The grounds of decision of Ariff Yusof J in upholding the ban on K. Arumugam’s Tamil book, “March 8” regarding the violent clashes in Kampung Medan on 8th March 2001.
On 12th February 2010, the same Judge (applying the principles in the SIS case) found that the ban on the Tamil book March 8 written by K. Arumugam was lawful and dismissed the application for a judicial review against the decision of Dato Fu Ah Kiow, the then Deputy Minister of Home Affairs banning this book. Click here for a copy of the judgment in Arumugam Kalimuthu v Menteri Keselamatan Dalam Negeri & 2 Ors  (Kuala Lumpur High Court Application for Judicial Review R3(2)-25-43-2007).
The Judge dismissed a preliminary issue that the Deputy Minister was not authorised to make the decision to ban the book, holding that the words of Article 43A(2) of the Federal Constitution had no ambiguity and taken together with various other laws clearly allowed the Deputy Minister to exercise all the powers of the Minister. [Article 43A(2) says that “Deputy Ministers shall assist Ministers in the discharge of their duties and functions, and for such purpose shall have all the powers of Ministers.”
Thus, there was no need to resort to the statement by Dr. Mahathir (as the then PM in Parliament) where he said that the amendment to include Article 43A “tidak bermakna bahawa Timbalan Menteri … berkuasa seperti Menteri dan boleh mengganti Menteri di dalam Jemaah Menteri atau mengendalikan tugas-tugas yang dihadkan kepada Menteri“.
On the substantive challenge, the learned Judge ruled that there was an objective basis for the Deputy Minister’s decision having regard to the contents of the book (which dealt with a disturbance in public order) and having regard to the “social and cultural sensitivities of the various communities in Malaysia”.
He apparently rejected the Applicant’s argument that the Deputy Minister’s failure to provide the materials on which he based his decision did not satisfy the “objective test” applied by the Courts to assess the legality of a ministerial discretion affecting fundamental liberties. (The Minister had said that he relied on a police report, and reports from his civil servants, in coming to his decision, but did not exhibit those reports. It was also clear that the Minister did not read the book himself – the book is in Tamil, and Dato Fu Ah Kiow is Chinese and presumably does not read Tamil. The only BM translation provided by the Goverment was dated long after the date of the ban.)
The Court, with respect, seems to have omitted to deal with the question of whether the author had a right to be heard before the ban was made although this was also a ground for the challenge.
The Judge did not order costs against the applicant since it was a public interest case. I hope that this trend will continue, since the government should welcome private citizens taking legal action to clarify the law in considering the effect of governmental action on the fundamental liberties of Malaysians.
The government has appealed against the decision in the SIS case. It is not clear at this time if the author of March 8 will appeal against this decision. In any event, it will be interesting to see how the appellate courts deal with this issue of free speech.
LB: Shanmuga is one of several co-counsel with other LoyarBurokkers who acted for SIS and Arumugam.