DR ABDUL AZIZ BARI*
A brief overview of the state of Freedom of Speech and Expression
now. It also discusses the legal problems faced which have in effect
restricted the rights and also the proposed reforms.
It is not easy to assess the state of freedom of speech and expression in the country for the past four decades. For one thing it requires a complete and comprehensive review which presupposes a considerable amount of time and expertise. As law cannot be understood outside its context one needs more than just the knowledge on technicalities of the law: such an assessment needs to be done against the background of social, economic and political realities of the country. What follows is just a sketch of ideas and points on the position, an attempt at presenting an objective assessment of the state of freedom of speech in the country since the country achieved its independence in 1957. It is hoped that it will become a starting point for further discussions on the issue.
It must be admitted from the outset that the conclusions need not necessarily acceptable to everyone. One academic has likened discussions of this nature to two persons examining the contents of the same vessel: the pessimist, he asserted, laments that the vessel is half empty while the optimist rejoices and says that the vessel is half full.2 Right to freedom of speech and expression is essentially one aspect of liberty while the restrictions are part of what the state asserts as security and these two poles, in their pure form, are antagonistic.3 The Constitution, as the foundations of law and government of this country, attempts to strike a balance between them and it is apparently not an easy task.
2. The Meaning of Freedom of Speech and Expression
Our constitution does not define what it means by these rights.
Perhaps one could rely on the definitions formulated in other jurisdictions.
Art.10(1) of the European Convention on Human Rights (which was drawn up
in 1951) for example has this to say;
Every one has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.This right has been given prominence by the European Court of Human Right when it ruled that,
Freedom of expression constitutes one of the essential foundations of a society, one of the basic conditions for its progress and for the development of every man it is applicable not only to information or ideas that are favourably received, but also to those that offend, shock or disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society .4
While one may disagree with the courts attitude towards offensive, shocking and disturbing ideas5 no one doubt that freedom of expression stands as one of the foundations of a democratic society.6 To a certain extent the judgement underlines the fact that different societies, within the democratic framework, have different standards of freedom, particularly when it comes to the details of such rights, although there may be common characteristics between those democracies.
This is the justification for the restrictions on the right to freedom of speech and expression. Even though one may disagree with this, one certainly accepts the fact that words, even if they are true, can do damage.7 The House of Lords had observed,
Free in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech: it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth. It means freedom governed by law .8So the right to free speech is basically what is left after the law has had its say. Indeed the so-called bills of rights in the Commonwealth constitutions are basically qualified guarantees of various kinds of rights.9 The law interferes with freedom of expression in two ways: through the imposition of restraints before the communication is made, such as censorship, or through the imposition of punishment on those who have transgressed the restrictions.10 Some writers include freedom of conscience under the right to freedom of expression though they do not feel that the law should interfere with it, unless a person propagates his views in a manner that is likely to give rise to breach of peace.11
3. Freedom of Speech in Malaysia the foundations
This part looks at the recommendations in the Reid Commission Report12 on the issue to see whether it had laid down sound foundations for the provisions in the existing constitution. This is necessary to ascertain whether what we have now is something which reflects those ideas. We will also be able to know whether the problem which we have today is actually something that is inherent in the constitutional structure proposed by the commission. Undoubtedly this is necessary for future reforms and may serve as a good lesson for other countries.
Freedom of Speech is part of what is known as Fundamental Liberties in our Federal Constitution.13 It has been observed that the commissions recommendation on this has been vague, particularly on the importance of such rights.14 It is difficult to understand why the commission devoted only two paragraphs15 for a chapter which serves as the foundations for the protection of the rights in the country, particularly when eights years before the world saw the adoption of the Universal Declaration of Human Rights 1948.16 The White Paper, which reviewed the Reid Commission Report, failed to improve the recommendations on the subject.17 It seems that the Paper gave matters pertaining to the Conference of Rulers, Islam and Malay privilege more importance than questions on fundamental liberties.
In its report the Reid Commission recommended that
the rights which we recommend should be defined and guaranteed are all firmly established throughout Malaya and it may seem unnecessary to give them special protection in the Constitution. But we have found in certain quarters vague apprehension about the future. We believe such apprehension to be unfounded, but there can be no objection to guaranteeing these rights subject to limited exceptions in condition of emergency and we recommend that this should be done 18
So it is quite clear that the reason why the Reid Commission included the chapter was to satisfy the unspecified and unfounded apprehension of unspecified quarters, not an original idea emanating from the commission itself.
