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
(In relation
to the Applicants’ application, among others to set aside, quash or permanently
stay the charge)
A. Introduction
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.
C. Issues
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 [1950] 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 [1994] 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 [1981] 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 [1973] 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.
(Emphasis
ours)
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 [2009] 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
[2005] 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
[1999] 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 [2002] 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 [2008] 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 [2007] 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.
(Emphasis
ours)
7.
There
is case law to support this. In Public
Prosecutor v Cheah Beng Poh, Louis & 38 Ors [1984] 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.
(Emphasis
ours)
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 [1996] 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.
(Emphasis
ours)
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 [2006] 6 MLJ 213 [Tab 8, ABOA] and
Sivarasa Rasiah v Badan Peguam Malaysia
[2010] 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):
[8] 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…
… [9] 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).
… [11] 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).
(Emphasis ours)
11.
The Federal Court in Sivarasa also explained the doctrine:
[5] 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 [2006] 6 MLJ 213;
[2007] 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 [1992] 1 MLJ 343; [1992] 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.
(Emphasis
ours)
12.
The
position in Sivarasa was adopted in
the recent Court of Appeal case of Muhammad
Hilman bin Idham & Ors v Kerajaan Malaysia & Ors [2011] 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:
[18]
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 [1990] 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 [1974] 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 [1979] 3 SCC 489, 511-12, Ajay Hasia v Khalid Mujib Sehravardi
[1981] 1 SCC 722 and DS Nakara v Union of
India [1983] 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).
(Emphasis
ours)
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
[1987] 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.
(Emphasis
ours)
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 [1992] 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.
(Emphasis
ours)
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 [1896] 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.
(Emphasis
ours)
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.
(Emphasis ours)
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 [1984] 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
[1984] 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 [1950] 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[1] [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.
(Emphasis
ours)
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
[2010] 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 [1973] 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 [2013]
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):
[49] 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.
(Emphasis
ours)
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 [1950] 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 [1950] 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
Zimbabwe
63.
In Zimbabwe in the
case of Re Munhumeso [1994] 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...
(Emphasis Ours)
68.
From the above
factors, a distinction can be drawn vis-Ã -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.
Zambia
69.
In Zambia in the case
of Mulundika and Others v The
People [1996] 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 [1950]
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.
Ghana
76.
In Ghana in the case
of New Patriotic Party v
Inspector-General of Police [2001] 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.
Tanzania
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.
F. Conclusion
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)
[1]
[1] Silver and others v United Kingdom (Application No. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75), Judgment, European Court of Human Rights, 25 March 1983 [Tab 19 ABOA]
[1] Silver and others v United Kingdom (Application No. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75), Judgment, European Court of Human Rights, 25 March 1983 [Tab 19 ABOA]
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