Topic 4:

Fundamental Liberties (Part 2)

(Article 8, 9 & 10 of FC)

Constitutional Law II
UCL 1622
 ARTICLE 8
EQUALITY BEFORE THE LAW
Art 8 of FC
see: Document of Destiny p 262-264

• Art 8(1) of FC: “all persons are equal before the law and entitled to
the equal protection of the law.”
• Available to everyone irrespective of whether they are citizens or not.
• Consists of several related aspects: equal treatment, equal protection
and prohibition against discrimination.
• Absence of privileges.
• Mandates equal subjection of all classes to the ordinary law of the
land.
• All persons in like circumstances should be treated alike.
• Equal punishment.
Art 8 of FC
see: Document of Destiny p 262-264

Equal Protection under the Law:

• Equal punishments should be imposed upon like offences regardless of status.
• PP v Tengku Mahmood Iskandar
• No arbitrariness
• Tan Tek Seng v Suruhanjaya Perkhidmatan
• Procedural fairness
• Tan Tek Seng v Suruhanjaya Perkhidmatan
• Hong Leong v Liew Fook Chuan
• Proportionality
• Tan Tek Seng v Suruhanjaya Perkhidmatan
• Electoral laws
• Baker v Carr
 Art 8 of FC
• However, the right under Article 8 is also not absolute.
• Various kinds of discrimination are exempted, such as those under Article 8(5):
a) provisions regulating personal law.
b) provisions restricting employment in establishments established by certain
religious groups.
c) provisions protecting the well being of the aborigines.
d) provisions prescribing residence in appointment or election for state
offices.
e) provisions in the state constitution which has already existed before 1957.
f) provisions restricting the enlistment in the Malay Regiment to the Malays.
• Note that the Article 8(2) starts off by saying that “Except as expressly
authorized by this Constitution…” --- This implies that other provisions in the
Constitution may sustain discrimination or inequality.
 ARTICLE 9
FREEDOM OF MOVEMENT
AND
PROTECTION AGAINST BANISHMENT
ARTICLE 9: Freedom of Movement and Protection against Banishment

• Raja Azlan Shah in Assa Singh v Menteri Besar of Johore:

“Reading the provisions of Article 9 together, it is reasonably clear
that it was designed primarily to emphasise the factual unity of the
Federation and to secure the right of a free citizen to move from one
place to one place in the Federation and to reside in any part
thereof. In short, the object of Article 9, is to remove all internal
barriers in the country and to make it a dwelling place of all
citizens.”
• These rights are nevertheless limited and are subject to any laws
relating to security, public order, public health or the punishment of
offenders.
ARTICLE 9: Freedom of Movement and Protection against Banishment

• Dato Syed Kechik’s case

• a person born in Kedah was afraid that he may be expelled from
Sabah.
• Lee Hun Hoe CJ (Borneo) held :
“Article 9…is…subject to the special provisions of the
immigration laws relating to the two Borneo states. In so far as
immigration is concerned, the Borneo states have full control…
The Immigration Act, 1963, which gives each of the Borneo
States wide powers to control entry into and residence in the
State … The Borneo States are, with certain exceptions, permitted
to treat an ordinary Malaysian from peninsular Malaysia seeking
entry into either State as if he were a non-citizen…”
 ARTICLE 10 of FC
FREEDOM OF SPEECH & EXPRESSION,
ASSEMBLY AND ASSOCIATION
ARTICLE 10: Freedom of Speech and Expression
• One of the most controversial provisions under the topic of
fundamental liberties.
• Article 10(1) grants to all citizens :
a) right to freedom of speech and expression;
b) right to assemble peaceably and without arms; and
c) right to form associations.
• However, Article 10(1) is subjected to the restricting provisions in
Article 10(2), 10(3) and 10(4).
• Though it may be necessary and common that restrictions are placed
on Article 10(1), it is remarkable that there are no real restrictions
placed under Article 10(2), 10(3) and 10(4).
• In fact, the restrictions are so widely drafted that all forms of
restrictions could be said to fall within either Article 10(2), 10(3) or
10(4).
ARTICLE 10: Freedom of Speech and Expression

• Lau Dak Kee v PP (Mohamed Azmi J):

• “Article 10(1) of FC guarantees the rights of every citizen to freedom
of speech, assembly and association. These rights are, however,
subject to any law passed by Parliament”.

