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2020 MarsdenLR 436
COURT OF APPEAL PUTRAJAYA
ISLAMIC RENAISSANCE FRONT BERHAD – Appellant
Versus
THE MINISTER OF HOME AFFAIRS – Respondent
[Civil Appeal No: W-01(A)-242-05/2019]
The court upheld the principle that the right to be heard is fundamental, especially in cases where executive discretion impacts individual rights, invalidating orders made without this opportunity.
Headnote:(A) Printing Presses and Publications Act 1984 – Section 7 – Judicial review of executive discretion in public order matters – Orders prohibiting publication of works – Judicial review application for quashing orders previously issued by the Respondent, found to lack compliance with orders of discovery and right to be heard before issuance of orders. (Paras 6 and 62)
(B) Right to be heard – Basic tenet of natural justice that all parties must have an opportunity to present their case before any adverse action is taken against them was not upheld in this case. (Paras 39-46)
(C) Executive discretion – Defined as not requiring exact compliance with procedural requirements unless explicitly stated in law; discretion exercised must remain within lawful boundaries. (Paras 9 and 12)
Facts of the case: The Appellant's books were banned by the Respondent citing public order concerns and misalignment with Islamic teachings, leading to an application for judicial review. (Paras 4-5)
Findings of Court: High Court's decision was flawed for neglecting the requirement of discovery and the right to be heard; Appeal allowed. (Paras 62-63)
Issues: Non-production of key documents and right of hearing before the Respondent's orders were made. (Paras 28-30)
Ratio Decidendi: The Respondent failed to comply with the discovery order and did not grant the Appellant the right to be heard, undermining the legality of the orders issued. (Paras 31-32, 60)
Result: Appeal allowed, Respondent's orders quashed. (Para 64)
Introduction
[1] This is an appeal arising from the decision by the High Court in refusing the Appellant's application for judicial review. The application relates to orders issued by the Respondent against three books published by the Appellant.
[2] In deciding this appeal, we would address the issues regarding right to be heard, non-compliance of the High Court's order in respect of discovery and whether the orders made by the Respondent could still stand in view of the issues raised in this case.
Background Facts
[3] The Appellant promotes itself as a body interested in youth empowerment and encouraging Muslim intellectual discourse. In achieving its purpose, the Appellant published three books as follows:
(a) 'Wacana Pemikiran Reformis (Jilid 1)' - published in June 2012;
(b) 'Wacana Pemikiran Reformis (Jilid 2)' - published in October 2014; and
(c) 'Islam Tanpa Keekstreman: Behujah Untuk Kebebasan' - published in January 2016.
[4] After the publications were put in circulation, the Respondent as the Minister of Home Affairs who is also in charge of public order, made two orders in absolutely prohibiting the printing, importation, production, reproduction, sale, issuance, circulation, distribution and possession of these publications. The first order was issued on 6 September 2017 and published in the Federal Gazette on 28 September 2017 in respect of the first two publications and the second order issued and published in the Federal Gazette on similar dates, affecting the third publication.
[5] On 3 November 2017 the Respondent informed the Appellant that these orders were issued pursuant to reports made by Jabatan Kemajuan Islam Malaysia ("Jakim"). These reports among others state that the publications contained confusing matters which may deviate from the teachings of Islam practised in Malaysia. Therefore, the publications are likely to prejudice public order, alarm public opinion and prejudice public interest.
The Application For Judicial Review
[6] Aggrieved by the orders issued by the Respondent, the Appellant filed the application for judicial review at the High Court. The Appellant sought from the High Court the following:
(a) an order of certiorari to quash the Respondent's orders;
(b) a declaration that the orders are null and void in that they are ultra vires the Federal Constitution (" FC ");
(c) a declaration that s 7 of the Printing Presses and Publications Act 1984 ("Act") is unconstitutional, null and void to the extent that Parliament had no power to:
(i) delegate its power under Article 10(2) FC to the Respondent; and/or
(ii) to prescribe a law that absolutely prohibits rights as opposed to merely imposing restrictions on the rights.
The Application For Discovery
[7] For the hearing before the High Court, the Appellant had applied for discovery of the following:
(a) the Jakim's reports relied by the Respondent to issue the orders; and
(b) the recommendations and comments of the Publication and Quranic Text Control Division.
[8] The High Court allowed this application for discovery. Hence, the Respondent gave the Appellant Jakim's reports in respect of the first two orders. However, for the third order, the Respondent only gave incomplete Jakim's report. The Respondent also failed to provide the Appellant with the recommendations and comments of the Publication and Quranic Text Control Division.
The High Court's Decision For Judicial Review
[9] Basically, the learned High Court Judge found that the Respondent's action in issuing the orders was very much an executive discretion he had exercised. In this regard, His Lordship found that the courts generally do not disturb such executive discretion without sufficient reasons.
[10] The Respondent's discretion is exercised pursuant to the statutory provision of s 7(1) of the Act that reads as follows:
If the Minister is satisfied that any publication contains any article, caricature, photograph, report, notes, writing, sound, music, statement or any other th
