ANSWER TUTORIAL 6- ART 10

TUTORIAL 6
The petitioners are media conglomerates involved in the publication of newspapers. They challenged
the restrictions on the import of newsprint under the Printing Presses and Publications Act and on the
manner in which this is used by newspapers under the Newsprint Order. Further, the Newsprint Policy
placed further restrictions based on four features: first, no new newspapers may be started by
establishments owning more than two newspapers if at least one of which is daily; second, the total
number of pages may not exceed ten; third, the increase in a number of pages may not be more than
20% for newspapers that are under ten pages; and, finally, no-interchangeability of newsprint may be
permitted between different newspapers of the same establishment or between different editions of
the same paper. Therefore, the petitioners were not allowed to make adjustments in circulation, etc.,
under these newsprint policies even within the quota limit. This was challenged for violation of Article
10(1)(a) of the Federal Constitution.
The Minister (respondent) argued that the petitions were not maintainable because companies do not
enjoy fundamental rights, which are available only to natural persons. Further, the respondents
argued that Article 150—the Constitution’s provision for “emergency powers”—barred any challenge
on grounds of fundamental rights. Accordingly, the restrictions were valid because they regulated the
commercial operations of newspapers to prevent monopolies, by which any effect on freedom of
expression was incidental. Finally, the Minister asserted that the question of whether newsprint import
must be increased was a question of policy that could not be challenged on any grounds.
Determine three issues arising from the above facts regarding the freedom of speech and expression.
Issues

1. Whether the restrictions on the import of newsprint under the Printing Presses and
Publications Act unconstitutional and can be challenged?
2. Whether the corporate bodies entitled to fundamental liberties?
3. Whether the petitioners can seek an application for judicial review for the restrictions
made by the printing presses and publications?

Law
Article 10(1)(a) of the Federal Constitution stated that “every citizen has the right to freedom of
speech and expression”. From this provision, it was submitted that freedom of speech and expression
is a combination of many rights in many forms. Freedom of speech is available not only to natural
persons who are citizens of Malaysia, but also extends to artificial persons like companies,
corporations, and statutory bodies if they are incorporated under Malaysian law. The right is only
available to citizens. In the case of Dow Jones Publishing v Attorney General (1989), it was
submitted that a foreigner or a foreign publication lacks the constitutional protection of free speech.
Similarly in Attorney General v Wain (No. 1) (1991), the protection of Article 10 of the constitution is
available to citizens only. A non - citizen or a foreign company or news agency cannot claim this right.
Hence, it is not a violation of Article 10(1)(a) for the Printing Presses and Publication Act 1984 to
prohibit foreign publications or to restrict their circulation in the country or to have stricter control than
are applied against citizens.
ANSWER TUTORIAL 6- ART 10

The rights given are limited and parliament has the power to pass various restrictive laws, and as an
implication, it limits the democracy in our country. Article 10(2)(a) provided that all the rights stated in
the paragraph (a) of clause 1 can be on the rights conferred by paragraph (a) of Clause (1), such
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 and 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.
In the case of Mat Suhaimi v PP [2014] 2 MLJ 145 that Art 10 gives every citizen the right to freedom
of speech and expression, but the right to freedom of speech and expression is only accorded to citizens
and it is not absolute. The restriction is permissible on the grounds of security, friendly relations,
public order, morality, the privilege of parliament, contempt of court, defamation, and incitement to
any offence as stated in Art 10(2)(a).
Parliament also has the power to regulate law that restrict this freedom under Article 10(4),149 and
150. It means that the right for the freedom of speech and expression for every citizen is not absolute
and can be taken away if the act relating to freedom is contrary to the constitution.
As for the printing press, it is subjected to The Printing Press and Publication Act 1984 where Section
3 in this act stated that the owner of printing presses must need to apply for a license from the Home
Ministry to keep used or use a printing press. After the amendment was made, Section 12 states that
the validity of the licence is subject to conditions, and it remains valid if it is not revoked. It means that
the minister can put the condition to the license once it is obtained. Presently, the discretion to grant
the licence is no longer absolute as it was in the past, as the minister's discretion may be subjected to
judicial review in order to challenge the validity of the regulation imposed. Thus the executive action
under its authority may be challenged if it infringes the Constitution or violates the doctrine of ultra
vires or the principle of natural justice. In the Singapore case, Jeyaretnam Joshua Benjamin v Lee
Kuan Yew [1990], it was held that a power given to restrict free speech must not be arbitrary and
unrestrained. In Minister of Home Affairs v Persatuan Aliran (1990), it was held that even though it
is permissible for the minister to interfere or restrict anything in regard of publication, however, the
minister’s discretion is, nevertheless, subject to judicial review on the principles of illegality,
irrationality, and procedural impropriety.

