ARTICLE 10

Freedom of Speech
Freedom of Assembly
Freedom of Association
 LEARNING
Article 10
OUTCOME…

(3)
(4)
(1) Clause (1) c -labour and
(2) education Restrictions by law
a. Freedom of speech &
Restrictions by law clause (2) a -questioning
expression
Part III,152,153, 181
b. Right to peaceful a. Clause (1) a- MP
assembly privileges
c. Right to form association b. Clause (1) b- security,
public order
c. Clause (1) c- security,
public order, morality
Updates

REVIEW AND MORATORIUM

• The Ministry of Home Affairs established a Special Committee and a Technical
Committee in July 2018 to study:
Sosma, Pota, the Prevention of Crime Act 1959 (Poca), Sedition Act 1948, Printing
Presses and Publications Act 1984, Peaceful Assembly Act 2012 and the mandatory
hanging penalty in all relevant Acts.
• Among the issues discussed included detention without trial under Poca and Pota, the
maximum remand period of 60 days under Poca and Pota and 28 days under Sosma, no
room for court evaluation of detainees’ merits under Poca and Pota, overly-broad
scope of powers for law enforcers, restrictions on freedom of speech and assembly,
and misuse of security laws for political purposes.
(The Malay Mail, 24 October 2018)
LIFTING OF THE MORATORIUM
• The government will continue using several law related security and public order.
• However, the use of these laws will only be done when it involves issues of
national security, public order, and race relations.
• The legislation which are currently in moratorium includes the Sedition Act 1948;
Section 223 of the Communications and Multimedia Act 1998 (CMA); Security
Offences (Special Measures) (SOSMA) Act 2012 (Act 747); The Prevention of
Terrorism Act (POTA) and the Crime Prevention Act 1959 (POCA).
• The lifting of the moratorium or suspension of these laws is limited to incidents
that threaten national security, public order, and race relations.
(New Straits Times, 3 December 2018)
FREEDOM OF SPEECH
• Restricted zones which prohibit the use of mobile phones or other
communication devices capable of recording information were created
to prevent leaks of official government secrets
• This is contained in a circular issued by director-general of security of
the Government of Malaysia dated Jan 31, 2019, to prevent any leaking
and dissemination of confidential information.
• The zones would apply to any important meeting categorised as critical
and high-risk.
(The Malay Mail, 9 April 2019)
ANTI-FAKE NEWS
• The repeal of the Anti-fake News Act 2018 which was passed in the
Dewan Rakyat, was rejected by the Dewan Negara in September
2018.
• As reported on 9 April 2019, the Prime Minister Tun Dr Mahathir
Mohamad said the government will stand firm in its intention to
repeal the Anti-Fake News Act 2018.
(New Straits Times, 9 April 2019)
ANTI-FAKE NEWS
• The government gave an assurance that it will not use the Anti-
Fake News Act on anyone even though the Act is still enforced.
• The Dewan Rakyat had approved a motion to repeal the Act last
year but it was rejected by the Dewan Negara.
• Deputy Minister in the Prime Minister’s Department Mohamed
Hanipa Maidin said no one had been investigated or charged under
the Act.
(FMT, 27 March 2019)
 Article 10

• These rights are limited and qualified

• Started with “Subject to clause..”
• These rights are limited by grounds under Clauses (2), (3) and (4)
• Prof Aziz Bari – Residual in nature
• The no. of grounds are different from one right to another

bl e for
la
Avai izens
cit
 Article 10(1)(a)
FREEDOM OF SPEECH & EXPRESSION

• Every citizen has the right to freedom of speech and expression

• extends not only to private and political statements & speeches
but extends to artistic and creative works
• Includes the right to freedom of the press or information
• Parliament may impose restriction deems necessary or
expedient in the interest of the:
• security of the federation,
• friendly relations with other countries,
• public order or morality and
• Restriction designed to protect
• privileges of Parliament or of any Legislative Assembly
• contempt of court,
• defamation,
• incitement to any offence.
• Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor [2019] 8
MLJ 624
• In this case, an application was made to the High Court to issue a
pre-trial gag order prohibiting any person from publishing or causing
to be published in the broadcast media or by way of any other form
of communication to the public at large any words, comments,
discussions or statements which would suggest, conclude or infer that
the accused/applicant, a former prime minister of Malaysia, had
undertaken, or was guilty of, any of the acts stated in seven criminal
charges that he was charged with and which were to be tried jointly.
• The High Court dismissed the application and held among others:
The specific terms of the gag order applied for, if granted, would
for all intents and purposes, represent a major incursion on the
constitutional right of freedom of expression and speech under art
10 of the Federal Constitution and was tantamount to an
unjustified departure from the ‘open justice’ principle advocated
under s 15 of the Courts of Judicature Act 1964. If granted, the
gag order would be difficult to sustain given the unduly wide scope
of its intended prohibition which, in effect, was targeted at the
whole world. 
 Various laws restricting the freedom of speech

• Sedition Act 1948

• Printing Presses and Publications Act 1984
• Official Secrets Act 1972
• Internal Security Act 1960 (Repealed) 2011
• Film Censorship Act 2002
• Indecent Advertisements Act 1953
• Defamation Act 1957
• Universities and University Colleges Act 1971
• Anti-Fake News Act 2018
• Communications and Multimedia Act 1998
i.e.

