Court lifts ban on two of Zunar's cartoon books
The Court of Appeal has unanimously lifted the ban on two cartoon books drawn by Zunar.
The Court of Appeal has unanimously lifted the ban on two books of cartoons drawn by Zulkiflee Anwar Ulhaq, who is better known as Zunar.
Justice Mohamad Ariff Md Yusof ordered the confiscated copies of the two books, ‘1 Funny Malaysia’ and ‘Perak Darul Kartun’, be returned to him.
The other judges in the unanimous decision were Justice Tuan Maimun Tuan Mat and Justice Varghese George Varughese.
In allowing the appeal by Zunar, Justices Ariff and Varghese wrote separate judgments on the matter in which they criticised then-home minister Hishammuddin Hussein for imposing the ban on the books on grounds of public order.
Sepakat Efektif Sdn Bhd and Mkini Dotcom Sdn Bhd are the publishers of the two cartoon books and they named the home minister and deputy home minister as the respondents.
The ‘1 Funny Malaysia’ and ‘Perak Darul Kartun’ books had been in circulation for months in 2009, and were reported to be having brisk sales before they were banned, and both the judges said there was no proof the cartoon books had disrupted public order, thereby necessitating the ban.
Justice Ariff cited the decision on the lifting of the ban on the book by Sisters in Islam, ‘Muslim Women and the Challenge of Islamic Extremism’ as an example where the book had been in circulation for two years before it was banned as an example why the court should overturn the decision on the cartoon books.
The judge noted that although public order was cited for the ban on the Sisters in Islam book, the government had not provided any evidence of this in the two years that the book had been in circulation.
While the cartoons could be deemed “rude”, Justice Ariff said, the authorities should not impose the ban on the books as they could take other legal means, including filing court action for defamation perhaps, if they were deemed to be so.
“Admittedly, the respondent (home minister) had submitted that the cartoons are rude, I would describe it as crude. If it is contemptuous, they are open to sue the appellant. This is a better alternative than an outright ban,” he said.
The court also did not agree to the need for control on freedom of expression.
On this, Justice Ariff said the respondents had failed in the balancing exercise between the rights of the state and the rights of the individual.
Can cartoons disrupt public order?
He noted that cartoons are different from literature as they are not sober words.
“These are political cartoons, but can cartoons, per se, disrupt public order?” he asked.
“Cartoons exaggerate, satiritise, and parody life, including political life. When read (more likely, glanced through), they would tickle the ribs, perhaps evoke a chuckle and make one reflect for a momentary instance the humorous side. Quite often, the reader is drawn to it by its incisive wit,” he said, adding the cartoon is meant to deliver a message but not disrupt public order.
Justice Varghese in his supporting judgment said cartoons are essentially pieces of creative works possessed of similar intellectual input and vibrancy, akin to other expressions of artistic works such as paintings, sculptures, individual or collections of poems or sajak.
“Even for that matter these days, works termed generally as `graffiti' have evolved to be tolerated and acclaimed art form. Such passive material was, in any case, open to varying interpretations or levels of appreciation by a beholder or reader.
“To say that such material was incendiary and had stirred up strife and disturbed public order was, in my view, not a supportive conclusion in the circumstances, by any reasonable criteria,” said the judge.
Maturing democracy poorer without art forms
Justice Varghese said a maturing democratic society, which we pride ourselves of, would be the one that would be poorer if access to the inherent richness found in such art forms is curtailed on the grounds it is undesirable.
He noted that the minister's affidavits stated the materials in the books undermined or tarnished the confidence of the public in the judiciary or were defamatory of individuals or other groups.
“However, it cannot be denied that, insofar as the courts are concerned, they are armed with sufficient powers to protect or safeguard their integrity against any contempt, either on its own motion or at the instance of the honourable attorney-gGeneral or any aggrieved party.
“There are in existence a legal process and powers to effectively deal with any affront to the court's dignity or any attempt at interference with the administration of justice,” he said.
In rapping the minister, Justice Varghese said the minister's decision to ban both publications on grounds they are prejudicial to public order was unsupportable.
“The minister has here acted unreasonably and irrationally in issuing the orders as he did. With due respect, the learned judge sitting in the review court below (the High Court) could have granted the order of certiorari applied and quashed the minister's order,” he said.
Justice Ariff made no order as to costs and did not award damages.
The High Court in Kuala Lumpur in 2011 did not allow Zunar's application for judicial review of the ban order.
Zunar grateful for decision
Sepakat Efektif and Mkini Dotcom were represented by lawyers Edmund Bon, Aston Paiva and New Sin Yew while senior federal counsel Noor Hisham Ismail appeared for the minister.
Bon described today's decision as a landmark case for freedom of expression, especially where works of cartoon are concerned.
Zunar, who is in San Francisco at present, said in an immediate reaction that he is grateful for the decision as the ban imposed on both the cartoon books in July 2010 was on grounds of disrupting public order.
“The decision will give me an impetus to continue with the struggle to “fight through cartoons”.
“Today's court decision shows cartoons do not disrupt public order... but the government is now afraid of cartoons as well.
“I urge the government to respect the court decision and stop the pressure on publishers and retailers from selling my cartoon books. I also urged the Home Ministry to immediately return the hundreds of my books which had been seized,” Zunar said.
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