THE recent memoir by the former attorney-general, Tommy Thomas, has sparked calls to ban the book.Hence, some who are staunch supporters for freedom of speech and expression did not see eye to eye with such proposal as it violates the rights enshrined under the federal constitution.However, such constitutional rights are subject to the necessary restrictions and the existence of Printing Presses and Publications Act 1984 (Act 301) is one of the restrictions that Parliament has imposed on the rights to freedom of speech and expression.Section 7(1) of the said act states that: “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.”The implication of the aforementioned provision is that any publication containing element which is prejudicial to or likely to be prejudicial to public order, morality, security, public interest and etc would suffice to render itself banned by the minister.So, such law is so wide to the extent that it covers any book or article where in the eyes of the minister, such undesirable publication has tendency to pose the danger which has yet to take place.This reminds me of our Sedition Act 1948 (Act 15) where in accordance with the said act, having seditious tendency would be enough, on many occasions, to be tantamount to committing seditious act.Even though we have the law in which the minister is given wide discretionary power to have final say on such issue, I believe that a balance must be struck to have a desired result which could benefit the society as a whole.In a Canadian case of Dagenais v Canadian Broadcasting Corporation (1995) 120 DLR 12, it lays down the approach to be taken in the constitutional interpretation of media freedom and freedom of expression.It was held that a publication ban should only be ordered when such a ban is necessary for the purpose of preventing a real and substantial risk to the fairness of the trial, because reasonably alternative measures will not prevent the risk; and the effects of the publication ban outweigh the effects to the free expression of those affected by the ban.What I find interesting is that one of the gist of this case is that the ban should not be allowed if there is reasonably alternative measure which could prevent the risk to the fairness of the trial.Also, in Hinch v Attorney-General (Vic)  164 CLR 15, it is stated that: “[…]The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.”As far as Thomas’ new book is concerned in which his remarks or perspectives on some ongoing cases or appeals are covered, I opine that the publication ban, if any, shall not merely based on “whims and fancies” of the authorities.Other than our Act 301, the two Commonwealth cases mentioned above shall be referred to and as long as the public order or security is not massively prejudiced due to the memoir, I believe the right of Malaysians to express their views or concerns on public issues shall always prevail.This is not only in line with what our supreme constitution has provided, but also in line with the tenet honoured by our forefathers of this nation.The tenet is that this country shall not be shaped based on censorship and dictatorship. – February 11, 2021.* Beston Tan Yon Chin is a law student. * This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.
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