• The restriction to free speech apply to everyone, even to members of

Parliament in their parliamentary proceedings. (Article 63(4)).

• Parliament has power to punish for contempt of either House.

• Defamation, the publication of a false statement about a man to his

discredit, is not only civil wrong, but can be a criminal offence entailing
punishment.

• Publication of material likely to prejudice a fair trial can be punished as a

contempt of court.
Some development on repealed and
amendment acts (before 2018)
• Security Offences (Special Measures) Act 2012-
passed under Article 149- have several safeguards
• 2012- freedom granted to the media and the
people following the passing of Act A1436
PRINTING PRESSES AND PUBLICATIONS
(AMENDMENT) ACT 2012 which is an Act to amend
the Printing Presses and Publications Act 1984
that among others validates continuous press
licenses.
• This amended Act means that the Government
cannot simply suspend the licenses of any media or
press organisation.
cont.

• The press organisation can exercise unprecedented amount of

liberty and freedom to criticise the weaknesses of the Government
and make the Government more accountable to the people in
terms of making policies and decisions that affect the people.
• The Act applied to every local newspaper or other form of media
in the country, including those in Sarawak and Sabah.
 Article 10(4)

• Parliament may pass law prohibiting the questioning

of four sensitive matters:

• Right to citizenship (Part III)

• Status of the Malay language (Article 152)
• Position and privileges of the Malays & native of Sabah &
Sarawak (Article 153)
• Prerogatives of the Malay Sultan & the ruling chiefs of N9
(Article 181)

• “Seditious tendency” under the Sedition Act 1948

includes the above matters other than ‘conduct or
speech inciting public disorder or rebellion, of
agitation against the established order of the state
Section 3- Sedition Act

“Seditious
tendency…”
S3 (2)- contains lists of
situations which are not
regarded as sedition-e.g. to
show that any ruler has
been misled or mistaken in
any of his measures

S3 (3) provides that the

intention of person charged
under this Act is irrelevant
Section 4- Sedition Act
Judicial review of legislation
PP v Pung Chen Choon
• In order to determine whether a particular
piece of legislation falls within the orbit of
permitted restrictions, the objects of the law
must be sufficiently connected to the eight
restrictions enumerated in A10 (2)(a)
• In this case, the accused was charged under
S8A of the Printing Presses and Publication Act
1984. it is an offence to maliciously publish
false news.
• In his defence, the accused argued that this is
actually outside the scope of ‘permissible
grounds’
• The restriction is in the form of blanket
restriction of the freedom of speech
• The Court rejected his argument
and laid down several principles
relating to the scope of the
permissible grounds
• 1- the court will look into the pith
and substance of that particular
law (what is the actual nature of
the law)
• 2- it will consider the prevailing
conditions in the society at that
particular time
Dewan Undangan Negeri
Kelantan v Nordin Saleh
• a restriction can be
challenged if it directly
affects the fundamental
right or the restriction’s
inevitable consequence is
such that it makes the
exercise of fundamental
rights ineffective or
illusory.
 PP v Azmi Sharom [2015] 6 MLJ 751

