KUALA LUMPUR, Feb 28 — The book Gay is OK! A Christian Perspective is still banned in Malaysia, as the book’s publisher and author today failed in their bid to pursue their appeal at the Federal Court.
The Federal Court’s three-judge panel headed by Datuk Zabariah Mohd Yusof this afternoon unanimously dismissed the publisher’s and author’s application for leave to appeal against a previous Court of Appeal ruling which had upheld the book ban.
When contacted by Malay Mail, lawyer Michael Cheah confirmed that the Federal Court also decided that publisher Gerakbudaya Enterprise and author Ngeo Boon Lin would have to collectively pay RM30,000 in costs to the home minister and the government of Malaysia.
Asked why the Federal Court decided not to grant leave to proceed to hear his client’s appeal, Cheah said Zabariah said the six questions proposed by the publisher and author for the appeal had failed to reach the threshold of Section 96 of the Courts of Judicature Act 1964.
The conditions to obtain leave for appeal from the Federal Court are namely Section 96(a) and Section 96(b).
Section 96(a) is when leave for appeal is being sought for a question of general principle being decided for the first time or an important question where it would be to the public advantage to have a Federal Court decision, while Section 96(b) is when leave for appeal is being sought when it involves the effect of any provision in the Federal Constitution including the validity of any written law relating to such constitutional provisions.
Since leave was not granted today, the publisher and author will not be able to proceed to have the Federal Court hear their appeal. In other words, the Court of Appeal’s majority decision still stands.
Cheah confirmed the outcome of this afternoon’s hearing at the Federal Court over the video-conferencing platform Zoom.
The other two judges on the panel were Datuk Seri Hasnah Mohammed Hashim and Datuk Nordin Hassan.
Lawyers K. Shanmuga and Edmund Bon also represented Gerakbudaya and Ngeo, while senior federal counsel Ahmad Hanir Hambaly @Arwi and federal counsel Mohammad Sallehuddin represented the home minister and the government of Malaysia.
Gerakbudaya and Ngeo had initially proposed 11 constitutional and legal questions for the Federal Court, before expanding it to a list totalling 24 questions and finally simplifying it to six questions today.
The six proposed questions included whether the parts in Section 7(1) of the Printing Presses and Publications Act 1984 (PPPA) which permits the home minister to declare a publication as undesirable on the ground of being prejudicial to public interest is inconsistent with the Federal Constitution’s Article 10; and whether those parts in Section 7(1) permitting the minister to declare a publication as undesirable on the grounds that it will be “likely to prejudice” either public order or morality are inconsistent with Article 10.
Among other things, one of the questions revolved around whether the actions taken by a home minister exercising powers to restrict freedom of expression must be reasonable and proportionate to meet the needs of the permitted grounds — to restrict such freedom — as set out in the Federal Constitution’s Article 10(2)(a) and the PPPA’s Section 7.
In September 2013, publisher Gerakbudaya Enterprise published and distributed Ngeo Boon Lin’s book Gay is OK! A Christian Perspective.
On November 27, 2020, the government gazetted the home minister’s November 17, 2020 order which banned the printing, publishing, sale, distribution or possession of the book throughout Malaysia, with the minister’s ban stating that the book is “likely to be prejudicial” to public order, morality, and public interest.
On February 17, 2021, Gerakbudaya via its sole proprietor Chong Ton Sin and Ngeo filed the lawsuit through a judicial review application to challenge the book ban, with the two respondents being the home minister and the Malaysian government.
The High Court on February 22, 2022 quashed the home minister’s ban on the book, while two judges in a three-member panel at the Court of Appeal on September 25, 2023 decided to reverse the High Court’s quashing of the book ban while the dissenting judge agreed with the High Court.
On October 24, 2023, the publisher and author filed an application for leave to appeal at the Federal Court. This was the application that the Federal Court dismissed today, with the effect being that the book remains banned now in Malaysia.
Read here for Malay Mail's full summary of what had happened at the High Court and Court of Appeal in this case.