• Different situation in the US: Amendment I – Constitution of the US:

• Amendment I provides, inter alia, that “Congress shall make no law…
abridging the freedom of speech or of the press, or the right of the people
peaceably to assemble…”
 ARTICLE 10(1)(a):
Freedom of Speech and Expression
 ARTICLE 10(1)(a): Freedom of Speech and Expression
• Dak Kee v PP (Mohamed Azmi J):
• “Article 10(1) of FC guarantees the rights of every citizen to freedom
of speech, assembly and association. These rights are, however,
subject to any law passed by Parliament”.
• Some experts opined that the decision in Lau Dak Kee is wrong and
contrary to the original intent of the Reid Commission.
• Reid commission in its report recommended that:
• “the guarantee afforded by the Constitution is the supremacy of the
law and the power and duty of the Courts to enforce these rights
and to annul any attempt to subvert any of (the rights) whether by
legislative or administration or otherwise”.
• The Reid Commission is suggesting that the courts should take a critical
view of the laws restricting fundamental liberties and not just to put
into effect any law passed by Parliament.
 ARTICLE 10(1)(a): Freedom of Speech and Expression
• In any case, the position has been clarified a little further by Edgar
Joseph J in PP v Pung Chen Choon.
o “It would be the duty of the court to consider each impugned law
separately, regard being had to the nature of the right alleged to
have been infringed”. [Refer to Page 190-192 of Andrew Harding]
• Thus far, there has never been any occasion where a law has been
declared unconstitutional by the courts.
• Furthermore, the presumption is that an impugned law is
constitutional (PP v Khong Teng Khen).
 Article 10(1)(a): Freedom of Speech and Expression
Restricted by *Article 10(2)(a) of FC*
• Parliament is empowered by Art 10(2)(a) of FC to enact legislations to restrict
or limit the freedom of speech and expression (enshrined under Article 10(1)
(a) of FC).
• Art 10(2)(a) FC – Parliament can impose restrictions on freedom of speech &
expression on 8 grounds:
1. Security of the Federation
2. Friendly relations with other countries
3. Public order
4. Morality
5. Privileges of Parliament or Legislative Assembly
6. Contempt of Court
7. Defamation
8. Incitement to any offence – e.g. causing disharmony, disunity on
grounds of religion (s 298A PC)
 Article 10(1)(a): Freedom of Speech and Expression
Restricted by *Article 10(2)(a) of FC*
• Examples of the statutes (enacted by parliament) restricting /
limiting the freedom of speech and expression are:
a) Sedition Act 1948;
b) Printing Presses and Publications Act 1984;
c) Communications and Multimedia Act 1998;
d) Internal Security Act 1960 (ISA) [repealed & replaced by the
Security Offences (Special Measures) Act 2012 (SOSMA)].
 Article 10(1)(a): Freedom of Speech and Expression Restricted/Limited
by *Article 10(2)(a) of FC*
(i) Sedition Act 1948
• Enacted by British in 1948 – amended after racial riots 1969 – prevent
provocation of racial sensitivities.
• S 2 & 3(1) of SA 1948 – any act, speech, words or publication are seditious if
they have a tendency towards any of the following:
o Param Cumaraswamy – bring into hatred or contempt or excite disaffection
against any ruler or government.
o Lim Guan Eng – bring into hatred or contempt the administration of justice.
o Ooi Kee saik – raise discontent/disaffection among the subjects (public).
o Melan bin Abdullah – question provisions for language, citizenship, special
privileges etc.
o Mark Koding – Art 63(4) & (5): parliamentary words or actions of members
– not exempt from sedition law.
Refer to p 293 of Document of Destiny; p 192-196 of Andrew Harding)
Article 10(1)(a): Freedom of Speech and Expression Restricted/Limited by *Article
10(2)(a) of FC*

ii) Press freedom and the licensing of newspapers

• Printing Presses and Publications Act 1984
• Aliran’s case

iii) Contempt of Court

• Lim Kit Siang v Dato Seri Dr. Mahathir Mohamad
• Malaysian Bar v Tan Sri Dato Abdul Hamid bin Omar
• AG v Manjeet Singh Dhillon
• AG v Arthur Lee Meng Kuang

Refer to pages 197-198 of Andrew Harding)

Communications and Multimedia Act 1998 (CMA)
Communications and Multimedia Act 1998 (CMA)
S 233(3)
 Article 10(1)(a): Freedom of Speech and Expression Restricted/Limited by
*Article 10(2)(a) of FC*
(CMA 1998)
Mohd Fahmi Reza Bin Mohd Zarin v Pendakwa Raya [2020] 7 MLJ 399
• An appeal of the appellant who was dissatisfied with the session court judge’s decision
in convicting the appellant on the charge under S 233(1)(a) of the CMA 1998 for one
month jail and a fine of RM30,000.
• The appellant was charged under S 233(1)(a) of the Act for using an application through
his Facebook profile page and sending false communications of its nature with intent to
injure others.
• 3 elements that the prosecution must fulfill for the charge under S 233 of the CMA 1998
are:
(a) the appellant has used his Facebook page application to upload the
communication;
(b) the communication is false in nature; and
(c) the communication was uploaded with intent on the appellant’s behalf to injure the
other person.
Mohd Fahmi Reza Bin Mohd Zarin v Pendakwa Raya [2020] 7 MLJ 399

