Freedom of speech and expression, commonly known as free speech, is one of the cornerstones of a functioning democratic state. This is because, as Justice Louis Brandeis put it in Whitney v California, the “… freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” The framers of the constitution realised that and ensured that free speech constituted one of the fundamental liberties in the Federal Constitution.
Free speech in Malaysia is guaranteed by Article 10(1)(a) of the Constitution. In essence, every citizen has the right to free speech. However, the Malaysian experience suggests that little premium is placed upon this right.
In August last year, 21 Malaysian Internet service providers cut access to the Malaysia Today website. They did so pursuant to notices issued by the government under section 263 of the Communications and Multimedia Act.
Yet, section 3(3) of the Act states that “Nothing in this Act shall be construed as permitting the censorship of the Internet.” So, were the notices valid? Surely not but the government did issue them and impinged on free speech in that instance.
However, let’s venture a little further away and take a step back into the past by looking at the Sedition Act. The Act was fashioned largely after the sedition laws in United Kingdom and was enacted in 1948 when the British were in power in Malaya.
The purpose of the Act then, was to enable the then government to deal with citizens protesting against the formation of the Malayan Union. Today, the Act is still brought to bear upon citizens save that the “protests” in question now involve other matters. (A contemporary example of this being the recent charge proffered against Karpal Singh under section 4(1)(b) of the Sedition Act for the comments he made about the Perak sultan.)
On the one hand, there is the fact that since 1957, Malaysians have attained the right to vote and that right is enshrined in Article 119. That right to vote must surely come with the right to agitate for change on any subject so long as it is carried out in a constitutionally permissible manner.
However, never mind that. That seems moot at this juncture as on July 15, Lord Bach – Britain’s justice minister – acknowledged that sedition laws are outdated and should be abolished.
Why does Malaysia then continue to insist – as its one time information minister Tan Sri Zainuddin Maidin did in 2006 and as Home Minister Datuk Seri Hishammuddin Hussein does – that the Sedition Act remains current and need not be abolished? Suffice to say, the Act has never been brought to bear against those who are in government.
The Printing Presses and Publications Act is another law frequently lambasted by free speech proponents. This is understandable as over the years, a number of materials have been banned under the Act.
One of the more recent ones being the Sisters of Islam’s book Muslim Women and the Challenges of Islamic Extremism, which was banned under section 7 of the Act as being prejudicial to public order.
Whatever one can say about free speech and regulating free speech, it goes without saying that the injured party must be accorded the right to be heard.
Yet, section 13A of the Act states that the minister’s decision is final and not questionable in a court of law. Section 13B compounds the problem by further providing that a person affected by the minister’s decision has no right to be heard.
Granted, Article 10(1)(a) of the constitution – the “free speech” clause – does state that it is subject to Article 10(2)(a). Article 10(2)(a) goes on to say that Parliament can legislate such restrictions as Parliament deems necessary on free speech. Nevertheless, this does not mean that Parliament can do as it likes free from any supervision from the courts.
Parliament’s ability to legislate, even pursuant to Article 10(2)(a), must be read within the backdrop of the Reid Commission’s remark that “The guarantee afforded by the constitution is the supremacy of the law and the power and duty of the courts to enforce these rights and to annul any attempt to subvert any of (the rights) whether by legislative or administration otherwise.”
So if, for example, Parliament attempts to restrict free speech by enacting legislation beyond the subject matters envisaged in Article 10(2)(a), the court is entitled to strike such legislation down as being unconstitutional.
It is sensible to ensure that free speech operates within a reasonable band of restriction. The best example to bring home this point is the one involving a man in a crowded theatre who shouts “Fire!” although none exists. Clearly, it is not unreasonable in such an instance to restrict that man’s right to free speech.
The Federal Constitution recognises that and Article 10(2)(a) is a manifestation of that recognition. Still, it pays to ask whether Malaysia has been too enthusiastic about restricting free speech.
(the Sun : 31.07.2009)
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