13 fundamental liberties 10 11 (9)

FUNDAMENTAL LIBERTIES

Article 10

Freedom of Speech, Assembly & Association

Article 10

•Right to Freedom of Speech & Expression•Right to Assemble•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.

Freedom of Speech & Expression• 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.

Freedom of Speech & Expression• Nature & Extent of Free Speech

•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)

Freedom of Speech & Expression• Nature & Extent of Free Speech• 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.

Freedom of Speech & Expression• Nature & Extent of Free 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

Freedom of Speech & Expression• Nature & Extent of Free Speech• 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.

• Advertisement: Commercial expression to a limited extent are protected including cigarette advertisements on building & walls in light of the advertisement rules & regulations.

• 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.

Freedom of Speech & Expression• 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.

Freedom of Speech & Expression• Safeguards for Free Speech

• 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].

Freedom of Speech & Expression• Safeguards for Free Speech

• 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.

Freedom of Speech & Expression• Safeguards for Free Speech• 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.

Freedom of Speech & Expression• Safeguards for Free Speech• 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 (c) Arts 10(2), 10(4), 149 & 150 authorised restriction on free speech on 14 grounds like the Sedition Act, OSA & ISA (d) Minister is given ‘absolute discretion’ in a number of statutes like the Printing Presses & Publication.

Freedom of Speech & Expression• Permissible Restrictions• 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 & ISA.

b. Friendly relations with other countries.c. Public order – Sedition Act, Police Act &

Printing Presses & Publication Act

Freedom of Speech & Expression• Permissible Restrictions• 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.

g. Defamation – Defamation Act 1957.

h. Incitement to any offence – obscenity (ss 292-294 of CPC)

Freedom of Speech & Expression• Permissible Restrictions• 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• (c) position & privileges of the Malays &

natives of Sabah & Sarawak & • (d)prerogatives of the Malay sultans &

Ruling Chiefs of Negeri Sembilan.

Freedom of Speech & Expression• Permissible Restrictions

•Article 149: This article authorise legislative action designed to stop subversion, organised violence & crime prejudicial to public including through ISA.

•Article 150: It permits any legislative action required by reason of an emergency proclaimed under Art 150(1).

Freedom of Speech & Expression

•Permissible Restrictions –Art 10(2)(a)•Public Order: The Sedition Act•Security: The Official Secret Act•Public Order: The Printing Presses &

Publication Act

Freedom of Speech & Expression• The Law of Sedition 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]

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].

Freedom of Speech & Expression• The Law of Sedition 1948• Definition: • d. to raise discontent / disaffection among

the subjects. Ooi Kee Saik [1971] accusation of gross partiality in favour of one race against another.

e. to promote ill-will & hostility between races/ classes.

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: The application of

the Act takes in the following forms:c. sedition can be committed in public or in

private.d. all parties involved can be prosecuted

based on the same set of facts including the speaker, the printer & the publisher of the speech: Ooi Kee Saik[1971]

e. No exemption for members of Parliament for their parliamentary words or actions: Arts 63(4) & (5), Mark Koding [1982]

Freedom of Speech & ExpressionThe Law of Sedition 1948

Application of the law: The application of the Act takes in the following forms:

f. Section 4(2) an offence to print/ publish seditious matter/ possess/ import them. Section 9, courts have power to suspend a newspaper containing seditious matter, order seizure, impose an order on the offender, prohibits him from taking part in any of the process for one year. Failure, charge of contempt of court.

g. Section 10 PP may apply to High Court to prohibit circulation of seditious publications. Wide power of arrest & search, with/out warrant under Sections 8 & 11.


Application of the law:

In In Melan bin Abdullah v PPMelan bin Abdullah v PP [1971] 2 MLJ 280 [1971] 2 MLJ 280 the editor-in-chief of Utusan Melayu had the editor-in-chief of Utusan Melayu had published an MP’s speech with the editorial published an MP’s speech with the editorial sub-heading ‘Abolish Tamil or Chinese sub-heading ‘Abolish Tamil or Chinese medium schools in the country’ on 6 April medium schools in the country’ on 6 April 1971. The reported article was written based 1971. The reported article was written based on the speech by a Parliament member, on the speech by a Parliament member, Encik Musa bin Hitam. The reporter was Encik Musa bin Hitam. The reporter was found guilty.found guilty.


Application of the law:

In In Mark KodingMark Koding [1982] it was held that [1982] it was held that the accused was found guilty of the the accused was found guilty of the Sedition Act 1948 for requesting the Sedition Act 1948 for requesting the amendment of the Federal Constitution amendment of the Federal Constitution to delete Article 152 of the FC (Bahasa to delete Article 152 of the FC (Bahasa Melayu). The accused was a lawyer & Melayu). The accused was a lawyer & was a member of the Dewan Rakyat.was a member of the Dewan Rakyat.


