Federal Constitution of Malaysia

The Federal Constitution of Malaysia is considered as the supreme law in Malaysia. It is

actually formed after the Constitution of the Federation of Malaya. The Constitution of
the Federation of Malaya is the foundation of the Federal Constitution of Malaysia today.
It is drafted by Reid Commission that headed by Lord William Reid in order to formulate
a constitution for the preparation of a fully self-governing and independent Federation of
Malaya.
Eventually, the threat of Communist uprising spread through the Malaya throughout the
post Second World War years and 1950s had affected the formulation of The Constitution
of the Federation of Malaya. And yet, the growth of Malay Nationalism had contributed
many alternative ideas on the shape of Malayan nation that may have resulted in shaping
a government that is quite different from the Western country model. Therefore, Reid
Commission had sought the viewpoints from several political parties, non-political
organisations and individuals in order to find an appropriate government structure that
only suits for our country. The report of Reid Commission was published in February
1957. In its report, the Commission suggested that the Constitution should protect
individual’s rights and ensure a democratic way of living. In order to achieve the
objective of democratic and equal rights, Reid Commission formulate the Constitution by
giving significance to four vital features in the constitution which are federalism,
separation of powers, entrenched human rights and constitutional amendment process.
The Reid Commission attempted to devise the constitution by adapting the British and
Indian constitutional concepts. The Reid Commission tried to strike the balance between
the rights and restrictions after concerning about the situation of Malaya at that moment.
Apparently it is not as easy as we think. The absolute freedom on fundamental liberties as
the constitution at British is not given in the federal constitution in Malaysia. This is
mainly because of the multi-racial society and the rebellion of the communist during the
age. In order to remain the public order, the freedom that given is restricted.
By looking at these features, the Reid Commission's recommendations on fundamental
rights were thus modified, and appear as Part P of the Federal Constitution entitled
"Fundamental Liberties". There are as followings:
Article 5 - Life and Liberty of the Person.
Article 6 - Prohibition of Slavery and forced labour
Article 7 - Protection against retrospective criminal and repeated trials.
Article 8 - Equality.
Article 9 - Prohibition of Banishment and freedom of movement.
Article 10 - Freedom of speech, assembly and association.
Article 11 - Freedom of religion.
Article 12 - Right to education.
Article 13 - Right to property.
Although the federalism and constitutional monarchy concepts are being adapted, Reid
Commission’s report also contained the provisions protecting special rights for the
Malays such as quotas in admission to higher education and the civil service and the
official religion of the federation is Islam. The status of the Malay language is also being
recognized and the right to vernacular education in Chinese and Tamil would be protected
in the report.
As you seen, the Reid Commission sought the fundamental individual rights as an
essential element for a democratic country. For instance, the guarantees of fundamental
liberties of Malaysians in the Federal Constitution cannot be taken away recklessly. As in
Article 10, every single thing that we say is guaranteed by the freedom of speech and
expression within the limits in the constitution. It allows people to express an opinion on
any issue freely without having to fear about outcome. Obviously the fundamental
liberties that had been given in the Federal Constitution are balance in order to embrace
and preserve our multi-racial society.

2.0 FREEDOM OF SPEECH AND

EXPRESSION
Does freedom of speech and expression exist in today’s society? This issue has been
arising for more than thousand million times. How do we define freedom? We will
discuss about this issue thoroughly in this essay.

