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.
 

Apart from statutory laws, the law of contempt¹  has also helped to define the boundaries of freedom of speech.²  Malaysian courts have not been willing to embrace the developments in England because local conditions, the courts ruled, were different from the English one.³  The restrictive approach taken by our courts here is yet another factor which has impaired the rights to freedom of speech and expression further.

Under the 1984 Act the keeper of a printing press is required to obtain a license from the minister and making a deposit the amount of which is fixed by him.  Under this act the minister’s power to refuse to renew the license is not subject to judicial review.⁴  These powers make it difficult for the people to publish a newspaper in Malaysia.  It is to be noted that during the Operation Lalang in 1987 a number of newspapers were closed by the government.⁵  Given the law at present perhaps one could say that there is no freedom of the press in Malaysia: traditionally, freedom of the press means freedom to publish newspapers.⁶  Apparently we do not have such right here.  Control of Imported Publications 1958 is another law which restricts the dissemination of views and information in this country.  Apart from the law the government has various ways of controlling the press at its disposal.⁷  These, invariably, have led to self-censorship among the newspaper editors.⁸  It is quite apparent that the entire system has created a culture or scenario of fear among media practitioners and civil servants.

Given the laws as well as the ubiquitous Internal Security Act 1960 (ISA)⁹  it is no exaggeration to say that politicians, journalists, academics, publishers as well as ordinary citizens have to think twice before putting any controversial views in public.  Apart from the laws the government also issues directives which, at times, even imposed on the academics, who are supposed to be given freedom to articulate their views and research findings for the benefit of the community.¹⁰
 

5. Other contributing factors – the setting

Apart from the laws and the way the courts have interpreted them the environment in which they functioned also needs to be discussed in an analysis about the state of freedom of speech in the country.  This includes the culture and traditions of the people: if they care about their rights then there is hope that the situation would improve.  The people have an important role to play as they are the elements which provide the impetus for change.  In any system the electorate plays a major role.  However in Malaysia one could say that the question of rights is not the main concern of the population.  To a certain extent one might say that the population is simply apathetic or indifferent towards it.  Various reasons could be advanced here.  Part of them could be the relatively prosperous development the country has had for the past four decades.  Prosperity has made them complacent about it.  Bread and butter issues such as education and scholarship take more prominence.  However it needs to be said that issues pertaining to matters of that nature actually require a certain amount of freedom.  In the recent water crisis the authorities apparently refused to allow the public to discuss the problem in an open and critical way.  This means that the right to development, which has often been cited as an excuse to suppress dissent, actually goes hand in hand with the right to freedom of speech and expression.  Whatever the case, as recent events in Indonesia have shown, economic difficulty would necessitate change and in that situation the people simply do not care about the law or force employed by the authorities to contain their demand for drastic changes.  Apart from a good economy the situation in Malaysia could also be attributed to the docile and subservient press which adopted a deferential attitude towards the politician in power.  This could have been due to various reasons such as the Malay and other eastern cultures which do not encourage challenges or criticisms against those in charge of the community.  The problem with this is that we are operating in a democracy and by so doing we are in effect encouraging the politicians, who are supposed to be put under rigorous scrutiny, to behave like feudal lords.

6. Suggestions to improve the situation 

Some of our senior politicians in the government have been talking about creating a civil society.  Whatever this means, it certainly requires discussions, debate and exchange of ideas.  Given the repressive nature of the above-mentioned laws it is difficult to imagine how that could take place.  As such the government should initiate changes, beginning with the appointment of a commission to study the laws, including the ISA, with a view to amend or repeal those laws which are out of step with movements towards greater democratisation, more accountability and transparent government.  Recently the Deputy Prime Minister [Anwar Ibrahim] has signalled the willingness of the government to look into the laws which have been responsible in suppressing dissent and dissenting views in the country.¹¹  How far and how serious this early commitment is, remains to be seen.  Thus far the government as a whole do not seem to be interested in it.  But whatever the case the government undoubtedly has a key role to play.  It must start the ball rolling.¹²

At the same time we need to prepare a generation who are literate in and aware of the importance of the constitution and the ideals of constitutionalism  in their life.  In this respect law schools should take the lead; particularly to review their constitutional law syllabus.  In most schools here the subject is still taught using old jurisprudence which resolves around the understanding of the statutes and case law.  Constitutional law, as it is evident in the more recent approach,¹³ ought to be based on ideas, especially about constitutionalism.  This is the theme which should be given prominence in most topics.  If we fail to do this then we would continue to have judges, lawyers, civil servants and politicians who understand the Constitution in a pedantic and mechanical way.  Legal schools should not confine themselves to producing professionals who are nothing but mere ‘technicians’ to run the system.  It should now consider the role of producing reformers and thinkers for the system as well.

