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The issue of freedom of speech will never disappear in Malaysia’s political agenda so long as unreasonable restrictions exist. This article seeks to examine the issue of the freedom of speech and expression from the perspective of Malaysia’s constitutional history with elements of sociopolitical analysis. It is hoped that such a perspective may add in a small way to our understanding of the basis for the restrictions imposed and, to uncover the way forward to a less trammeled future for free speech in Malaysia.
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The issue of freedom of speech will never disappear in Malaysia’s political agenda so long as unreasonable restrictions exist. This article seeks to examine the issue of the freedom of speech and expression from the perspective of Malaysia’s constitutional history with elements of sociopolitical analysis. It is hoped that such a perspective may add in a small way to our understanding of the basis for the restrictions imposed and, to uncover the way forward to a less trammeled future for free speech in Malaysia.
The context of freedom of speech in contemporary Malaysia
Article 10[a] of the Federal Constitution provides that every Malaysian citizen shall have the right of free speech and expression. Taken in isolation, it appears to be a guarantee of that right. Sadly, as we all know, the guarantee is not absolute. Starting with Article 10[a] and  of the Federal Constitution, we are immediately reminded that any such guarantee is, in fact, illusory. Furthermore, restrictions to free speech are enshrined in legislation, such as the Sedition Act 1948, Printing Presses and Publication Act 1984 and the Internal Security Act 1960.
As a constitutional issue, the right of free speech will be better understood by an examination of Malaysia’s constitutional history and the events over the past 50 years. As it were, by examining key events in that time-span, we may better understand how the status of free speech has evolved over time.
The purpose of this paper is, therefore, three-fold. Firstly, it seeks to examine the basis for the constitutional restrictions imposed on free speech in clauses [a] and  in Article 10 of the Federal Constitution. This will include an examination of some key historical factors that may have exerted some measure of influence over the principle of free speech in Malaysia.
Secondly, the role of the Legislature and the Judiciary in relation to the issue of free speech is addressed.
Thirdly, the question, as to whether any salutary influences that constitutional developments in neighbouring ASEAN countries, Islamic juristic thinking and international human rights principles may have on the principle of free speech in Malaysia, is considered.
But we must begin with an examination of the Islamic notion of free speech with two points in mind. Firstly, Islam is the official religion of Malaysia and demographically, more than half of Malaysia’s population professes the Islamic faith. It is important to establish that Muslims in Malaysia are not inimical to the concept of free speech. Secondly, the very fact that Islam embraces the notion of free speech points to the universality of this notion, that is to say, the idea of free speech is not merely a product of Western thought and values and, therefore, may not have a place in Malaysia.
Islamic notions of the freedom of speech
It is important to note that the human rights schemes propounded by contemporary Islamic scholars, which includes the conceptualizing of the freedom of speech, is rooted on the primacy of the Koranic Revelation over the logical process of reasoning. In the opinion of Islamic scholars, human reasoning, independent of God’s guidance and inspiration, is insufficient to provide the best plan for human life. For example, upon citing various passages of the Koran and the Sunna, the Islamic scholar Muhammad Asad took the view that, in the context of Islam, the intellectual leaders of the community are morally bound to bring forward whatever new ideas they may have and to advocate such ideas in public. Therefore, the right to a free expression of one’s opinions in speech and writing is one of the fundamental rights of a citizen of an Islamic state.
Mohammad Hashim Kamali has approached the principle of free speech in Islam using the principle of seeking truth [al-haqq] and human dignity. The methodology deployed makes references to passages of the Koran and the Sunna that addresses the necessity for victims of an injustice to speak out, the necessity of giving advice [nasihah] and the Hadith which proclaims that the best form of holy struggle [jihad] is to tell a word of truth to a tyrannical leader.
is entitled to disseminate falsehood or to circulate reports that may outrage public decency. it may be surmised that there is sufficient evidence to demonstrate that Islamic notions do support the principle of the freedom of speech. or to cast defamatory aspersions on other persons”.c goes further to state that:- “It is the right and duty of every Muslim to protest and strive [within the limits set out by the Law] against oppression even if it involves challenging the highest authority in the State”. or to indulge in slander. the only issue being the degree of such freedom. These propositions are not absolute by any means. however. No one. Article 12. The Communist Insurgency and Radical Malay Nationalism in the 1950s The threat of the communist insurrection pervaded the ethos of Malaya throughout the postSecond World War years and into the 1950s. Ann Elizabeth Mayer has also noted that Islamic notions of human rights are “value-laden”. In this sense we may say in very broad terms that there is a similarity between the democratic notions of free speech developed in the Western world with Islamic notions of free speech making it a universal notion.Further support for this is reflected in Article 12. Instead they represent intellectual reasoning that attempt to incorporate aspects of the Revelation contained in the Koran and the Sunna that is capable of supporting the notion of free speech. In the same era Malay nationalism gave rise to many . The Reid Commission. Merdeka Constitutional Debates.a of the Universal Islamic Declaration of Human Rights which states that:- “Every person has the right to express his thoughts and beliefs so long as he remains within the limits prescribed by the Law. innuendo. Nevertheless. This observation is consistent with Mohammad Hashim Kamali’s use of the word “normative” to describe the character of truth [al-haqq] which suggests that the concept is still very much in flux in the context of Islamic juristic thinking.
. b. This was consistent with the provision on the freedom of speech in Article 19[a] of the Indian Constitution. such a state of affairs will lead to tension and conflict between the Legislature and the Judiciary. at paragraph 13[ii] of his Note of Dissent contained in the Reid Report. The present Article 10[a] of the Federal Constitution uses the expression “necessary or expedient” in the same context. such a state of affairs would create uncertainties since all legislation purporting to restrict free speech would be open to challenge in a court of law. the inclusion of the expression “reasonable restriction” would derogate from the sovereignty of the Legislature since the Legislature should be the sole arbiter of the reasonableness of legislation that seeks to limit free speech. therefore. The Reid Report reveals several factors that influenced the fundamental right of free speech contained in the draft Merdeka Constitution and the Federal Constitution of 1957. It was in this climate that the movement towards independence in Malaya was formed under the supervision of the colonial authority and the Malayan elite led by the Alliance coalition. Justice Abdul Hamid of Pakistan objected to the expression “reasonable restrictions” on three grounds. The justification for these laws was to meet the mischief of elements that threatened public order. Unfortunately. “reasonable restrictions” versus “necessary or expedient” In the draft Merdeka Constitution prepared by the Reid Commission the provision relating to free speech contained the expression “reasonable restrictions” in relation to the conferment of power on the Parliament to impose restrictions on free speech. Let us examine some of these factors.alternative ideas on the shape of the Malayan nation that may have resulted in a model of government quite different from the Westminster model. namely:- a. These instances of threats to the Malayan society under colonial rule led to the creation of laws that restricted the freedom of speech such as the Sedition Act 1948 and the Printing Presses Act 1948. and c.