• The defendant (accused in the Sessions Court) was charged in the

Kuala Lumpur Criminal Sessions Court for an offence under section
4(1)(b) and alternatively under section 4(1)(c) of the Sedition Act
1948 (the Act). The defendant claimed trial to the charges. Prior
to the commencement of the trial, the defendant applied to the
Sessions Court to refer the question on the constitutionality of the
Act to the High Court.
• FC: …As legislated, it is not seditious to show that any Ruler has
been misled or mistaken in any of his measures, or to point out
errors or defects in any Government or constitution as by law
established. Upon close analysis, we agree with the plaintiff's
submission that the restrictions imposed in s.4 (1) fall squarely
within the ambit or parameter of Art.10 (2)(a) of the Constitution.
In the result, we hold that s.4 (1) of the Act does not run counter
to Art. 10(2) (a) of the Constitution. Accordingly, our answer to
the first question is in the negative.
• a five-member panel of the Federal Court ruled that the Sedition
Act was valid and therefore the accused had to stand trial for his
charge.
• in 2016, the Sessions Court has acquitted and discharged Universiti
Malaya law lecturer Associate Professor Dr Azmi Sharom of a
sedition charge.
 Mat Shuhaimi bin Shafiei v Kerajaan
Malaysia [2017] 1 MLJ 436- Court of Appeal
• The appellant filed the originating summons in September
2015. Mat Shuhaimi, 47, sought for a declaration that Section
3 of the Sedition Act, read with Section 4 of the same Act,
violates Article 10(1)(a) of the Federal Constitution and is
therefore invalid.
• Section 3 of the Sedition Act touches on various conditions of
seditious tendency while Section 4 explains penalties
involved.
• Article 10 states that every citizen has the right to freedom
of speech and expression.
• Mat Shuhaimi had on Feb 7, 2011, claimed trial for posting a
seditious publication in his blog.
• In February, 2015, High Court (Appellate and Special Powers)
judge Justice Asmabi Mohamad dismissed Mat Shuhaimi’s civil
action.
• Justice Asmabi also dismissed an application to stay the
proceedings at the High Court to refer a question of law to
the Federal Court for determination.
• Justice Asmabi: "I am mindful to dismiss this (stay)
application with costs on grounds that it is an abuse of the
process (of the court).”
• The Court of Appeal ruled that Section 3(3) of the Sedition Act is
unconstitutional.
• A three-man panel chaired by Justice Lim Yee Lan said that
intention must be proven in every sedition case.
• The panel said Section 3(3) was in violation of the constitutional
right of freedom of speech.
• Mat Shuhaimi filed an appeal challenging the constitutionality of
the Sedition Act in relation to seditious tendency and its penalty.
• Court: What was being directed by s 3(3) of the Act was a total
removal of any consideration on the issue of intention ie mens rea
which was an essential ingredient in other criminal proceedings.
The said provision also was not in terms of a rebuttable
presumption.
• Thus, s 3(3) of the Act was a disproportionate restriction or
measure to meet the permissible objectives spelt out in art 10(2)
(a) of the Constitution.
• Further, s 3(3) was also in violation of the constitutional rights of
a citizen to be treated and protected equally before the law as
provided under art 8(1) of the Constitution. The court further
made a declaration that s 3(3) of the Act contravened art 10 of
the Constitution and therefore was invalid and of no effect in
• The Federal Court has given the
Government leave to appeal the
Court of Appeal’s ruling that Section
3(3) of the Sedition Act is
unconstitutional.
• The three-man panel led by Chief
Judge of Malaya Justice Zulkefli
Ahmad Makinudin granted leave
after Sri Muda assemblyman Mat
Shuhaimi Shafiei’s lawyers, led by
Datuk Seri Gopal Sri Ram, did not
object to the legal questions the
Government proposed be deliberated
at the Federal Court.
• To read more on Sedition Act, refer to the case…
Mat Shuhaimi bin Shafiei v Public Prosecutor [2014] 2 MLJ 145
• It is said that the Sedition Act is draconian and arbitrarily restrict the right to
freedom of speech and expression. It is also said that the Sedition Act stifled
legitimate criticism of government policies and it curtailed dissenting opinions. But it
must be recalled that in 1970, the Sedition Act was amended in response to the 13
May 1969 racial riots in the country. The racial riots erupted because of inflammatory
speeches made by electoral contestants during the 1969 general election campaign
where issues pertaining to the national language, special position of the Malays were
debated and called into question. The Yang di-Pertuan Agong declared a state
emergency on 15 May 1969. The Emergency (Essential Powers) Ordinance No 45 of
1970 was enacted and it made an offence to question these issues. The 1970
amendment to the Sedition Act saw the incorporation of para (f) to sub-s (1) of s 3…
• It is apparent that the 1970 amendment broadened the scope of the definition of
'seditious tendency' by making it an offence for any public discussion questioning the
provisions of Part III of the Federal Constitution or arts 152, 153 and 181 of
the Federal Constitution.
• It is the duty of the court to interpret and uphold the law. The 1970 amendment is
unique in that it raises a presumption of law that anything falling squarely within the
terms thereof has a seditious tendency. The court in Melan bin Abdullah & Anor v
Public Prosecutor had to consider whether a subheading in the editorial of a
newspaper stating, 'Abolish Tamil or Chinese medium schools in this country' was a
seditious publication. The court held that the subheading clearly violated proviso (a)
of art 152(1) of the Federal Constitution and therefore it came squarely within the
definition of 'seditious tendency' in s 3(1)(f) of the Sedition Act.
• Kerajaan Malaysia v Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133
• Federal Court: The constitutionality of s 3(3) of Act 15 was clearly
part of the subject of the litigation in the notice of motion in the
criminal proceeding and so clearly could have been raised. The
respondent should have challenged the constitutionality of s 3(3) in
the notice of motion in the criminal proceeding. There was nothing in
the affidavit filed in support of encl 1 in the notice of motion to
explain why this issue was not raised in the criminal proceeding.
There was also nothing akin to fresh evidence which might warrant
the raising of this issue only in encl 1. Enclosure 1 was an abuse of
the process. On this ground alone encl 1 should be dismissed. The
Court of Appeal erred in allowing the respondent’s appeal and in
considering the merits of the application in encl 1.
• Mohd Faizal bin Musa v Minister of Home Affairs [2017] 11 MLJ 397
