# Case summary - ‘Gay is OK!: A Christian Perspective’ book ban **Table of content** {% hint style="info" %} [Background](#background) [Purpose of the judicial review](#purpose-of-the-judicial-review) [Who filed the judicial review](#who-filed-the-judicial-review) [Our arguments against the ban](#our-arguments-against-the-ban) [Media reports on the case ](#undefined) [Further reading ](#undefined)[& reference ](#further-reading) {% endhint %} ## Background * In **September 2013**, ‘Gay is OK!: A Christian Perspective’, a book by Pastor O’Young, is published by Gerakbudaya. Parts of the book were published in Malaysia between September 2010 and April 2011. * On **18 February 2020**, an Enforcement Assistant of the Regulatory and Enforcement Division at the Ministry of Home Affairs found the book ‘Gay is OK!: A Christian Perspective’, during a random inspection at the Gerakbudaya bookstore. A copy was purchased for review. * On **17 November 2020**, the Home Affairs ordered a ban on the book under the Printing Presses and Publications (Control of Undesirable Publications) (No.3) Order 2020, P.U.(A) 340. The ban was effective 27 November on the grounds that the book is likely to be prejudicial to public order, morality and public interest. \ Section 7(1) of the Printing Presses and Publication Act 1984 \[Act 301] empowers the Minister to make the order. * The [ban was published](https://www.freemalaysiatoday.com/category/nation/2020/12/18/gay-is-ok-is-not-okay-for-home-ministry/) in the [media](https://www.thestar.com.my/news/nation/2020/12/18/home-ministry-bans-two-publications---039gay-is-ok-a-christian-perspective039-and-039peichi039) on **18 December 2020**. {% hint style="info" %} **Section 7(1) of the Printing Presses and Publication Act 1984 \[Act 301]** (1) If the Minister is satisfied that any publication contains any article, caricature, photograph, report, notes, writing, sound, music, statement or any other thing which is in any manner prejudicial to or likely to be prejudicial to public order, morality, security, or which is likely to alarm public opinion, or which is or is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to public interest or national interest, he may in his absolute discretion by order published in the Gazette prohibit, either absolutely or subject to such conditions as may be prescribed, the printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of that publication and future publications of the publisher concerned.” {% endhint %} ## **Purpose of the judicial review?** To quash the Printing Presses and Publications (Control of Undesirable Publications) (No.3) Order 2020, P.U.(A) 340 effective 27 November 2020 ## **Who filed the judicial review?** The judicial review was filed against the Home Ministry and Government of Malaysia by Gerak Budaya (publisher) and Ngeo Boon Lin or Pastor O’Young (writer). The applicants (Gerak Budaya & Pastor OYoung) are represented by Edmund Bon and Michael Cheah ## **Our arguments against the ban** The arguments by the applicants are centered on three points * [Illegality ](#illegality) * [Irrational and disproportionate ](#irrational-and-disproportionate) * [Procedural impropriety ](#procedural-impropriety)(failure on the part of a public authority to act in accordance with the requirements of procedural fairness and in compliance with the common-law rules of natural justice.) ### Illegality The Minister failed to justify the ban and fulfill requirements under Section 7(1) of the Printing Presses and Publication Act 1984 \[Act 301]. Freedom of Expression (FOE) is guaranteed under Article 10 of the Federal Constitution (FC), and books are a form of expression. Article 10 (2) (a) can limit Freedom of Expression (FOE) on the grounds of national security, public order, morality, among others. However, the ban has no legal and/or factual basis in relation to exceptions allowed under Article 10 (2)(a), and therefore violates Article 10 of the Federal Constitution (FC). While the Minister is empowered to ban a publication at his ‘satisfaction’ and given ‘absolute discretion’, this discretionary power must be objectively assessed by the courts, as seen in other cases. Courts can review the Minister’s decision if it is exercised wrongfully, unfairly, dishonestly or in bad faith. * Darma Suria bin Risman Saleh v Menteri Dalam Negeri, Malaysia & Ors \[2010] 3 MLJ 307, FC * Sepakat Efektif Sdn Bhd v Menteri Dalam Negeri & Anor and another suit \[2015] 2 CLJ 328, CA * Mohd Faizal bin Musa Menteri Keselamatan Dalam Negeri \[2018] 3 MLJ 14, * CA Dato' Seri Syed Hamid bin Syed Jaafar Albar (Menteri Dalam Negeri) v SIS Forum (Malaysia) \[2012] 6 MLJ 340, CA * Zi Publications Sdn Bhd v Timbalan Menteri Dalam Negeri & Ors \[2014] 3 MLRH 708, HC * Hew Kuan Yau v Menteri Dalam Negeri Ors \[2021] 8 CLJ 911,HC #### **How does the ban lack legal and/or factual basis, thus making it illegal?**
Minister does not provide evidence to proof prejudice to public order and morality Public order is understood as an act “disrupts or has the potential to disrupt the even tempo of the life of the community” or “to disrupt public safety and tranquility”. In the Darma Suria case, the Federal Court referred to a few cases to define what is public order and distinguished ‘public order’ from ‘law and order’ as well as ‘security or the state’. Citing the Indian Supreme Court in Collector and District Magistrate v S Sultan AIR 2008 SC 2096 *'Public order' has a narrower ambit and could only be affected by such contravention which affects the community or the public at large…. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise the problem of law and order only…. Public order is synonymous with public safety and tranquility: 'it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State'.* *… Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the state. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an act cannot fall under two concepts at the same time.* Public morality on the other hand is understood as “ideas about right and wrong which are accepted by the right thinking members of the society as a whole of the country”. What is morality “will depend upon the time, place and stage of civilization”. The claims of disruption of public morality and order must be supported with “adequate, reliable and authoritative evidence”, as held by the High Court in the Jill Ireland bt Lawrence Bill case. The Ministry must show evidence of "chaos or disorder that is happening in this country at present, or even at the time the order was made, caused by the circulation" of the publication, or “convincing evidence for such potential to happen" if the publication is likely to be prejudicial to public order. The Minister does not provide such evidence, and the burden falls on the Minister to do so. The Minister relies on a few media reports and ‘respons masyarakat’ (people’s response) to support his claim, which are not adequate and in turn, makes his claims irrational. The media reports to show ‘respons masyarakat’ were also not connected to the book. In addition, the events reported in the article represent views of limited groups of people, which is not representative of Malaysian society as a whole.
Minister is not a religious expert to make blanket statements about how all religions do not accept homosexuality. Further, the matter should be confined to Christianity as the book only deals with Christianity. An expert in Theology and Religion rebuts the Minister’s opinion - “Within Christianity, there has historically existed, and still exists, a diversity of opinion regarding homosexuality. As such, the statement that “Christianity prohibits homosexuality” is reductionistic and therefore false”
Minister is legally incorrect to contend that ‘homosexuality is immoral and not legally accepted in Malaysia as evidenced by criminalization of carnal intercourse under the Penal Code’. Section 377A and 377B is gender neutral and does not criminalize a person on the basis on sexual orientation
The book has been in publication for over 7 years without any untoward incidents and parts of it were published in Malaysiakini. In the Sisters in Islam (SIS) case, the Court of Appeal held that if the book had been in circulation for 2 years without untoward incidents, which suggest that ‘the book was in the first place unlikely to be prejudicial to public order’. The SIS case has been used as authority in other cases.
The ban disproportionately restricts freedom of expression (Article 10) and right to equal treatment (Article 8). The guarantee of freedom of expression (FOE) includes the right to express differing views and the right of the public to receive such views. The Courts have held that FOE is “one of the most fundamental rights that individuals enjoy" and that it is "fundamental to the existence of democracy and the respect of human dignity", and Article 10(1)(a), Federal Constitution includes the "right to receive information”. The ban denies equal treatment under Article 8(1) of the FC to provide views on the subject of homosexuality.
### Irrational and disproportionate How is the ban Irrational and disproportionate? ***Minister failed to take into account relevant considerations and had instead taken into account irrelevant considerations*** In the case of Sepakat Efektif, the Court of Appeal held that the alleged "anticipated danger should not be remote, conjectural or far-fetched, and that it should have proximate and direct nexus with the expression, such that the expression of thought should be intrinsically dangerous to the public interests”. The minister concedes that his deduction that the book is prejudicial to public order and morality is based on his examination and reading of the book as a lay person, and not other findings or evidence. Courts have also held that in order to test clear and present danger, one must read the book as a whole, not in a fragmented manner. In the [N. Radhakrishnan @ Radhakrishnan Varenickal v Union of India and Others \[2018\]](https://globalfreedomofexpression.columbia.edu/cases/n-radhakrishnan-v-union-india/), the Indian Supreme court held that > '... There may be subjective perception of a book as regards its worth and evaluation but the said subjectivity cannot be allowed to enter into the legal arena for censorship or ban of a book.’ While the minister asserted that he read the entire book in order to make his assessment, he pulled out some texts and passages, deemed as ‘significant passages’ which account for 42 of the 226 page book. Some texts were omitted, resulting in removal of context and meaning of the text. This also reinforces the fact one’s subjective assessment may differ from another. {% hint style="info" %} The Minister failed to take into consideration that * The Book has been in publication for over seven years since September 2013. * The first part of the Book had previously been in publication on Malaysiakini between September 2010 and April 2011. * No untoward incidents caused by the Book, nor were there reports by civil servants, the police or the security services that the Book is likely to pose a threat to public order, morality or public interest. * Rights guaranteed under Article 5 (right to life), Article 8 (equal protection) and Article 10 (FOE) {% endhint %} The High Court held in the ZI Publications case that > ‘... it is not impossible to only ban or remove certain pages or passages from the book as submitted by the applicant as pages or passages in the book are document which fall into the definition of “publication”. Sudden total banning of the whole book without an opportunity first being given to the applicant to counter the accusations against the book is definitely an irrational decision as the book have been in circulation for sometime and have been the subject of much reporting. I agree with the applicant’s submission and add that it is also not appropriate to the protection of human rights.” As such, this makes the ban of the book not only irrational, but also excessive. ### **Procedural impropriety**
Deprivation of right to be heard The applicants have a right to be heard before the ban as guaranteed under Article 5(1) and Article 8(1) and expounded through some cases. Courts have consistently maintained that the right to be heard "should apply to every case where an individual is adversely affected by an administrative action, no matter whether it is labelled "judicial", "quasi-judicial", or "administrative" or whether or not the enabling statute makes provision for a hearing". In the Islamic Renaissance Front Bhd v The Minister of Home Affairs \[2020] 5 MLJ 399, CA the Court of Appeal held that the failure to give the appellant the right to be heard rendered the respondent’s orders under section 7(1), PPPA indefensible. Additionally, the right to be heard is also guaranteed under the doctrine of legitimate expectation, which is also part of international norms. There is no inconsistency between Malaysian written law and international norms. The government has made voluntary pledges and commitments to uphold the UDHR. Malaysia stated that it **"subscribes to the philosophy, concepts and norms enshrined in the Universal Declaration of Human Rights"** to support its candidature for election to the Human Rights Council for the term 2018 – 2020. As a member of ASEAN and having adopted the ASEAN Human Right Declaration it must adhere to Declaration 10 and 23 to affirm civil and political rights in the UDHR and uphold FOE. Similarly, as a member of the United Nations, Malaysia also has to adhere to the United Nations Charter, especially the * preamble, * Article 1(3) to achieve international co-operation in solving international problems and in promoting and respecting human rights and fundamental freedoms without prejudice, and * Article 55(c) universal respect and observance for human rights and fundamental freedoms for all without distinction
The Ministry did not provide a reasoned decision for the ban. In Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor \[2018] 2 MLJ 590, FC, the Federal Court held that a public decision-making body is obligated to give reasons for its decisions even in the absence of provisions requiring the decision-maker to do so. In Zi Publications, it was held that a mere recital of the statutory words under section 7(1), PPPA was insufficient. The principles of procedural fairness guaranteed under Article 8 of FC, requires a reasoned decision to be given.
## Media reports on the case * [Home Ministry bans two publications - 'Gay is OK! A Christian Perspective' and 'Peichi'](https://www.thestar.com.my/news/nation/2020/12/18/home-ministry-bans-two-publications---039gay-is-ok-a-christian-perspective039-and-039peichi039) (18 December, 2020) * [‘Gay is OK!’ is not okay for home ministry](https://www.freemalaysiatoday.com/category/nation/2020/12/18/gay-is-ok-is-not-okay-for-home-ministry/) (18 December, 2020) * [Legal action filed over ban of book 'Gay is Okay!'](https://www.malaysiakini.com/news/568718) (March 30, 2021) * [Book on gays could disrupt public order, Hamzah tells court ](https://www.freemalaysiatoday.com/category/nation/2021/11/01/book-on-gays-can-cause-public-alarm-hamzah-tells-court/)(1 November, 2021) * [Hamzah: 'Gay is Okay' book could still harm public order](https://www.youtube.com/watch?v=8EPFomeKjiQ) (1 November, 2021) {% embed url="" %} ## Further reading * Darma Suria bin Risman Saleh v Menteri Dalam Negeri, Malaysia & Ors \[2010] 3 MLJ 307, FC * Sepakat Efektif Sdn Bhd v Menteri Dalam Negeri & Anor and another suit \[2015] 2 CLJ 328, CA * Mohd Faizal bin Musa Menteri Keselamatan Dalam Negeri \[2018] 3 MLJ 14, * CA Dato' Seri Syed Hamid bin Syed Jaafar Albar (Menteri Dalam Negeri) v SIS Forum (Malaysia) \[2012] 6 MLJ 340, CA * Zi Publications Sdn Bhd v Timbalan Menteri Dalam Negeri & Ors \[2014] 3 MLRH 708, HC * Hew Kuan Yau v Menteri Dalam Negeri Ors \[2021] 8 CLJ 911,HC {% file src="" %}