Removal of the Rule of Law provision and the principles of natural justice The draft Merdeka Constitution also contained a Rule of Law provision at Article 4 with a marginal note entitled “Enforcement of the Rule of Law”. that contained the expression “principles of natural justice” which is a basic feature of the Rule of Law. the other members of the Reid Commission [as established constitutional jurists in their own right respectively] would have been mindful that the exported Westminster model must reflect the doctrine of separation of powers that had served the United Kingdom [particularly England] so well over many centuries. Firstly. Malaysian constitutional scholars have very soundly and categorically criticized the misplaced opinion of Justice Abdul Hamid on this point. 1949. The decision to omit such directive principles was based on the rather weak reasoning that since directive principles have no legal effect they would serve no purpose and were illusory. The missed opportunity for incorporating Directive Principles into the constitution The Reid Commission received submissions from the Alliance Government for the incorporation of directive principles and rejected the idea. the Reid Commission opted for a legalistic constitution as opposed to a constitution that reflected elements of societal aspirations and ideals. Secondly. It is submitted that this omission has led to the failure to create a key constitutional bulwark to limit the restrictions to freedom of speech in Malaysia. draft Article 4[c]. there is ample evidence to show . Clearly.Professor Khoo Boo Teong has pointed out that the dissent of Justice Abdul Hamid is flawed on two major grounds. draft Article 4 was removed from the final Federal Constitution with the feeble justification offered by Paragraph 53 of the Government White Paper. In the context here. 1957 for the concerns raised in Justice Abdul Hamid’s dissent. the Indian Article 19[a] had served the Indian nation well since the promulgation of the Indian Constitution on 26th November. Justice Abdul Hamid made another strong dissent on the inclusion of this provision. in particular. There was no reason in February. Unfortunately. the removal of the Rule of Law provision in the draft Article 4 may well have engendered a “culture of Rule by Law rather than Rule of Law” which did not augur well for fundamental rights such as the freedom of speech. The very basis of the doctrine of separation of powers requires that a healthy tension exists not just between the Legislature and the Judiciary but also in relation to the Executive. To this extent. The removal of the expression “reasonable restrictions” has contributed to the creation of an environment within all three branches of government in Malaysia that was not conducive to the development of the Rule of Law.
For instance. Sarawak and Singapore. more particularly. judicial notice must be taken of such principles. only the Malayan Indian Congress pushed for the incorporation of directive principles. It is submitted that the inclusion of directive principles into the constitution would have created a clear statement of national aspirations and ideals that would have had a salutary influence on judicial interpretations of the workings of the Federal Constitution in subsequent years. it merely protected the rights of the new member states of Sabah. The 1963 constitutional amendments to create the Federation of Malaysia did not change the general tone of bias towards the center. It should be further noted that in the 1998 Constitution of Thailand directive principles have been properly enshrined as a statement of constitutional intentions to guide the three branches of government. provided an additional facet to juridical thinking on the necessity to protect the right of free speech in Malaysia. the States do not have any significant constitutional . the basic structure doctrine and. Directive principles have a harmonious co-existence with the fundamental rights provisions. and the eventual Federal Constitution of 1957 reflected an inclination towards a strong central government. Thus the draft Merdeka Constitution. the Reid Commission’s brief was biased towards creating a weak federal structure. It has been recognized as being an essential feature in the basic structure of the Indian Constitution. The Preamble to the Indonesian Constitution reflects the high ideals of national intention. the others being unable to appreciate its significance. The effect of a weak federal structure on the notion of free speech From the outset. in time. It is. therefore. It is submitted that a less centripetal federal formula would have engendered a more vibrant democracy and favoured a greater degree of free speech in Malaysia. A weak federal structure such as that contained in the Federal Constitution suppresses the voice of the states that is a key feature of a participative democracy. submitted that the inclusion of directive principles into the draft Merdeka Constitution [as advocated by the Alliance Government] would.that of the Alliance members. The Filipino Constitution also contains Directive Principles. have proven its immense value in promoting constitutionalism. The Indian experience with directive principles demonstrates that whilst directive principles are not legally binding.
states. in the context of federalism. The NEP was a twenty-year programme that was to operate from 1970 to 1989 with the twin objectives of eliminating the identification of race with economic function and the eradication of poverty. the administration of Tun Abdul Razak set a time limit for the NEP expire. It is possible that the matter of special privileges may have influenced greater restrictions on the right of free speech since it creates a defensive mindset on the part of the indigenous community. It has also created a subservient relationship on the part of the states visà-vis the central government leading to the establishment of quiet backroom negotiations rather than a more raucous and open discussion in the public arena. a hope that the special privileges should gradually disappear so that there would be no discrimination between the races and communities. has contributed to an environment that stifled free speech. licences for businesses such as transportation and scholarships. This dependency on federal largesse has weakened the resolve of the States on matters of constitutional importance. in good faith. This situation is largely attributable to the Reid Commission’s refusal to fetter the Federal Government’s discretion on the allocation of funds to each state.safeguards to Federal grants. the National Economic Consultative Council that was created in 1990 extended the NEP without a foreseeable expiry date. But. The race riots of May 13. quotas for positions in the Public Service. Absence of time limitation on special privileges The Reid Commission noted that it was necessary to continue the policies that conferred special privileges on the Malay community relating to land. opposition-controlled. How Part XI of the Federal Constitution affects free speech will be examined below. . led to a reverse scenario of increased special privileges in the form of the New Economic Policy [NEP] programme that was modeled after India’s economic programmes. In fairness. One final note should be made on the process of weakening the federal formula by the liberal use of the powers in Part XI of the Federal Constitution to declare states of emergency against recalcitrant. unfortunately. It also indicated. 1969. Such a state of affairs.