Facts: The Minister of Home Affairs had issued an order pursuant to s 7(1) of the Printing Presses and
Publications Act 1984, prohibiting the printing, importation, production, reproduction, publishing, sale, issue,
circulation, distribution or possession of books entitled ‘Sebongkah Batu di Kuala Berang’, ‘Karbala’, ‘Tiga Kali
Seminggu’ and ‘Ingin Jadi Nasrallah’ which were written by the applicant.
Prior to the making of the order, the respondent had called the applicant for a meeting together with Jabatan
Kemajuan Islam Malaysia to have discussion pertaining to the books which had been certified by JAKIM to be
prohibited. Nevertheless, the applicant informed the respondent that he would not attend to the said meeting
as the proposed meeting did not have any basis and was not necessary.
The applicant filed judicial review application to challenge the legality and propriety of the order. The
applicant submitted that: (a) there must be first an actual occurrence of public disorder before the respondent
could make the order; (b) the Minister had taken into account irrelevant consideration when he relied on the
decision of the Jawatankuasa Fatwa; (c) he was not given reasonable opportunity to provide to the respondent
the explanation that he had given in the present judicial review proceeding; and (d) the respondent’s conduct in
prohibiting the books but not the prior publications by Dewan Bahasa dan Pustaka and Mingguan Malaysia was
discriminatory and therefore inconsistent with the requirements under art 8(1) of the Federal Constitution and
that the respondent must act with fairness and equality of treatment.
The High Court dismissed the applicant’s application and held among others:
The applicant’s right under art 8 of the Constitution was not absolute. Under
art 10(2)(a) of the Constitution, Parliament is empowered to restrict these
rights through the provisions of the law.
The Act is one of the statutory provisions enacted pursuant to the provisions
of art 10(2)(a) of the Constitution which aims to limit freedom of expression
of individuals on the grounds, inter alia, prejudicial to public order as stated
under s 7(1) of the Act.
The order was valid under the Act because the subject matter of the order
was associated with ‘publication’ and the order was made in conformity with
the object/purpose of the Act 
• Court of Appeal allowed the Appeal by Mohd Faizal and held: (See Mohd Faizal bin Musa v Menteri Keselamatan
Dalam Negeri [2018] 3 MLJ 14)
• (1) The order, which prohibited the four books, described the books as ‘likely to be prejudicial to public order’. The
words ‘is likely’ show it has potential to happen, might happen or probably to happen. What needed to be proven was
not the ‘actual public disorder’ but anything which was the potential to disrupt public order. The High Court judge did
not explain what was the ‘potential’. If it was indeed prejudicial to public order, there was no evidence of any chaos or
disorder happening in the country at present or even at the time the order was made. The reasoning was complete
unsustainable.
• (2) Having read the four books, the court could not understand how they could create public disorder or a threat to
security. For example, in ‘Tiga Kali Seminggu’, the short story ‘Rindu ini Luar Biasa’ was about two people falling in
love during their fight to elevate the use of Bahasa Malaysia and how position, status and power could change people’s
viewpoint. The short story ‘Bulan Penuh di Saigon’ was about a woman who was determined to look for her real mother
upon discovery that she was actually an adopted child, after her adopted mother passed away. The short story of ‘Cinta
Medeni’ was a pure love story. The poem ‘Balada’ in ‘Ingin Jadi Nasrallah’ was nothing but the expression of guilt by
someone who felt that he had committed so much sins that now he has repented and showed remorse and asked for
forgiveness from his Creator. The poem ‘Baitullah’ was nothing but about the Baitullah, the House of God for Muslims.
• (3) The order was not made in accordance with sub-s 7(1) of the Act and was therefore illegal. The order was a
restriction on the appellant’s constitutional and fundamental right to freedom of expression
Judicial review of executive discretion
• The judge in JB Jeyaretnam
[1990] 1 MLJ 129 cited
Arthur Francis v Chief of
Police [1973] AC 761 the Privy
Council said that a wrongful
refusal of permission to use a
loudspeaker at a public meeting
would be an unjustified and
therefore unconstitutional
interference with freedom of
communication.
• PP v Ooi Kee Saik & Ors [1971] 2 MLJ
108
• involved the DAP leader who had made
remark criticizing discrimination on
ground of race
• Held: it is for the parliament and the
people to decide what criticism against
government to be justified and not the
court.
• The court also stressed that the intention
to commit sedition is not important as
long as the thing is seditious
• Mark Koding v PP-
Parliamentary privileges does
not protect a person from the
specific charge of sedition for
questioning sensitive issues.
Melan Abdullah v PP
• The accused was the chief
editor of Utusan Melayu.
• He was charged with sedition
for an article published in his
newspaper
• The article contained the call
to close down Tamil and
Chinese medium school.
PP v Param Cumaraswamy p1986] 1 MLJ 512
• He was acting as a lawyer for person who was sentenced to
death under ISA
• He appealed to the Pardons Board but his appeal was rejected
• After the decision, he complained to the press why his client
was not given a fair treatment
• The court held that what he said was not sufficient to cause
sedition mainly because it is against the Pardons Board and not
specifically against the rulers
Muhammad Hilman Bin Idham & Ors v Kerajaan Malaysia & Ors
[2011] MLJU 770
• Facts: The appellants are political science undergraduate students
of the 3rd respondent, that is, Universiti Kebangsaan Malaysia.
They were present in the parliamentary constituency of Hulu
Selangor in the campaign period for the parliamentary by-election
of 24 April 2010 to observe a parliamentary by-election.
• On or about 13 May 2010, each appellant received a
notice from the Vice Chancellor of the University
requiring their attendance before a disciplinary
tribunal on 3 June 2010. Before the disciplinary
tribunal they were charged for purported breaches of
disciplinary offences under s.15(5)(a) of the UUCA.
• 15. Student or students' organization, body or group associating
with societies, etc.
• (5) No student of the University and no organization, body or
group of students of the University which is established by,
under or in accordance with the Constitution, shall express or do
anything which may reasonably be construed as expressing
support for or sympathy with or opposition to-

