The court affirmed that the Minister's discretion to ban publications under the Printing Presses and Publications Act is subject to judicial review, emphasizing the necessity of objective assessment regarding public order and morality.

[1] On 25 September 2023:

(1) my learned sister, Azizah Haji Nawawi JCA, and I (Majority Coram) had allowed this appeal with costs (Majority Decision); and

(2) my learned brother, Gunalan a/l Muniandy JCA, had given a dissenting opinion.

[2] This judgment (Majority Judgment) provides the reasons for the Majority Decision and a draft of the Majority Judgment has been given to Gunalan a/l Muniandy JCA.

B. Background

[3] The first respondent (1st Respondent) is the sole proprietor of a business named "Gerakbudaya Enterprise" which publishes and distributes books.

[4] The second respondent (2nd Respondent) wrote a book entitled "Gay is OK! A Christian Perspective" (Book) which was published and distributed by the 1st Respondent in September 2013.

[5] The first part of the Book consisted of a compilation of articles written by the 2nd Respondent which had been published in "Malaysiakini" from September 2010 to April 2011.

[6] On 18 February 2020:

(1) an Assistant Enforcement Officer from the Regulatory and Enforcement Division (Enforcement Division) of the Ministry of Home Affairs (MHA), conducted a random inspection of books which were displayed for sale in the 1st Respondent's bookstore in no 2, Jalan Bukit 11/2, 46200 Petaling Jaya, Selangor Darul Ehsan; and

(2) the MHA officer bought the Book from the 1st Respondent for a review and examination by MHA under the Printing Presses and Publications Act 1984 (PPPA).

[7] With regard to the Book:

(1) the Book was first reviewed and examined by the Enforcement Division;

(2) the Enforcement Division then submitted the Book to the first appellant, Minister of Home Affairs (1st Appellant);

(3) the 1st Appellant had reviewed the contents of the Book and was satisfied that the Book had contained matters which were likely to be prejudicial to:

(a) public order;

(b) morality; and

(c) public interest; and

(4) on 17 November 2020, the 1st Appellant issued an order under s 7(1) PPPA to prohibit absolutely the printing, importation, production, reproduction, publication, sale, issue, circulation, distribution and possession of the Book (Ban). The Ban was published in the Federal Gazette on 17 November 2020 [Gazette Notification (Ban)].

C. Proceedings In The High Court (HC)

[8] The 1st and 2nd Respondents (referred collectively in this Majority Judgment as the "Respondents") filed an application in the HC against the 1st Appellant and the Malaysian Government (2nd Appellant) for, among others, an order of certiorari to quash the Ban (Judicial Review Application). This Majority Judgment shall refer to the 1st and 2nd Appellants collectively as the "Appellants".

[9] The HC granted leave for the Judicial Review Application.

[10] The learned HC Judge subsequently allowed the Judicial Review Application as follows:

(1) a certiorari order was granted to quash the Ban; and

(2) the Appellants shall pay costs in a sum of RM5,000.00 to the Respondents (HC's Decision).

[11] The Appellants have appealed to this Court against the HC's Decision (This Appeal).

D. Grounds For HC's Decision

[12] According to the Grounds of Judgment for the HC's Decision (GOJ), among others:

(1) paragraph 12 GOJ - the Book offered an alternative view that Christianity does not oppose homosexuality;

(2) paragraphs 17 to 19, 23 and 33 GOJ - the publication of the Book was not likely to be prejudicial to public order. Since the publication of the Book in September 2013, there was no untoward incident which arose from the Book;

(3) paragraph 21 GOJ - there was no evidence of how many copies of the Book had been printed, published or circulated before the Ban;

(4) paragraph 27 GOJ - the response by members of society referred to by the 1st App