• The appellant contended that the communication was a parody and that it was a political
satire to criticize the authorities for restricting freedom of expression and the internet.
• The court held that the appellant could not be coerced or restricted from such a view because
such a view was not a crime.
• But when such views are expressed in the form of communications, then the appellant cannot
say that the communication he creates does not conflict with the law.
• The court is satisfied that although the communication was a fine and creative work of art
created by the appellant to criticise the government and the authorities, it was produced with
the intent to injure others.
• Such communication cannot be considered a parody because it fails to fulfill the meaning of
the word ‘parody’.
• Such communication does not entitle the appellant to be protected by the provisions of the
Federal Constitution. It is a communication that violates the provisions of S 233(1)(1) of CMA
1998.
• Held:
• The High Court upheld the conviction (by Sessions Court), allowed the appeal on
sentencing, Sessions Court sentencing revoked (a one month jail and a fine of
RM30,000) and replaced with a fine of RM10,000 fail to pay one month imprisonment.
Article 10(1)(b) of FC : Freedom of Assembly
Article 10(1)(b) : Freedom of Assembly
• Previously regulated by the Police Act 1967.
• Gatherings of more than three persons in public places requires a
licence/permit. It has to be applied 14 days in advance (Siva Segara v PP).
• Note that today this is regulated by the Peaceful Assembly Act 2012.
• Restriction: Art 10(2)(b) of FC – security or public order.
• Chai Choon Hon v Ketua Polis Daerah, Kampar
• Abdoolcader SCJ held that the restriction on the number of speakers at a
dinner speech held by DAP was void for unreasonableness under the Police Act
because the license already restricted the function as to time, so the number
of speakers is irrelevant.
• Chua Beng Poh v PP
• 42 lawyers were charged for taking part in what was called an unlawful
assembly.
• The High Court ruled that public meetings or procession even if they are
spontaneous, is unlawful if it takes place without a police permit.
• The view taken here is that a gathering would fall under the term assembly in
the statute even if there is no intention to do so.
 Article 10(1)(c) :
Freedom of Association
Article 10(1)(c) : Freedom of Association
• Principally regulated by the Societies Act 1966.
• Examples of other statutes regulating this area include the Trade Union Act 1959 ;
Universities and University colleges Act 1971. [Refer to pages 198-199 of Andrew
Harding]
• Malaysian Bar v Government of Malaysia
• Dewan Undangan Negeri Kelantan v Nordin bin Salleh

• Restrictions to Art 10(1)(c) – Freedom of Association:

o Art 10(2)(c) – security, public order or morality.
o Art 10(3) FC:
Permissible Restrictions
 Permissible Restrictions
Art 10(1)(a): Freedom of Speech and Expression
• Art 10(2)(a) FC – Parliament can impose restrictions on free speech &
expression on 8 grounds:
1. Security of the Federation
2. Friendly relations with other countries
3. Public order
4. Morality
5. Privileges of Parliament or Legislative Assembly
6. Contempt of Court
7. Defamation
8. Incitement to any offence – e.g. causing disharmony, disunity on
grounds of religion (s 298A PC)
 Permissible Restrictions
Art 10(1)(a): Freedom of Speech and Expression
• Art 10(4) FC: Parliament may pass laws prohibiting questioning of 4
politically sensitive matters.
o Right to citizenship
o Status of Malay language
o Position and privileges of the Malays and Natives of Sabah and
Sarawak.
o Prerogative of Malay Sultans & Ruling Chiefs of Negeri Sembilan.
• Madhavan Nair v PP
• accused was charged with contravening a condition on a license
under the Police Act to make a speech which required him not to
touch on the status of the national language.
• Chang Min Tat J held that restriction was constitutional under
Article 10(4) of FC.
Conclusion
• The restrictions imposed are wide and rather worrying.
• The courts have also shown an unwillingness to declare the
statutes/provisions to be unconstitutional.
Sources
• Andrew Harding
• Document of Destiny
• https://www.nst.com.my/news/nation/2018/10/420057/court-drops-charge-agai
nst-activist-fahmi-reza-over-najib-clown

• https://www.nst.com.my/news/crime-courts/2018/02/337249/fahmi-reza-gets-ja
il-fined-rm30000-over-clown-caricature

• https://www.malaymail.com/news/malaysia/2019/07/05/fahmi-reza-fails-to-stri
ke-out-conviction-for-publishing-najib-caricature/1768638
THANK YOU

Next week – Topic 5: FL (Part 3)