in Part XI of the Federal Constitution. Unfortunately. This should be contrasted with the more exemplary formulas on emergency decrees in the Philippines and Thailand. the Tunku Abdul Rahman Administration saw it fit to amend Article 149 and 150 to remove the time limitation and invert the procedure to allow emergency laws to subsist until such time both Houses of Parliament repeals them. thus removing an otiose provision that restricts free speech. it logically follows that emergency and preventive detention laws that have no expiry date will perpetually override fundamental rights. Since emergency and preventive detention laws override fundamental rights. 1969 has been very well documented. Absence of time limitation on emergency laws Prior to its amendment on 31st May. among other matters. The devise of imposing a time limit was introduced by the Reid Commission. 1960.The insertion of a time limit for special privileges will put a definitive closure to the matter and render unnecessary and irrelevant the proscription in Article 10 of the Federal Constitution. Another measure was for the Legislature to amend. Limiting free speech in Article 10 of the Federal Constitution The background to the race riots of May 13. special privileges and the sovereignty of the Rulers. the Rukunegara some fifteen months after the riots. Articles 149 and 150. contained a time limitation for emergency laws enacted to automatically expire within one year from the date of the promulgation of the emergency laws. Article 10 of the Federal Constitution by adding a new clause  which proscribed any discussion on the subject matters of citizenship. The case for dismantling Article 10 . The incident led to the declaration of a state of emergency and much soul searching by all Malaysians that led to the King’s promulgation of the national ideology. This is the present state of affairs in Malaysia owing to a legacy dating back to the days of the Tunku in 1960. the national language.
Secondly.It is submitted that at this point in time. Thirdly. the repeal of Article 10 would be a move in the correct direction. the status of the Rulers is protected by Articles 63 and 72 of the Federal Constitution to prohibit any discussion of the abolition of the constitutional position of the Rulers at the Federal Legislature and State Assemblies respectively. a review is timely. Firstly. even if Clause  of Article 10 is repealed. Adequacy of other constitutional safeguards on the position of the Rulers It should be noted that. remove the personal immunity of the Rulers clearly demonstrates that a new ethos has evolved during the Mahathir Administration that permits the discussion of matters that involve the Rulers. Several key developments in recent years point to the gradual irrelevance of the matters provided in Article 10. there has been a shift in the educational policy of the Malaysian government to promote the use of English. with respect to the position of the Rulers. inter alia. the matter of citizenship is no longer a key political issue between and amongst the indigenous community vis-à-vis the other Malaysian communities. given the present ethos. . The status of Bahasa Malaysia is secure in many ways. the 1983 constitutional crisis involving the Rulers and the 1993 constitutional amendments to. some thirty years since the Rukunegara constitutional amendments came into force. The removal of Parliamentary privileges Another of the Rukunegara amendments was Article 63 that removed Parliamentary privilege and immunity from members who are charged with laws passed pursuant to the amended Article 10 and the Sedition Act 1948. with the challenge of globalisation and international trade competition. Thus.
Firstly. as amplified in the preceding section. the right of the Legislature to raise matters of importance should not be unnecessarily restricted. In the current ethos. be they political leaders or ordinary citizens. The Legislature and the discharge of its constitutional duty to protect free speech Since the very foundation of the legal architecture of the Federal Constitution is predicated on the notion of separation of powers. Some key reasons for the failure of the Legislature are offered below. Justice Abdul Hamid’s dissent on this point was adopted into the Federal Constitution as our present Article 10.It is submitted that Article 63 has also outlived it purpose. which is preceded by the opening phrase. presumably for judicial review. Secondly. “Parliament may by law impose”. later. a robust Legislature is one of the key safeguards against Executive dominance. It stands to reason that an irresponsible speech by a member of the Legislature should be a matter for the political party to deal with and for the party’s Whip in Parliament to deal with. more pronounced during the Mahathir era. there is a perception. With a perspective of 45 years since Independence. the Legislature is clearly unable to fulfill its role as the forum and arbiter of the “reasonableness” of legislation that restricts free speech. there are inherent weaknesses in the Westminster model exported to Malaysia wherein the leaders of the majority in Parliament are also the Prime Minister and Cabinet members. The original intent of Article 10[a] [that specifies matters that permits the restriction of free speech guaranteed by Article 10[a]]. carries the heavy presumption that Parliament is a sound forum where the views of the plural society can be expressed by the representatives of Malaya and. It recommended that an aggrieved person should have the right of recourse to the courts to seek relief. to constantly resort to a mental comfort zone where they can maintain their mental indolence on matters of national importance. The Legislature has not been able to steer a course independent of the Executive in the Westminster model used in Malaysia for the reason that the Government Backbench is completely dominated by Executive imperatives. It is very unsatisfactory for Malaysians. This perception of political patronage is attached with the presumption that the “favour” is “owed” by the political candidate to the party leader. Translated into the . Unfortunately. that Members of Parliament should be “grateful” for having been successfully selected as political candidates for their Parliamentary constituency. The Reid Commission was of the view that Parliament “should not be entitled to authorize infringements of such a character that they cannot properly be regarded as designed to deal with the particular situation”. Malaysia.