• any political party, whether in or outside Malaysia;

• Judgment: Mohd Hishamudin Yunus JCA: in my judgment, I fail to see in what
manner that section 15(5)(a)of the UUCA) relates to public order or public morality. I
also do not find the restriction to be reasonable. I am at a loss to understand in what
manner a student, who expresses support for, or opposition against, a political party,
could harm or bring about an adverse effect on public order or public morality? Are not
political parties legal entities carrying out legitimate political activities? Are not
political leaders, including Ministers and members of the federal and state
legislatures, members of political parties? I read intensely the affidavits of the
respondents and the written submissions of the learned counsel for the respondents,
searching for a clear explanation on the nexus between the exercise of the right of a
university student to express support for (or opposition against) a political party and
public order or public morality: but with respect, not surprisingly, I find none.
• The impugned provision is irrational. Most university students are of the
age of majority. They can enter into contracts. They can sue and be sued.
They can marry, becomes parents and undertake parental responsibilities.
They can vote in general elections if they are 21 years old. They can
become directors of company. They can be office bearers of societies. Yet
- and herein lies the irony - they are told that legally they cannot say
anything that can be construed as supporting or opposing a political party.
• In my opinion such a provision as section 15(5)(a)of the UUCA impedes the
healthy development of the critical mind and original thoughts of students
- objectives that seats of higher learning should strive to achieve.
Universities should be the breeding ground of reformers and thinkers, and
not institutions to produce students trained as robots. Clearly the
provision is not only counter-productive but repressive in nature.
• Anti-Fake News Act 2018
An Act to deal with fake news and related matters.
Fake news: includes any news, information, data and reports,
which is or are wholly or partly false, whether in the from of
features, visuals or audio recordings in in any other form capable
of suggesting words or ideas (section 2).
• The Communications and Multimedia Act 1998
Section 233 (1) A person who— (a) by means of any network facilities or
network service or applications service knowingly— (i) makes, creates or
solicits; and (ii) initiates the transmission of, any comment, request,
suggestion or other communication which is obscene, indecent, false,
menacing or offensive in character with intent to annoy, abuse, threaten
or harass another person; or (b) initiates a communication using any
applications service, whether continuously, repeatedly or otherwise,
during which communication may or may not ensue, with or without
disclosing his identity and with intent to annoy, abuse, threaten or harass
any person at any number or electronic address, commits an offence.
 Freedom of Press

• Freedom of press is one of the crucial aspects in a democratic country

• The main law which governs and limits the freedom of press is PPPA
1984
• S3 (Part II) provides for licensing of printing presses
• The license is granted by the Minister in charge (Minister of Home
Affairs)
• The Minister may refuse, revoke or suspend any license at his own
discretion
• Part III- provides for the permit to publish newspapers.
• Newspapers include any publication for sale or free at regular or
irregular intervals
• The permit granted by the Minister of Home Affairs.
• The Minister has discretion to revoke or suspend the permit.
• Previously under S6, it is his absolute discretion
• The punishment for violating this law is imprisonment not exceeding
three years and fine not exceeding RM20,000
• 2012- PPPA was amended. Among others, subsection 6(1) of the principal
Act was amended by deleting the words "in his absolute discretion".
• 1987- Operasi Lalang, three major newspapers’ permits were temporarily
suspended.
• In granting the permit, the Minister may also impose conditions, which include the
frequency of publications
• Aliran Kesedaran v Minister of Home Affairs
• They applied for permit to publish Malay publication but was rejected by the
Minister.
• Aliran challenged the decision as being unreasonable.
• High Court held in favour of Aliran
• On appeal, the SC overturned the decision and held that the Minister has an
absolute discretion on the matter
• Other than PPPA, other laws which can limit the press is the Official
Secrets Act 1972
• a person who receives or communicates information classified as official
secrets will be liable
• Section 2- "official secret " means any document specified in the Schedule
and any information and material relating thereto and includes any other
official document, information and material as may be classified as "Top
Secret ", "Secret " ,"Confidential " or "Restricted ", as the case may be, by
a Minister, the Menteri Besar or Chief Minister of a State or such public
officer appointed under section 2B;
• SCHEDULE
  [Section 2A ]
Cabinet documents, records of decisions and deliberations
including those of Cabinet committes;
State Executive Council documents, records of decisions and
deliberations including those of State Executive Council
committees;
Documents concerning national security, defence and
international relations.  
 Freedom of Assembly

• A. 10(1)(b): the right to assemble peaceably and without

arms for citizens

• Restriction: necessary or expedient in the interest of the

security of the Federation / public order

• S. 141 Penal Code: an assembly of 5/> persons having an

unlawful, common objects is an unlawful assembly
PREVIOUS POSITION…

• Power to regulate assembly is given to Police

• S. 27 Police Act 1967: confers on the police express power

to regulate assemblies, meetings and processions.

