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Reflecting on the law by Shad Saleem Faruqi

The Printing Presses and Publications Act 1984 has had a stifling effect on the growth of the media and on the creativity of media practitioners. Now there is an increasing number of voices calling for change.

THE Printing Presses and Publications Act 1984 has come under scrutiny by no lesser a person than the Information Minister himself.

For the last twenty-four years this piece of legislation has had a stifling effect on the growth of the media and on the creativity and initiative of media practitioners.

The Act regulates the use of printing presses, the printing, production, reproduction and distribution of publications and importation of print materials from abroad. It imposes a number of prior restraints on the above activities and prescribes strong penalties including jail sentences.

Printing Presses: Under section 3, owners of printing presses are required to apply for a licence from the Home Ministry.

The period of the licence is twelve months or such shorter period as the minister specifies: section 12(1). Owners of licences face an annual nightmare of uncertainty whether the permit will be renewed or not.

In the grant, refusal, revocation or suspension of a licence or in the determination of its period, the minister’s discretion is “absolute”: section 3(3).

Judicial review of the minister’s discretion is not allowed: section 13A. The minister is not required to give to the parties a prior hearing: section 13(1) and 13B.

The conferral of “absolute” discretion and the exclusion of judicial review raise complex issues of constitutionality under Article 10(2) of the Federal Constitution. It is submitted that the minister can exercise his discretion to refuse or revoke only on the basis of the permissible grounds in Article 10(2)(a).

These grounds are: interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation or incitement to any offence.

Judicial review on constitutional issues cannot be ousted despite the clear language of the Printing Presses Act because the Act is subordinate to the supreme Constitution and the constitutionally permissible restrictions in Article 10(2) can be superimposed on every statute restricting free speech.

Further, the grant of absolute discretion can be challenged under the equality clause of Article 8(1) and under the principle of rationality in administrative law. The exclusion of natural justice by sections 13(1) and 13B is also questionable because natural justice is no more a mere rule of common law that may be excluded by statute.

Natural justice is grounded in the promise of due process in Articles 5 and 8: Sugumar Balakrishnan (1998); Raja Abdul Malek Muzaffar Shah v Setiausaha Suruhanjaya Pasukan Polis (1995).

In granting a licence the minister may impose conditions such as the making of a deposit. The deposit may be forfeited if an offence under the Act is committed: sections 10 and 12(1).

Violation of the licensing requirement or of the conditions of a licence may incur imprisonment up to three years or a fine of up to RM20,000 or both; the deposit may be forfeited; an unlicensed press or publication may be seized and forfeited even if there is as yet no conviction.

Under the Act, criminal liability for violations of the Act falls on the owner or co-occupier of the press or on anyone assisting in the care and management of the press. The law is broad enough to implicate employees in the wrongdoing of the owners.

The permit cannot be assigned or transferred except with the minister’s permissions: section 13(2) & (3). This has obvious adverse implications in company law if a printing company were to wish to sell its business.

Printing, production & distribution: A permit is required for printing, publishing, selling, circulating and distributing any “newspaper” in the country or in Singapore. The term “newspaper” has been defined very broadly to refer to almost anything that communicates information. The term covers any magazine, comic, periodical or any publication.

The Act exempts publications by the federal or state governments and statutory bodies from the requirement of a prior licence. It appears that in-house publications that are of no public interest may also be exempted. Further, there is some uncertainty about textbooks. These are, in practice, allowed to be published without a permit.

For the purpose of the permit requirement, it is irrelevant whether the publication is for sale or free, regular or irregular in publication or in one language or another.

Undesirable publications: “Undesirable publications” are those that are prejudicial to public order, morality or security; or are likely to alarm; or are contrary to law or prejudicial to public interest or national interest. In respect of such publications the minister may prohibit them by issuing an order in the Warta Kerajaan.

Malicious false news: A news is malicious if the defendant cannot prove that prior to publication he took reasonable measures to verify the truth of the news: section 8A(2).

In recent years, the section has been invoked in a number of highly publicised cases. In Lim Guan Eng v PP, a 16-year-old girl had been sexually violated by several men. She was detained by the police but not placed in a lock-up. Subsequently she was put in protective custody at a rehabilitation centre.

The accused, a Member of Parliament, published a pamphlet that contained the words ‘victim imprisoned, criminal free’. The words ‘victim imprisoned’ were adjudged by the courts to amount to false news that had been maliciously published.

Irene Fernandez, a prominent social activist, who published information about the alleged abuse of illegal immigrants in detention centres, was prosecuted and convicted under this section.

The constitutional validity of this section was challenged, but unsuccessfully, in PP v Pung Chen Choon (1994) 1 MLJ 566 on the ground that it imposes a blanket restriction on false news without requiring any nexus with the permissible restrictions under Article 10(2).

Import of publications: Importing publications requires a permit. All “publications” must carry the name of the publisher, printer and producer in a conspicuous part of the publication.

The minister may impose a condition that the Singapore proprietor maintains a place of business in Malaysia: section 6(3).

Possible defences: For those prosecuted, there are not many defences. It may however be possible to argue that:

> The printing press was not covered by Schedule I;

> The publication was an in-house publications not having any matter of public interest; and

> In addition there is the constitutional law dimension. A legislative restriction that has no nexus with the enumerated grounds is unconstitutional. Unfortunately, no litigant has ever achieved success on this score. In Persatuan Aliran Kesadaran Negara v Minister (1988), issues of constitutionality and abuse of power were raised but rejected summarily.

In this area the promises of the Constitution have not found correspondence in reality.

Dr Shad Saleem Faruqi is Professor of law at UiTM

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