Firstly. as “indefatigable idealists”. who had a background of legal training. A more compelling alternative explanation is the desire of the erstwhile aspirant to hold on to the hard-earned position of power. the Judiciary’s assertion of the principles of the Rule of Law in constitutional and administrative law matters led to a confrontation between the Executive and the Judiciary with the expected result that the Executive emerged as the victor. the net effect. In the years leading to 1988. with the greatest respect. Thus the legacy of the judicial predecessors are as follows. in the decisions for matters involving national security. the Judiciary was very inclined to give a wide latitude to the Executive in the exercise of powers of preventive detention. lacked the foresight of the Indian jurists whose judicial pronouncements he had ignored when he was active on the Bench. Whatever the reason. the Government Backbench in the Legislature is indebted to the Executive Frontbench. who had been more sceptical about the arbitrary powers of the Executive. It is submitted that the difficulty presented to the Judiciary to establish its rightful role as an equal branch of power in the Malaysian constitutional system in the current ethos stems from the legacy of jurists such as the late Tun Suffian who. Thirdly. that also had a direct impact on free speech. it is a favour owed by the Member of Parliament to the Prime Minister and Cabinet members. The usual rationale is that the responsibility of high office requires one to rise above factionalism and be a leader of the entire nation. the threat of communist insurrection and the responsibility for having participated in nation-building in the years after Independence. Thus. a tradition of presuming that the actions of the Executive are. the composition of the Bench and the Cabinet in those years comprised judicial and political leaders whose common outlook was tempered by the Second World War. The Federal Court famously regarded the Indian jurists. the Judiciary in Malaysia had a reasonably good rapport with the Executive owing in large part to the innate respect that the first three Prime Ministers. had for the Judiciary. more often than not.Legislature. The high ideals of the aspirant is discarded in favour of the status quo. In addition. in the best interests of the Malaysian society. The reticence of the Judiciary In the intervening years between Independence in 1957 and 1981. in the context of free speech. In other words. there is a peculiar transformation of a political aspirant when he assumes the pinnacle of power. is the perpetuation of restrictive laws not its limitation. .
it brought about a new constitution. The desired effect is the concept of an “open society” where the Rule of Law is imposed in the context of constitutionalism. The question is. Thailand’s constitutional overhaul may also have been conducted at the urging of international bodies such as the International Monetary Fund. It cannot be ignored that since they have achieved the high station in life of becoming judges through the established order. judges trained in the English mould are inclined to embrace the established order. even judges with very humble origins will not rock the proverbial boat and. It is submitted that a reasonable observation may be made regarding the influence of personal and class values on each judge. if we examine the personal background of each member of the Bench and their decisions on specific issues [such as Fundamental Rights] from the American Realist tradition it is possible to forecast with reasonable accuracy the eventual decision. a body of jurisprudence in constitutional and administrative law that favours the use of arbitrary and discretionary powers. an illuminating example of this approach is a study made in Australia of the legal profession and. very often. in particular. will not see the need for it.Secondly. places of residence and ethnicity and. For many members of the Bench who professes the Muslim faith. A conservative judicial profile that favours the status quo By habit and training. In the case of Thailand. it may become a matter of conscience. in consequence. the High Court of Australia to establish the homogeneity of the personal background of the members of that Bench on matters such as education. . the inevitability that personal values affect the judicial decisions on specific issues. whether the current and future members of the Bench will break from the paradigm stated above. Although such an exercise has not yet been undertaken in Malaysia. The key issue is whether the Judiciary is able to undo the precedents of a past ethos and fashion a new body of jurisprudence that develop the Rule of Law and overcome the large corpus of jurisprudence that is now overwhelmingly in favour of arbitrary and discretionary use of power by the Executive. For example. Contemporary ASEAN constitutionalism on free speech The economic crisis of 1997 created convulsions in every ASEAN country.
Another example is the Filipino Constitution that proscribes any law from being passed that abridges the freedom of speech or of the press. There is always. jurists and political leaders who cling to orthodoxy based on the corpus of work by past Muslim thinkers who. in the context of the guarantee of free speech. This is a reflection of an important reality that a constitution is merely a document and its provisions can only come to life if the leaders of the nation and its people wishes it to come alive. The robust Indonesian press such as Kompass played a pivotal role in hastening the end of the Suharto era in 1998 under the same constitution that remains today. of course. The Indonesian constitution’s provision that protects free speech has not been modified despite the influence of the IMF and the changes of government since President Suharto’s departure in 1998. since the time of the Holy Prophet of Islam and the four Rightly-Guided Caliphs that succeeded him. The basis for reformist thinking is the overcoming of the dialectical problems on the part of contemporary Muslim thinkers. that seeks to impose the authority of the political leadership over the Umma even when such authority is tyrannical.Nevertheless. The influence of Islamic notions of free speech It has been established above that Islamic notions are capable of supporting the concept of free speech. the influence of ASEAN constitutionalism will not be a dogmatic matter of Malaysia copying constitutional provisions of its neighbours so much as demonstrating that it is the local society that determines the ethos and mindset. There was no obvious need to make any modification since the Indonesian ethos was in favour of greater freedom of speech. the Constitution of the Kingdom of Thailand offers an exemplary protection of free speech that includes specific protections for the electronic and print media. the hope that the ruling elite in Malaysia is able to anticipate the changing ethos and liberalise the restrictions on matters such as free speech as a safety valve to enable the citizenry to ventilate any views. The challenge is whether the Muslim community in Malaysia is able to discard conservative orthodoxy in favour of a reform platform. particularly during the Ottoman period. . desperately wanted to influence the Umma to support the last Islamic empire in the 1900s. In this sense. Orthodoxy in the sense stated here refers to the body of juristic thinking evolved and developed through the various Islamic dynasties.
It is recognized here that a Muslim must tread the reform view carefully in relation to the prevailing orthodox Islamic establishment. it may be said that reformist views are better able to support this fundamental right since they are founded on the pristine passages of the Meccan verses of the Holy Koran and the Hadith. This is the challenge for the Muslims in Malaysia. are universal in substance. there is a legal requirement for the Malaysian Judiciary to adopt the former and. it is clear that Islamic jurisprudence also supports human rights and free speech notions. It should be noted that the Fundamental Liberties provisions in Part II of the Federal Constitution is materially modeled after Part III of the Indian Constitution [whose drafters were mindful of the UDHR being drafted in San Francisco in 1947]. rules laid down by treaties. both adopted by the United Nations General Assembly in 1966 are enforceable in Malaysia since Malaysia has not ratified those treaties. identified orthodoxy as being founded on the Medinan verses of the Holy Koran and Hadith and argued that the Meccan verses should prevail. for the Executive and Legislature to ratify the latter in order for international customary rules and treaties to become a part of Malaysian municipal law. In contrast. if not form. Possible futures for the right of free speech in Malaysia This paper has traced the context and different ethos in which restrictions of free speech has been justified. orthodox views may be less accommodating towards fundamental rights.Ustaz Mahmoud Mohamed Taha. Seen in this light. particularly those relating to human rights such as free speech. firstly. to which Malaysia is a signatory. customary rules of international law and. is merely an instrument that defines various human rights that ought to be respected but. Furthermore. Neither the International Covenant on Economic. His views have found strong support from Professor Abdullahi An-Naim. It is quite clear that the contemporary setting is far different from that in 1957 or even . the 1948 Universal Declaration of Human Rights [UDHR]. In the context of free speech. in itself. International human rights values and the right of free speech Since Malaysia follows the British practice relating to. secondly. Social and Cultural Rights [ICESCR] nor the International Covenant on Civil and Political Rights [ICCPR]. as examined earlier. This lends further credence to the monist view that laws. in his compelling work. is not binding.
