2017 Law437 Fundamental Art 10

Freedom of Speech & Expression
FUNDAMENTAL LIBERTIES
Article 10
Freedom of Speech, Assembly &

Association
•Right to Freedom of Speech & Expression
•Right to Assemble
•Right to form Associations
•(1)Subject to Clauses (2), (3) and

(4) –
• (a) every citizen has the right to
freedom of speech and expression;
• (b) all citizens have the right to
assemble peaceably and without
arms;
• (c) all citizens have the right to

form associations.
Article 10
•Art 10 codifies basic rights common in all
democracies.
•Rights to freedom of expression, assembly &
association are central to democratic process.
•Without these rights it is difficult/even
impossible to have a functioning & healthy
democracy.
•However, the rights under Art 10 are limited
& parliament has power to pass various
restrictive laws whose overall implication is
to limit democracy in the country.
• Nature & Extent of Free Speech
• Article 10(1)(a) of the FC provides ‘subject
to clauses (2),(3) & (4) every citizen
has the right to freedom of speech &
expression’.
• Many forms: Freedom of speech &
expression combines many rights in many
forms which covers political, artistic &
aesthetic field including communication by
word of mouth, signs, symbols & gestures &
through works of art, music, sculpture,
photographic, films, video, books,
magazines & newspapers.
• Press freedom: FC is silent.
In India, a number of cases
upheld the notion that freedom
of speech & expression
includes freedom of press.
Bennet Coleman (AIR 1973)
• Press freedom: Political experiences of the
past have shaped the attitude towards press
freedom.
• The racial riots in Singapore in 1950 & in
Kuala Lumpur in 1969 are alleged to have
been caused partly by irresponsible reporting
of racially sensitive issues.
• The press is kept on a tight control but
from time to time relaxation takes place but
things are tightened again if the exigencies
of the political, economic & social situation
so demand.
• Symbolic speech:
• It is protected to the extent of
accepting the act of flag-
burning (Texas v Gregory
1989) & begging under the US
First Amendment.
• NY City’s ban on begging on
public streets & in parks was
held unconstitutional!
• Right of association: In many
countries the guarantee of free
speech also covers the right of
citizens to organise themselves into
associations, assemblies/
processions.
• Malaysia – these rights are
enumerated as distinct rights with
separate scope, extent & permissible
limits from the provisions on speech.
• Right to information: No direct authority on
point in M’sia. Singapore case Dow Jones
[1989] held that the right of access to
information is not part of the
constitutional guarantee of free speech.
This is likely to be the position in M’sia as
well.
• Advertisement: Commercial expression to a
limited extent are protected including
cigarette advertisements on building & walls
in light of the advertisement rules &
regulations
• Cyber speech: The Computer Crime Act 1997 & the
Communications & Multimedia Act 1998 seek to
retain some control over cyber communication.
Tensions are also developing between ideal of free
speech & proprietory interest of copyright, patent &
trade mark.
• Who is eligible? Natural persons who are citizens &
legal persons like companies, corporation &
statutory bodies. Foreigners are not protected. In
Singapore case of Dow Jones, it was affirmed that
foreigners & foreign publications lack the
constitutional protection of free speech.
• Safeguards for Free Speech
• Parliament is not supreme: Any law that conflicts with
the Constitution may be modified or nullified by the
court including pre-Merdeka law [Art 4(1) &
162(6)].Restrictions on free speech must be confined to
those articulated in the Constitution. Nordin Salleh
[1992] & Madhavan Nair [1975].
• Reasonableness of restrictions: The reasonableness,

expediency or necessity of legislation is for the
Parliament & not the court to decide in light of Art 10(2).
Under Art 4(2)(b) the necessity or expediency of a
parliamentary enactment cannot be questioned in a
court of law. However, Parliament can enact laws only on
constitutionality permissible grounds.
• Judicial review of legislation:
• Case law affirms the power of the courts
to test the validity of parliamentary
legislation.
• A number of principles has been established
by the courts to guide their decisions
including no law authorises restrictions
outside the permissible limits: Pung Chen
[1975] and a restriction can be challenged if
it directly affects the fundamental rights:
Nordin Salleh [1992].
• Judicial review of executive discretion:
Even if a parliamentary law is
constitutionally valid, executive action
under the law’s authority may be
challenged if it infringes the FC or is
ultra vires the parent law or is in breach
of the principles of natural justices.
• In Dow Jones [1989] it was held that
the Minister’s decision on what
amounted to ‘engaging in domestic
politics’ was open to judicial review.
• Judicial review of executive discretion:
In Persatuan Aliran [1988] the Supreme
Court expressed that even though section
12(2) of the Printing Presses & Publication
Act gives the Minister an ‘absolute discretion’
to refuse an application for a licence or
permit, the Minister’s discretion is,
nevertheless subject to judicial review on the
principles of illegality, irrationality &
procedural impropriety. (In 2011, this
provision was revised)
• Obstacles to judicial review: Since Merdeka no
piece of legislation has ever been struck
down by the courts as violation of Article
10’s promise of freedom of speech &
expression. Such judicial passivism has been
contributed by a number of legal & political
factors including
• (a) Parliament has power to pass
‘reasonable restrictions’
• (b) Art 4(2)(b) grants Parliament the
final say
• Obstacles to judicial review: Since Merdeka no piece of legislation
has ever been struck down by the courts as violation of Article 10’s promise of freedom of speech &
expression. Such judicial passivism has been contributed by a number of legal & political factors including
• (c) Arts 10(2), 10(4), 149 & 150

