theSun | FRIDAY JULY 31 2009
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speak up!
Free speech in M’sia: Speakers cornered
by Nizam Bashir
Human Rights
FREEDOM of speech and
expression, commonly and the Law
known as free speech,
is one of the cornerstones of a
functioning democratic state. This
is because, as Justice Louis Bran-
deis put it in Whiney v California, the
“... freedom to think as you will and to
speak as you think are means indis-
pensable to the discovery and spread
of political truth.” The framers of the
constitution realised that and ensured
that free speech constituted one of the
fundamental liberties in the Federal
Constitution.
Free speech in Malaysia is
guaranteed by Article 10(1)(a) of
the constitution. In essence, every
citizen has the right to free speech.
However, the Malaysian experience
suggests that little premium is placed
upon this right.
In August last year, 21 Malaysian
Internet service providers cut access
to the Malaysia Today website. They
did so pursuant to notices issued by
the government under section 263
of the Communications and Multi-
media Act.
Yet, section 3(3) of the Act states
that “Nothing in this Act shall be con-
strued as permitting the censorship
of the Internet.” So, were the notices
valid? Surely not but the
government did issue
them and impinged on free
speech in that instance.
However, let’s venture
a little further away and take a step
back into the past by looking at the
Sedition Act. The Act was fashioned
largely after the sedition laws in
United Kingdom and was enacted in
1948 when the British were in power
in Malaya.
The purpose of the Act then, was
to enable the then government to
deal with citizens protesting against
the formation of the Malayan Union.
Today, the Act is still brought to bear
upon citizens save that the “pro-
tests” in question now involve other
matters. (A contemporary example
of this being the recent charge
proffered against Karpal Singh under
section 4(1)(b) of the Sedition Act for
the comments he made about the
Perak sultan.)
On the one hand, there is the fact
that since 1957, Malaysians have
attained the right to vote and that
right is enshrined in Article 119.
That right to vote must surely come
with the right to agitate for change
on any subject so long as it is carried
out in a constitutionally permissible
manner.
However, never mind that. That
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seems moot at this juncture as on party must be accorded the right to So if, for example, Parliament
July 15, Lord Bach – Britain’s jus- be heard. attempts to restrict free speech by
tice minister – acknowledged that Yet, section 13A of the Act states enacting legislation beyond the
sedition laws are outdated and that the minister’s decision is final subject matters envisaged in Article
should be abolished. and not questionable in a court of 10(2)(a), the court is entitled to strike
Why does Malaysia then continue law. Section 13B compounds the such legislation down as being un-
to insist – as its one time information problem by further providing that constitutional.
minister Tan Sri Zainuddin Maidin a person affected by the minister’s It is sensible to ensure that free
did in 2006 and as Home Minister decision has no right to be heard. speech operates within a reasonable
Datuk Seri Hishammuddin Hussein Granted, Article 10(1)(a) of the band of restriction. The best example
does – that the Sedition Act remains constitution – the “free speech” to bring home this point is the one
current and need not be abolished? clause – does state that it is subject involving a man in a crowded thea-
Suffice to say, the Act has never to Article 10(2)(a). Article 10(2)(a) tre who shouts “Fire!” although none
been brought goes on to say exists. Clearly, it is not unreasonable
to bear against Whatever one can say that Parliament in such an instance to restrict that
those who are in about free speech and can legislate such man’s right to free speech.
government. regulating free speech, it goes restrictions as The Federal Constitution rec-
The Print- Parliament deems ognises that and Article 10(2)(a) is
ing Presses and without saying that the injured necessary on free a manifestation of that recognition.
Publications Act party must be accorded the speech. Neverthe- Still, it pays to ask whether Malaysia
is another law right to be heard. less, this does not has been too enthusiastic about
frequently lam- mean that Parlia- restricting free speech.
basted by free speech proponents. ment can do as it likes free from any
This is understandable as over the supervision from the courts. Nizam Bashir is a member of the Hu-
years, a number of materials have Parliament’s ability to legislate, man Rights Committee, Bar Council
been banned under the Act. even pursuant to Article 10(2)(a), Malaysia. The views expressed in
One of the more recent ones must be read within the backdrop this article are personal to the writer
being the Sisters of Islam’s book of the Reid Commission’s remark and may not necessarily represent the
Muslim Women and the Challenges that “The guarantee afforded by the position of the Bar. Complaints of
of Islamic Extremism, which was constitution is the supremacy of the rights violations may be forwarded
banned under section 7 of the Act as law and the power and duty of the to oysim@malaysianbar.org.my for
being prejudicial to public order. courts to enforce these rights and to the consideration of the committee.
Whatever one can say about free annul any attempt to subvert any of However, we make no assurance that
speech and regulating free speech, it (the rights) whether by legislative or all cases will be adopted for action.
goes without saying that the injured administration otherwise.” Comments: letters@thesundaily.com.