace or public disorder could be averted by attaching conditions upon the conduct of the procession in the issuance of a permit relating, for instance, to time, duration and route. If the potential disorder could be prevented by the impositions of suitable conditions, then it is only reasonable that such a less stringent course of action be adopted than an outright ban.
Third, although the rights to freedom of expression and assembly are primary and the limitations thereon secondary, s 6(2) reverse the order. Its effect is to deny such rights unless a certain condition is satisfied, namely that the public procession it is sought to form is ‘unlikely to cause or lead to a breach of peace or public disorder’. If there is the slightest possibility of it doing so, permission is refused.
Fourth, the holding of a public procession without a permit is criminalised irrespective of the likelihood or occurrence of any threat to public safety or public order, or even of any inconvenience to persons not participating...
68. From the above factors, a distinction can be drawn vis-à-vis sections 6(1)(b) and 6(2)(a) of the Act:
a) The first factor mentioned above is similar to the situation in Malaysia as section 6(1)(b) of the Act leaves it up to the satisfaction of the Board whether to approve or not. There are no published guidelines or criteria in how the power to approve is to be exercised unlike section 27(2) of the Police Act 1967 where, as explained in Nik Noorhafizi, considerations were provided as to when the Officer in Charge shall issue a license.
b) The third factor is also similar to the situation in Malaysia because the primary right of the freedom of speech and expression has become secondary, with the requirement of an approval as a form of ‘prior restraint’ the primary provision. Thus, section 6(1)(b) of the Act has the effect of denying the citizens’ primary right.
c) The fourth factor mirrors section 6(2)(a) of the Act – that is under challenge in this application – as the penal provision effectively criminalises the right to freedom of speech and expression per se irrespective of questions that pertain to the exceptions under Article 10(2)(a) of the Federal Constitution.
69. In Zambia in the case of Mulundika and Others v The People  2 LRC 175 [Tab 19, ABOA], the Supreme Court unanimously found similar provisions as those under challenge in this application to be inconsistent with the Zambian Constitution.
70. Section 5 of the Zambian Public Order Act reads as follows:
(4) Any person who wishes to convene an assembly, public meeting or to form a procession in any public place shall first make application in that behalf to the regulating officer of the area concerned, and, if such officer is satisfied that such assembly, public meeting or procession is unlikely to cause or lead to a breach of the peace, he shall issue a permit in writing authorising such assembly, public meeting or procession and specifying the name of the person to whom it is issued and such conditions attaching to the holding of such assembly, public meeting or procession as the regulating officer may deem necessary to impose for the preservation of public peace and order.
71. Section 7 of the same Act reads as follows:
Any assembly, meeting or procession – (a) for which a permit is required under subsection (4) of section five and which takes place without the issue of such permit; or (b) in which three or more persons taking part neglect or refuse to obey any direction or order given under subsection (3) or (7) of section five; shall be deemed to be an unauthorised assembly, and all persons taking part in such assembly, meeting or procession and, in the case of any assembly, meeting or procession for which no permit has been issued, all persons taking part in convening, calling or directing such assembly, meeting or procession may be arrested without a warrant and shall on conviction be liable to a fine not exceeding one kwacha or to imprisonment for a period not exceeding six months, or both such fine and imprisonment.
72. The relevant parts of Article 21 of the Zambian Constitution read as follows:
(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to any political party, trade union or other association for the protection of his interests.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision – (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health...and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.
73. In finding the scheme of seeking permission to assemble and criminalisation of assemblies without a permit as unconstitutional, the Court said as follows:
a) At page 185e of the report:
In our considered view, the framers of the constitution could not have contemplated criminalisation of gatherings in this wholesale fashion by some surviving colonial statute. In the second place, the subsection is highly subjective and expressed on negative terms when it speaks of the regulating officer issuing a permit only if “satisfied that such assembly, public meeting or procession is unlikely to cause or lead to a breach of the peace.” The implication is that the permit must be refused unless the regulating officer is able to satisfy himself or herself to the contrary. It is difficult to imagine a clearer recipe for possible arbitrariness and abuse. The constitutional arrangements for democracy can hardly survive if the free flow of ideas and information can be torpedoed by a misguided regulating officer.