authorised restriction on free speech on
14 grounds like the Sedition Act & OSA
SOSMA (Security Offences (Special
Measures) 2012
• (d) Minister is given ‘absolute discretion’
in a number of statutes like Witness
Protection Act 2009.
• Permissible Restrictions
• Article 10(2)(a):“Parliament may by law
impose on the rights conferred by
paragraph (a) of Clause (1)… restrictions
as it deems necessary or expedient in the
interest of the security of the Federation
or any part thereof, friendly relations with
other countries, public order or morality &
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.”
• Permissible Restrictions:Article 10(2)(a):
Friendly
Security relations with Public Order
other countries
Privileges of Contempt of
Morality
Parliament Court
Incitement to
Defamation
any offence
• Article 10(2)(a): The FC in Art 10(2)(a)
authorises Parliament to impose
restrictions on free speech as it deems
necessary or expedient on the following 8
grounds:
a. Security of Federation or any part thereof.
Examples OSA & SOSMA.
b. Friendly relations with other countries.
c. Public order – Sedition Act, Police Act &
Printing Presses & Publication Act
d. Morality – Film Censorship Act
• Article 10(2)(a): The FC in Art 10(2)(a) authorises
Parliament to impose restrictions on free speech as it
deems necessary or expedient on the following 8 grounds:
e. Privileges of Parliament or any Legislative
Assembly – House of Parliament (Privileges &
Powers) Act 1952 & the Standing Orders of each
House of Parliament.
f. Contempt of Court – Judicial Proceedings
(Regulation of Reports) Act & Courts of
Judicature Act. Art 126 of the FC.
g. Defamation – Defamation Act 1957.
h. Incitement to any offence – obscenity (ss
292-294 of CPC)
• Article 10(4):
• “ In imposing restrictions in the interest of
the security of the federation or any part
thereof or public order under Clause
(2)(a), Parliament may pass law
prohibiting the questioning of any matter,
right, status, position, sovereignty or
prerogative established or protected by
the provisions of Part III, Article 152, 153
or 181…”.
• Permissible Restrictions: Article 10(4)
Rights to citizenship
• Part III of FC
Status of the Malay Language

• Art 152 of FC
Privileges of Malay, native of

Sabah & Sarawak
• Art 153 of FC
Prerogatives of Malay Sultan

• Art 181 of FC
• Article 10(4): It provides that Parliament
may pass laws prohibiting the questioning
of 4 politically sensitive matters.
• (a)Rights to citizenship (Part III of the
FC),
• (b)status of the Malay language (Art152)
• (c) position & privileges of the Malays &
natives of Sabah & Sarawak & (Art 153)
• (d)prerogatives of the Malay sultans &
Ruling Chiefs of Negeri Sembilan. (Art 181)
• Article 149: This article authorise
legislative action designed to stop
subversion, organised violence &
crime prejudicial to public including
through SOSMA.
• Article 150: It permits any legislative
action required by reason of an
emergency proclaimed under Art
150(1).
• Permissible Restrictions –Art