• Thus application is to be made to the police for a license

if a person intends to convene a meeting or form a
procession in any public place.
• If any assembly / processions occurs without the issue of such license, it is deemed
to be unlawful assembly and any police may stop it.
• Apply 14 days before the assembly takes place
• Conditions may be imposed
• Main complaints concern:
• Delay in issuing license
• Absence of reasons for refusal
• Cancellation of license from official sources
• Meetings taking place other than in public places, the rights is sometimes blurred
by exercise of police discretion to stop such assemblies from taking place.
• Example:
• 2002, police stopped an indoor meeting organised by a Chinese education
lobby group that was to be held at the Selangor Chinese Assembly Hall in KL
to discuss matters pertaining to national Chinese primary schools
• Ground: no permit – but no permit is required for a closed door meeting on
private property.
• Cheah Beng Poh v PP [1984]
• a group of lawyers had been charged under
Police Act.
• They argued that since the gathering was
peaceful and without arms, no need to
apply for the permit
• Court: any public meeting, even if it is
spontaneous, is unlawful if it takes place
without police permit. Intention is
irrelevant.
• Thus an apparent contradiction with the A.
10(1)(b) which allows peaceful assembly
without arms.
• Chai Choon Hon v Ketua Polis
Daerah kampar [1986] 2 MLJ 203
• The restriction on the number of
speakers by the police under the
Police Act 1967 was challenged
• Abdoolcader SCJ held that
restriction on the number of
speakers by the police in issuing
the permit was void as it was
unreasonable
• For private venues, there is no requirement to apply for permit.
• However, S27A gives the police power to disperse gathering in
private places if;
1- it involves more than 20 outsiders
2- it is intended to be heard by outsiders
3- if there is a threat to the security or public order
If refuse to disperse, commit an offence
• In 2012, Police Amendment Act 2012 amended Police Act 1967. In
particular, to delete sections 27, 27A, 27B and 27C.
• This is in consequence of the enactment of the Peaceful Assembly
Act 2012 which does away with the requirement for a licence to
convene or collect any assembly or meeting or to form a
procession in any public place.
Peaceful Assembly Act 2012 (PAA)

• An Act relating to the right to assemble peaceably and

without arms, and to provide restrictions deemed
necessary or expedient relating to such right in the
interest of the security of the Federation or any part
thereof or public order, including the protection of the
rights and freedoms of other persons, and to provide for
related matters.
Anwar Ibrahim v. PP [2013] 3 MLJ 103

• Issue: "Whether the provisions of section 4(1)(c) and 4(2)(c) of the

Peaceful Assembly Act 2012 are inconsistent with, and contravene,
the provisions of Article 10(1)(b) of the Federal Constitution and
are, therefore, void pursuant to Article 4(1) thereof".
• The Court held: section 4(1)(c) and section 4(2)(c) of the
Peaceful Assembly Act 2012 neither violate nor contravenes Article
10(1)(b) of the Federal Constitution and therefore are not null and
void under Article 4(1) thereof.
• Further held:Parliament had an extensive and valid power to regulate human
rights such as right to organize and participate in a peaceful assembly without
arms and at the same time to impose certain restrictions as its deems necessary
or expedient in the interest of the security of the Federation or any part thereof
or of public order as envisaged under clause (2)(b) of Article 10 of the Federal
Constitution. Parliament in enacting the impugned provisions banning street
protest is within the ambit of powers conferred to it under that clause (2)(b) of
Article 10 thereof.
• Banning street protest as one of the form of peaceful assembly without arms is
necessary in a democratic society for the protection of morals and the rights and
freedom of others. Even civic experience has shown that rights cannot be
absolute because they have to balance against one another. This process of
balancing against one another, entails as of necessity, placing limits on the extent
to which these rights are enjoyed.
Nik Nazmi bin Nik Ahmad v
PP [2014] 4 MLJ 157
• The appellant was charged under the
PAA for failing as organiser of the
assembly to give 10 days notice of
the intended assembly to the Ketua
Polis Daerah PJ.
• Argument: s 9(1) and (5) of PAA is
unconstitutional.
• Held: The restriction imposed by
s9(1) and (5) was not reasonable.
PAA did not have the effect of
prohibiting urgent and spontaneous
assemblies. S9(5) ought to be struck
down for being unconstitutional.
PP v Yuneswaran a/l Ramaraj
[2015] 6 MLJ 47
• The respondent, the executive secretary of
PKR JB was charged under the PAA. He failed
to notify the OCPD of JB of the gathering
within the time stipulated under the PAA.
• Argument: The respondent denied he was the
organiser of the gathering.
• Held: S9(5) of the PAA does not run foul of
Article 10(2)(b). Section 9(5) is entirely
constitutional, valid, and enforceable. The
COA thus departed from the earlier decision
and the view taken by the COA in Nik Nazmi.
• Nik Noorhafizi bin Nik Ibrahim & Ors v Public Prosecutor [2013] 6 MLJ 660
• The appellants were found in an assembly in a public place in respect of which a police licence had not been issued
under s 27(2) of the Police Act 1967. After a full trial before the magistrate they were convicted under s 27(5) of
the Act and sentenced to a fine of RM3,900 each. The appellants paid the fines and appealed to the High Court to
set aside their convictions and sentence on the grounds that the law used to prosecute them was unconstitutional.
• It was the appellants contention that ss 27(2) and (5) of the Act contravened art 10(1)(b) of the Federal
Constitution, which guaranteed the primary right of freedom to assemble and only allowed the State to restrict this
freedom on certain grounds, ie in the interests of the security of the Federation or public order. The High Court was
of the view that s 27(5) of the Act read together with s 27(2) of the Act did not contravene the Constitution and
that s 27 of the Act was valid and constitutional. The appellants obtained leave to proceed with the present appeal.
• In this appeal the appellants continued with the argument that ss 27(2) and 27(5) of the Act were unconstitutional.
In essence, the appellants submitted that the High Court judge should have found s 27(5) read with s 27(2)
inconsistent with art 10(2)(b) of the Constitution, as they contained restrictions that were not permitted by art
10(2)(b), and ought to have struck down the same. It was the appellants' argument that the restriction contained in
the impugned section was prohibitory in nature and not regulatory. Although the impugned section had been
repealed and superseded by the Peaceful Assembly Act 2012 ('the PAA'), the appellants also submitted that the
issue raised in this appeal was not academic. In their submissions the appellants had urged this court to borrow and
adopt various decisions in the Commonwealth over similar issues.
• Court of Appeal dismissed the appeal and held among others:
• The underlying objective for the prior requirement for a police licence for any assembly as
prescribed in s 27(2) of the Act had to be associated with the avoidance of public disorder. Section
27(2) of the Act read with art 10(1)(b) and 10(2) of the Constitution provided various considerations
for the police to take into account if they had to reject a particular licence application.
• Under s 27(2) of the Act, the police had to issue the licence applied for unless the assembly or the
like was viewed to be prejudicial to security or to excite a disturbance of the peace. As the
licensing requirement was to regulate the public assembly so as to avoid a catalyst for riot, chaos
and disorder; barring the limited criteria for refusal, the police had to issue the licence as applied
for.
• Thus, ss 27(2) and (5) were in law reasonable restrictions that were regulatory in nature and not
prohibitory. The police force is duty bound to maintain the security and public order in the country
for the public interest. As such, s 27 of the Act, which did not prohibit the right to peaceful
assembly, was neither unconstitutional nor in conflict or inconsistent with art 10(1)(b) of the
Constitution
 Art 10(1)(c)
Freedom of Association

