FREEDOM of speech is the essential pillar of a democratic set-up and the life-blood of a free society. The right to question the government’s policies and priorities and propose alternative measures is necessary to check the expanding empire of executive power.
In addition to its importance for good governance, free speech is needed for civilisational progress in all fields of human endeavour. Free speech is also an aspect of individual fulfilment.
Constitutional scheme: Article 10(1)(a) of the Constitution grants to every citizen the right to “speech and expression”. The use of the word “expression” expands the perimeters of the right to cover communication by word of mouth, signs, symbols, gestures, works of art, music, sculpture, photographs, films, videos, cartoons, computer art, architecture, print media and cyber speech.
Even symbolic speech like the manner of one’s dressing and grooming can be treated as part of one’s freedom of expression: Juzaili Mohd Khamis (2015).
As no right can be absolute, the Constitution permits a number of permissible restraints. Regrettably, this list of the “derogation clauses” is very long.
In Articles 10, 11, 149 and 150 there are 16 permissible restrictions on free speech.
There are 12 limitations in Article 10: security, friendly relations with other states, public order, morality, privileges of Parliament, contempt of court, defamation and incitement to an offence. Parliament is authorised to criminalise any questioning of citizenship, the status of the Malay language, special position under Article 153 and the prerogatives of the Malay Rulers.
Under Article 11(4) unauthorised propagation of religion to Muslims can be regulated. Under Schedule 9 List II, Para 1 Muslims can be punished for crimes against the precepts of Islam – a provision being used extensively for thought control and criminalisation of any ideas or actions not in line with official religious dogma.
Under Articles 149 and 150, subversion and emergency laws can curtail freedom of speech.
Acts of Parliament: Relying on its constitutional powers, Parliament has crafted nearly 35 statutes covering freedom of speech, freedom of the press and right to assembly and association (which are important instrumentalities of free speech).
What is regrettable is that many of these Acts contain catch-all provisions and confer absolute and subjective powers on the executive.
For example, the Universities and University Colleges Act forbids students from political activities on campus without linking the restraint to public order, etc.
The Official Secrets Act bans receipt, retention and release of all government information if it is classified as secret – irrespective of whether there is any link between the classification and the enumerated grounds of restraint like public order or national security.
The Printing Presses and Publications Act confers on the minister “absolute discretion” on the granting, refusal, suspension and revocation of printing permits.
Absolute discretions can never be compatible with a supreme Constitution.
Programme for the future: In the new Malaysia after May 9, what can be done to roll back the tide of authoritarianism, to expand human rights and to impose some checks on untrammeled powers?
Commission on law reform: We need an independent Law Reform Commission to scrutinise the entire legal arsenal constructed to shackle the media, discourage thought and expression, and suppress information.
The commission must report to Parliament. In addition, Parliament must set up a Special Committee on Human Rights to familiarise itself with the unacknowledged useful work of our Human Rights Commission. A number of oppressive laws must be consigned to the dustbin of history.
Judicial review: In Malaysia, Parliament is not supreme, and its powers are not absolute. Regrettably, however, judicial review of catch-all parliamentary laws is not a significant feature of our constitutional landscape.
Judges speak boldly but act timidly. In 61 years, there have been only five cases of successful judicial review of legislation on the grounds of violation of Article 10.
Only one survived the appeal process. That was the “UKM Four” case of Hilman Idham (2011) which struck down Section 15 of the Universities and University Colleges Act.
Judicial review of executive discretion is, fortunately, subject to more stringent scrutiny. In many cases, judges have struck down book-ban decisions: Berjaya Books (2015); Sis Forum (2012); Edge Communication (2016); Mohd Faizal Musa (2018); and Sepakat Efektif (2015).
Role of civil society: In the last few decades despite government attempts, civil society has continued to flourish and enrich the landscape with the colour of diverse opinions.
In any democracy participative processes, citizen initiatives and public scrutiny of the government’s fundamental programmes are necessary to give meaning and life to democracy.
International law: In relation to the interface between municipal law and international law, Malaysia adopts the dualistic theory. International law is not law per se unless incorporated into domestic law by an Act of Parliament. However, in an age of globalisation, it is difficult to build dykes against the incoming tide of international law.
Some courageous Malaysian judges like Justice Zaleha Yusof and Justice Lee Swee Seng do indeed drink from the international fountain.
Regrettably, they are either overruled or reprimanded. This is what happened to Justice Lee Swee Seng who in deciding a family-cum-religious dispute invoked “our commitments to various Conventions” in the matter of freedom of religion and women’s rights.
In overruling her, the Court of Appeal harshly rebuked her for using international norms as a guide to interpret our Federal Constitution!
Regrettably, Malaysia has not ratified most international treaties and conventions on freedom of speech, media and the right to information. This situation must be changed though, if need be, with reservations in those areas where the allegedly “universal standards” clash with our deep-seated religious, moral and customary values.
In sum, what the future holds is difficult to predict. What can be said is that the seeds of human rights activism already exist.
If Parliament, the courts, the Human Rights Commission, the proposed Law Reform Commission and civil society groups can join hands in a common endeavour, the shift towards constitutionalism and rule of law will be unstoppable.
Emeritus Professor Datuk Dr Shad Saleem Faruqi is a holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are entirely the writer’s own.
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