10(2)(a)
• Public Order: The Sedition Act
• Security: The Official Secret Act
• Public Order/ Morality: The
Printing Presses & Publication
Act
Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors
[2011] 6 MLJ 507 COURT OF APPEAL (PUTRAJAYA)
• The appellants, who were political science undergraduate students of the UKM,
were present in the constituency of Hulu Selangor during the campaign period for
the Parliamentary by-election of 24 April 2010. Subjected to UKM’s disciplinary
action under S15(5)(a) of the Universities and University Colleges Act 1971
(UUCA)
• Section 15(5)(a) merits reproduction as follows:
S15: Student or students' organization, body or group associating with societies, etc
(5) No student of the University and no organization, body or group of students
of the University which is established by, under or in accordance with the
Constitution, shall express or do anything which may reasonably be construed as
expressing support for or sympathy with or opposition to —
(a) any political party, whether in or outside Malaysia.
• per Mohd Hishamudin JCA: Declare the impugned law imposing the restriction to
be unconstitutional and accordingly null and void. The restrictions imposed by way
of s 15(5)(a) of the UUCA were unreasonable and it was difficult to see in what
manner this section related to public order or morality. The impugned provision
was irrational. Most university students were of the age of majority and therefore
at liberty to enter into contracts, sue and be sued, marry and undertake
parental responsibilities and vote in general elections if they were over 21.
• The Sedition Act 1948
• Definition: Sections 2 & 3(1) state
that any act, speech, words or
publication are seditious if they
have a tendency towards any of the
following:
a. to bring into hatred/ contempt/ to
excite disaffection against any
Ruler or government like
disloyalty: Param [1986]
• The Law of Sedition 1948
• Definition: Sections 2 & 3(1)
b. to excite/ provoke subjects to
seek alteration other than by
lawful means of any matter by law
established.
c. to bring into hatred/ contempt
the administration of justice in
the country. Lim Guan Eng [1998].
• The Law of Sedition 1948 Definition:
d. to raise discontent / disaffection among
the subjects of the YDPA/Ruler.
e. to promote ill-will & hostility between
races/ classes. Ooi Kee Saik [1971]
accusation of gross partiality in favour of
one race against another.
f. to question the provisions dealing with
language, citizenship, special privileges of
Malays & natives of Sabah & Sarawak and
the sovereignty of the Rulers. Melan [1971]
• The Law of Sedition 1948
• Application of the law: The application of
the Act takes in the following forms:
a. the existence of a seditious ‘tendency’ is
sufficient for the judge to decide.
Intention to incite to violence is not
necessary. The actual caused of hostility
or ill will is also not required.
b. it is no defence to argue that the words
were, in fact, true & honest:Ooi Kee
Saik[1971] & Fan Yew Teng[1975].
 The Law of Sedition 1948
Application of the law:
f. Section 4(1) provides that the following act(s)
is an offence if any person
(a) does or attempts to do, or

makes any preparation to do, or
conspires with any person to do, any
act which has or which would, if
done, have a seditious tendency,
f. Section 4(1) provides that the following act(s) is an offence if any person
(b) utters any seditious words.

Mark Koding was charged with committing an
offence contrary to section 4 (1)(b) of the SA.
Lim Guan Eng [1998] was charged for delivering

a seditious speech at the ceramah.
Tian Chua [2013]was charged for alleging that

the Lahad Datu incident was a conspiracy by the
Umno government to divert attention and frighten
the people. PKR vice- president Tian Chua’s remarks in
a tweet that the death of two police commandos in a
shootout with armed intruders in Kampung Tanduo,
Lahad Datu, was linked to a government conspiracy.
f. Section 4(1)(c) prints, publishers or caused to
be published [2015], sells, offers for sale,
distributes or reproduces any seditious
publication,
Alvin Tan & Vivian Lee [2013] was charged for
seditious posting on their facebook and displaying
pornographic pictures.
(d) imports any seditious publication
July 2013: Alvin Tan & Vivian Lee were jointly charged under the
Section 4(1)(c) of the Sedition Act 1948. They were accused of the
followings:
1.Making a seditious posting on their facebook by uploading a photo of
themselves eating bak kut teh with the greeting 'Selamat Berbuka
Puasa' fragrant, delicious and appetising together with the halal logo.
2. Displaying pornographic pictures online between the hours of 9pm
on July 6th and 2am on July 7th.
3. Uploading the same picture on their own Facebook pages while
also posting comments which could cause religious enmity between
people of different faiths.
 In Melan bin Abdullah v PP [1971] 2 MLJ
280 the editor-in-chief of Utusan Melayu had
published an MP’s speech with the editorial
sub-heading ‘Abolish Tamil or Chinese
medium schools in the country’ on 6 April
1971. The reported article was written based
on the speech by a Parliament member,
Encik Musa bin Hitam. The reporter was
found guilty.
In Mark Koding [1982] it was held that

the accused was found guilty of the
Sedition Act 1948 for requesting the
amendment of the Federal Constitution
to delete Article 152 of the FC (Bahasa
Melayu). The accused was a lawyer &
was a member of the Dewan Rakyat.
Safeguards: a. If tendency is only to show