2.1 Article 10 Freedom of Speech, Assembly and

Association
In Federal Constitution, Article 10 is a key terms of Part II of the Constitution. It is part of
the Fundamental Liberties that we had mentioned before. In general, Article 10 simply
means the rules, regulations and restrictions of a Malaysian on the freedom of speech,
assembly and association. As a citizen, we have the right to say whatever we want. We
also have the rights to assembly peacefully and form associations. However, in Article 10
(2) (a) (b) (c), Constitution had clearly stated that the parliament has the right to impose
restrictions on them.
By looking at the Federal Constitution, Malaysians do have the rights to enjoy the
freedom of speech and expression as stated in the Article 10. However, the freedom is
only qualified in term of national security, public order, ethics or morality as stated in
Article 10 (2). The freedom is restricted and certain issues like the status of national
language, Malay’s special rights, the status of Islam as national religion and others that
we should not question as stated in the Federal Constitution. This means that we have the
rights to say whatever we like without breaking the rules or regulations that threaten the
society and even causes any public disorder or riot. In general, the freedom of speech and
expressions in Malaysia is not absolute.
2.2 Acts That Restrict the Freedom of Speech
Everyone agrees that we do entitle to certain context of freedom. However, there are
several acts of law regulate the freedoms granted by Article 10, such as the Defamation
Act 1957, Sedition Act 1948, the Printing Presses and Publications Act 1984, Internal
Security Act and Police Act 1967.

2.2.1 Defamation Act 1957

The Defamation Act 1957 was enacted to govern a person from expresses words that may
damage another person’s reputation in the eyes of the public. It can be slander or libel. It
is relating to the malicious damaging the reputation consists in speaking, writing, printing
or otherwise. If the defamatory statement is printed or broadcast through the media to the
third party, it is considered as libel. Only if the defamatory statement is in oral, it is
slander. People might tend to think the worse of an individual or deride that person with
the defamatory allegation. The three elements of defamation must be fulfilled in order to
charge defendant under Defamation Act 1957. First, the statement made must be
defamatory, the statement must be publishing to the third party and third, it must refer to
the plaintiff himself.
In the cases of defamation which suit to test the limits of freedom of speech in cyberspace
would be the case of The New Straits Times Press (M) Bhd & Ors v Ahirudin bin Attan 2
MLJ 814. The plaintiffs had jointly initiated an action for libel and malicious deception
against the respondent via High Court, Kuala Lumpur, Civil Suit No S3–23–2 of 2007.
NSTP had filed a defamation suit against Malaysian bloggers Ahirudin Attan. The
defendant, Ahirudin started his blog as Rocky's Bru, primarily on journalism, mass media
and politics in May 2006. NSTP as the plaintiffs had applied to issue an injunction from
posting defamatory statements on his blog that the plaintiffs claim are libellous and were
against them. They claimed that the defendant’s blog contains linking to another blog
called “Walked With Us" where it might related to the contents of the “Walk With Us"
blog based on the New Zealand case of International Telephone Link Pty Ltd v IDG
Communications Ltd [CP No 344/97]. The plaintiffs have cited 48 postings under this
claim of action. Finally, the plaintiffs lose the case. This case had been discussed widely
in the internet. Most of the people think that the actions against Ahirudin or bloggers are
not fair. However, it shows that even in the cyberspace, we do not really have absolute
freedom of speech and expression and yet Defamation Act limits the freedom.
Besides that, the Defamation Act also helps to protect the individual. For example, in the
case of MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & other Appeals (1995) 2
MLJ 493, the freelance journalist MGG Pillai, his publisher Media Printext and editor
Hassan Hamzah, who were found guilty of libel against Vincent Tan. Vincent Tan is a
famous and successful businessman in Malaysia and internationally. He brought an action
against the appellants and other persons claiming damages for defamation and for
conspiracy to defame. He complained that a series of articles appearing in a magazine
called Malaysian Industry was defamatory. About the third appellant was its editor-in-
chief, while the first appellant authored one of the articles complained of.
The second and fourth appellants were the printer and publisher of the Malaysian Industry
Magazine. The third and fourth appellants did publish an apology, without sending a draft
thereof to the respondent’s solicitors for approval. It was publish in a later issue of the
magazine stated that “we further apologize if the said articles tarnished the reputation of
the [respondent]". An apology might reduce the quantum of damages, in some cases
substantially. However, the apology made had clearly shown that they did not have any
sincerity in giving apologies. Lastly, the court decided in 1994, awarded Vincent Tan
RM10 million.
In this case, it shows that the existence of Defamation Act 1957 is to protect an individual
being defame. We are given freedom of speech and expression but not to abuse the right
to defame others. Therefore, Defamation Act 1957 does limit the freedom of speech and
expression.