• All citizens have the right to form associations.

• Subject to restrictions deemed necessary or expedient in the interest of the

security, public order or morality.
• Societies Act 1966
• Trade Unions Act 1959
• Universities and University College Act 1971

• Restrictions on the right to form associations may also be imposed by any

law relating to labour or education.
• Art 10 obviously stands at the centre of the democratic process as it codifies basic common in
all democracies.

• The rights provided by the Art is central to democratic process.

• Without these rights it is difficult or even impossible to have a functioning and healthy
democracy.

• These are the rights that would preserve peaceful and non-violent way of changing government.

• Such rights are also indispensable if we are to have an accountable and transparent govt.
• Trade Union Act 1959- the office bearers cannot actively involved
in political party
• S5 of the Societies Act 1966- gives the Minister in charge a wide
discretion to allow registration or to cancel or revoke registration
of a society
Dato' Ambiga Sreenevasan & Ors V. Menteri Dalam Negeri & Ors [2012] 7 CLJ
43  
• Applicants applied for judicial review of the decision by the Menteri Dalam Negeri.
The Minister had issued an order pursuant to s. 5(1) of the Societies Act 1966
declaring the 'Coalition for Clean and Fair Election' ('BERSIH') an unlawful society.
• The Court allowed the application of judicial review and held: “The decision to
outlaw BERSIH impinged on the rights guaranteed under the Federal Constitution
and should not be taken in a lackadaisical manner. It was difficult to reconcile
how a society found to be used for purposes of threatening public security on 1
July 2011 could be allowed to organise a peaceful assembly on 9 July 2011. The
decision to declare BERSIH unlawful therefore was questionable. Thus, the
decision in finding BERSIH unlawful was tainted with irrationality”.
Universities and University College Act 1971

• Before the 2009 amendment came into force, no person,

while he is a student of the University, shall be a member
of, or shall in any manner associate with, any society,
political party, trade union or any other organisation,
body or group of persons whatsoever, whether or not it is
established under any law, whether it is in the University
or outside the University, and whether it is in Malaysia or
outside Malaysia, except as may be provided by or under
the Constitution, or except as may be approved in
advance in writing by the Vice-Chancellor.
• There is a prohibition for students or students’
organization from associating with organisation especially
political parties except as may be provided by or under the
Constitution, or except as may be approved in advance in
writing by the Vice-Chancellor. The 1971 Act also limits
the financial freedom of the students’ organizations.
• Constitution in relation to a University means the
Constitution of the University substantially in the form as
set out in the First Schedule. See Section 2 of the 1971 Act
• The amendment to the 1971 Act in the year 2009 was through the passing
of the Universities and University Colleges (Amendment) Act 2009. The
amendment to this Act shows that the students are given right or
opportunity to join non-political, lawful organization and organization
which is not specified in writing by the Minister to be unsuitable to the
interests and well-being of the students or the University.
• 2012 Act Amending UUCA 1971-improve students’ freedom of association
and assembly to a large extent
• 2018- The Parliament passed the Universities and University Colleges
(Amendment) Bill 2018 which aims to abolish provisions preventing
university students from participating in political activities on campus.
UNIVERSITIES AND UNIVERSITY COLLEGES ACT
1971