that any Ruler has been misled/ mistaken
in any of his measures: S 3(2)(a).
b. If tendency is to point out errors/
defects in implementation of
administration of government policies
with a view to remedying the errors/
defects: S 3(2)(b).
c. To seek by lawful means the alteration
of any matter established at law.
 Defence of innocent & non-negligent
dissemination: S 6(2)

oStudent activist Adam Adli Abdul Halim claimed trial to a
sedition charge of attempting to topple the government
through street protests.
oThe 24-year-old was charged under section 4(1)(b) of the
Sedition Act 1948 and he faces a jail term of not less three
years, or a fine of up to RM5,000 or both, if convicted.
oHe was charged with uttering a seditious statement at a
May 13 forum where he allegedly questioned the results
of Election 2013 and called on Malaysians to take to the
streets to boot Barisan Nasional (BN) from Putrajaya.
oAccording to the charges, his words had a seditious
tendency and were aimed at rallying Malaysians to change
the current government through undemocratic means.

oIn 2014, activist Adam Adli Abd Halim has been
jailed a year for uttering seditious words during a
talk about free and fair elections & the results of
2013's General Elections.
oIt is learnt that Adam, a former Universiti
Pendidikan Sultan Idris student, was now
studying law at a private college.
oSessions judge Mat Ghani Abdullah ruled that
the defence had failed to raise reasonable doubt
in the case against the accused.

oA law lecturer at the University of Malaya was
charged under the Sedition Act in 2014.
oThe law professor's comments in an article titled,
“Take Perak crisis route for speedy end to Selangor
impasse, Pakatan told”, was published by the English
online portal on Aug 14.All he said was that the way
the Perak crisis was resolved was legally wrong.
oAzmi was charged under Section 4(1)(b) and
Section 4(1)(c) of the Sedition Act for comments
made on the Perak crisis of 2009. Azmi pleaded not
guilty at the KL Sessions Court.
• Access to Information
• No Right to Information Act & no Media
Shield Law to protect journalists’ source of
information.
• A number of prominent incidents of whistle
blowing in Malaysia are:
a. In 1996 High Court judge Syed Ahmad Idid
circulated a 33-page anonymous letter
accusing 12 fellow judges of corruption &
grave improprieties. The allegations were
officially dismissed as baseless. He was
neither prosecuted/ sued but was forced to
resign from the judiciary.
• A number of prominent incidents of whistle
blowing in Malaysia are:
b. In July 2006, senior ACA officer
Mohamamad Ramli made allegations
that his boss, Director-General
Zulkipli Mat Noor was involved in
corruption & a sexual assault. After
an investigation, the A-G cleared
Zulkipli in July 2007.
• A number of prominent incidents of whistle blowing
in Malaysia are:
• There is a Whistleblowers Protection
Law: Whistleblower Protection Act 2010
(WBA)
• The Act is formulated to encourage informers
to expose corrupt practices and other
misconduct. This move would provide
immunity to informers from civil or criminal
charges.
• A number of prominent incidents of whistle blowing in
Malaysia are:
c. On the other hand, the case of Mohd
Rafizi Ramli v. PP [2014] 4 CLJ was
decided after the coming into effect of
the WBA.
In this case, the appellant was charged in
the Sessions Court for committing an
offence under section 97(1) of the
Banking and Financial Institutions Act
1989.
• c. The appellant made an application to the High Court in order for the
court to exercise the discretionary powers under its inherent jurisdiction and
under section 5 of the Criminal Procedure Code.
The applicant argued that the charge

against him is against public policy on
the ground that :
‘the applicant is a whistleblower who
had a good faith exercised his duty to
the public to disclose serious acts of
corruption & abuse of power involving
public funds’.
• c. The appellant made an application to the High Court in order for the
court to exercise the discretionary powers under its inherent jurisdiction and
under section 5 of the Criminal Procedure Code.
However, the High Court dismissed the

application on the basis that:
there is a merit or basis for the case to
be tried and thus, it is pre-mature for
the court to decide on it.
The court also did not address or pass
any remark on the public policy
regarding whistleblower.
•Official Secrets Act 1972

