Federal Constitution of Malaysia
The Federal Constitution of Malaysia is considered as the supreme law in Malaysia. It is actually formed after the Constitution of the Federation of Malaya. The Constitution of the Federation of Malaya is the foundation of the Federal Constitution of Malaysia today. It is drafted by Reid Commission that headed by Lord William Reid in order to formulate a constitution for the preparation of a fully self-governing and independent Federation of Malaya.
Eventually, the threat of Communist uprising spread through the Malaya throughout the post Second World War years and 1950s had affected the formulation of The Constitution of the Federation of Malaya. And yet, the growth of Malay Nationalism had contributed many alternative ideas on the shape of Malayan nation that may have resulted in shaping a government that is quite different from the Western country model. Therefore, Reid Commission had sought the viewpoints from several political parties, non-political organisations and individuals in order to find an appropriate government structure that only suits for our country. The report of Reid Commission was published in February 1957. In its report, the Commission suggested that the Constitution should protect individual’s rights and ensure a democratic way of living. In order to achieve the objective of democratic and equal rights, Reid Commission formulate the Constitution by giving significance to four vital features in the constitution which are federalism, separation of powers, entrenched human rights and constitutional amendment process.
The Reid Commission attempted to devise the constitution by adapting the British and Indian constitutional concepts. The Reid Commission tried to strike the balance between the rights and restrictions after concerning about the situation of Malaya at that moment. Apparently it is not as easy as we think. The absolute freedom on fundamental liberties as the constitution at British is not given in the federal constitution in Malaysia. This is mainly because of the multi-racial society and the rebellion of the communist during the age. In order to remain the public order, the freedom that given is restricted.
By looking at these features, the Reid Commission's recommendations on fundamental rights were thus modified, and appear as Part P of the Federal Constitution entitled "Fundamental Liberties". There are as followings:
Article 5 - Life and Liberty of the Person.
Article 6 - Prohibition of Slavery and forced labour
Article 7 - Protection against retrospective criminal and repeated trials.
Article 8 - Equality.
Article 9 - Prohibition of Banishment and freedom of movement.
Article 10 - Freedom of speech, assembly and association.
Article 11 - Freedom of religion.
Article 12 - Right to education.
Article 13 - Right to property.
Although the federalism and constitutional monarchy concepts are being adapted, Reid Commission’s report also contained the provisions protecting special rights for the Malays such as quotas in admission to higher education and the civil service and the official religion of the federation is Islam. The status of the Malay language is also being recognized and the right to vernacular education in Chinese and Tamil would be protected in the report.
As you seen, the Reid Commission sought the fundamental individual rights as an essential element for a democratic country. For instance, the guarantees of fundamental liberties of Malaysians in the Federal Constitution cannot be taken away recklessly. As in Article 10, every single thing that we say is guaranteed by the freedom of speech and expression within the limits in the constitution. It allows people to express an opinion on any issue freely without having to fear about outcome. Obviously the fundamental liberties that had been given in the Federal Constitution are balance in order to embrace and preserve our multi-racial society.
2.0 FREEDOM OF SPEECH AND EXPRESSION
Does freedom of speech and expression exist in today’s society? This issue has been arising for more than thousand million times. How do we define freedom? We will discuss about this issue thoroughly in this essay.
2.1 Article 10 Freedom of speech, assembly and association
In Federal Constitution, Article 10 is a key terms of Part II of the Constitution. It is part of the Fundamental Liberties that we had mentioned before. In general, Article 10 simply means the rules, regulations and restrictions of a Malaysian on the freedom of speech, assembly and association. As a citizen, we have the right to say whatever we want. We also have the rights to assembly peacefully and form associations. However, in Article 10 (2) (a) (b) (c), Constitution had clearly stated that the parliament has the right to impose restrictions on them.
By looking at the Federal Constitution, Malaysians do have the rights to enjoy the freedom of speech and expression as stated in the Article 10. However, the freedom is only qualified in term of national security, public order, ethics or morality as stated in Article 10 (2). The freedom is restricted and certain issues like the status of national language, Malay’s special rights, the status of Islam as national religion and others that we should not question as stated in the Federal Constitution. This means that we have the rights to say whatever we like without breaking the rules or regulations that threaten the society and even causes any public disorder or riot. In general, the freedom of speech and expressions in Malaysia is not absolute.
2.2 Acts that restrict the freedom of speech
Everyone agrees that we do entitle to certain context of freedom. However, there are several acts of law regulate the freedoms granted by Article 10, such as the Defamation Act 1957, Sedition Act 1948, the Printing Presses and Publications Act 1984, Internal Security Act and Police Act 1967.
