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.
 

1. Introduction

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”.

 “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 court’s 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….”⁸

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 commission’s 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 expression”²³  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

[Continues]

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* 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.

ENDNOTES

1. An enlarged version of a paper presented at Human Rights Seminar on Freedom of Expression –    Myth or Reality? Organised by the Bar Council of Malaysia & World Association of Press Council, Bar Council Auditorium, Kuala Lumpur, Friday 26 June 1998.
2. Grove, “Fundamental Liberties in the Constitution of the Federation of Malaysia” in Suffian, Lee & Trindade (eds), The Constitution of Malaysia – Its Development 1957-77 (1978), p.37
3. Schwartz, American Constitutional Law (1955), p.240
4. X and Association of Z v UK 38 Coll Dec 1986, 4515/70
5. The court, however, admitted that these are subject to Art.10(2) of the Convention which sets out the qualifications:  “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the protection of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impatiality of the judiciary”
6. For more on t his see e.g. Barendt, Freedom of Speech (1985), pp.8-23
7. Robertson & Nicol, Media Law, 3rd edn (1992), p.2
8. James v Commonwealth of Australia [1936] AC 578
9. de Smith, Constitutional and Administrative Law, 4th edn (1981), p.471
10. Street, Freedom, the Individual and the Law, 4th edn (1977), p.65
11. de Smith, supra, p.471
12. “The Report”, this can be had from Tan &Li-ann, Constitutional Law of Malaysia and Singapore, 2nd edn (1977), pp.930-87
13. It is Part II of the Federal Constitution under the title of Fundamental Liberties.  There are nine articles in it.
14. Harding, Law, Government and the Constitution in Malaysia (1996), p.34
15. The Report contains 195 paragraphs altogether.
16. For this see e.g. Harris, Cases and Materials on International Law, 3rd edn (1983), pp.532-38.  See also Abdul Aziz Bari, “The Politics of Human Rights”, Sunday Sun, 10 August 1997
17. See paras.53-9 in Tan & Li-ann, supra, pp.993-94
18. The Report, para.161. Emphasis added.
19. Harding, supra, pp.35-6
20. The Report, paras.171-76.  For an analysis of the law on this see Das, Government and Crisis Powers (1996).  See also Imtiaz  Omar, Rights, Emergencies and Judicial Review (1996).
21. In its report the commission recommended that the inclusion of a provision on this was subject to a review, 15 years after the independence: The Report, paras.164-67
22. Groves said the following rights, given the language of the provisions, appear to be absolute: freedom from slavery (Art.6(1)), protection against retrospective criminal laws and repeated trials (Art.7), prohibition against banishment of citizens (Art.9(1)), freedom to profess and practise a religion (Art.11(1)), freedom from special but not general taxation to support religion other than one’s own (Art.11(2)), freedom of religious group to manage its own religious affairs and to establish and to maintain institutions for religious group for religious and charitable purposes (Art.11(3)), right not to receive instruction in or to take part in any ceremony or act of worship of a religion other than one’s own (Art.12(3)) and freedom from compulsory acquisition or use of one’s own property without adequate compensation (Art.13(2)): supra, p.28
23. Federal Constitution, Art.10(1)(a)
24. Ibid, Art.10(2). Emphasis added.
25. Schwartz, supra, p.241
26. See the remarks made by Douglas J in Dennis v United States 341 US 494, 584 (1951)
27. In our constitution these rights are to be found in Art.10(1)(b) and (c). Note that these rights, like right to freedom of speech are only available to the citizens.  Certain rights such as liberty (Art.5) and slavery (art.6) have been made available to “persons” which presumably include non-citizens as well.
28. See Suffian, An Introduction to the Federal Constitution of Malaysia, 2nd edn (1976), p.206. See also Abdul Aziz Bari, “Parliament isn’t supreme, the Constitution is”, Sunday Sun, 25 May 1997
29. It can only be amended with two-thirds majority in both the Dewan Rakyat and the Dewan Negara: see Art.159
30. Harding, supra, p.189. Art.10(1) starts off by saying “Subject to clause (2), (3) and (4)….”. The provisions, however, do not explain the scope of the rights.
31. In India, its constitution also uses the term ‘fundamental’. In America the term ‘civil rights’ and ‘civil liberties’ are used: Grove, supra, p.37. Whatever the term one could say that they refer to rights which are basic and essential for the development of human personalities and capabilities which also includes spiritual aspects.  They also can be referred to as human rights: Tunku Sofiah Jewa, Public International Law – A Malaysian Perspective Vol 1 (1997), p.465
32. For examples on this see e.g. Chandra Muzaffar, Challenges and Choices in Malaysian Politics in Society (1989), p.130
33. See Abdul Aziz Bari, “Mandate to Rule and the Right to Criticise” , Sunday Sun, 12 April 1997
34. Federal Constitution, Art. 145. See Abdul Aziz Bari, “The case for a politically-appointed A-G”, Sunday Sun, 19 January 1997
35. See Abdul Aziz Bari, “Freedom of Speech? Yes, but with constraints”, Sunday Sun, 4 May 1997
36. See his book, The Politics of the Judiciary, 4th edn (1991), pp.17-8
37. Supra, p.193
38. For further insights on this see Fan Yew Teng v PP [1975] 2 MLJ 235, PP v Oh Keng Seng [1977] 2 MLJ 206, PP v Ooi Kee Saik [1971] 2 MLJ 108, PP v Param Cumaraswamy [1986] 1 MLJ 512, 524 and PP v Mark Koding [1983] 1 MLJ 111
39. See Melan Abdullah v PP [1971] 2 MLJ 280, 284. Here the appellant, who was the editor-in-chief of Utusan Melayu group of newspapers published a sub-heading which in English reads: “Abolish Tamil or Chinese medium schools in this country” was appealing against a conviction under s.4(1)(c) of the Sedition Act 1948.  It was held that he had taken all precautionary measures necessary and that he had not failed in the high standard of care and caution required of him and thus his conviction must be set aside.
40. Per Raja Azlan Shah J in Ooi Kee Saik, supra, 112.  See also similar remarks made by Suffian LP in Mark Koding, supra, 123.  In Melan, supra, Ong CJ had this to say: “By virtue of the 1970 amendment….’sedition’ no longer requires the same judicial approach as the misdemeanour at common law….The duty of the court is to interpret and uphold the law passed by parliament,” (283-84).  For more insights on sedition law, particularly in Britain, see e.g. Street, supra, pp.221-23.
41. Imtiaz Omar, supra,p.19
42. Lau Dak Kee v PP [1976] 2 MLJ 229, 230, per Azmi Kamaruddin J. Emphasis added.  Here the appellant was found guilty and convicted for having contravened the permit issued by the police under s.27 of the Police Act 1967.
43. See the decision in PP v Pung Chen Choon [1994] 1 MLJ 566
44. See Sheridan & Groves, The Constitution of Malaysia, 4th edn (1987), pp.73-4
45. See the grounds given in Pung Chen Choon, supra, pp.577-9