• Offence: ‘Official secret’ cannot be
received, retained, released or
used without prior authorisation.
Art 8(1) makes it an offence for an
unauthorised person to have in his
possession or control any official
secret, to retain it, use it,
communicate it or fail to take
reasonable care of such secret.
• Official Secrets Act 1972
• Scope : ‘Official secret’ covers 3

categories of documents.
a. Federal cabinet documents,
state executive council
documents & documents
concerning national security,
defense & international relations.
b. any information relating to the
documents above.
• all official documents, which are classified as
Rahsia (Secret), Rahsia Besar (Top Secret),
Sulit (Confidential) & Terhad (Restricted)
by the Minister or public officer charged with
the responsibility concerned.
• Applicability of the law: Applies to all persons,
those to whom information was entrusted in
confidence including former government
employees or firm dealing with the
government. It operates extra-territorial –
offences committed abroad may be
prosecuted locally.
4 categories of documents which are

classified as:
•‘Rahsia Besar’ (Top Secret) – threat to
M’sian security ie military matters
•‘Rahsia’ (Secret) – brought major damage
to Malaysia ie Govt’s policies on politics
and economy.
•‘Sulit’ (Confidential) – brought difficulties to
govt agencies ie financial benefit info
•‘Terhad’ (Restricted) – need to be
protected ie department orders
• Defences available :
a. information concerned had not been
classified by an authorised officer under
s 2.
b. not covered by the definition of an
‘official secret’.
c. disclosure was on a ‘privileged
occasion’ including parliamentary &
judicial proceedings.
d. mens rea/ criminal intention is a
necessary ingredient of the offence:
Phua Keng Tong [1986].
In
[2004] 2 CLJ 595, the documents below were
clearly fall within the Classified Official Secret
category :
1. Siasatan Terhadap Dato’ Seri Rafidah Aziz
Y.B. Menteri Perdagangan Antarabangsa &
Industri
2. Siasatan Badan Pencegah Rasuah
Terhadap Y.A.B. Tan Sri Abdul Rahim bin
Tamby Chick (BI), Ketua Menteri Melaka.
Official Secrets Act 1972
In [2004] 2
CLJ 595, the chronological events were:
(1) During a press conference on 6 November
1999 in Petaling Jaya, Ezam disclosed 2
reports on investigations into alleged corrupt
practices of two Ministers to a group of
reporters.
(2) The reports were undated & unsigned.
(3) After few months, the reports were certified
on 24 August 2000.
Official Secrets Act 1972
In
[2004] 2 CLJ 595, the accused was
acquitted & discharged because the
prosecutor failed to provide an original
copy of a classified official secret
documents dated before 6 November
1999 (the date the offence was
committed). The 2 documents were
“born”/ dated official secret on 24
August 2000.
Minister of Energy, Water and Communication &

Anor v Malaysian Trade Union Congress & Ors
[2013] 1 MLJ 61 Court of Appeal (Putrajaya)
The Malaysian Trade Union Congress ('the MTUC'), a society of
trade unions, requested the Minister to furnish them with a copy
of the concession agreement and the audit report justifying
the 15% increase in water tariffs.
The Government of the State of Selangor, the Federal

Government and a company known as Syarikat Bekalan Air
Selangor ('SYABAS') entered into a tripartite agreement ('the
concession agreement') whereby SYABAS was granted a 30-
year concession to supply treated water to the state of Selangor
and Federal Territory according to the water tariffs provided
therein.
Minister of Energy, Water and Communication & Anor v Malaysian Trade Union Congress &
Ors [2013] 1 MLJ 61 Court of Appeal (Putrajaya)
Although MTUC was 'adversely affected' by the

Minster's refusal of its application to the two
documents, it had not shown that it had a
fundamental or legal right to have access and
disclosure of the concession agreement and the
audit report and that those rights had been infringed.
In Malaysia, public had no right to access

documents relating to the operation of
government departments and documents that
were in the possession of government Ministers
or agencies.
PRINTING PRESSES & PUBLICATION ACT
1984
• Printing Presses & Publications Act 1984
• Printing Presses: Owners of printing presses
are required to apply for a licence from the
Home Ministry to keep for use or to use a
‘printing press’ (s 3).
• The 2012 Amendment:
“Validity of licence and permit