2.2.1 Defamation Act 1957
The Defamation Act 1957 was enacted to govern a person from expresses words that may damage another person’s reputation in the eyes of the public. It can be slander or libel. It is relating to the malicious damaging the reputation consists in speaking, writing, printing or otherwise. If the defamatory statement is printed or broadcast through the media to the third party, it is considered as libel. Only if the defamatory statement is in oral, it is slander. People might tend to think the worse of an individual or deride that person with the defamatory allegation. The three elements of defamation must be fulfilled in order to charge defendant under Defamation Act 1957. First, the statement made must be defamatory, the statement must be publishing to the third party and third, it must refer to the plaintiff himself.
In the cases of defamation which suit to test the limits of freedom of speech in cyberspace would be the case of The New Straits Times Press (M) Bhd & Ors v Ahirudin bin Attan 2 MLJ 814. The plaintiffs had jointly initiated an action for libel and malicious deception against the respondent via High Court, Kuala Lumpur, Civil Suit No S3–23–2 of 2007. NSTP had filed a defamation suit against Malaysian bloggers Ahirudin Attan. The defendant, Ahirudin started his blog as Rocky's Bru, primarily on journalism, mass media and politics in May 2006. NSTP as the plaintiffs had applied to issue an injunction from posting defamatory statements on his blog that the plaintiffs claim are libellous and were against them. They claimed that the defendant’s blog contains linking to another blog called “Walked With Us" where it might related to the contents of the “Walk With Us" blog based on the New Zealand case of International Telephone Link Pty Ltd v IDG Communications Ltd [CP No 344/97]. The plaintiffs have cited 48 postings under this claim of action. Finally, the plaintiffs lose the case. This case had been discussed widely in the internet. Most of the people think that the actions against Ahirudin or bloggers are not fair. However, it shows that even in the cyberspace, we do not really have absolute freedom of speech and expression and yet Defamation Act limits the freedom.
Besides that, the Defamation Act also helps to protect the individual. For example, in the case of MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & other Appeals (1995) 2 MLJ 493, the freelance journalist MGG Pillai, his publisher Media Printext and editor Hassan Hamzah, who were found guilty of libel against Vincent Tan. Vincent Tan is a famous and successful businessman in Malaysia and internationally. He brought an action against the appellants and other persons claiming damages for defamation and for conspiracy to defame. He complained that a series of articles appearing in a magazine called Malaysian Industry was defamatory. About the third appellant was its editor-in-chief, while the first appellant authored one of the articles complained of.
The second and fourth appellants were the printer and publisher of the Malaysian Industry Magazine. The third and fourth appellants did publish an apology, without sending a draft thereof to the respondent’s solicitors for approval. It was publish in a later issue of the magazine stated that “we further apologize if the said articles tarnished the reputation of the [respondent]". An apology might reduce the quantum of damages, in some cases substantially. However, the apology made had clearly shown that they did not have any sincerity in giving apologies. Lastly, the court decided in 1994, awarded Vincent Tan RM10 million.
In this case, it shows that the existence of Defamation Act 1957 is to protect an individual being defame. We are given freedom of speech and expression but not to abuse the right to defame others. Therefore, Defamation Act 1957 does limit the freedom of speech and expression.
2.2.2 Sedition Act 1948
What does sedition mean in our country? The sedition word has been floating around for these few years. There were a lot of people being charged with sedition cases. As we know, there is the case Melan bin Abdullah & Anor v public prosecutor (1971) 2 MLJ 280, and the case which the opposition parliamentarian Lim Guan Eng was jailed for sedition and maliciously publishing false news.
Now we must look to the Sedition Act 1948 which revised in 1969. Their so-called sedition is not dependent to the definition from the Oxford Dictionary and this act does not define the meaning of the term “seditious". Whereas from the Mozley & Whitely’s Law Dictionary, sedition can be defines as attempts made, by meetings or speeches or by publications to disturbing the harmony of the state which do not amount to treason.
Sedition in the Act can be defined as an act that “brings into detestation or defiance or to agitate disaffection against the Government or provoke feelings of ill-will and antagonism between different races". Such as to question the provisions in the Constitution of Malaysia regarding to the citizenship, Bahasa Melayu as the national language and also question about the special position of Malays and others.