2.2.2 Sedition Act 1948

What does sedition mean in our country? The sedition word has been floating around for
these few years. There were a lot of people being charged with sedition cases. As we
know, there is the case Melan bin Abdullah & Anor v public prosecutor (1971) 2 MLJ
280, and the case which the opposition parliamentarian Lim Guan Eng was jailed for
sedition and maliciously publishing false news.
Now we must look to the Sedition Act 1948 which revised in 1969. Their so-called
sedition is not dependent to the definition from the Oxford Dictionary and this act does
not define the meaning of the term “seditious". Whereas from the Mozley & Whitely’s
Law Dictionary, sedition can be defines as attempts made, by meetings or speeches or by
publications to disturbing the harmony of the state which do not amount to treason.
Sedition in the Act can be defined as an act that “brings into detestation or defiance or to
agitate disaffection against the Government or provoke feelings of ill-will and antagonism
between different races". Such as to question the provisions in the Constitution of
Malaysia regarding to the citizenship, Bahasa Melayu as the national language and also
question about the special position of Malays and others.
For instance, the case that charged under Sedition Act 1948 was Melan bin Abdullah &
Anor v Public Prosecutor (1971) 2 MLJ 280.The use of the word sedition in the
performance of political freedom was explicitly prohibited by law. The Utusan Melayu
newspaper has published a report with the sub-heading “Abolish Tamil or Chinese
medium schools in this country". The sanction was given under section 5(1) of the
Sedition Act. The court’s consideration was whether the sub-heading was seditious
publication or not. Finally, it comes squarely within the definition of “seditious tendency"
as extended by the Para (f) section 3 Sedition Act 1948 which the sub-heading are
violated of what was laid down in the Article 152 (1). Those wording are seditious where
it was against the Article 152 (1) (a) where nobody should prevent one another to use or
learn other languages. In this case, it clearly shown that one should not simply split out
words as they like.
The other case will be the case happened on 25 August 1998, the opposition parliament
Lim Guan Eng was jailed because of the Sedition and also maliciously publishing false
news for statements he made in 1995. He was accusing the Attorney General of
mishandling allegations that the Chief Minister which is from Malacca guilty for statutory
rape Malay school girl. It causes the agitating public grievance with the administration of
justice. Besides that, he also has been charge with the malicious case for publishing the
false news under the Printing Presses & Publications Act.
Lim Guan Eng was jailed under Sedition Act, because he had described the so-called rape
victim as a locked up victim and she was initially held by Malaysian police without
parental consent for 10 days. His statements reflected widespread to the public with the
fact that the underage victim is not suspected criminal offender to be punished. From
what he said, it causes the publisher of the local newspapers and also the women’s groups
to criticize about the Attorney General’s public lay bare. In October 1994, as he
announced that charges would not be pursued in opposition to Abdul Rahim Tamby Chik.
The reason is because of insufficient evidence.
In 1997, the conflict law sedition and printing convicted and fined 15,000 ringgit.
Prosecutor unsatisfied with ruling and requested a retrial. Throughout a series of appeal,
finally Lim Guan Eng was just sentenced for 18 months custody. However he has been
released after 12 months early because of good conduct on August 25, 1999. This case
had clearly shown that we do not have the absolute freedom of speech and expression.