S12. A licence or permit granted under this Act
shall be subject to such conditions as may be
endorsed in the licence or permit and shall
remain valid for so long as it is not revoked.”.
• Media Laws – Printing Presses & Publications Act
1984
• In the 2012 Amendment, the Minister
discretion is no longer ‘absolute’ in the grant,
refusal, revocation/ suspension of a licence/
determination of its period under s 3(3).
• Judicial review is no longer disallowed: s13A.
s3(3). The Minister may in his absolute discretion grant to any person a
licence to keep for use or use a printing press for such period as may be
specified in the licence and he may in his absolute discretion refuse any
application for such licence or may at any time revoke or suspend such
licence for any period he considers desirable.
s13A.the words “and shall not be called in question by any court on any
ground whatsoever” was deleted.
• Media Laws – Printing Presses & Publications Act
1984
• The Minister is no longer not required to give
the parties a prior hearing: ss 13(1) & 13B.
• Minister can exercise his discretion to refuse/
revoke only on the basis of the permissible
grounds in Art 10(2)(a) or Art 149 or Art 150.
“Right to be heard
s13b. A person who has been granted a licence or
permit under this Act shall be given an opportunity to be
heard before a decision to revoke or suspend such
licence or permit is made under subsection 3(3), 6(2) or
13(1), as the case may be.”.
SIS Forum (Malaysia) v Dato’ Seri Syed
Hamid bin Syed Jaafar Albar (Menteri
Dalam Negeri) [2010] 2 MLJ 377
• The applicant sought judicial review to quash the decision of the Minister of Home
Affairs, the respondent, (‘Minister’) banning the book published by SIS Forum
entitled Muslim Women and the Challenges of Islamic Extremism. The book was a
compilation of essays submitted during an international roundtable meeting which
discussed the issue of Muslim Women Challenge Religious Extremism @2015
Building Bridges between Southeast Asia and the Middle East. The book was
published and made available for sale in Malaysia and elsewhere in 2005. It was in
circulation in Malaysia for over two years until it was banned by the Minister by
issuing an order under s 7(1) of the Printing Presses and Publications Act 1984
(‘the Act’) on the grounds of being ‘prejudicial to public order’.
SIS Forum [2010] 2 MLJ 377
• The decision of the Minister did not provide the supporting reasons
but merely indicated the ground of public order.
• The applicant came to know of the order only through the media, and
there was no prior notice given to the applicant before the book was
banned. Only later, through a letter dated 14 August 2008, the order
was formally communicated to the applicant through a letter from the
Ministry.
• The letter stated that the book was found to be in conflict with
the guidelines issued by Jabatan Kemajuan Islam Malaysia
(‘JAKIM’). According to JAKIM, the publication was prohibited
because of its tendency to confuse Muslims, particularly
Muslim women.
• Out of a total of 215 pages in the book, only several paragraphs in
seven pages were said to have offended the guidelines, and
that too coming from two of the ten articles included in the book.
• 7/215 pages (3.25%) & 2/10 articles (20%).
• Held, allowing the application with costs:
• (1) is open
The discretion exercised by the honourable Minister
to an objective assessment by the court in order
to determine whether the pre-condition for its exercise has been
satisfied on the facts.
(2) The belated reasons given through JAKIM reflected a

shortcoming in terms of whether, objectively viewed, the Minister could
be said to have exercised his discretion within the statutory purpose of
the Act. The objection was based essentially on the tendency of the
book to confuse Muslims, particularly Muslim women, and that the
book contained some passages which might confuse
Muslims, particularly those with shallow knowledge of the religion.
On an objective assessment, these were not ‘public order’
issues .
• 3) There were no objective facts to support the Minister’s decision.
(
There were just seven pages of text objected to, out of 200 odd
pages. The book itself was in circulation for over two years in Malaysia
before the Minister decided to ban it. If the seven passages were
capable of creating a public order problem, there appeared to be a
singular absence of such likelihood for the two years.
• (4) There was error of law evident in the decision of the Minister, by
the combined grounds of ‘illegality’ and ‘irrationality’. The reaction
to the offending passages were wholly disproportionate to the concern
expressed. There was therefore merit in according a right of hearing to
the applicant. When a book has been in circulation for over two
years in Malaysia, it can give rise to a legitimate
expectation not to have it prohibited without hearing the
party affected .
Freedom of Assembly
• Importance
• The freedom to assemble, to picket &
to parade [Art 10(1)(b)] along with the
right to free vote [Art 119] & to form
political parties & associations [Art
10(1)(c) are essential features of a
liberal democratic set-up.
• The liberty of the citizens to protest
publicly is an important
characteristic of a free society.
Freedom of Assembly
• Importance
• Freedom of assembly is important
because it is part of the broader
mosaic of freedom of speech &
expression as well as an integral part
of the right to practise one’s religion &
the rights of workers to express
common concerns & to exercise their
right to picket under s 40(1) of the
Industrial Relations Act 1967.
Freedom of Assembly
• Constitutional approach
• Article 10(1)(b) provides that all citizens have the
right to assemble peaceably & without arms.
Presumably, it includes the right to picket & to
procession.
• Article 10(2)(c) permits Parliament to impose
restrictions on freedom of assembly on grounds of
security & public order to strike a balance
between legitimate political expression & the
need to preserve peace. Federal Parliament has
power to determine the necessity under Art
4(2)(b).
• Article 10(2)(b), Art 149 & Art 150 can suspend
the constitutional safeguard for freedom of
assembly.
Freedom of Assembly
• Penal Code
• Section 141 provides that participation in a public or
private gathering can amount to an unlawful
assembly if a gathering of five or more persons
has the common object:
a. of overawing by criminal force a public servant/ the government
in power/ (bully)
b. to resist the execution of any law
c. to commit mischief / trespass
d. to obtain any property by criminal force
e. to deprive another of his rights
f. to compel any person to do what he is not legally bound to do.
g. Unlawful possession of weapons (ss 144&148), rioting (s 147)
& affray (s 159). (fight/ disturbance)
Freedom of Assembly
• Police Act 1967
• Empowers the police to:
a. erect barriers in any public place to control
the movement of persons/vehicles (s 26)
b. regulate the playing of musical instruments
in public places (s 28)
c. regulate on flags, banners, emblems,
placards & loud speakers to prevent
disturbance of the peace (s 30)
d. make orders to require persons to remain
indoors up to a period of 24 hours (s 31).
Freedom of Assembly
• Police Act 1967
• Empowers the police to:
a. erect barriers in any public place to control
the movement of persons/vehicles (s 26)
b. regulate the playing of musical instruments
in public places (s 28)
c. regulate on flags, banners, emblems,
placards & loud speakers to prevent
disturbance of the peace (s 30)
d. make orders to require persons to remain
indoors up to a period of 24 hours (s 31).
Freedom of Assembly
PEACEFUL ASSEMBLY ACT 2012