• Section 15.
• (1) Subject to subsection (2), a student of the University may become a
member of any society, organization, body or group of persons, whether in
or outside Malaysia, including any political party.
• (2) A student of the University shall not— (a) become a member of any
political of any unlawful society, organization, body or group of persons,
whether in or outside Malaysia; (b) become a member of any society,
organization, body or group of persons, not being a political party, which
the Board determines to be unsuitable to the interest and wellbeing of the
students or the University; or (c) be involved in political party activities
within the Campus. (amendment in 2012)
(As amended in December 2018)
• Section 15
• (1) Subject to subsection (2), a student of the University may become a member of any
society, organization, body or group of persons, whether in or outside Malaysia, including
any political party.
• (2) A student of the University shall not—
• (a) become a member of any unlawful society, organization, body or group of persons,
whether in or outside Malaysia; or
• (b) become a member of any society, organization, body or group of persons, not being a
political party, which the Board determines to be unsuitable to the interests and well-
being of the students or the University.
• (c) [Deleted by Act A1582].
• Fahmi bin Zainol & Ors v Jawatankuasa Tatatertib Pelajar, Universiti Malaya & Ors [2018] 7 MLJ 814

One of the issues raised during judicial review is the unconstitutionality of the University of Malaya (Discipline of
Students) Rules 1999
The applicants alleged that the University of Malaya (Discipline of Students) Rules 1999 are unconstitutional for
purportedly being in breach of arts 5, 10(1)(a) and/or 10(2)(a), 10(1)(b) and/or 10(2)(b) and 13 of the Federal
Constitution.
High Court: the allegation of the applicants is devoid of merit based on the following reasons. Firstly the University of
Malaya (Discipline of Students) Rules 1999 were expressly made pursuant to the UCA (its parent Act). Secondly, s
16C(1) of the UCA 1971 provides: The Board shall have the power to make such disciplinary rules as it deems necessary
or expedient to provide for the discipline of the students of the University; the disciplinary rules made under this
subsection shall be published in the Gazette. Thirdly, the court agreed with the respondents counsel’s submission that
the applicants are not challenging the constitutionality of UCA 1971. The applicants, through their counsel, had orally
confirmed during the hearing of encl 33 on 9 March 2016 that they are not challenging the constitutionality of UCA
1971. In any case, the applicants are prevented from doing so as leave of the Federal Court has not been obtained
pursuant to arts 4(3), 4(4) and 128 of the Federal Constitution. Indeed, in the recent Federal Court case of State
Government of Negeri Sembilan & Ors v Muhammad Juzaili bin Mohd Khamis & Ors [2015] 6 MLJ 736: It was held that
‘the validity or constitutionality of the laws could not be questioned by way of collateral attack in a judicial review
proceeding’. ‘Such a challenge could only be made by way of the specific procedure as provided for in art 4(3) and (4)
of the Federal Constitution’.
• Besides, the right to form an association does not confer a right to membership
of a club or party of one’s choice.

Malaysian Bar v Govt of Malaysia [1986] 2 MLJ 225- High Court (Harun Hashim
J) declared hat A10 gives the right to form an association and not the right to
manage it.

Sivarasa Rasiah v Bar Council [2006] 1 MLJ 727- the appellant challenged the
Legal Profession Act which prohibited him from being a member of the Bar
Council because he was one of the office bearers of a political party
• The court disagreed and ruled that the right under A10 (1)(c) did not arise as
the Constitution sought to protect citizens’ right to form association
• Freedom of association includes the right to refuse to associate. It also includes the right to
dissolve an existing association and the right to resign from an association.

• Nordin Salleh v DUN Kelantan

• Regarding the State Constitution of Kelantan which prohibited party hopping
• It was argued that it restricted their freedom of association
• SC decided in their favour
• The amendment to the State Constitution is contrary to A10
• Freedom of association includes the right to leave the association

• Indirectly, according to this case, limitation on political right can only be done through the
federal law
• Dr Mohd Nasir Hashim v Menteri Dalam Negeri Malaysia [2006] 6
MLJ 213
• an application to be registered as a political society was made to
the Registrar of Societies (ROS) by Parti Sosialis Malaysia. The ROS
refused to grant registration at national level due to an internal
policy that there must be representation from at least seven States
of the Federation in the committee of a national political society
but he was prepared to grant registration in the State of Selangor.
• Parti Sosialis Malaysia contended that the departmental policy was
unconstitutional because it was not authorized by the Constitution.
• The High Court and Court of Appeal upheld the extra-constitutional
policy on the ground that the policy was not unreasonable. It is
observed that since reasonableness is regarded as one of the grounds in
which the freedom of association may be restricted, the grounds
enunciated under the Federal Constitution are not exhaustive.
• It is also argued that no restriction whether legislative or administrative
can transgress the boundaries laid down by the Constitution. Question
of constitutionality are prior to questions of reasonableness. The
reasonableness or unreasonableness of a policy is relevant only if the
policy has first satisfied the test of constitutionality.
THANK YOU