2.2.3 Printing Presses And Publications 1984

(PPPA)
The Printing Presses and Publications Act 1984 is a Malaysian statute governing
publishing and the usage of printing presses in Malaysia. It replaced the Printing Presses
Act 1948 and the Control of Imported Publication Act 1958 (Revised 1972). Under the
controversial law, all printing presses require a license granted by the Home Affairs
Minister and need to be renewed annually. The Ordinance was revised as the Printing
Presses Act in 1971 to additionally provide for owners to revoke the licenses of
newspapers that provoked national sensitivities or were disadvantageous to national
development goals.
In 1984 the government introduced the Printing Presses and Publications Act (PPPA),
which consolidated and tightened the restrictions imposed by previous printing laws, and
covered all domestic publications including books, pamphlets and newspapers, and
publications imported from abroad. The printing, sale, distribution, or possession of any
banned book is punishable by up to three years imprisonment and/or a fine of 20,000
ringgit.
For the case study, the case of Irene Fernandez is an example of the Printing Presses and
Publication Act. This case is about charges of “maliciously publishing false news"
relating to her documentation of allegations of ill-treatment, sexual abuse and denial of
adequate medical care to migrant workers, held as alleged illegal immigrants in detention
camps. The allegations included reports of a series of deaths caused by malnutrition, beri-
beri and other treatable illnesses.
Besides, in the case of Mohd Ibrahim v Public Prosecutor (1963) 1 MLJ 289, the
appellant who could not read English had in his possession 65 copies of the book, Tropic
of Cancer, which was found under the counter of his shop by police officers on September
22, 1962. The copies together with others which had been sold were bought on September
8, 1962. The appellant was charged for having in his possession for purposes of sale 65
obscene books in contravention of section 292 of the Penal Code, and convicted on
October 23, 1962. On November 8, there was published in the Government Gazette an
Order by the Minister of the Interior under section 4 of the Control of Imported
Publications Ordinance prohibiting the importation of the Tropic of Cancer.
Above the cases, the Printing Presses and Publication Act is to prevent the printing
presses from doing something obscenity such as pornography, racism and other sensitive
issue in Malaysia. As such restrictions indirectly limit certain context in freedom of
speech and expression.

2.2.4 Internal Security Act

Internal Security Act 1960 (ISA) was enacted under the authority granted by Article 149
of the Malaysian Constitution after the end of Emergency Regulations which was enacted
on 1948. ISA is a preventive detention law where a person may be detained by the police
for up to 60 days without trial for an act which purportedly prejudices the security of the
country or any part thereof. After 60 days, the person may be further detained for a period
of two years if approved by the Minister of Home Affairs.
In our opinion, ISA is not applicable nowadays. The original idea of the ISA was to deter
the communist activity in Malaysia which may overthrow the country. The first Prime
Minister of Malaysia, Tunku Abdul Rahman, defined the purpose of the act as to be used
solely against the communists and promise that the government will not abuse the power
given under ISA to restrain legitimate opposition and silence lawful dissent.
However, the legislation has been used in a wrong way this day and age. In ISA, our basic
human rights, dignity and humanity have been denied. Those who caught under ISA are
never a person with proper name and identity anymore. They are just a digit of when will
they have the chance to be set free. Hence, the freedom has been forsaken.
The act has been limiting the Malaysian even though the law may not happen to all the
Malaysian. Everyone is a victim because the limits have creates a fear in everyone to stop
being natural. When laws infringe on our freedom of speech and choices, life becomes
unnatural. Freedom of speech is no longer exists when people do not have the rights to
speak or write on his or her free wills.
In the Federal Constitution, Malaysian Citizen has the rights to have freedom of speech
and expression. However, the freedom of speech and expression in Malaysia is not
absolute. Some restrictions have been made which can be seen clearly in the Article 10.
For example the Printing Presses and Publications Act 1984, which grants the Home
Affairs Minister “absolute discretion" in the granting and revoking of publishing permits,
and also makes it a criminal offense to possess a printing press without a license.
From the many detainees, Raja Petra Kamarudin is the best example to show the limits of
freedom of speech in Malaysia. Raja Petra Kamarudin is a controversial blogger that
started Malaysia Today. He has been caught twice under ISA which the first time was
accused of plotting the violent overthrow of the government of Dr Mahathir Mohamad
and the second time was accused of insulting Islamic Religion (Raja Petra Raja
Kamarudin v Menteri Hal Ehwal Dalam Negeri [2009]4 MLJ 484). He also been charged
for Sedition Act on an article titled “Let’s Send the Altantuya Murderers to Hell" which
he published on Malaysia Today. He linked that the Deputy Prime Minister at that time,
Datuk Seri Najib Rajak and his wife to the scandalous murder of a Mongolian model in
2006.
It all started with a blog entry on the website, Malaysia Today which deemed to contain
writing that insult the Yang di-Pertuan Agong, degrade Islam and incite hatred and
violence between local ethic groups. The action is part of the efforts by the authorities to
clamp down on bloggers. Raja Petra claimed that there is an agenda to clamp down on
blogs before the expected general election to stop the news that would be nocuous to the
government. The action also portrays that the government has started to take action on
freedom of speech and expression on Internet.