For instance, the case that charged under Sedition Act 1948 was Melan bin Abdullah & Anor v Public Prosecutor (1971) 2 MLJ 280.The use of the word sedition in the performance of political freedom was explicitly prohibited by law. The Utusan Melayu newspaper has published a report with the sub-heading “Abolish Tamil or Chinese medium schools in this country". The sanction was given under section 5(1) of the Sedition Act. The court’s consideration was whether the sub-heading was seditious publication or not. Finally, it comes squarely within the definition of “seditious tendency" as extended by the Para (f) section 3 Sedition Act 1948 which the sub-heading are violated of what was laid down in the Article 152 (1). Those wording are seditious where it was against the Article 152 (1) (a) where nobody should prevent one another to use or learn other languages. In this case, it clearly shown that one should not simply split out words as they like.
The other case will be the case happened on 25 August 1998, the opposition parliament Lim Guan Eng was jailed because of the Sedition and also maliciously publishing false news for statements he made in 1995. He was accusing the Attorney General of mishandling allegations that the Chief Minister which is from Malacca guilty for statutory rape Malay school girl. It causes the agitating public grievance with the administration of justice. Besides that, he also has been charge with the malicious case for publishing the false news under the Printing Presses & Publications Act.
Lim Guan Eng was jailed under Sedition Act, because he had described the so-called rape victim as a locked up victim and she was initially held by Malaysian police without parental consent for 10 days. His statements reflected widespread to the public with the fact that the underage victim is not suspected criminal offender to be punished. From what he said, it causes the publisher of the local newspapers and also the women’s groups to criticize about the Attorney General’s public lay bare. In October 1994, as he announced that charges would not be pursued in opposition to Abdul Rahim Tamby Chik. The reason is because of insufficient evidence.
In 1997, the conflict law sedition and printing convicted and fined 15,000 ringgit. Prosecutor unsatisfied with ruling and requested a retrial. Throughout a series of appeal, finally Lim Guan Eng was just sentenced for 18 months custody. However he has been released after 12 months early because of good conduct on August 25, 1999. This case had clearly shown that we do not have the absolute freedom of speech and expression.
2.2.3 Printing Presses and Publications 1984 (PPPA)
The Printing Presses and Publications Act 1984 is a Malaysian statute governing publishing and the usage of printing presses in Malaysia. It replaced the Printing Presses Act 1948 and the Control of Imported Publication Act 1958 (Revised 1972). Under the controversial law, all printing presses require a license granted by the Home Affairs Minister and need to be renewed annually. The Ordinance was revised as the Printing Presses Act in 1971 to additionally provide for owners to revoke the licenses of newspapers that provoked national sensitivities or were disadvantageous to national development goals.
In 1984 the government introduced the Printing Presses and Publications Act (PPPA), which consolidated and tightened the restrictions imposed by previous printing laws, and covered all domestic publications including books, pamphlets and newspapers, and publications imported from abroad. The printing, sale, distribution, or possession of any banned book is punishable by up to three years imprisonment and/or a fine of 20,000 ringgit.
For the case study, the case of Irene Fernandez is an example of the Printing Presses and Publication Act. This case is about charges of “maliciously publishing false news" relating to her documentation of allegations of ill-treatment, sexual abuse and denial of adequate medical care to migrant workers, held as alleged illegal immigrants in detention camps. The allegations included reports of a series of deaths caused by malnutrition, beri-beri and other treatable illnesses.
Besides, in the case of Mohd Ibrahim v Public Prosecutor (1963) 1 MLJ 289, the appellant who could not read English had in his possession 65 copies of the book, Tropic of Cancer, which was found under the counter of his shop by police officers on September 22, 1962. The copies together with others which had been sold were bought on September 8, 1962. The appellant was charged for having in his possession for purposes of sale 65 obscene books in contravention of section 292 of the Penal Code, and convicted on October 23, 1962. On November 8, there was published in the Government Gazette an Order by the Minister of the Interior under section 4 of the Control of Imported Publications Ordinance prohibiting the importation of the Tropic of Cancer.
Above the cases, the Printing Presses and Publication Act is to prevent the printing presses from doing something obscenity such as pornography, racism and other sensitive issue in Malaysia. As such restrictions indirectly limit certain context in freedom of speech and expression.
2.2.4 Internal Security Act
Internal Security Act 1960 (ISA) was enacted under the authority granted by Article 149 of the Malaysian Constitution after the end of Emergency Regulations which was enacted on 1948. ISA is a preventive detention law where a person may be detained by the police for up to 60 days without trial for an act which purportedly prejudices the security of the country or any part thereof. After 60 days, the person may be further detained for a period of two years if approved by the Minister of Home Affairs.
