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
The memorandum was received by Human Rights Commissioner, James Nayagam