there must be free speech. Free speech activists may take comfort that History is replete with strange twists and turns that result in happy outcomes. Justice Abdul Hamid. Perhaps the greatest justification for the liberalization of free speech may be realization of the ruling elite that to meet its own paradigm of economic growth and prosperity which requires an influx of foreign investment. Despite the print and electronic media being heavily regulated and controlled. Mr. why does the restriction to free speech continue? This is a question that must constantly dog the ruling elite since they are the standard bearers who consistently raise the spectre of threats to the national security caused by free speech. --------------------------------------------------------------------------------  The word “unreasonable” is used deliberately because it is a legal and constitutional principle enshrined in the English legal system when dealing with Britain’s unwritten constitution and its public laws. The events surrounding the recent police actions against Malaysiakini reflects the discomfort of the ruling elite in relation to liberalizing free speech. that reflects the desire for Malaysia to establish the Multi-media Super Corridor as an aspiring Silicon Valley equivalent. a most significant factor when we consider that there was an Indian member. It is important to remember that “ruling elite” includes the Legislature and the Judiciary. This may be taken to be a guarantee of free speech. Ironically. financial and business analysts and media may actually be the catalyst for the liberalization of free speech in Malaysia. . So. at least in the medium of the Internet. contains a promise not to censor Internet content. The so-called Bill of Guarantees. The possibility that commercial necessity or plain business sense may catalyze greater free speech cannot be discounted. and a Pakistani member. The tide of history is turning in favour of greater free speech. Malik. not merely the Executive. It is also a key principle in India and Pakistan’s written constitution in relation to restrictions on the right of free speech. in the Reid Commission that drafted the Merdeka Constitution. B.1969. the average Malaysian’s access to information is greater through the Internet that also provides a medium for a forum for discussion.
Istislah or Masalih al-Mursalah. Noordeen. Stockwell.  This intellectual process of juristic analysis falls under various categories such as Al-Ijma.  Article 3 of the Federal Constitution. 52. . The wisdom of the Indian community in Malaya was. Al-Ijtihad. is an extract of the transcript of the hearing by the Reid Commission of submissions by the Alliance wherein Tunku Abdul Rahman was questioned by Lord Reid regarding the Alliance memorandum on fundamental rights. at pp. no doubt. Doi in Shariah : The Islamic Law. HK.  Mayer. AJ [Editor]. 317-318. the Tunku admitted that it was the Malayan Indian Congress [not UMNO or MCA] who insisted on the fundamental rights provisions. 81-83. Kuala Lumpur [5th print – 1998]. derived from the Indian constitutional experience. Islam and Human Rights – Tradition and Politics. Although it is somewhat beyond the scope of this paper. Istihsan. 32-33. ff 281-290].  Muhammad Asad.  Id. Malaya : Part III : The Alliance Route to Independence 1953-1957. or Sadd al-Dharai. The Constitution of India : An Analytical Approach. Eastern Law House. An insightful explanation of these juristic analytical processes is offered by Abdur Rahman I. important note should be made regarding the basis and original intent of the Fundamental Liberties contained in Part II of the Federal Constitution. HMSO [London] . For example. Ann Elizabeth. Paper 427 [CO 889/6. at pp. The Principles of State and Government in Islam. Istishab.  [3rd Edition] Westview Press [USA] at p. [First published in 1961] [Paperback reprint 2001] Islamic Book Trust [Malaysia] at pp. In reply. A. A good description of the ethos and mindfulness of the framers of the Indian Constitution with regard to fundamental rights can be obtained from Saharay.S. Al-Qiyas. [Reprint-1998] [Calcutta].
CG. [2nd Edition . 8. has noted that the Arabic version of Article 12. It is not permitted to spread falsehood [al-batil] or disseminate that which involves encouraging abomination [alfahisha] or forsaking the Islamic community [takhdil li’l umma]”. Mohammad Hashim Kamali. 160-161. Malaysian Politics. Mayer at pp. [2001 Reprint] The Other Press [Malaysia] at p. at pp. .  Weeramantry. Burhanuddin Al-Helmy espoused the concept of Indonesia Raya or Melayu Raya and the radical nationalism of Ahmad Boestaman who was charged and convicted of sedition by the colonial authorities in April 1947. 9-11.  Ilmiah Publishers Sdn Bhd [Malaysia] at p. believe and express his ideas and beliefs without interference or opposition from anyone as long as he obeys the limits [hudud] set by the Sharia.. Mayer notes that the use of the criteria of one religion to set limits on rights are unacceptable under international human rights laws.  Op. Malay leaders such as Dr. Freedom of Expression in Islam. Islamic Jurisprudence : An International Perspective. as an example of the inconsistency of the Islamic conceptions of the freedom of speech.1976]. Gordon P. Hodder and Stoughton. 180.  Means. 88-93.a has material differences since it states as follows:- “Everyone may think..  Ibid. cit. pp.  Id.