2.2.5 Police Act 1967

Although Article 10 of Malaysia's constitution guarantees freedom of expression and
assembly, the Police Act 1967 ruthlessly restricts its application. The Police Act 1967 is
the Act of Parliament in order to govern the constitution, manage, employment,
recruitment, fund, discipline, duties and powers of the Royal Police of Malaysia. It
includes the Royal Malaysia Police Reserve and the Royal Malaysia Police cadet Corps.
This act was first enacted in 1967 as the Act 41 and then amended in 1988 as the Act 344
of 1988. In order to be more in line with the international human right practices, several
attempts of amendments for the Police Act have been carried out. As stated in Article 10,
every citizen has the right to assembly peacefully. However, with the existence of Police
Act 1967, every assembly must obtain a permit from the police. In directly, the freedom
as stated in Article 10 had restricted.
According to the Police Act 1967, the permit of the event or an assembly must be applied
nine days before that particular event or assembly to get the permit. Ones are not suppose
to have an assembly without having a permit. For instance, in the case of Madhavan Nair
& Anor v Public Prosecutor [1975] 2 MLJ 264, the issue of freedom of speech had been
argued. The plaintiffs had applied for a permit for a public meeting under the terms of the
Police Act. However, the permit prohibited the appellants from delivering certain issues
like the status of the Malay language as the national language, and policies related to
education. These issues were considered quite sensitive after the May13 incident of race
riot in 1969. However, the issue that they intended to discuss during the assembly was
questioning about the requirement to pass the national language paper in order to
determine whether a student gets a General Certificate after the Malaysian Certificate
Examination.
Therefore, the appellants argued that these restrictions issued by the Police were
unconstitutional and are against Article 10, which provides for freedom of speech and
expression. In their opinion, they have the rights to say whatever they like and may have
the risk being charged under Sedition Act. They argued that the police did not have the
right to impose restrictions by issuing the permit to restrict their right for freedom of
speech and only Parliament can do so. In this case, the Judge Chang Min Tat rejected the
arguments of the appellants. He said that the clauses (2), (3) and (4) of Article 10 allowed
Parliament to restrict the freedoms of Article 10, and thus there was no unconstitutional
violation of the appellants' rights. He clarified that if the condition itself is seen as a
violation on the freedom of speech within limits set on this fundamental right in clauses
(2),(3)and (4) of Article 10 of the Federal Constitution, the argument on the enforcement
of the restrictions might be succeed.
The counsel for the appellants accepted that the police had power to regulate conduct of
the licensee, they must think about their actions regarding to the interests of majorities in
the society which the counsel asserted that the police had failed to do so. However the
judge again disagreed that the issue of national security should come first. At last, the
appellants appeal was unsuccessful. From this case, it clearly shown that even we do
apply the permit from police, the content that we wish to say or share during the public
meeting is also restricted. We cannot say as what we like especially those seditious and
sensitive matter. Obviously the Police Act 1967 somehow had restricted the freedom of
assembly and it indirectly restricted the freedom of speech and expression as well.

