“Whether the Minister holds ‘absolute discretion’ in banning publications?”
HEW KUAN YAU v MENTERI DALAM NEGERI & ORS  8 CLJ 880
- The Appellant [Hew]is the author of a comic book (“the Book”) published on 18 April 2019. The title of the Book is Belt and Road initiative for Win.
- The Book purportedly elucidated the historical backdrop of the ‘Belt and Road Initiative’ (“BRI”) of the Peoples Republic of China and heaped lavish praise on it. The BRI is an official policy of China to invest in many countries.
- Six months later, on 23 October 2019, the Minister for Home Affairs (“the Minister”) banned the Book via a Prohibitory Order (“PO”) published by the Federal Gazette (P.U. (A) 288/2019) pursuant to Section 7 of the Printing Presses and Publications Act 1984 (“Act 301/ PPPA”).
- All the three versions of the Book in Malay, English and Chinese were banned.
- The statutory ground under Section 7(1) of Act 301 is that the Book is prejudicial to or likely to be prejudicial to public order and alarm public opinion.
- According to a press released by the Minister, the following reasons were given:
(a) that the Book was published with the intention to promote the ideology of communism and
(b) that the Book spreads wrong and confusing facts about communists while trying to raise
support and sympathy towards the communist struggle; and
(c) that the Book causes readers especially the younger generation to question the history of
Malaysia and dispute the struggle of the past leaders/icons in fighting for independence and
- The Appellant filed a Judicial Review application a legal challenge] to lift the ban on the Book.
- The High Court Judge was of the view that under Section 7 of Act 301, the Minister has absolute discretion to issue a PO and as such cannot be said to have committed an error of law. Therefore, the judicial review/challenge was dismissed.
COURT OF APPEAL
- The Court of Appeal affirmed the findings of the High Court, and found that homeowner/employer has a positive duty to protect TNB underground cables, and subsequently to the public, who are users of electricity distributed.
COURT OF APPEAL – APPEAL ALLOWED
- The appeal was allowed and the decision of the High Court was set aside.
- The Court of Appeal opined that the Minister’s action can be questioned if it breaches the administrative law principles regarding the power given to the Minister.
- The Court of Appeal held that the fact that Parliament has granted absolute discretion under Section 7 of Act 301 to restrict the publications that are considered undesirable does not necessarily immunise the decision made by the Minister from judicial review and is still reviewable.
- The Court of Appeal therefore granted prayers of the judicial review application and awarded costs of RM 1,000.00 to Hew.