The other aspect is whether there are any effective controls on the exercise of the power to grant or refuse a permit under the subsection being discussed. There are in fact none so that the regulating officer is not required to give reasons for refusal and there is no procedure to act as a safeguard for an aggrieved unsuccessful applicant which is reasonable, fair and just. Fundamental constitutional rights should not be denied to a citizen by any law which permits arbitrariness and is couched in wide and broad terms. In State of Bihar v Misra AIR 1971 SC 1667 at 1675 the Supreme Court of India expressed the view on laws imposing restrictions on fundamental rights that –
‘in order to be a reasonable restriction, the same must not be arbitrary or excessive and the procedure and the manner of imposition of the restriction must also be fair and just. Any restriction which is opposed to the fundamental principles of liberty and justice cannot be considered reasonable...One of the important tests to find out whether a restriction is reasonable is to see whether the aggrieved party has a right of representation against the restriction imposed or proposed to be imposed.’
We find the foregoing to be a sound exposition of the attitude to be adopted in these matters. The principles of fairness, let it be said, are principles in their own right and ought to be allowed to pervade all open and just societies.
b) Further at page 187h of the report:
The requirement of prior permission to gather and to speak, which permission can be denied sometimes for good and at other times for bad cause not contemplated by the constitutional derogation, directly affects the guaranteed freedoms of speech and assembly. It is little wonder that these are the freedoms most discussed by the courts whenever a democratic society is being considered. The weight of judicial authority in Commonwealth countries argues against the constitutionality of a provision like our s 5(4) of the Public Order Act. Thus, in Thappar v State of Madras  SCR 594 at 603 the Supreme Court of India pointed out:
‘Where a law purports to authorise the imposition of restrictions on a fundamental right in a language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such a right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void.’
c) At page 189h of the report:
It is therefore not true that there would be chaos and anarchy if the requirement of obtaining permission with the change of being denied such permission is pronounced against. For one thing, there are other laws such as those under Ch IX of the Penal Code. For another, the holding that s5(4) is unconstitutional will simply mean that the police and other authorities can no longer deny the citizens of this country their freedom to assemble and speak. The requirement of a prior permit is a leftover from the days of Her Majesty’s Governors and the British themselves do not require permission to assemble and speak. Why should we require it?
74. The Court in Mulundika also said at page 190a-f of the report:
Although not guided by concern for the administrative consequences, we readily accept and acknowledge that there are many regulatory features in the Public Order Act which are perfectly constitutional and very necessary for the sake of public peace and order. This was common cause. For instance, there are subsections authorising the issuing of directions and conditions for the purpose of regulating the route of a procession, the date, place and time of an assembly or a procession, their duration and any other matter designed to preserve public peace and order. Though, therefore, the police can no longer deny a permit because the requirement for one is about to be pronounced against, they will be entitled – indeed they are under a duty in terms of the remainder of the Public Order Act – to regulate public meetings, assemblies and processions strictly for the purpose of preserving public peace and order. The police and any other regulating authority can only perform this other very necessary function of giving directions and imposing conditions if they are notified, in advance, of any gathering proposed to be held. Such notification would necessarily differ in form and content from an application for permission under the subsection challenged in these proceedings. While, therefore, we would urge that the whole Public Order Act should be reviewed and modernised in its entirety to enable the police to carry out their duties effectively without contravening any provision in our Constitution, we are satisfied that, meanwhile, it would not be unlawful for the Inspector-General of Police, as the appropriate authority under the Act, to devise some simple and practical method of receiving notifications. Quite clearly, all those organising meetings and processions have a corresponding obligation to enable the police to carry out the regulatory function by giving notice. We repeat our convictions that, contrary to the submission by counsel for the state, the people of this country have long since come of political age and they will not fail to cooperate to make workable the remainder of the Public Order Act.