 Colonial Office. subject to any reasonable restriction [Emphasis added] imposed by federal law in the interest of the security of the Federation. the Alliance [a coalition that comprised the United Malays National Organisation.  Article 10 in the draft Merdeka Constitution read as follows:- “Every citizen shall have the right to freedom of speech and expression. friendly relations with other countries. public order. London.  During the first election for the 52 elected seats in the Federal Legislative Council of Malaya in July 1954. or incitement to any offence. the Malayan Chinese Association and the Malayan Indian Congress] won 51 seats. Federation of Malaya Constitutional Commission. or in relation to contempt of court. 32 of the Reid Report . This fact was recognized by the Reid Commission at para. defamation. or morality.The collaboration between the so-called Malay radicals in colonial Malaya with Indonesian independence activists may have created a model closer to that of Indonesia. Colonial No. 1956-1957 Report. Her Majesty’s Stationery Office . 330.  Such types of legislation that restricted free speech was further legitimized after Independence by Articles 149 and 150 of the Federal Constitution which offered to the Executive [that dominated the Legislature] a wide menu of powers of emergency and preventive detention. This earned the Alliance the standing to claim that it was the principal political grouping to represent the wishes of the people of Malaya to achieve independence.” .
pp. Judicial Review of Reasonableness in Constitutional Law. The Constitutional Foundations of Pakistan.  Khoo.73. at pp. 73-74. TKK.  Ibid. at p. public order.  The date of the Reid Report. 128-183. .  The irony was that Justice Abdul Hamid’s own home country of Pakistan had promulgated its 1956 Constitution on 2nd March 1956 in which the guarantee of free speech as a fundamental right contained in their Article 8 read as follows:- “Every citizen shall have the right to freedom of speech and expression. is very well analysed in Iyer. Safdar Mahmood. friendly relations with foreign States. The Madras Law Journal Office .” The 1956 Constitution of Pakistan is reproduced in Dr. cit. Having regard to this peculiar contradiction. the motivations for Justice Abdul Hamid’s dissent is unclear. Rule of Law in the Merdeka Constitution.  Publishers United Ltd [Lahore]. particularly on the matter of free speech. op. 71-74.  Khoo Boo Teong. decency or morality. or in relation to contempt of court.  27 JMCL 59 at pp. The importance of the word “reasonable” [in the legal sense] as contained in Article 19 of the Indian Constitution. subject to any reasonable restrictions [Emphasis added] imposed by law in the interest of the security of Pakistan. defamation or incitement to an offence.
was published by the Colonial Office. 210. It is considered that sufficient remedies can best be provided by the ordinary law. London: HMSO.” The Government White Paper. void. found unsatisfactory and has been omitted on the ground that its is impracticable to provide within the limits of the Constitution for all possible contingencies. at n. where the public authority was exercising a judicial or quasi-judicial function that the public authority was acting without jurisdiction or in excess thereof or that the procedure by which the act or decision was done or taken was contrary to the principles of natural justice [emphasis added]. See Khoo.13. 1957. he may apply to the Supreme Court and. Ibid. however. the Court may issue such order as it may consider appropriate in the circumstances of the case. if the Court is satisfied that the allegation is correct. the sad reasoning of the Government White Paper was that- “The article proposed by the Commission on the subject of enforcement of the rule of law was. provided as follows- 4 Without prejudice to any other remedy provided by law- [a] … [b] where any person affected by any act or decision of a public authority alleges that it is void because- i. or the provision of the law under which the public authority acted or purported to act was ii. Constitutional Proposals for the Federation of Malaya.64. in particular. The draft Article 4[b]. the act or decision itself was void. . p. On this point. Cmnd. or iii. prepared by Malayans comprising the Malay Rulers and representatives of the Alliance.
 Khoo. Watherston. Freedom Under Executive Power in Malaysia : A Study of Executive Supremacy. regarding the Kashmir dispute between India and Pakistan that was raging at that time] had any influence on the strength of the dissent.. 161 of the Reid Report.  See two key opinions on this. that offers five factors against Justice Abdul Hamid’s dissent on this point. 26E dated 2nd February 1957]. Cmnd 210. Rais Yatim. 2 above. the misplaced wisdom of the Reid Commission with regard to fundamental rights was such that it made the dry observation that “the rights which we recommend should be defined and guaranteed are all firmly established now throughout Malaya and it may seem unnecessary to give them special protection in the Constitution”. 13[i] of Justice Abdul Hamid’s Note of Dissent contained in the Reid Report. Furthermore. Secondly. at p. paras. Paper 439 [CO 1030/519. London. in particular. 350-352 which reproduces a note by Sir D. 97. 66-71. Paper 443 [CO 1030/518 dated 18th February. Constitutional Proposals for the Federation of Malaya. Rais at p. This raises the interesting question of whether the personal tensions between Justice Abdul Hamid and both Lord Reid [probably for being rude and condescending] and B.  Para. In fact. HMSO .  Supra at n. op. and p. op. no. 67 noted that Justice Abdul Hamid’s dissent on this point had the character of ridicule. it is . 3 and 8 of the note. at pp. Malik [who hailed from India. Para. 1957]. 362 which reproduces a minute by JB Johnston on the rudeness of Lord and Lady Reid. For a description of the personal tensions see Stockwell. cit. Endowments Sdn Bhd  [Kuala Lumpur] at pp. cit. op. cit. Firstly by Khoo. at pp.  Colonial Office. 6772.
Furthermore.2 above. clearly showed the importance of directive principles in the construction and implementation of government policy and was even regarded as forming part of the basic structure of the Indian Constitution. [Lord Reid was a Scot.. Nani Palkhivala. AIR 1973 1461 [paras. Given the composition of the Reid Commission.” It should be noted that the concept of directive principles was first developed in the Constitution of the Republic of Ireland in 1937 and it found its way into Part IV of the Indian Constitution.  Id. but there can be no objection to guaranteeing these [fundamental] rights subject to limited exceptions in conditions of emergency and we recommend that these should be done … It was suggested to us that there should also be written into the Constitution certain principles or aims of policy which could not be enforced by the Court [Emphasis added]. including the landmark decision of Kesavananda v State of Kerala. We do not accept this suggestion. an Englishman nor an Australian. Any guarantee with regard to such matters would be illusory because it would be unenforceable in law and would have to be in such general terms as to give no real security. We believe such apprehensions to be unfounded. directive principles seemed to suggest Socialist ideals in an era when “red” communism was only slightly worse than the lighter shade of “pink” socialism that was espoused by Prime Minister Nehru in India. at n. cit. . A similar principle contained in the Indian Constitution would also not have excited a Pakistani jurist. 12.. 35. social and economic policy. at p. 13 and 1059]. 2] that it pressed Tunku Abdul Rahman to present the proposal for directive principles and it was noted by the Reid Commission thus:- “… we have found in certain quarters vague apprehensions about the future. Malik was from India.] a constitutional principle that originated from Ireland may not have found the proper appreciation it deserved neither from a Scot. Sir William McKell was Australian and Justice Abdul Malik a Pakistani. Moreover we do not think that it is either right or practicable to attempt to limit developments of public opinion on political. Mr B.to the MIC’s credit [supra at n.  Supra. that was forcefully and persuasively argued by the great Indian constitutional and tax lawyer.  Saharay. wherein cases cited. op. Sir Ivor Jennings an Englishman.