In our opinion, ISA is not applicable nowadays. The original idea of the ISA was to deter the communist activity in Malaysia which may overthrow the country. The first Prime Minister of Malaysia, Tunku Abdul Rahman, defined the purpose of the act as to be used solely against the communists and promise that the government will not abuse the power given under ISA to restrain legitimate opposition and silence lawful dissent.
However, the legislation has been used in a wrong way this day and age. In ISA, our basic human rights, dignity and humanity have been denied. Those who caught under ISA are never a person with proper name and identity anymore. They are just a digit of when will they have the chance to be set free. Hence, the freedom has been forsaken.
The act has been limiting the Malaysian even though the law may not happen to all the Malaysian. Everyone is a victim because the limits have creates a fear in everyone to stop being natural. When laws infringe on our freedom of speech and choices, life becomes unnatural. Freedom of speech is no longer exists when people do not have the rights to speak or write on his or her free wills.
In the Federal Constitution, Malaysian Citizen has the rights to have freedom of speech and expression. However, the freedom of speech and expression in Malaysia is not absolute. Some restrictions have been made which can be seen clearly in the Article 10. For example 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 license.
From the many detainees, Raja Petra Kamarudin is the best example to show the limits of freedom of speech in Malaysia. Raja Petra Kamarudin is a controversial blogger that started Malaysia Today. He has been caught twice under ISA which the first time was accused of plotting the violent overthrow of the government of Dr Mahathir Mohamad and the second time was accused of insulting Islamic Religion (Raja Petra Raja Kamarudin v Menteri Hal Ehwal Dalam Negeri 4 MLJ 484). He also been charged for Sedition Act on an article titled “Let’s Send the Altantuya Murderers to Hell" which he published on Malaysia Today. He linked that the Deputy Prime Minister at that time, Datuk Seri Najib Rajak and his wife to the scandalous murder of a Mongolian model in 2006.
It all started with a blog entry on the website, Malaysia Today which deemed to contain writing that insult the Yang di-Pertuan Agong, degrade Islam and incite hatred and violence between local ethic groups. The action is part of the efforts by the authorities to clamp down on bloggers. Raja Petra claimed that there is an agenda to clamp down on blogs before the expected general election to stop the news that would be nocuous to the government. The action also portrays that the government has started to take action on freedom of speech and expression on Internet.
2.2.5 Police Act 1967
Although Article 10 of Malaysia's constitution guarantees freedom of expression and assembly, the Police Act 1967 ruthlessly restricts its application. The Police Act 1967 is the Act of Parliament in order to govern the constitution, manage, employment, recruitment, fund, discipline, duties and powers of the Royal Police of Malaysia. It includes the Royal Malaysia Police Reserve and the Royal Malaysia Police cadet Corps. This act was first enacted in 1967 as the Act 41 and then amended in 1988 as the Act 344 of 1988. In order to be more in line with the international human right practices, several attempts of amendments for the Police Act have been carried out. As stated in Article 10, every citizen has the right to assembly peacefully. However, with the existence of Police Act 1967, every assembly must obtain a permit from the police. In directly, the freedom as stated in Article 10 had restricted.
According to the Police Act 1967, the permit of the event or an assembly must be applied nine days before that particular event or assembly to get the permit. Ones are not suppose to have an assembly without having a permit. For instance, in the case of Madhavan Nair & Anor v Public Prosecutor  2 MLJ 264, the issue of freedom of speech had been argued. The plaintiffs had applied for a permit for a public meeting under the terms of the Police Act. However, the permit prohibited the appellants from delivering certain issues like the status of the Malay language as the national language, and policies related to education. These issues were considered quite sensitive after the May13 incident of race riot in 1969. However, the issue that they intended to discuss during the assembly was questioning about the requirement to pass the national language paper in order to determine whether a student gets a General Certificate after the Malaysian Certificate Examination.
Therefore, the appellants argued that these restrictions issued by the Police were unconstitutional and are against Article 10, which provides for freedom of speech and expression. In their opinion, they have the rights to say whatever they like and may have the risk being charged under Sedition Act. They argued that the police did not have the right to impose restrictions by issuing the permit to restrict their right for freedom of speech and only Parliament can do so. In this case, the Judge Chang Min Tat rejected the arguments of the appellants. He said that the clauses (2), (3) and (4) of Article 10 allowed Parliament to restrict the freedoms of Article 10, and thus there was no unconstitutional violation of the appellants' rights. He clarified that if the condition itself is seen as a violation on the freedom of speech within limits set on this fundamental right in clauses (2),(3)and (4) of Article 10 of the Federal Constitution, the argument on the enforcement of the restrictions might be succeed.