75. The Court accordingly held that the Zambian permit scheme for assemblies unconstitutional at pages 190h-191a of the report:
In sum and for the reasons which we have given, we hold that s 5(4) of the Public Order Act contravenes arts 20 and 21 of the Constitution and is null and void, and therefore invalid for constitutionality. It follows also that the invalidity and the constitutional guarantee of the rights of assembly and expression preclude the prosecution of persons and the criminalisation of gatherings in contravention of the subsection pronounced against. According, a prosecution based on s 7(a) which depends on s 5(4) would itself be inconsistent with the constitutional guarantees and equally invalid.
76. In Ghana in the case of New Patriotic Party v Inspector-General of Police  AHRLR 138 (GhSC 1993) [Tab 20, ABOA], the Supreme Court unanimously found similar provisions as those under challenge in these appeals to be inconsistent with the Constitution of Ghana.
77. The law challenged was section 8 of the Public Order Decree (NRCD 68) which stated as follows:
(1) Any person who intends – (a) to hold or form any meeting or procession or (b) to celebrate any traditional custom in any public place shall first apply to a superior police officer for permission to do so. (2) The superior police officer shall consider the application fairly and impartially and shall issue a permit authorising the meeting procession or celebration, unless he is satisfied upon reasonable grounds that it is likely to cause a breach of the peace or to be prejudicial to national security.
78. Section 13 of the same Act criminalised the holding of such processions, meetings and public celebrations without police permission.
79. Article 21 of Ghana’s Constitution was invoked and states as follows:
21(1) All persons shall have the right to - ...(d) freedom of assembly including freedom to take part in procession and demonstrations...
(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision...
...(c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons.
80. The Court held at paragraph 51 of the report:
Under our present Constitution, 1992, therefore, while in appropriate cases either the courts or a relevant law may impose a restriction on any of the freedoms contained in article 21 of the Constitution, 1992, the requirement that a permit be obtained before the exercise thereof will be unconstitutional and void.
At paragraph 55:
The object of the consent or permit requirement within the intendments of sections 7 and 8 of NRCD 68 is to give leave for the performance of an act which without such consent or permit is forbidden by law. The necessary implication therefore is that under NRCD 68 meetings, processions and demonstrations are prohibited by law unless sanctioned by the police or other such authority. This proposition – and I cannot think of a better statement of the legal position – clearly violates the enshrined of article 21(d) of the Constitution, 1992, as it constitutes a serious abridgment of the human rights of the citizen. Where any law or action is in conflict with the letter and spirit of the Constitution, 1992, which is the fundamental law of the land, then to the extent of such conflict or inconsistency that law is unconstitutional, void and unenforceable.
And at paragraph 60:
In construing article 21(1)(d) and (4) of the Constitution, 1992, therefore, it is clear (1) that the concept of consent or permit as prerequisites for the enjoyment of the fundamental human right to assemble, process or demonstrate is outside their purview. Section 7 and 8 of NRCD 68 are consequently patently inconsistent with the letter and spirit of the provisions of article 21(d) of the Constitution, 1992, and are unconstitutional, void and unenforceable; and (2) some restrictions as are provided for by article 21(4) of the Constitution, 1992, may be necessary from time to time and upon proper occasion. But the right to assemble, process or demonstrate cannot be denied.
81. In Tanzania in the case of Rev. Christopher Mtikila v Attorney General (Civil Case No. 5 of 1993) [Tab 21, ABOA], the High Court unanimously found similar provisions as those under challenge in these appeals to be inconsistent with the Tanzanian Constitution. The brief facts of the case were that the petitioner sought to establish whether the fundamental rights guaranteed under Part III of the Constitution were immutable. One of the issues was whether the Police Force Ordinance Cap 322 infringes the right of peaceful assembly.
