Can the minister ban items based on potential, not actual, harm?

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The Home Minister Can Prohibit Items Based on Potential Harm to Public Order

The Home Minister possesses broad discretion under Section 7(1) of the Printing Presses Publications Act (PPPA) to ban printed items deemed prejudicial to public order and national security, even if the potential for harm is not actualised. Senior federal counsel Suzana Atan argued in court that this discretionary power grants the minister "absolute discretion" to issue such prohibition orders. This interpretation was presented during proceedings concerning a lawsuit filed by Bersih 2.0 leaders against the Home Minister and the Malaysian government.
Discretionary Power Under the PPPA

Section 7(1) of the PPPA empowers the Home Minister to prohibit the printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution, or possession of any publication that is likely to be prejudicial to public order or national security. The government, represented by Suzana Atan, contended that this authority allows the minister to act based on his satisfaction that an item has the potential to cause harm, rather than requiring proof of an actual disturbance. This was the basis for the Home Ministry's decision to ban yellow Bersih 4 T-shirts and related pamphlets.
Rationale for the Bersih 4 Ban

Home Minister Datuk Seri Dr Ahmad Zahid Hamidi, in his capacity, determined that the yellow Bersih 4 T-shirts, featuring the rally logo, and associated pamphlets were "likely to be prejudicial to public order". This assessment led to the government gazetting an order on August 27, which officially banned these items. The ban was justified on the grounds of potential harm to public order, security, and national interest, as well as potential breaches of law, and took effect on August 28, 2015, just prior to the Bersih 4 rally.
Legal Challenge and Arguments

The lawsuit challenging the ban was initiated by Bersih 2.0 chairman Maria Chin Abdullah, treasurer Masjaliza Hamzah, and national representative Fadiah Nadwa Fikri. Their legal team, led by Edmund Bon, countered the notion of "absolute subjective" discretion, arguing that such broad powers could lead to arbitrary prohibitions. Bon highlighted that Bersih 2.0 is a registered legal organisation and that the Bersih 4 rally itself proceeded peacefully without incident, questioning how items merely bearing the name "Bersih 4" could be deemed prejudicial.
Judicial Review and Decision Awaited

The High Court, presided over by judge Datuk Mohd Yazid Mustafa, heard arguments from both sides regarding the scope of the Home Minister's powers. The court was informed of the government's stance that the minister's satisfaction regarding potential prejudice is sufficient grounds for a ban. A decision on the legal challenge was scheduled for February 19, following the arguments presented on the interpretation and application of the PPPA in relation to the prohibition of the Bersih 4 T-shirts and pamphlets.

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Can the minister ban items based on potential, not actual, harm?

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