3.0 VIEWPOINT TOWARDS FREEDOM OF

SPEECH AND EXPRESSION IN MALAYSIA
Freedom of speech and expression do exist in Malaysia today. However, the freedom that
given in the Federal Constitution is not absolute. There are several acts of law regulate the
freedoms of speech and expression in our society. For instance, the Defamation Act 1957,
Sedition Act 1948, the Printing Presses and Publications Act 1984, Internal Security Act
and Police Act 1967 have restricted our freedom of speech and expression in a certain
way. In general, we are free to speak or say whatever things that we want without exceed
the limit.
The historical background had more or less affected the shaping of the Federal
Constitution in Malaysia. As a multiracial society, many aspects need to be taken note and
concerned about. The absolute freedom is unable to be given to all Malaysians. The
freedom of speech and expressions is more restrained especially after the May 13 racial
riot incident. The needs and feelings of all parties needed to be concerned and the security
of public need to be taken note.
After riot that happened at May 13, 1969, the Sedition Act had been modified in 1970.
The questions like language, special position of Bumiputras and sovereignty of rulers
should not be questioned. All of them are added on the list of seditious matters. In the
case of Mark Koding v Public Prosecutor [1982] 2 MLJ 120 and Public Prosecutor v
Mark Koding [1983] 1 MLJ 111, Mark Koding, the member of Parliament from Sabah
was found guilty in suggesting seditious amendments to Article 152 saying that the
Chinese and Tamil vernacular school should be abolished and the usage of Chinese and
Tamil language on the road sign should be restricted. The contents that Mark Koding
suggested were seen as seditious and offending. In such a homogeneous democracies
society like Malaysia, the racial and language issue should be take note. Too much
freedom of speech and expression in discussing those issues would only easily stir up the
dissatisfaction of other ethnics in our country and might cause another race riot in
Malaysia again.
On the other hand, the internet is one of the very few places that are available for
Malaysian to express their views and thoughts freely. Internet had become a medium for
the freedom of speech and expression especially bloggers of opposition. The country’s
newspaper which need to be licensed annually under the Printing Presses and
Publications Act 1984, feed their readers a fixed diet of pro-government propaganda. This
makes the bloggers want to share their critics towards the government as the public have
the rights to know anything about the country.
However, the paranoid government started to clamp down the bloggers because they are
worry of losing their grip on power. They sent the bloggers to prison with all sorts of
legislation which includes of Defamation Act 1957, Sedition Act 1948 and even Internal
Security Act 1960. It shows that the government is expanding their restrictions on free
press to web. Sites like Malaysian Insider, Malaysiakini, Malaysia Today and Lim Kit
Siang’s blog which provide critical views towards the government are the main enemies
of government. Malaysia Today which is under Raja Petra Kamarudin even gets blocked
by the Malaysian Communications and Multimedia Commission (MCMC).
Despite that Malaysian never demands for absolute freedom of speech and expression, the
restrictions seems to exceed the limits. This is a serious blow to freedom of speech and
expression in Malaysia. Although the laws and acts are enacted to use for the national
security reason, most of the victim of these acts were member of opposition and
journalists who had utilized their rights perfectly as a Malaysian and perform their role
well in the society. The government should always ensure that they did not abuse the
usage the laws.
The passage of time had granted us a greater space for freedom of speech. Although print
and electronic media is still being controlled and restricted, Malaysians can retrieve and
gain information through the existing of internet. Internet had become a medium or
option for the freedom of speech and expression. However, we still cannot abuse the
rights to do so and might get ourselves into trouble if we abuse it. A harmony and
peaceful society needs the commitment from all of us to enhance it.

4.0 CONCLUSION
In a nut shell, we do have freedom of speech and expression in this day and age but the
freedom given is not absolute. It is cannot deny that the freedom of speech and expression
is one of the most vital criteria in the foundation of democratic society. Too much of
freedom might cause unexpected case happened such as the racial riot in May 13 1969.
Living in such a multiracial society, every single word must be take note carefully as they
might offend or hurt other’s feelings. We are here together as Malaysian and we should
protect our ethnics from being discriminated. The government also plays an important
role in enforcing the law without abuse the law. Everyone have equal rights to do
whatever they want without breaking the laws as stated in Federal Constitution in order to
protect one another.