Freedom of Speech
If you find time to look at the Federal Constitution, go to page 22. Article 10[1][a] states, “every citizen has the right to freedom of speech and expression.” Great, isn’t it? The Federal Constitution being the highest law of the land guarantees this.
Now go to the next page. Article 10[2][a] states, “Parliament may by law impose on the rights conferred by paragraph [a] of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.” WTF?
In plain English it means that the government possesses the legal option to enforce certain restrictions on the freedom of speech and expression in the interest of national security. Okay, fair enough…we cannot have madmen advocating armed rebellion on the streets, can we? So you ask yourself (or the government) what constitutes “in the interest of the security of the Federation”?
Look down to Article 10[4] which states, “In imposing restrictions in the interest of the security of the Federation or any part thereof or public order under Clause [2][a], Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, Article 152,153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law.”That’s right. Cut out all the legalistic mumbo jumbo and it means that you cannot legally ask them. Neither can you legally question the government’s judgment. They know best. Throw out the common law jurisprudence because Article 10[4] actually allows the government, through the Federal Constitution, to use common law to prohibit such questions being asked.
If you think that’s really bad, you have yet to read the Sedition Act, the Printing Presses and Publication Act and the Internal Security Act. (Will not get into these Acts as it will probably run a few pages long, each.)
Now, how did this come to pass? The original Article 10[1] on the draft Merdeka Constitution states, “Every citizen shall have the right to freedom of speech and expression, subject to any reasonable restriction [emphasis added] imposed by federal law in the interest of the security of the Federation, friendly relations with other countries, public order, or morality, or in relation to contempt of court, defamation, or incitement to any offence.”
The keyword here is “reasonable restriction”. How does one quantify such words? Who shall make the decision as to what is reasonable and what is not? Because of its arbitrary connotation, it was dropped from the draft Merdeka Constitution. However by doing so, it gave the government full control as to how it shall restrict the right to freedom of speech and expression. Article 10[4] stops the questioning of it all. This gave them carte blanche to impose whatever restrictions they want without having ever the need to answer for it. This in fact weakens the Rule of Law as not even the Judiciary could question it. There goes the concept of separation of powers. (Will not get into the Reid Commission recommendations or the Government White Papers – too lengthy.)
Another keyword here is “imposed” (past tense) which means that the limitations to freedom of speech can be restricted by legislations that have already been gazetted prior to the setting up of the Federal Constitution – not new legislations implemented later. This is of course a no-no because it can (and will) set a precedent whereby the constitution itself becomes questionable. This would of course be settled in court and that would place the power in the hand of the Judiciary and not the Executive. Out it goes!
Another aspect that limited the freedom of speech is on page 137 of the Federal Constitution, Article 150 to be precise. By proclaiming a State of Emergency, the Federal Constitution allows for a suspension of fundamental rights and civil liberties. Freedom of speech is one of the fundamental rights that can be overruled by the government without the need to provide any reasons as Malaysia is legally still in a State of Emergency since 1969.
Prior to the 31st of May 1960, Article 149 and Article 150 the “old” Federal Constitution contained a time limitation whereby it automatically expires within one year, to the day of its proclamation. Here, our Bapa Malaysia made an error when he assumed that all following PMs are made of the same stuff as himself and he proceeded to amend the constitution to remove this time limitation. The current constitution allows the State of Emergency to exist in perpetuity until both Houses of the Parliament repeal it. Even the Agong is denied this option.
In the draft Merdeka Constitution, there was also an Article 4[1][c] that contained the expression “principles of natural justice” which is a basic feature of the Rule of Law. This did not make it past the final draft and because there is no mention of “natural justice”, fundamental rights like the freedom of speech is not reinforced.
Malaysia is made up of approximately 52% Malays, 11% Indigenous, 25% Chinese, 8% Indians plus 4% whatnots. That is a total of 63% Bumiputeras and 37% non-Bumiputeras. With the inception of NEP and the special privileges attached to it, there is bound to be questioning of this state of affairs. How can such privileges be afforded 63% of Malaysians when it is denied the other 37% of Malaysians? (Keyword is Malaysians.) Therefore, when the 37% of ostracised Malaysians reasonably question these constitutional protected rights, they are merely exercising their Freedom of Speech. Article 4 prohibits the questioning of such rights and privileges.
Malaysia is an Islamic country as exhibited in Article 3[1] of the Federal Constitution that states, “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.” Now chew on this:
Article XII of the “Universal Islamic Declaration of Human Rights” states:
(a) Every person has the right to express his thoughts and beliefs so long as he remains within the limits prescribed by the Law. No one, however, is entitled to disseminate falsehood or to circulate reports which may outrage public decency, or to indulge in slander, innuendo or to cast defamatory aspersions on other persons.
(b) Pursuit of knowledge and search after truth is not only a right but a duty of every Muslim.
(c) 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.
(d) There shall be no bar on the dissemination of information provided it does not endanger the security of the society or the state and is confined within the limits imposed by the Law.
(e) No one shall hold in contempt or ridicule the religious beliefs of others or incite public hostility against them; respect for the religious feelings of others is obligatory on all Muslims
Article 22 of the “Cairo Declaration on Human Rights in Islam” states:
(a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah.
(b) Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari’ah.
(c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical values or disintegrate, corrupt or harm society or weaken its faith.
(d) It is not permitted to arouse nationalistic or doctrinal hatred or to do anything that may be an incitement to any form of racial discrimination.
Now, “how and where did we go so wrong?"
Hakim Joe
