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Published: Tuesday September 30, 2014 MYT 7:02:00 AM
Updated: Tuesday September 30, 2014 MYT 7:05:09 AM

The free speech conundrum

Democracy should also protect those who can be hurt by the unbridled freedom of expression.

LIKE most Malaysians, I have closely followed recent spate of arrests made under the Sedition Act 1948.

I have sought to understand the issue of free speech better and being in government I also appreciate the concerns the police and other law and order agencies have when it comes to balancing the right to speak freely against the concerns of public order and security.

Democracy is a balance between the rights of the many and the rights of the few. Democracy is sometimes a noisy process where extremists use the very rights of free speech and expression to defeat democratic values.

Democracy is not a new concept and has its roots in Ancient Greece in fact. Over the centuries, it was been abused and sometimes altogether dismantled but with the end of the Cold War it is now the default choice for most governments in the world.

Malaysia is a parliamentary democracy with three branches of government i.e. the Executive, Legislature and Judiciary. We have elections every five (5) years and over the span  of fifty-five (55) years, state governments have changed in seven (7) states. This can be considered the formative aspect of our democracy; and this means we are democratic in form and we ensure suffrage at regular intervals so citizens can choose their leaders unencumbered and in complete security.

The substantive aspects of our democracy are the rights that accrue to us as Malaysians, which include the right to life. Another right that has been subject to intense debate is the right to free speech and expression. Malaysians are also able to avail themselves of these rights through the judicial process.

For democracies to be fully functional, as ours, it must be both a formative and substantive democracy.

Hence, it begs the question when and how do we draw the line when it comes to freedom of expression. Our Federal Constitution is indeed a grand compromise that has engendered a relative period of peace and tranquillity despite the challenges of ethnic, religious, linguistic and cultural diversity. Many less diverse societies have actually failed because they have are unable to manage their differences and build on its strengths.

In fact the German Chancellor and the British Prime Minister on separate occasions have proclaimed that multiculturalism have failed in their respective countries because they have failed to integrate their minorities and this has caused a serious case of social exclusion.

With historical antecedents and more recent experiences as a guide, the duty of the government is to then manage our diversity and balance it against our democratic values and fundamental liberties.

Freedom of speech cannot be absolute as it is not absolute in event the most progressive democracies. As far back as 1920’s, the famous American jurist, Oliver Wendell Holmes Jr. remarked that “...the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic.”

Malaysia is compelled to employ a higher degree of restriction given our diversity and the sensitivities of all communities.

I have been privy to many instances where the most stringent proponents of free speech have questioned the failure to use the very legal instruments they abhor to take action against individuals who have trampled on their sensitivities.

I do not think, as a society, we have reached the critical mass of democratic maturity to accept utterances that hurt us and it is imperative that the authorities discharge their duties without fear and favour and ensure parity of action.

What is more important is that we speak responsibly and we must stand by what we say and not abuse the right to speak freely. An instance of incitement against any government is wrong and can lead to disorder and chaos.

The police have a duty to protect any legitimately elected government from pernicious forces that seeks to destabilise it via extra-democratic means. This is a protection all democratic governments enjoy because democratic latitudes cannot be employed to achieve undemocratic ends because that would not only be an affront to democratic principles but a complete defeat of the system of democracy.

I echo my party’s stand and support the eventual repeal of the Sedition Act 1948. I do not believe that in this day and age such an act can effectively counter the challenges of free speech and the threat to democratic values whilst at the same time ensuring Malaysians enjoy the fundamental liberties that accrue to them as citizens of Malaysia.

I support the Prime Minister’s proposal for an enactment of a new piece of legislation that will balance the right to free speech and expression with our right to live in peace, harmony and stability. However, any piece of legislation must be syndicated with all interested parties and cannot be monopolised or manipulated by individuals or organisations that are inherently and unabashedly partisan with obvious political compulsions.

I also believe that this process must not be hurried for the sake of political expediency so that is why the time line laid out by the Prime Minister’s Office is not only feasible but completely practical.

However, until we are bestowed with a new piece of legislation that is accepted by all parties, the police have to use the present legal instruments available to them and criticising them for it is mischievous.

The government cannot afford to straightjacket itself until a new piece of legislation to address irresponsible speech and incitement. I am certain a vast majority of peace loving Malaysians agree with this approach.

In summation, free speech must also be balanced against the inherent challenges societies face. Absolute freedom of speech cannot sustain itself and people must be responsible for their utterances. Democracy must not only protect the right to speak freely but it must also protect those who can potentially be hurt by unbridled freedom of speech.

> The views expressed are entirely the writer's own.

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