Judge fixes July 4 to deliver verdict on Swatch's lawsuit against Home Ministry for seizing timepieces

Malay Mail
Malay Mail

KUALA LUMPUR, April 23 — The High Court has today fixed July 4 to deliver its verdict on whether the Malaysian government's seizure of Swatch watches last year was within the confines of the law.

Judge Datuk Amarjit Singh fixed the date after hearing both sides' arguments today following the granting of a judicial review in August last year.

During today's hearing, Swatch, represented by lawyers Nizam Bashir and Kee Hui Yee argued that the seizure of the watches contradicted Section 16(2) of the Printing Press and Publications Act (PPPA) 1984 as well as Sections 7, 17 and 19 of the same Act.

Nizam argued that under Section 7(1), which gives the Minister of Home Affairs “absolute discretion” to ban media that is “in any manner prejudicial to or likely to be prejudicial to public order, morality, security, or which is likely to alarm public opinion, or which is or is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to public interest or national interest”, was used loosely.

He argued that the seizure notices did not specify the alleged offence or specific contravention of the Act and had contradictions in its application.

“There are contradicting statements on the two Section 7 notices that were used to confiscate the watches. The first notice on page 35 [of the submission] says 'suspected violation' and on another page it says 'unlawful'.

“These are the two notices which deal with the contravention of Section 17(1). Then there's an odd one out on page 33 where nothing is specified there and the form of the notice is also different.

“The key thing to take note is the prohibition in this case was only passed by the third respondent on August 10, 2023. It is impossible for the 10 seizure notices to be premised on contravening the PPPA 1984 as there were no prohibitions in place at the time. When there's no prohibition the applicant can be said to be contravening the act,” he said.

Nizam said the PPPA’s Section 7 provides a framework, where the home minister must gazette a ban on a publication first, but noted that the home minister had yet to do so.

The watches were confiscated between May 13 and May 15 last year. Several Home Ministry officers conducted raids on 11 Swatch outlets across the country and seized 172 watches with nine different designs.

The watches were seized for allegedly having lesbian, gay, bisexual and transgender (LGBT) “elements”.

Some of the watches had been sold and distributed for more than a year while the 2023 collection was promoted openly and advertised on its website since May 4, 2023.

In this lawsuit, Swatch is seeking: an order to quash the Home Ministry’s seizure notices in May for the 172 watches worth RM64,795, a court order for all the seized watches to be returned within five days of the order, and a court order for compensation (including in the form of aggravated and exemplary damages).

It also filed amendments in July to its court papers for the lawsuit to ask for two additional court orders, namely a declaration that Section 16(2) of the PPPA 1984 only authorises the Home Ministry's officers to search Swatch's stores in "exigent circumstances” or urgent circumstances, and an order to quash the decisions and actions of the Home Ministry officers on the searches of Swatch stores and seizures of the watches.

Nizam argued on Sections 17 and 19 of the PPPA 1984 as well. Section 17 relates to the power to open package(s) — it states that any authorised officer may detain, open and examine any package or article which he suspects to contain any prohibited publication or any publication liable to be prohibited under subsection 7(1).

Section 19 is related to all things seized being liable to forfeiture.

“The respondents were issued with a letter for a demand as provided by Section 19 seeking for the return of the watches. The respondents did not act according to the framework in Section 19 which requires a reference to the minister upon receipt of the letter and not wait to see what happens at the judicial review proceedings.

“In their reply, they contend there is no time frame to make the reference to the minister. This could not be further from the truth as Section 19(4) says, on receipt of such notice the senior authorised officer shall refer the claim to the Minister who may direct that such printing press, publication or other article be released to the claimant or otherwise disposed of or may direct such senior authorised officer to refer the matter to the court for its decision.

“Given the formulation of this the respondents were duty bound to refer the matter to the minister,” he said.

Deputy public prosecutor Mohammad Salehuddin Md Ali on the other hand argued that the raid on Swatch outlets was made in a mall where the watches were on display to the public except for one store therefore Section 16 wasn't applied.

Based on that he said the government exercised their power under Sections 17 and 18. Section 18 pertains to the power of seizure or detaining printing presses or publications.

It states that any officer any officer acting pursuant to section 16 or 17 is empowered to seize and detain; subsection (a) any printing press or publication or any other article which he has reason to believe to be evidence of the commission of any offence under this Act or any rules made thereunder as well as subsection (b) any publication which he suspects to be a publication which is liable to be prohibited under subsection 7(1) or is liable to be refused importation, withheld from delivery or returned to sender under subsection 9(1).

“There's no issue regarding search and entry because the outlets were accessible to the public and the watches were on display. We did not go to the shop and ask them to open the place. We exercised our power to examine not only the package but any articles on display. That's why we did not use Section 16 here; we resort to Section 17 here as it can be assessed independently of Section 16.

“Subsequently when we seized the watches under Section 18 we also did not resort to Section 16 as 18 is clear that any action pursuant to Section 7, 16 or 17 there is an option there. Here we examined the watches and when the officers suspected they were liable to be prohibited it could be forbidden. The basis for that is because it contains ideas which promote LGBTQ,” he said.

Judge: Just by the colours?

Salehuddin: Yes.

Two Swatch representatives were present in court today but did not wish to speak to the media. They said all enquiries will have to go through its headquarters in Switzerland first.

In this lawsuit Swatch has named the Home Ministry's secretary-general, the ministry's secretary of the enforcement division, the Home Minister and the government as the first, second, third and fourth respondents respectively.