KUALA LUMPUR, May 10 — Defence lawyers for Mentega Terbang director Khairi Anwar Jailani and producer Tan Meng Kheng have applied for the magistrates court to transfer the case to the High Court on grounds of public interest.
Lawyer N. Surendran argued in court today that both his clients faced charges under Section 298 of the Penal Code over their Mentega Terbang movie, despite the constitutional guarantee to freedom of speech and expression.
He said Section 298 was also a pre-Merdeka law that was outdated, with its wording overly broad and open to abuse.
"If we look at (S.)298 and what it states we need to ask ourselves what is wounding a persons feelings? You see everyone acts and reacts differently. What is offensive to one person may not be to another because people act differently.
“So, what is the definition of wounding religious feelings? It is very vague," he said.
Section 298 states, “Whoever, with deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, shall be punished with imprisonment for a term which may extend to one year or with fine or with both.”
In today's application, the defence stated that under Section 30 of the Court of Judicature Act 1964 the orders sought, among others, were questions regarding the effect of the provision of the Federal Constitution.
They argued that Section 298 should be annulled as unconstitutional and its ambiguity effectively precluded an accused person’s right to fair trial.
Surendran said that since a decision was needed over the constitutionality of the law, the right venue would be the High Court.
However, deputy public prosecutor Abdul Malik Ayob accused the defence of trying to delay the case, arguing that there was no question about the validity of the law that required the High Court’s intervention.
"There have been no facts, no evidence presented to the court so far hence we feel this case need not be transferred to the High Court because it is premature. We need to ascertain the facts of this case and figure out where it breached the FC,” he said.
Magistrate Noorelynna Hanim Abd Halim then set June 14 to make her decision.
Previously, a magistrates court had also allowed the prosecution’s request for a gag order preventing both men from making any comments or statements on their pending disposal of the cases.
The men then filed applications for revisions to the High Court. On January 24, the High Court dismissed Khairi Anwar’s revision application and maintained the gag order against him. Meanwhile, another High Court lifted the gag order imposed on Tan.
The gag order was again upheld by the Court of Appeal last month.
The Home Ministry banned the screening and publicity of the movie through the Government Gazette P.U (A) 2662 Film Censorship Act 2002, the Film Censorship (Prohibition) Order 2023 dated August 21, 2023, signed by Home Minister Datuk Seri Saifuddin Nasution Ismail.
Rights groups have criticised the ban and called on the government to drop the criminal charges against Khairi Anwar and Tan.
* A previous version of the report contained an error that has since been corrected.
