Court of Appeal bins 'Mentega Terbang' filmmakers' legal challenge

Summary

• Court of Appeal dismisses “Mentega Terbang” filmmakers' application to appeal a High Court decision regarding constitutional questions on charges of wounding religious feelings.

• Lawyer Zaid Malek says the remaining step is the actual trial in the Magistrate’s Court as there are no further avenues to appeal the dismissal.

• The filmmakers have been charged with offending religious sentiments through the film.

A three-member Court of Appeal bench has dismissed an application by “Mentega Terbang” filmmakers to appeal against a High Court decision related to two constitutional questions based on charges of wounding religious feelings under Section 298 of the Penal Code.

When contacted, lawyer Zaid Malek said there are no further avenues to appeal against the dismissal.

"The only thing pending for this case is the actual trial in the Magistrate's Court. A date for mention has been set for Aug 1," he told Malaysiakini today.

Earlier, Zaid (above, centre) appeared before the panel on behalf of appellants, director and producer of the movie Khairianwar Jailani, 33, and Tan Meng Kheng, 38, along with counsels Shahid Adli and Yu Ying Ying.

On Jan 17, 2024, Khairianwar (above, right), who is also a scriptwriter, and Tan (above, left) were charged in a Magistrate's Court with offending religious sentiments through the film by allegedly uttering audible words and displaying objects at a location on Jalan Semarak Api at 12.34pm 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.

Zaid further said, "Essentially, during the hearing today, the decision is to dismiss our application for leave because the judges said the High Court’s decision is not appealable as it does not fall within Section 3 of the Courts of Judicature Act."

He added that the court stopped short of elaborating on the decision beyond stating it does not fall within the cited section.

Challenging provision validity

On March 6, Kuala Lumpur High Court judge K Muniandy ruled to uphold the validity of Section 298 of the Penal Code that criminalised the wounding of others' religious feelings.

Section 298 of the Penal Code 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.”

Khairianwar and Tan had sought to challenge the validity of the provision their charges were framed.

The duo contended that the provision is unconstitutional for contravening their fundamental right to free speech and expression.

Released in 2021 but banned two years later, “Mentega Terbang” tells the story of 15-year-old Aishah, who, in the face of her mother’s death, gets drawn into exploring the concept of rebirth as contained in other religions.

The movie, released on streaming service platform Viu, courted public criticisms and multiple police reports as it allegedly featured scenes with elements that contradicted religious beliefs.

Following the backlash, Viu took down the movie.

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