Tuesday November 29, 2011
Public assembly law follows international rules
The Cabinet decided on Friday that several changes should
be made to the Bill, including reducing the advance notice
to be given to the police by anyone organising a public
assembly to 10 days instead of the proposed 30 days...
“..So we made it more specific by putting it at 10 days so
there will be no more doubts and misinterpretation,” he said.
Najib, however, stressed the provision was not applicable to
those who wanted to organise street demonstrations,
adding the Government wanted to put the Act in place to
allow the people voice their views in a peaceful manner.
Freedom of Assembly
PEACEFUL ASSEMBLY ACT 2012
Objects S 2. The objects of this Act are to ensure
(a) so far as it is appropriate to do so, that all citizens
have the right to organize assemblies or to
participate in assemblies, peaceably and without
arms; and
(b) that the exercise of the right to organize
assemblies or to participate in assemblies,
peaceably and without arms, is subject only to
restrictions deemed necessary or expedient in a
democratic society in the interest ofthe security of
the Federation or any part thereof orpublic order,
including the protection of the rights andfreedoms of
other persons.
Freedom of Assembly
In the case of Nik Nazmi bin Nik Ahmad v

Public Prosecutor [2014] 4 MLJ 157, the court
of appeal held that section 9(1) of the PAA
was constitutional and did not render that an
assembly held without the giving of the
requisite prior notice was per se unlawful.
Nik Nazmi was charged for not notifying the

Petaling Jaya police district chief 10-days
prior to the Black505 rally on 8 May 2013 held
at Stadium Majlis Bandaraya Petaling Jaya.
Freedom of Assembly
Designated place of assembly
S 25. (1) The Minister may, by notification in the
Gazette, designate any place to be a designated
place of assembly.
(2) For the avoidance of doubt, any person who
organizes or participates in an assembly held at a
designated place of assembly shall have the same
responsibilities as an organizer and a participant
under sections 6 and 7.
S 9.(1) An organiser shall shall, ten days before the

date of an assembly, notify the Officer in Charge of
the Police District in which the assembly is to be held.
Freedom of Assembly
However, in Nik Nazmi’s case, the court of appeal held that
section 9(5) of the PAA as unconstitutional:
(5) a person who contravenes sub-s(1) commits an

offence and shall, on conviction, be liable to a fine not
exceeding ten thousand ringgit.
The learned judge, Hamid Sultan JCA stated the following

decision:
“The PAA gave a right for everyone to assemble whether

notice was or was not given. To criminalise for not giving
notice and penalising the organiser had no nexus to
public order or interest of the security of the Federations
unless the assembly was not peaceful...”
Freedom of Assembly
place of assembly.

Freedom of Assembly
place of assembly.