The most relevant case that we can refer to is in the case of SIS Forum (Malaysia) v Dato’ Seri
Syed Hamid bin Syed Jaafar Albar (Menteri Dalam Negeri) [2010]. In this case, the famous Muslim
women’s group, SIS sought judicial review of the Home Minister’s decision to ban their book Muslim
Women & the Challenges of Islamic Extremism. The book was sold over two years but then it was
banned by the minister who used it under section 7(1) of the Printing Presses and Publications Act
1984. By virtue of the provision, if the minister is satisfied that any publication contains anything which
is prejudicial to public order, morality, security, public interest, or national interest or which is contrary
to any law or is likely to alarm public opinion, he may use his absolute discretion, prohibit that and any
future publication by the publisher. It was held that the minister’s discretion is not to be regarded as
final decision although the statutory formula may appear to indicate so. It is an objective test
whether the
ANSWER TUTORIAL 6- ART 10

pre - condition for its exercise has been satisfied on the facts. The court was empowered to inquire
into reasons why the book was banned to form an opinion whether there has been any error of law or
any abuse of discretion. Justice Ariff in this case also relied on several cases such as in Merdeka
University Bhd v Giv. of Malaysia (1981) and Darma Suria Risman Saleh v Menteri Dalam
Negeri, Malaysia (2010). He held that the deciding authority must have reasonable grounds and it is
insufficient if he merely thinks he has reasonable grounds. Justice Gopal Sri Ram held that the
fundamental liberties should be generously interpreted and the restrictions upon it must be
reasonable.

Application
Based on the present case, the minister is said to have the power to grant the license for the use of
printing publication but the 4 policies that are being imposed on the petitioner are not related to the
any permissible restriction as it does not damage any security, public order, morality, etc. and not in
line with the restrictions under Art 10(4),149 and 150 FC. The restriction is focused on the page limit
and publication for various sorts of newspapers, which has hindered the petitioner from distributing
the printing. As a result, in this case, the petitioner can seek judicial review to overturn the restriction.
Next, the statement that stated corporate bodies are not entitled and cannot enjoy the fundamental
rights of the freedom of speech given by the constitution are not true because this right is granted to
the citizen. Thus, corporate bodies can be known as artificial persons, would have local standi before
the court that allow them to sue or be sued. As a result, corporate organization should be considered
similarly to ordinary people.
Lastly, based on the situation given, the regulation provides by the respondent to prevent monopolies
which not subjected to proclamation of emergency and there is need of the YDPA that satisfied that a
grave emergency exists. Therefore, the statement from the respondent can be challenged by judicial
review referring to the said ground.

Conclusion
In conclusion, the restrictions on the import of newsprint under the Printing Presses and Publications
Act is unconstitutional and can be challenged. Next, the company can enjoy the fundamental right
same as a person. The petitioner may seek an application for judicial review on the restrictions set by
the minister as it seems that the restrictions were not opposed to any of the permissible restrictions.
Lastly, the statement of the respondent about Article 150 is baseless as Art 150 is not the correct
regulation to make a restriction.