Freedom of speech: How qualified is it in Malaysia?

Posted on December 21, 2007
Filed Under Constitutional rights | 15 Comments

A friend remarked: “Freedom of speech? Of course we have it in Malaysia! You can say anything you want in your speech. Its your freedom after your speech that is in question!”

Lets read what the Article 10 of the Federal Constitution of Malaysia states:

(1) Subject to Clauses (2), (3) and (4) -
(a) every citizen has the right to freedom of speech and expression;
(b) all citizens have the right to assemble peaceably and without arms;
(c) all citizens have the right to form associations.

(2) Parliament may by law impose -
(a) on the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence;
(b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, or public order;
(c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.

(3) Restrictions on the right to form associations conferred by paragraph (c) of Clause (1) may also be imposed by any law relating to labour or education.

(4) In imposing restrictions in the interest of the security of the Federation or any part thereof or public order under Clause (2)(a), Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law.

Article 10 (1) of the Federal Constitution of Malaysia, guarantees the freedom of speech, the right to assemble peacefully and the right to form associations to every Malaysian citizen. But such a fundamental right is not absolute in Malaysia.

This right is qualified by Article 10(2)(a) which allows the Parliament to impose restrictions on these rights in the interest of the security of the Federation, friendly relations with other countries, public order, morality; and restrictions designed to protect the privileges of Parliament, to provide against contempt of court, defamation, or incitement to any offence.

It has been argued by the judicial community that the rights of Part II of the Federal Constitution, in particular Article 10, have been so heavily qualified by other parts of the Constitution, for example, Part XI in relation to special and emergency powers, and the permanent state of emergency that has existed since 1969, that much of [the Constitution's] high principles are lost (Hickling’s Malaysian Public Law).

Article 10 (4) states that Parliament may pass law prohibiting the questioning on issues related to language, special position of the Malays and natives and sovereignty prerogative powers and jurisdiction of Rulers.

As the right expressed in Article 10(1) is subject to 10(2), it has been argued that the validity of such laws cannot be questioned on the grounds that it imposes restrictions as are mentioned.

However a closer reading you will note that what is deemed to be restrictions, cannot then be authorization and license for the creating laws (or in the case of the Police Act, apply the law so) that it denies the rights established in Article 10(1).

Repeated denials by the Police to grant a permit for a recent citizen’s assembly is a case example of how ‘restrictions’ have become denials. A proper application of these restrictions (in Police Act) in tandem with an understanding of the spirit of Article 10(1), would have been the issuance of a permit for assembly subject to certain restrictions for public safety. Unfortunately, most of us can only hope for proper application but not witness it.

Several acts of law regulate the freedoms granted by Article 10, such as the Official Secrets Act, which makes it a crime to disseminate information classified as an official secret.

The Sedition Act 1948 makes it an offence to engage in acts with a “seditious tendency”, including but not limited to the spoken word and publications; conviction may result in a sentence of a fine up to RM5,000, three years in jail, or both.

The Public Order (Preservation) Ordinance 1958 allows the Police to declare certain areas “restricted”, and to regulate processions or meetings of five persons or more. The maximum sentence for the violation of a restricted area order is imprisonment of 10 years and whipping.

Other laws curtailing the freedoms of Article 10 are the Police Act 1967, which criminalises the gathering of three or more people in a public place without a licence, and the Printing Presses and Publications Act 1984, which grants the Home Affairs Minister “absolute discretion” in the granting and revoking of publishing permits, and also makes it a criminal offense to possess a printing press without a licence.

The Sedition Act in particular has been widely commented upon by jurists for the bounds it places on freedom of speech. Justice Raja Azlan Shah (later the Yang di-Pertuan Agong) once said:
“ The right to free speech ceases at the point where it comes within the mischief of the Sedition Act.[8] ”

Related articles:

Freedom of Speech by NECF

How serious are you about Freedom of Speech by Lim Guan Eng

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