Freedom of Association
• Scope & Extent

• Article 10(1)(c) provides ‘all citizen have the right
to form association’ including political parties,
trade unions, non-governmental organisations
(NGOs), clubs & religious groups.
• Freedom of association includes the right to
refuse to associate.
• This right also includes the right to dissolve an
existing association & right to resign from an
association. Nordin Salleh [1992]
• Scope & Extent
• It is strengthened by Art 11(2)(b)

which confers on every religious
group the right to establish &
maintain institution for religious /
charitable purposes & Art 12(2) the
right to establish & maintain institutions
for the education of children in its own
religion.
• Does not confer right to membership of
a club or right to manage its affairs
(Malaysian Bar [1986]) or go on strike.
• Constitutionally Permissible Restrictions
• Subject to regulation by Parliament on one
or more of the following grounds:
a. security of federation/ any part thereof
: Art 10(2)(c)
b. public order: art 10(2)(c). The Societies
Act 1966 is a law for the purpose of
safeguarding security & public order.
c. morality: Art 10(2)(c). Sivarasa [2006]
‘cover almost every aspect of human
conduct’. Cf Nordin Salleh [1992].
• Constitutionally Permissible Restrictions
• Subject to regulation by Parliament on one or more of the
following grounds:
d. Law relating to labour: Art 10 (3).Trade
Union Act 1959.
e. Law relating to education: Art 10(3).
Universities & University Colleges Act 1971.
f. Art 149 , laws enacted under the authority
of this article to combat subversion.
g. Art 150, law enacted under the authority of
this article to declare emergency.
• Societies Act 1966
• All societies are required to register with the
Registrar of Societies (RoS).
• The Act gives wide powers to the RoS & the Minister
to refuse/ cancel registration/ to ban a society
on a number of grounds relating to security, public
order & morality.
• A significant feature is that internal disputes within
a society are required to be resolved by the society
itself / RoS & courts are not allowed to intervene.
• All societies are required to register with the
Registrar of Societies (RoS).
• The Act gives wide powers to the RoS & the Minister
to refuse/ cancel registration/ to ban a society
on a number of grounds relating to security, public
order & morality.
• A significant feature is that internal disputes within
a society are required to be resolved by the society
itself / RoS & courts are not allowed to intervene.
•Dato' Ambiga Sreenevasan & Ors v Menteri Dalam
Negeri & Ors High Court (Kuala Lumpur) [2012] MLJU 710
•This was an application by the Applicants for judicial
review of the decision by the First Respondent Menteri
Dalam Negeri. The Honourable Minister issued an order
pursuant to s5(1) of the Societies Act 1966, declaring "the
Coalition for Clean and Fair Election" (BERSIH) an
unlawful society. The said Order is made on the ground that
BERSIH "is being used for purposes prejudicial to the interest
of the Security of Malaysia and public order".
•The Applicants now challenge the Order and allowed by the
court.
•Sivarasa Rasiah v Badan Peguam Malaysia & Anor
Federal Court (Putrajaya) [2010] 2 MLJ 333

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Freedom of Speech & Expression

Freedom of Speech, Assembly &

•(1)Subject to Clauses (2), (3) and

• (c) all citizens have the right to

• Reasonableness of restrictions: The reasonableness,

• (c) Arts 10(2), 10(4), 149 & 150

Status of the Malay Language

Privileges of Malay, native of

Prerogatives of Malay Sultan

• Permissible Restrictions –Art

(a) does or attempts to do, or

(b) utters any seditious words.

Lim Guan Eng [1998] was charged for delivering

Tian Chua [2013]was charged for alleging that

In Mark Koding [1982] it was held that

Safeguards: a. If tendency is only to show

 The Law of Sedition 1948

 The Law of Sedition 1948

 The Law of Sedition 1948

The applicant argued that the charge

However, the High Court dismissed the

•Official Secrets Act 1972

• Scope : ‘Official secret’ covers 3

4 categories of documents which are

Minister of Energy, Water and Communication &

The Government of the State of Selangor, the Federal

Although MTUC was 'adversely affected' by the

In Malaysia, public had no right to access

“Validity of licence and permit

(2) The belated reasons given through JAKIM reflected a

PEACEFUL ASSEMBLY ACT 2012

In the case of Nik Nazmi bin Nik Ahmad v

Nik Nazmi was charged for not notifying the

S 9.(1) An organiser shall shall, ten days before the

(5) a person who contravenes sub-s(1) commits an

The learned judge, Hamid Sultan JCA stated the following

“The PAA gave a right for everyone to assemble whether

S 9.(1) An organiser shall shall, ten days before the

S 9.(1) An organiser shall shall, ten days before the

• Scope & Extent

• It is strengthened by Art 11(2)(b)

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