High Court Dismisses Mentega Terbang Filmmakers' Bid To Refer Constitutional Questions

KUALA LUMPUR, March 6 (Bernama) -- The High Court here today dismissed the application by ‘Mentega Terbang’ filmmakers’ to refer two constitutional questions on the charges of wounding religious feelings under Section 298 of the Penal Code. 

Judge K. Muniandy made a decision after ruling that Section 298 of the Penal Code is valid and constitutional and to remain in force under Article 162 of the Federal Constitution.

“Pursuant to the reasoning given, this court finds that the application by the applicants to judicially repeal Section 298 of the Penal Code lacks basis. Thus, this court also finds that there is no question of constitutional issue on the matters referred to this court by the Magistrate’s Court necessary for the determination of the criminal proceeding instituted at the Magistrate Court.

“Ensuing from that, the application by the applicants is thus dismissed. As such, the criminal case is now remitted back to the Magistrate’s Court for trial,” the judge said.

The proceeding was attended by lawyers N. Surendran and Zaid Malek, representing the director and producer of the movie Mohd Khairianwar Jailani and Tan Meng Kheng, while deputy public prosecutors Abdul Malik Ayob and Nor Azizah Aling acted for the prosecution.

The two questions are to determine whether or not Section 298 of the Penal Code violates Article 10 (1) (a) of the Federal Constitution, which protects freedom of speech; and whether or not the phrase “wounding the religious feelings of any person”, an element in the offence, violates the rights to a fair trial as the phrase is ambiguous and thus contravenes Articles 5 and 8 of the Constitution.

Judge Muniandy said the efficacy of Section 298 of the Panel Code blends well with the Malaysian populace, which is multiracial and multireligious. 

"Thus, preserving sensitivities of the populace, their race and religion is quintessential. The expression 'public order' is not defined anywhere but danger to human life and safety and the disturbance of public tranquillity must necessarily fall within the purview of the expression,” he said adding that Section 298 of the Penal Code was a pre-independence law pursuant to Article 160 (2) of the Constitution and it shall continue to be in force.

On the same accord, the judge said the Parliament is entitled in law to impose restrictions on the right to freedom of speech and expression in the interest of public order or morality under Article 10 (2) (a) of the Federal Constitution. 

“Hence, the proximate connection of Section 298 of the Penal Code with the reasonable restriction allowed under the Federal Constitution. The provision is wide enough to include any action which is known to be likely to wound the religious feelings of others,” he said.

The judge further said that the accused persons would be afforded a right to fair trial by defending themselves adequately to the charge preferred against them.

“The prosecution must prove that the accused uttered the words and placed the objects as alleged, that he did so, intending to wound the religious feelings of any person and that such intention was deliberate,” he added.

On Jan 17, 2024, Khairianwar, 33, who is also a scriptwriter, along with Tan, 38, were charged with offending religious sentiments through the film by allegedly uttering audible words and displaying objects at a location on Jalan Semarak Api at 12.34 pm on Feb 26, 2023.

On June 14 of the same year, Magistrate Noorelynna Hanim Abd Halim granted leave to the duo to refer constitutional questions to the High Court. 

Previously, the Home Ministry banned the screening and publicising of the film through an order signed by Minister Datuk Seri Saifuddin Nasution Ismail.

The film, streamed on a video platform, sparked public condemnation and concern for allegedly depicting scenes conflicting with religious beliefs and sentiments.

When met after proceedings, lawyer Surendran told reporters that he would appeal today's decision.

-- BERNAMA