KUALA LUMPUR (April 23): Swatch Group (M) Sdn Bhd said the seizure of its 172 rainbow-themed watches had caused much grief to its international reputation, as the renowned Swiss watchmaker had always been dutiful citizens of any state where its watches were sold.
Counsel Nizam Bashir representing the Swiss watch company said that if there was prior notification from the authorities that the items were undesirable, there would be no need for such government action to seize the items which had been sold since 2022. Swatch is now challenging the action.
“Advocating compassion for LGBTQ is not a crime,” the counsel told the court during the hearing of the merits of a judicial review.
LGBTQ is an initilaism for Lesbian, Gay, Bisexual, Transgender, and Queer.
Nizam contended that without a prohibition order or warrant to declare a ban on the watches, such action to seize and possibly forfeit the watches in May last year would be considered illegal.
The lawyer said the rightful procedure the government should have utilised was under Section 16 of the Printing Presses and Publications Act (PPPA) 1984, namely that the government should have gazetted the ban first before allowing its officers to go into Swatch premises to seize the items.
“The enforcement officers' entry was without warrant, and hence the entry into the premises, [and the] search and seizure made, were illegal,” he added.
Nizam, who appeared with K Shanmuga, said the government had utilised the action under Section 17 of the PPPA. However, Nizam said enforcement officers could only exercise such action if they had obtained lawful entry and lawful justification to search inside Swatch's premises.
“It is incumbent on the government authorities to prove that their entry and the search done were lawful under the law, and whether such action is viewed as reasonable or otherwise,” he said, adding that the ministry’s high-handed action went against his client’s right to privacy.
He further contended that the raid and seizure also amounted to a violation of Article 13 of the Federal Constitution, and the right to property could only be deprived when in accordance with the law.
'Carte blanche to trespass and intrude'
Nizam argued that the enforcement officers' search in utilising Section 17 of the PPPA was not applicable to the watches, which were on display on Swatch premises.
“This follows Section 17 of the PPPA, which provides for the inspection of items under the care of the officer like in postal or customs, but not in the course of an entry and search of a person’s residence or premises as in this Swatch case, where the entry and search without warrant would be deemed unlawful,” he added.
The lawyer added that if such entry or search is deemed legal, it would provide a carte blanche (complete freedom) to 'authorised officers' to trespass and intrude into premises without regard for a party’s reasonable expectations under Articles 5, 8 and 13 of the Federal Constitution.
“It is impossible for the seizure notice for purported contravention to be issued, as there was no prohibition at that place and time. Furthermore, due to the illegal entry, the search and seizure were unlawful, and hence the items should be returned,” Nizam said.
Furthermore, Nizam pointed out that his client had written in early June last year to inquire about the release of the items, but there was no reply, resulting in Swatch filing a judicial review application later that month.
“The law provides that upon seizure, the respondents need to act and require reference to the minister. They are duty bound to refer the matter (seizure) to the minister, and since they did not do so, and the ban took place three months later, the order to seize [the items] must be quashed by this court,” he said.
Nizam said the authorities should not have viewed the watch strap representing the rainbow colours in a particular way, noting that the other side of the strap is in different colours that are considered alright without the suspected connotations.
High Court judge Datuk Amarjeet Singh Serjit Singh said the court will deliver its decision on July 4.
On Aug 23 last year, Amarjeet granted leave (permission) for the merits of Swatch's challenge to be heard.
The Swatch group is challenging the seizure made on its premises nationwide, where the company claimed that 172 watches were seized in 16 different locations between May 13 and May 15, 2023. The total retail value of the watches amounted to RM64,795.
The watches were part of the company's 'Pride Collection', in reference to the international human rights movement held in June, which celebrates LGBTQ rights.
Swatch, a Swiss brand, is seeking to quash the decisions and actions of the Home Ministry officers in the search of Swatch stores and seizure of the watches.
Besides this, in its judicial review application filed in June last year, the Swiss watchmaker sought to quash the notice of seizure and a return of the watches. The Swiss firm is also seeking aggravated and exemplary damages.
The government officially imposed a ban on the LGBTQ-themed watches in August last year, three months after they were confiscated.