Mentega Terbang: Court of Appeal upholds home minister's power to ban films

 

The Court of Appeal today ruled that the home minister’s power to ban films in the public interest is constitutional, dismissing a challenge against the ban on the controversial film “Mentega Terbang”.

In a unanimous decision, a three-member bench comprising judges Ismail Brahim, Ong Chee Kwan, and Ahmad Shahrir Salleh dismissed an appeal by director Khairi Anwar Jailani and producer Tan Meng Kheng, upholding the High Court’s earlier ruling.

Counsel N Surendran, representing Khairi and Tan, said his clients had instructed him to seek leave to appeal to the Federal Court.

According to Free Malaysia Today, Ong, in delivering the court’s grounds, said Section 26 of the Film Censorship Act - which empowers the home minister to prohibit films in the public interest - is consistent with Article 10 of the Federal Constitution.

He said the provision must be interpreted in accordance with the Constitution and Parliament’s intent when enacting the law, adding that the minister’s discretion is limited to constitutionally permitted grounds, namely national security, public order, and morality.

The panel also rejected the appellants’ argument that the prohibition order was unreasonable, stressing that judicial review concerns the legality of the decision-making process rather than the merits of the decision itself.

Counsel N Surendran

Ong said the minister had relied on sufficient material, including assessments by the Film Censorship Board, Islamic Development Department (Jakim), the police, and other relevant authorities, before issuing the ban.

The court further dismissed the argument that the film’s availability for several months without causing public unrest undermined the prohibition.

Ong said the power under Section 26 is preventive in nature and does not require public disorder to have occurred before the minister can exercise it.

The court also ruled that the director and producer were not entitled to a prior hearing because the prohibition order was made under legislation and applied to the public at large, rather than directed at specific individuals.

Therefore, the common law duty to provide a hearing before making the decision did not arise.

Senior federal counsel Sallehuddin Ali appeared for the federal government.

Mentega Terbang director Khairi Anwar Jailani (left) and producer Tan Meng Kheng

Justifying the ban

In 2024, Home Minister Saifuddin Nasution Ismail said the film promoted apostasy among Muslims and threatened public order, justifying its ban. He added that the movie had never been submitted to the Film Censorship Board for approval.

Khairi and Tan filed the judicial review application in December 2023, but the High Court dismissed it in September last year.

Released in 2021 before being banned two years later, “Mentega Terbang” tells the story of 15-year-old Aishah, who, following her mother’s death, explores the concept of rebirth as found in other religions.

The film portrays Aishah’s father as a liberal character who has no objection to his daughter studying the holy scriptures of other faiths in search of answers.

The movie was previously available on streaming platform Viu but was removed following public criticism over scenes that allegedly contained elements contradicting religious beliefs. - Mkini