7. Closing Remarks

Apparently what we have today, to a certain extent, is the result of what was recommended by the Reid Commission in its report; namely the absence of sound foundations and clear ideas about the rights under the chapter on fundamental liberties which include the right to freedom of speech and expression.  However we cannot blame them forever.  For one thing the repressive laws have been passed after Independence.¹⁴  Indeed what we have now is worse than what was left by the British.  Our courts too have not done enough to promote the idea of constitutionalism in their interpretation.¹⁵

At the same time it needs to be emphasised that the constitution is essentially a collection of principles and agreements which have been transformed into provisions.  These provisions are nothing but dead words and it is the people, particularly those who have been entrusted with powers by the law and the constitution, who give life to those words.  There is no point having a democratic constitution if the people and their political system do not care to put them into practice.

At the outset it has been noted that the restrictions and the rights are two antagonistic poles.  The problem with the existing laws is failure or inability to strike the right balance between the two competing poles.  The laws smack of a patronising attitude on the part of the government.  But it must be emphasised that absolutism is not what is desired because “absolute rules would inevitably lead to absolute exceptions, and such exceptions would eventually corrode the rules (themselves)”.¹⁶
 

__________________________
* 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. “The Federal Court, the Court of Appeal or a High Court shall have power to punish any contempt of itself”:  Federal Constitution, Art.126
2. The latest decision being the controversial PP v Lim Guan Eng [1988] 2 CLJ 623, [1988] 3 MLJ 14
3. See A-G v Manjeet Singh Dhillon [1991] 1 MLJ 167 and A-G v Arthur Lee Meng Kuang [1987] 1 MLJ 206
4. See also the decision of the Supreme Court in Aliran’s case: [1990] 1 MLJ 351 which reversed the decision of Harun J (holding that the minister’s decision was unreasonable) in the high court: [1988] 1 MLJ 440
5. See Chandra Muzaffar, Challenges and Choices, supra, pp.149-62
6. Street, supra, p.12
7. For these see e.g. Chandra Muzaffar, Freedom in Fetters (1986), pp.158-64.  The sudden and mysterious resignation of Datuk Johan Jaaffar, Utusan Melayu’s editor-in-chief, on 13 July 1998 seems to be another example of such control.
8. This has forced the writer to discontinue his columns in Sunday Sun weekly and Dewan Masyarakat monthly.
9. See Abdul Aziz Bari, “Has ISA outlived its purpose?”, Sunday Sun, 8 June 1997 and, “ISA in the light of the Constitution”, Sunday Sun, 15 June 1997
10. For this see e.g. Chandra Muzaffar, Freedom in Fetters, supra, pp.137-57
11. According to ALIRAN Monthly this development has been blacked out by local media: see June 1998: 18(5), p.40.  However Utusan Malaysia published it on page 3 of its 31 May 1998 edition.
12. See the remarks made by Ong CJ in Melan Abdullah, supra.
13. Harding, supra, is the local representative of a genre from this approach.  In Britain one finds it in literatures such as Loveland’s Constitutional Law – A Critical Approach (1996), Turpin’s British Government and the Constitution (3rd edn, 1995), Munro’s Studies in Constitutional Law (1987) and Brazier’s Constitutional Practice (2nd edn, 1994)
14. See e.g. Chandra Muzaffar, Freedom in Fetters, supra, pp.1-5
15. See Tommy Thomas, “The role of the Judiciary” in ALIRAN, Reflections on the Malaysian Constitution (1987), pp.94-8
16. Per Frankfurter J in Dennis v United States, 341 US