It appears that the commission were too optimistic19 about the rights. The tone is different if one looks at their recommendations on emergency powers.20 In hindsight one could say that the commission should have dealt with the issues more thoroughly. Given that the commission consisted of judges and jurists it is difficult to understand why they did not impose a condition similar to that on the special position of the Malays, which they considered to be hardly acceptable in a democracy.21
4. The Position in the Constitution today
As a general principle most of us agree that the right to freedom of speech and expression is not absolute.22 But while we have no problem of accepting this the problem with our constitution is that the rights are couched in such a way that it is placed in the custody of Parliament. This is the impression one gets the moment one looks at the provision: although the constitution says that every citizen has the right to freedom and speech and expression23 it has allowed parliament to impose restrictions on them. The constitution says, inter alia, that Parliament may by law impose .on the rights .such restrictions as it deems necessary or expedient in the interest of the security of the federation or 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.24 For the purpose of comparison perhaps one could mention the First Amendment to the American Constitution which categorically provides, inter alia, that the "Congress shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This has always been regarded as fundamental by the American constitutional lawyers,25 something which serves as the basis of the political system; a character that make their institutions symbols of freedom and equality.26
Given the realities of modern life perhaps it needs to be emphasised that the right of freedom of speech and expression need to be understood in the light of certain rights particularly the rights to peaceful assembly and association.27 Public meetings, for example, are one of the chief methods of influencing public opinion on big issues, and a key factor in electioneering. The same goes to right to freedom of association, the main vehicle for the dissemination of opinions and views.
Although the chapter on fundamental liberties in the Malaysian Constitution has been said to have elevated the rights which otherwise could have been easily abridged or abolished by parliament, the reality is that those rights are not that entrenched in the constitutional structure. In other words, although the provisions could not be amended easily,29 the contents can always be abridged or amended, making them, in practical terms, less significant: while the container remains, the contents can always be taken away. Thus it is not incorrect to say that the provision is more remarkable for what it takes than for what it gives.30 This makes one wonder if what is termed as fundamental in our constitution is really fundamental in the true sense of the word.31
Under the authority given by the Constitution parliament has passed laws such as the Sedition Act 1948, Printing Presses and Publications Act 1984 and Official Secrets Act 1971. Although the essence of the legitimacy of these laws could be accepted what has triggered uneasiness and criticisms has been the way the laws have been used. The fact that most of the victims of these laws were members of the opposition and journalists32 who had been performing the role which is perfectly valid in a constitutional democracy has given rise to questions over the promises not to abuse those laws when the bills were tabled in parliament. It needs to be emphasised that while the government of the day has the right to rule because of its electoral mandate, they have the right and, indeed, a duty to criticise.33 This is the essence of constitutional politics and peaceful way of changing the government and policies. The above laws, coupled with the power to prosecute which has been vested, virtually, in the government of the day,34 make one feel that what is left is essentially a limited and residual right to freedom of speech and expression.35
Given the nature of our legal system the state of the rights need
to be assessed in the light of the attitude of the courts; namely the way
they have interpreted the laws passed by parliament. Here Griffith
had this to say,
Statute law .cannot be perfect .Situation arises where doubt is cast on the meaning of the words of the statute..(and) (the) judges must decide how to interpret the statute and by so doing define its meaning 36
In the Malaysian context Harding wrote that the courts have an important role to play in determining the extent of freedom of speech.37 In relation to sedition for example the judge must decide whether the words have a seditious tendency.38 Harding observed that Malaysian judges had not embraced the concept of sedition with great enthusiasm; something which perhaps can be illustrated by a cautionary note sounded by Ong Hock Thye CJ: I can only express the hope that, as and when the justification no longer exists for banning fair comment on matters of public interests, the 1970 amendments to the Sedition Act will be removed.39 However this is not something that is prominent as we also come across this remarks: Our sedition law would not necessarily be apt for other people but we ought always to remember that it suits our temperament.40 Therefore it is fair to say that our courts have generally displayed a marked tendency to interpret the right in a way that is focused on the mere language of the provision, rather than on the philosophical basis of the rights. This restrictive interpretation has made the right looked illusory.41 This is evident when our court said that (t)hese rights (to free speech, assembly and association) are, however, subject to any law passed by Parliament.42 Although the more recent trend43 indicates the willingness of the court to examine whether the law passed by parliament has been made within the prescribed limits, practically it is quite limited44 and the citizens apparently have a mountain to climb.45
* Dip Public Admin (ITM), LLB Hons (IIUM), LLM (Nottm) & PhD (Birmingham), Head, Department of Public Law & Course Coordinator for Constitutional Law, Kulliyyah of Laws, International Islamic University, Malaysia, Gombak, Selangor Darul Ehsan.
Go to Part 2