82. The law being challenged was section 40(2) of the Police Force Ordinance which provides as follows:
(2) any person who is desirous of convening, collecting, forming, or organising any assembly or procession in any public place shall first make application for a permit in that behalf to the District Commissioner and if the District Commissioner is satisfied having regard to all the circumstances...that the assembly or procession is not likely to cause a breach of the peace...he shall subject to the provisions of sub section (3) issue a permit.
83. Article 20 of Tanzania’s Constitution reads as follows:
(1) Subject to the laws of the land, every person is entitled to freedom of peaceful assembly, association and public expression, that is to say the right to assemble freely and peaceably, to associate with other persons and, in particular to form or belong to organisations or associations formed for the purposes of protecting or furthering his or any other interests.
84. The grounds of the decision of the Court were as follows, at page 167 of the report:
The Constitution is the basic or paramount law of the land and cannot be overridden by any other law. Where, as in the above provision, the enjoyment of a constitutional right is “subject to the laws of the land” the necessary implication is that those laws must be lawful laws. A law which seeks to make the exercise of those rights subject to the permission of another person cannot be consistent with the express provisions of the Constitution for it makes the exercise illusory. In this class are S.40 of the Police Force Ordinance and S.11 (1) of the Political Parties Act. Both provisions hijack the right to peaceful assembly and procession guaranteed under the Constitution and place it under the personal disposition of the District Commissioner. It is a right which cannot be enjoyed unless the District Commissioner permits...
...It is in the absolute discretion of the District Commissioner to determine the circumstances conducive to the organisation of an assembly or procession; there is no adequate or any safeguards against arbitrary exercise of that discretion and there is no mechanism for challenging his decisions, except probably by way of judicial review which is tortuous and unbeneficial for the purpose of assemblies and processions. I have easily come to the conclusion that the requirement for a permit infringes the freedom of peaceful assembly and procession and is therefore unconstitutional. It is not irrelevant to add, either, that in the Tanzanian context this freedom is rendered the more illusory by the stark truth that the power to grant permits is vested in the cadres of the ruling party...
At page 169:
...the requirement for a permit is unconstitutional and void, I direct the provisions of s.40 of the Police Force Ordinance and s.11(1)(a) of the Political Parties Act, and all provisions relating thereto and connected therewith, shall henceforth be read as if all reference to a permit were removed. It follows that from this moment it shall be lawful for any person or body to convene, collect, form or organise and address an assembly or procession in any public place without first having to obtain a permit from the District Commissioner. Until the legislature makes appropriate arrangements for this purpose, it shall be sufficient for a notice of such assembly or processions to be lodged with the police, being delivered a copy to the district commissioner for his information.
85. The ratio of the said cases should be adopted in this appeal to strike down what are in effect surviving colonial laws on our statute books.
86. In summary therefore, the Applicant submits that:
a) Article 10(1)(a) only allows the State to restrict the right to freedom of speech and expression on certain grounds. These restrictions cannot supersede the primary right of freedom to speech and expression per se, be unreasonable and/or disproportionate to the object they intend to achieve.
b) Article 10 does not allow prohibitions or nullification of the right to freedom of speech and expression.
c) Restrictions that are in essence prohibitions or nullifications are unconstitutional, invalid and should be struck down.
d) The requirement to obtain approval from the Board is a form of ‘prior restraint’ that amounts to a prohibition, and not a regulation as a form of a restriction permitted by Article 10. Section 6(1)(b) of the Act is therefore unconstitutional.
e) A law cannot create an offence criminalising the exercise of the constitutional right to freedom of speech and expression per se. In other words, there cannot be enacted an offence for exercising the right to freedom of speech and expression simpliciter.
f) Section 6(1)(a) read together with section 6(2)(a) of the Act is an unreasonable restriction because a citizen is penalised for the exercise of the right to freedom of speech and expression only because no prior approval had been obtained. The impugned provisions are therefore unconstitutional.
87. For all the reasons stated above, the Applicant humbly prays for the orders prayed for herein.
Dated this 6 February 2014
Counsel for Applicant
Edmund Bon Tai Soon
(New Sin Yew and Joshua Tay H’ng Foong with him)