Mohd Khairianwar bin Jailani & Anor v Menteri Dalam Negeri & Anor

Appellant(s):

• Mohd Khairianwar Bin Jailani
• Tan Meng Kheng

Respondent(s):

• Menteri Dalam Negeri Malaysia
• Kerajaan Malaysia

• YA Datuk Ismail Bin Brahim
• YA Dato' Ong Chee Kwan
• YA Dato' Ahmad Shahrir B. Mohd Salleh

• The appellants (director and producer of a film) had it screened publicly and streamed online without ever submitting it to the Film Censorship Board (LPF), and after public controversy erupted following a viral review, the Minister of Home Affairs issued a gazetted order under section 26 of the Film Censorship Act 2002 prohibiting the film's exhibition, distribution and possession throughout Malaysia.
• Before making the order, the Minister obtained an LPF evaluation report, a Special Branch opinion, a JAKIM review, and views of various religious authorities, and also viewed the film himself; thirty police reports had been lodged against the film by members of the public.
• The appellants sought judicial review, seeking certiorari to quash the prohibition order and a declaration that section 26 was unconstitutional; the High Court dismissed the application, and the appellants appealed to the Court of Appeal.

• Whether section 26 of the Film Censorship Act 2002, which empowers the Minister to prohibit a film "in his absolute discretion" if he forms the opinion that it is contrary to "public interest", is constitutionally valid under Article 10(2)(a) read with Article 8(1) of the Federal Constitution, given the breadth of the phrase "public interest".
• Whether the Prohibition Order, made pursuant to a valid statutory power, was itself validly exercised, including whether extraneous or irrelevant material (a later criminal charge and an exemplary/deterrent rationale) tainted the Minister's opinion, and whether the seven-month gap without public disorder rendered the Minister's assessment of risk to public order unreasonable or irrational.
• Whether the appellants were entitled to be heard before the Prohibition Order was made, given the order's character as subsidiary legislation of general application rather than a decision directed at named individuals.

• The Court held that "public interest" in section 26 must be construed, by reference to legislative history and the "core-penumbra" narrowing technique endorsed in the Federal Court's recent Heidy Quah decision, as confined to national security, public order and morality — the specific heads permitted under Article 10(2)(a) — and so construed, section 26 is constitutionally valid; the Court also held that proportionality analysis has no role in this constitutionality inquiry following Heidy Quah.
• The Court excluded from consideration the appellants' subsequent criminal charge (which post-dated the order) and the Special Branch's improper "deterrent/exemplary" rationale, but found that the remaining material (LPF evaluation, Special Branch opinion on public order risk, JAKIM review, religious authorities' views, police reports, and the Minister's own viewing) was sufficient for a reasonable Minister to conclude the film's unrestricted exhibition risked public order, and that the absence of actual disorder over seven months did not render this preventive assessment irrational, given the prospective nature of the power and the deference owed to executive risk-assessments in this domain.
• The Court held that the appellants had no right to be heard before the order was made because the Prohibition Order was legislative rather than adjudicative in character (a gazetted order of general application not directed at named individuals), distinguishing it from cases involving individualised administrative decisions; the appeal was accordingly dismissed with no order as to costs, though the Court affirmed the High Court's outcome on partly different reasoning.