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 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

Timbalan Pendakwa Raya,

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