for the opposition parties.  Para. The State is demanding the right to utilize the funds from oil royalty for the furtherance of State policies.  Para. 142 of the Reid Report. This gives the Federal Government tremendous leverage over the States in terms of negotiations on matters involving State’s rights. A good case in point is the recent issue in 2001 involving the Terengganu State Government [under the control of the opposition Parti Islam Se Malaysia (PAS)] on the matter of State oil royalty. Along the same lines was the channeling of Federal largesse into Sarawak in preference to Sabah for the most part in the years between 1985 and 1994 when Sabah was under the control of Parti Bersatu Sabah (PBS) that was mostly in opposition. This is. Chapter V Directive Principles of Fundamental State Policies [Sections 71 – 89] of the Constitution of the Kingdom of Thailand. to ensure that public amenities are properly financed by the Federal Government. the street wisdom that state coalition partners can work better in the backrooms with their federal counterparts while the opposition parliamentarians from the state can champion larger causes at the Federal Parliament! . One cannot be oblivious to the political aspect of this dispute.  The Federal Government collects a very substantial portion of revenue as part of its powers under the Federal List at the Ninth Schedule of the Federal Constitution. at the Federal level. in the recent past.  In fact. the attitude of Malaysian voters may have been to vote for the Barisan Nasional at the State level and. no doubt. the Federal Government’s position is that the discretion belongs to the Federal Government itself on how to dispense the funds. 3[i] of the Reid Report. The establishment of a strong central government was a primary objective.  Article II of the Constitution of the Republic of the Philippines. However.
 Malayan Law Journal Sdn Bhd. The emergency declarations were made by the Tunku Administration in 1966 against Sarawak in the matter of Stephen Kalong Ningkan’s refusal to resign as Chief Minister of Sarawak and in 1977 by the Hussein Onn Administration over the defection of the PAS Menteri Besar of Kelantan. 164 and 165 of the Reid Report. Harding.  By Act 10/1960.  Para. It may well be a case of the pot calling the kettle black since in each era. Government and the Constitution in Malaysia. From a constitutional perspective. the . It is ironic that the Tunku should have criticized the Mahathir Administration for using the emergency and preventive detention laws against political opponents when the Tunku himself used it against Stephen Kalong Ningkan in 1966. sections 28[a] and [b] and 29. 18. the criticism leveled at the Mahathir Administration must be tempered by the legacy of emergencies it inherited.  Section 11 of the Constitution of the Philippines empowers the President to declare martial law “with the concurrence of a majority of all the members of the National Assembly” and such declaration of martial law is deemed to automatically terminate after 30 days. Andrew. Dato’ Mohamad Nasir to UMNO. Furthermore. the relevant administration saw it fit to use the emergency and preventive detention powers for political reasons. at p. Tun Hussein Onn used such powers against the PAS government of Kelantan in 1977. For that matter. From a historical and constitutional perspective the question of legitimacy for the use of emergency and preventive laws against political opponents are on all accounts answered in the negative. 173 of the Reid Report. Law.  It is important to note that the administrations of Tunku Abdul Rahman and Tun Hussein Onn each had the occasion to declare states of emergency.  Paras.
should be seen as an aberration and silly political opportunism..  Lee. But such a declaration of emergency must be approved. at pp.  Ibid. see Means. op. among other related procedures. 22-36. who was a Member of Parliament from Sabah was found guilty of sedition for having suggested amendments to Article 152 on the national language to facilitate his argument that Chinese and Tamil vernacular schools should be closed and that the use of Chinese and Tamil languages in road signs should be restricted. See also Harding. 391-397. cit. at pp. Section 219 offers a procedure for their grievance to be referred to the Constitutional Court for deliberation.  For example. 1971. op. Lee. .  In this sense the cases of Mark Koding v PP  2 MLJ 120 and Mark Koding v PP  1 MLJ 111. at p.  By Act A30/1971 at section 2 which came into force on 10th March. at the recommendation of the Council of Ministers.  Oxford University Press [Kuala Lumpur]. 194. Means. Constitutional Conflicts in Contemporary Malaysia. 401.Constitution of the Kingdom of Thailand at Section 218 permits the King. at p. 86-95. if at least one-fifth of the members of each House is dissatisfied with the emergency decree. at pp. cit.  Ibid. by more than one-half of the existing members of the National Assembly [comprising the House of Representatives and the Senate] at the next succeeding sitting or an extraordinary session. wherein the accused... HP. to declare an emergency. In addition.
in hardship and in ease. in hardship as well as in ease. generally. If the word “reasonable” is allowed to stand every legislation on this subject will be challengeable in court on the ground that the restrictions imposed by the Legislature are not reasonable. at pp. 13[ii] of the Note of Dissent contained in the Reid Report. Furthermore. Ubadah ibn as-Samit.  See Justice Abdul Hamid’s on this point at para. . and we pledged our allegiance to him. 174 of the Reid Report. it is submitted. cit.  Ibid. Citizens are. This. “The Legislature alone should be the judge of what is reasonable under the circumstances. It is submitted that this attitude also manifests itself towards authority figures such as political leaders. He had expressed the view that. contemporary Chinese Malaysian communities are either politically marginalized or content with the status quo of middle-class indolence and apathy. in orthodox Islam. “unless you see and obvious infidelity [kufr] for which you have a clear proof from [the Book of] God”. Para.. 69-70. Firstly. and [impressed on us] that we should not withdraw authority from those who have been entrusted with it. Thirdly. as follows:- “The Prophet called us. to respect the local authority to avoid causing any trouble. the Malay adat is still strongly observed. required to be bound “to hear and to obey. The matter in question was obviously the phrase “reasonable restrictions” in the draft constitution. He imposed on us the duty to hear and obey in whatever pleases and displeases us. op. the Chinese traditions of respect to their elders are rooted in the Confucian tradition. This is manifested is the daily conduct of the Malay to respect their elders and to defer to their greater wisdom. This is based on the Tradition narrated by the Companion. is coupled with the immigrant ethos echoes of which are very likely to have been passed on to newer generations. as recorded by AlBukhari. it has been noted that a citizen has a duty of allegiance to the government.”  Three factors are offered here. which has been dealt with at Supra. whatever our personal preference. in circumstances pleasant and unpleasant” the calls of the government: See Asad. Secondly.
