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2.

0 Introduction
Freedom of speech is a concept regarding human right to speak out their opinion publicly
without fear of punishment. In Malaysia,we have our federal constitution which is
beautifully drafted by the Reid commission,a body of well-known jurist from
Commonwealth of Nation.In the report the Commission recommended that the
Constitution protect certain fundamental individual rights which are as essential
conditions for a free and democratic way of life.Article 10 of Federal Constitution of
Malaysia guarantee Malaysia citizens the freedom of speech,freedom of assemble and
freedom of association.In reality,Malaysia citizens experience the limitation of their
freedom to express based on discretion of the government and the security institution.The
restriction is basically to maintain the racial harmony and the public order.1

Center for Independent Journalisms.Freedom of Expression-Article 10 of Federal Constitution. 24th Sept 2010

2.1 History
2.1.1 Drafting
At the historical view,the Reid commission felt that the light of vague apprehension in the
future should be provided some constitutional safeguard for the rights and the courts was
given power to enforcing the right.During the first draft,the content is more or less the
same with the final constitution.However,the draft first clause differed in one important
respect: Every citizen shall have the right to freedom of speech and expression,subject to
any reasonable restriction imposed by the federal law in the interest of the security of the
federation,friendly relations with other countries,public order or morality or in relation to
contempt of court,defamation or incitement to any offence 2 The justice Abdul Hamid
from Pakistan,one of the member in Reid commission strongly dissent the view which
final included in the report,he objected the inclusion of the word reasonable by stating
the word Reasonable will bring a lot of confusion and the court may be challenge that
the restriction imposed by the legislature was not reasonable. In order to avoid this
situation,the legislature should be the judge of reasonableness of the restriction.3
2.1.2 Final Verson
The committee established by autonomous Federations government adapted nearly all
Hamids suggestion ,thereby eliminating the possibility of judicial review concerning of
reasonableness of laws which infringe of the rights granted by Article 10. The Chairman
of the Reid Commission Sir Lord William Reid said that: ...a greater part of the changes
have been in the direction giving more freedom to the executive and Parliament of
Malaya and corresponding less extensive guarantees of individual rights that we had
recommended. I cannot speak for my colleague but speaking for myself I am not
dismayed at the changes which have been made.4

Yatim,Rais.Freedom under executive power in Malaysia:A study of executive supremacy p.77 Endowment Publication
ISBN-983-99983-0-4
3
Yatim.p64-65
4
Yatim,P.68

2.2 Article 10 of Federal Constitution


There are several acts of law regulate the freedom mention in Article 10 such as,Printing
Presses and Publication Act 1984,Official Secret Act 1972,Sedition Act, and Police Act
1967.Printing Presses and Publication Act 1984 is a Malaysia statue governing publishing
and the usage of printing in Malaysia.It gives the Home Affair Minister the power to
grant,suspend and revoke the newspaper publishing permit.The minister have the power
of absolute discretion in such matter up to July 2012,this power was removed by the
Printing Presses and Publication (Amendment)Act 2012.It also make it a criminal offense
to possess a printing press without a license.5
The Official Secret Act 1972 also known as OSA is a statue in Malaysia prohibiting
the dissemination of information classified as an official secret or we can say any
document specified in the schedule or information or official document which may be
classified as Top Secret, Secret, Confidential,or Restricted by any public
officer.This Act makes it a crime to disseminate any important and secret information.The
Sedition Act is the law prohibiting discourse deemed as seditious.This act criminalizes
speech with Seditious Tendency.Malaysian definition includes the questioning of the
special rights of Bumiputera6 and the Ketuanan Melayu7,Those who makes it an offence
with engage the Seditious Tendency may result in a sentence of fine up to
RM5,000,three years jail,or both.8The Sedition Act has been widely commented by the
jurist for the bound it places in freedom of speech.Justice Raja Azlan Shah once said:
The right to free speech ceases at the point where it comes within the mischief of the
Sedition Act9

Suffian LP said,in relation to te amendment to Sedition Act in 1970 after 13 May


5

Rachagan,S.Sothi.Law and the Electoral Process in Malaysia,p.p 163,169-170.Kuala Lumpur:University of Malaya


Press.ISBN 967-9940-45-4
6
Federal Constitution.Article 153
7
Article 32
8
Means,Gordon P.Malaysian Politics:The second generation.p.p 142-143 Oxford University Press.ISBN 0-19-588988-6
9
Singh,Bhag.Sedutious Speech.Malaysia Today

riots,which added citizenship,language,special position of bumiputras and sovereignty of


rules to the list of seditious matter: Malaysians with short memories and people living in
mature and homogeneous democracies may wonder why in a democracy discussion of
any issue and in Parliament of all places should be suppressed. Surely it might be said
that it is better that grievances and problems about language, etc. should be openly
debated, rather than be swept under the carpet and allowed to fester. But Malaysians who
remember what happened during 13 May 1969, and subsequent days are sadly aware that
racial feelings are only too easily stirred up by constant harping on sensitive issues like
language and it is to minimize racial explosions that the amendments were made to the
Sedition Act.10
Besides that,freedom of speech is not absolute because it has to suit the local
circumstances.In the case of PP v. Ooi Kee Saik,Justice Raja Azlan Shah said: There
cannot be such a thing as absolute or uncontrolled liberty wholly free from restraint; for
that would lead to anarchy and disorder. The possession and enjoyment of all rights are
subject to such reasonable conditions as may be deemed to be .. essential to the safety,
health, peace and general order and morals of the community. What the Constitution
attempts to do in declaring the rights of the people is to strike a balance between liberty
and social control.11
The Article 10(1)(a) gives the right on freedom of speech and expression,include oral
communication,written communication,sign,symbols,art work,sculpture,musics,
lyrics,video,photos,magazine and newspaper to our Malaysia citizens,both natural and
legal person.Non citizens do not have the right to freedom of speech.Therefore it is not
unconstitutional prohibit or restrict foreign publication under Printing Presses and
Publication Act 1984.

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PP v Mark Koding [1983] 1 MLJ 111


PP v Ooi Kee Saik [1971] 2 MLJ 108