The counsel for the appellants accepted that the police had power to regulate conduct of the licensee, they must think about their actions regarding to the interests of majorities in the society which the counsel asserted that the police had failed to do so. However the judge again disagreed that the issue of national security should come first. At last, the appellants appeal was unsuccessful. From this case, it clearly shown that even we do apply the permit from police, the content that we wish to say or share during the public meeting is also restricted. We cannot say as what we like especially those seditious and sensitive matter. Obviously the Police Act 1967 somehow had restricted the freedom of assembly and it indirectly restricted the freedom of speech and expression as well.
3.0 VIEWPOINT TOWARDS FREEDOM OF SPEECH AND EXPRESSION IN MALAYSIA
Freedom of speech and expression do exist in Malaysia today. However, the freedom that given in the Federal Constitution is not absolute. There are several acts of law regulate the freedoms of speech and expression in our society. For instance, the Defamation Act 1957, Sedition Act 1948, the Printing Presses and Publications Act 1984, Internal Security Act and Police Act 1967 have restricted our freedom of speech and expression in a certain way. In general, we are free to speak or say whatever things that we want without exceed the limit.
The historical background had more or less affected the shaping of the Federal Constitution in Malaysia. As a multiracial society, many aspects need to be taken note and concerned about. The absolute freedom is unable to be given to all Malaysians. The freedom of speech and expressions is more restrained especially after the May 13 racial riot incident. The needs and feelings of all parties needed to be concerned and the security of public need to be taken note.
After riot that happened at May 13, 1969, the Sedition Act had been modified in 1970. The questions like language, special position of Bumiputras and sovereignty of rulers should not be questioned. All of them are added on the list of seditious matters. In the case of Mark Koding v Public Prosecutor  2 MLJ 120 and Public Prosecutor v Mark Koding  1 MLJ 111, Mark Koding, the member of Parliament from Sabah was found guilty in suggesting seditious amendments to Article 152 saying that the Chinese and Tamil vernacular school should be abolished and the usage of Chinese and Tamil language on the road sign should be restricted. The contents that Mark Koding suggested were seen as seditious and offending. In such a homogeneous democracies society like Malaysia, the racial and language issue should be take note. Too much freedom of speech and expression in discussing those issues would only easily stir up the dissatisfaction of other ethnics in our country and might cause another race riot in Malaysia again.
On the other hand, the internet is one of the very few places that are available for Malaysian to express their views and thoughts freely. Internet had become a medium for the freedom of speech and expression especially bloggers of opposition. The country’s newspaper which need to be licensed annually under the Printing Presses and Publications Act 1984, feed their readers a fixed diet of pro-government propaganda. This makes the bloggers want to share their critics towards the government as the public have the rights to know anything about the country.
However, the paranoid government started to clamp down the bloggers because they are worry of losing their grip on power. They sent the bloggers to prison with all sorts of legislation which includes of Defamation Act 1957, Sedition Act 1948 and even Internal Security Act 1960. It shows that the government is expanding their restrictions on free press to web. Sites like Malaysian Insider, Malaysiakini, Malaysia Today and Lim Kit Siang’s blog which provide critical views towards the government are the main enemies of government. Malaysia Today which is under Raja Petra Kamarudin even gets blocked by the Malaysian Communications and Multimedia Commission (MCMC).
Despite that Malaysian never demands for absolute freedom of speech and expression, the restrictions seems to exceed the limits. This is a serious blow to freedom of speech and expression in Malaysia. Although the laws and acts are enacted to use for the national security reason, most of the victim of these acts were member of opposition and journalists who had utilized their rights perfectly as a Malaysian and perform their role well in the society. The government should always ensure that they did not abuse the usage the laws.
The passage of time had granted us a greater space for freedom of speech. Although print and electronic media is still being controlled and restricted, Malaysians can retrieve and gain information through the existing of internet. Internet had become a medium or option for the freedom of speech and expression. However, we still cannot abuse the rights to do so and might get ourselves into trouble if we abuse it. A harmony and peaceful society needs the commitment from all of us to enhance it.
In a nut shell, we do have freedom of speech and expression in this day and age but the freedom given is not absolute. It is cannot deny that the freedom of speech and expression is one of the most vital criteria in the foundation of democratic society. Too much of freedom might cause unexpected case happened such as the racial riot in May 13 1969. Living in such a multiracial society, every single word must be take note carefully as they might offend or hurt other’s feelings. We are here together as Malaysian and we should protect our ethnics from being discriminated. The government also plays an important role in enforcing the law without abuse the law. Everyone have equal rights to do whatever they want without breaking the laws as stated in Federal Constitution in order to protect one another.