in turn. told a gathering of students that his decision to join UMNO. A political analyst may surmise that once a person assumes a position of authority. In any event. was due to his desire to “bring change from within the system”.It is not a simple thing to oppose an established authority.. when he visited Melbourne. it is submitted.. Nor. it is difficult to establish “obvious infidelity” and obtain “clear proof”. op.  The locus classicus being Karam Singh v Menteri Hal Ehwal Dalam Negeri Malaysia  2 MLJ 139. Mahathir’s own career path of vocal opposition to the UMNO establishment [that resulted in his sacking as party member] in 1969 result in greater free speech when he assumed the UMNO Presidency and Prime Ministership in 1981. were scathing. as currently constituted. Ong Hock Thye J. affirms the need for the structure of separation of powers to ensure that the right of free speech is protected under a de-personalised constitutional structure. Tun Suffian’s views regarding the Executive. did not indicate any changes to matters such as free speech in Parliament. This. did Dr. at pp. for that matter. despite his gradual ascendancy of power to the point of becoming the second most powerful person.  Id. A good example of the late Tun Suffian’s views is contained in the Foreword of Harding’s book. That justification may be indicative of a recognition that the dominance of the Executive over the Legislature and Judiciary and. 142-148 for a summary of the crucial events. the tendency is to obey. as Deputy President of UMNO and Deputy Prime Minister. soon after he was appointed the Deputy Minister of Education.’s famous phrase in Karam Singh. Even so.  It is interesting to note that Dato’ Seri Anwar bin Ibrahim. cit. v-vi. In retirement. Australia in 1982. cit. BN and the ranks of Government. was so overwhelming that a non-establishment career path would not have had the desired result for an ambitious political leader.  See Harding. over NGOs such as ABIM [that Dato’ Seri Anwar led before joining UMNO]. . the inclination is to downgrade free speech regardless of his own travails in the past. Thus. op. at pp.
were humbly born and. Friedman. A copy of the article can be found at www. “Thailand’s New Swan Song”..edu/acad/intrel/thailimf. on the Tradition narrated by the Companion of the Prophet. have coined a phrase for this methodology and called it “the science of jurimetrics”.htm for a good description of the science of jurimetrics. Yet.  Articulated by Karl Llewellyn in his book The Bramble Bush. The word jurimetrics was coined by Lee Loevinger in 1949 and the field of study that specializes in the codification of law to inter alia. The recent decision. wherein he criticized the attempt by Chief Justice Eusoff Chin [as he then was] to influence the decision in the matter of the Sabah State Assembly seat of Likas. filed by Thomas L.  The Americans. shared a common inclination towards favouring Executive actions in their decisions. 39-59. A good example of well-articulated jurisprudence to advance the principles of the Rule of Law is Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Another  1 MLJ 261.  For instance.com/jurimetrics. Tun Suffian and Tun Salleh Abas. Laurence W.  New York Times [15th December 1997] article entitled. all three jurists. Ubadah ibn as-Samit.mtholyoke. sitting as judge in the Election Court. . in a broad sense..  Angus & Robertson Publishers [Australia]. of Mohd Kamil Awang J. is indicative of a judge expressing his conscience. in 2001. See for example the website www. at pp.. having undergone English legal training and had successful judicial careers.andrewlaw. through behavourial research.  Sexton. Raja Azlan Shah [as he then was] was born a prince. has developed a large measure of respectability. with their usual exuberance.thm. Michael & Maher.  Oceana [New York]. predict judicial decisions. The Legal Mystique : The Role of Lawyers in Australian Society.  Supra.
who believe that the Western economic powers.  Mahmoud Mohamed Taha.  Article 28 of the Constitution of the Republic of Indonesia. . See for example www. There are. Thaksin Shinawatra. Ustaz Mahmoud was executed by the Sudanese authorities for his political and religious beliefs. has a grand design to create a global hinterland for Western economic and political hegemony. Almohad.  Section 39 of the Constitution of the Kingdom of Thailand.org/wbimf/facts.  See generally. of course.globalexchange. Abbasid. Almoravid. Jonathan and Blair. Ottoman and Mughal dynasties.  Syracuse University Press [New York]. Another group of detractors are the opponents of the World Trade Organisation such as Greenpeace. on nationalistic grounds. that such external pressure are unreasonable and that a sovereign country should not be subjected to such pressure. many detractors that include the current Prime Minister of Thailand. The Second Message of Islam [Translated by Abdullahi Ahmed AnNaim]. who believe. BBC London  that outlines the various Islamic empires that include the Ummayad. as a whole. Sheila. Fatimid.html. Bloom. Section 9 of the Constitution of the Philippines.  Article IV. Islam : Empire of Faith.
Justice Abdul Hamid of Pakistan has made it.  Ibid. at n. 68-74.2 above. Morgan Stanley. at pp. wherein Saharay had enumerated the various references made by the drafters of the Indian Constitution in preparing the Fundamental Rights provisions at Part III.. USA. Starke’s International Law. Toward An Islamic Reformation : Civil Liberties. including regard to the UDHR that was being prepared at the time in San Francisco. at p.  In this respect we may note the great excitement that negative reviews by Standard & Poor. Human Rights and International Law. that describes the basis for the British practice that is in pari materia with the Malaysian practice.. is presently tenured at Emory University in the United States of America. IA. at p. 333. CNBC and the Wall Street Journal.  Supra.  Shearer.  Ibid. not to mention CNN.  The arbiter of “reasonableness of legislation”. Syracuse University Press [New York]. tend to have on Malaysia’s ruling elite and the Malaysian capital market. 330. as the successful dissenting view of Reid Commission member. . Abdullahi Ahmed An-Naim. [1994 – 11th edition] Butterworths. Professor Abdullahi. CalPers and Fidelity Investment.. who is an exiled Sudanese.  Since it hitherto has not resiled from its subscription to the idea of “subjective satisfaction” in matters of national security since Karam Singh.
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