The Law of Sedition 1948

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.


The Law of Sedition 1948

Safeguards:

d. Defence of innocent & non-negligent dissemination: S 6(2)

e. Offending passage must be read in context & as a whole.

f. Only PP’s written consent is necessary to prosecute, not police.


• Access to Information

• No specific Whistleblowers Protection Law: also 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.


• Access to Information

•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.

Freedom of Speech & Expression• 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.

Freedom of Speech & Expression• 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.

c. all official documents, which are classified as Rahsia, Rahsia Besar, Sulit & Terhad by the Minister or public officer charged with the responsibility concerned.

Freedom of Speech & Expression• Official Secrets Act 1972• 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.

• 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].


Official Secrets Act 1972

In In Mohammad EzamMohammad Ezam Mohd Nor v PPMohd Nor v PP [2004] 2 [2004] 2 CLJ 595, the chronological events were:CLJ 595, the chronological events were:

(1) During a press conference on (1) During a press conference on 6 November 6 November 19991999 in Petaling Jaya, Ezam disclosed 2 in Petaling Jaya, Ezam disclosed 2 reports on investigations into alleged corrupt reports on investigations into alleged corrupt practices of two Ministers to a group of practices of two Ministers to a group of reporters.reporters.

(2) The reports were undated & unsigned.(2) The reports were undated & unsigned.(3) After few months, the reports were certified (3) After few months, the reports were certified

on on 24 August 200024 August 2000..


Official Secrets Act 1972

In In Mohammad EzamMohammad Ezam Mohd Nor v PPMohd Nor v PP [2004] [2004] 2 CLJ 595, the accused was acquitted & 2 CLJ 595, the accused was acquitted & discharged because the prosecutor failed to discharged because the prosecutor failed to provide an original copy of a classified official provide an original copy of a classified official secret documents dated before 6 November secret documents dated before 6 November 1999 (the date the offence was committed). 1999 (the date the offence was committed). The 2 documents were “born”/ dated official The 2 documents were “born”/ dated official secret on 24 August 2000.secret on 24 August 2000.

Freedom of Speech & Expression• Media Laws – 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). Period of licence is 12 months or shorter (s12(1).

• Minister discretion is ‘absolute’ in the grant, refusal, revocation/ suspension of a licence/ determination of its period: s 3(3) & judicial review is not allowed: s13A.

• Minister is 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.

Freedom of Speech & Expression• Media Laws – Printing Presses & Publications Act

1984• Printing Presses:• Absolute discretion is challengeable under Art 8 &

this approach has gained a foothold in a number of cases that rely on Arts 5 & 8 as the doctrine basis for substantive fairness. Tan Tek Seng [1996] & Sugumar [1998].

• Judicial review cannot be ousted despite the clear language of the PPP Act because the Act is subordinate to the supreme Constitution & the constitutionally permissible restrictions in Art 10(2) can be superimposed on every statute restricting free speech.

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/

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.

Unlawful possession of weapons (ss 144&148), rioting (s 147) & affray (s 159).

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• Police Approval Needed• All assemblies, meetings & processions of more

than 3 persons in any public place require a prior police licence from the Officer in Charge of Police District (OCPD) (s 27(2)

• Who: the application must be for a registered organisation or three organisers jointly.

• Duration: made 14 days in advance

• Disobey: if 3 or more participants of an assembly disobey any police order, the entire assembly shall be deemed to be an unlawful assembly & all persons taking part knowingly shall be guilty of a criminal offence.

• Private premises: directed at or attracts 20 or more persons from outside the premises / danger to security/ peace, the police may order the activity to stop (s 27A).

Freedom of Assembly• Internal Security Act• Empowers the Home Minister to prohibit

organisations & associations of a political / quasi-military character (s 3) & once prohibited, not allowed to apply for police licence to hold assembly.

• Forbids training or drilling for the use of arms (s 7)• Permits prohibition, in the national interest, of

flags, banners, badges, emblems & uniforms (s 8)• Regulates (s 32) or prohibits (s 35) places of

entertainment & exhibitions.• YDPA may proclaim any area in M’sia as a ‘security

area’ (s 47). Restricts on entering/remaining in this area (ss 48-50). The OCPD may exclude any person (s 51)/ may put the area under curfew (s 52)

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]

Freedom of Association• 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.

Freedom of Association• 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].

Freedom of Association• 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 – ISA.

g. Art 150, law enacted under the authority of this article to combat emergency.

Freedom of Association

• 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.

Technology

13 fundamental liberties 10 11 (9)