[DATE]

[COMPANY NAME]
[Company address]

CONTENTS
Preface...2
Table of Statute.3
Table of Cases......................................3
An ink to start with
The Doctrine of Freedom of Speech and Expression..4-5
Malaysian Freedom of Speech and Expression
Nature and Extent of Free Speech and Expression.....6-7
Safeguards to Freedom of Speech...7-10
Limitations to Freedom of Speech..10-12
Sedition Act 1948: Laws Overreach.,,,,,,,,,,,..,,,,,,13-15
Downside of Current System....16
Recommendations.16
Conclusion...17
Bibliography ..18-19
References....20-22
Disclaimer: this article is the opinion of the author and may not necessarily represents
the accurate position of the legal issue. The Author would not be responsible for any
consequences originated from any quotation taken from any part of this article.

PREFACE
This paper is an analysis of a common issue in the constitutional law which is the freedom
of speech and expression. This paper will provide some understanding of, and reasons why, the
Part 2 generally, and Article 10 of the Federal Constitution specifically, should be revised.
Freedom of speech is the right to communicate one's opinions and ideas using
one's body and property to anyone who is willing to receive them. The term freedom of
expression is sometimes used synonymously, but includes any act of seeking, receiving
and imparting information or ideas, regardless of the medium used.
This paper is divided broadly into a few issues. First issue gives the readers some overview
of what is meant of freedom of speech and expression. Then, in the second issue, this paper starts
to talk about the Malaysian approach and situation regarding the freedom of speech and
expression. Following, this paper talks about some downside of the current systems on how the
rights is safeguarded in Malaysia.
Then, this paper continue with some suggestion which the courts may considered in
improving the rights and justice in Malaysia. All in all, this paper is hoped to give a clearer picture
to the reader about this area.

Nizarmuhsin Mohamad
Faculty of Law and Government
HELP University

TABLE OF STATUTES
No.
1
2
3
4
5

Statutes
Article 19 of International Covenant on Civil and Political Rights
Article 19 of the Universal Declaration of Human Rights
Article 10(1) of the European Convention on Human Rights
Article 4, 10, 149, 150 and 162 of the Federal Constitution
Article 3 and 4 of the Sedition Act

TABLE OF CASES
No.
1
2
3
4
5
6
7
8
9
10
12
13
14
15

Cases
A.K. Gopalan v State of Madras AIR [1950] SC 27
Aminah v Supt. of Prisons [1968] 1 MLJ 92
Assa Singh v MB Johore [1969] 2 MLJ 30
Bennet Coleman v Union of India AIR [1973] SC 106
City Council of Goergetown v Government of Penang [1967] 1 MLJ 169
Faridah Begum v Sultan of Pahang [1996] 1 MLJ 617
Kerajaan Negeri Selangor v Sagong Tasi [205] 6 MLJ 289
Mamat Bin Daut & Ors v Government of Malaysia [1988] 1 MLJ 119
Nguan Chan v PP [2001] 2 MLJ 129 CA
Nordin Salleh v Dewan Undangan Negeri Kelantan [1993] 3 MLJ 344
PP v Mark Koding [1983] 1 MLJ 111
PP v Ooi Kee Saik [1971] 2 MLJ 108
PP v Syarikat Tekala Sdn Bhd [2007] 6 MLJ 500
Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1
MLJ 169

AN INK TO START WITH

THE DOCTRINE OF FREEDOM OF SPEECH AND EXPRESSION

Freedom of speech is the right to communicate one's opinions and ideas using
one's body and property to anyone who is willing to receive them. The term freedom of
expression is sometimes used synonymously, but includes any act of seeking, receiving
and imparting information or ideas, regardless of the medium used. This rights is
fundamentally essential in a democratic country as it permits the people to have a say in
the policies and decisions that affecting their lives.
However, just as other rights, in reality freedom of speech is not obsolete in any
countries. Every government tends to restrict this freedom to some degree. This right is
restrained and subjected to some limitations on the ground of securing the broader
interest of the society. Raja Azlan Shah J (as His Royal Highness then was) in PP v Ooi
Kee Saik1 quoted:
There cannot be any such thing as absolute or uncontrolled liberty wholly free
from restraint; for that would lead to anarchy and disorder. The possession and
enjoyment of all rights are subject to such reasonable conditions as may be
deemed to be essential to the safety, health, peace and general order and
morals of the community What the Constitution attempts to do in declaring the
rights of the people is to strike a balance between individual liberty and social
control.

PP v Ooi Kee Saik [1971] 2 MLJ 108

Common limitations on freedom of speech is on the grounds of:

libel, slander, obscenity, pornography, sedition, hate speech, incitement, fighting
words, classified information, copyright violation, trade secrets, non-disclosure
agreements, right to privacy, right to be forgotten, public security, public order, and
public nuisance
Whether these limitations can be justified under the harm principle depends upon whether
influencing a third party's opinions or actions adversely to the second party constitutes
such harm or not.
The right to freedom of expression is recognized as a human right under Article
19 of the Universal Declaration of Human Rights and recognized in international
human rights law in the International Covenant on Civil and Political Rights (ICCPR).
Article 19 of the ICCPR states that
"Everyone shall have the right to hold opinions without interference" and "everyone
shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of
his choice".
Article 19 goes on to say that the exercise of these rights carries "special duties
and responsibilities" and may "therefore be subject to certain restrictions" when
necessary "for respect of the rights or reputation of others" or "for the protection of national
security or of public order (order public), or of public health or morals".2

Article 19 of International Covenant on Civil and Political Rights

MALAYSIAN FREEDOM OF SPEECH AND EXPRESSION

Currently, it is reasonably difficult to assess the state of freedom of speech and

expression in Malaysia as even for academic purposes, it may be interpreted wrongly
and may result in the worst case scenario. One thing for sure, this rights as well as its
limitations and safeguards provisions need a complete and comprehensive reviews.
Malaysian constitution provides this rights in Part 2 of the Federal Constitution
but do not define it. Referring on Article 10(1) of the European Convention on
Human Rights which states that:
Every one has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers.
Freedom of speech is specifically provided in Article 10 of the Federal Constitution.
However, the scope and extent of this rights is no further elaborated or defined.

NATURE AND EXTENT OF FREE SPEECH AND EXPRESSION

The freedom of speech do not just referred to the word of mouth, it also includes
communication by signs, symbols, gestures and artworks such as music, sculpture,
photographs, films, books, magazines and newspapers. It has been held in the case of

Bennet Coleman v Union of India3 that the freedom of speech also includes freedom of
press.
Freedom of speech applied not only to the natural birth citizens of this country, but
also individuals establish under the law such as companies, corporation, statutory bodies
and societies of they have been incorporated and established under Malaysian law.
However, it only applies to its citizens and do not covers for foreign persons or enemy
alien.4

SAFEGUARDS TO THE FREEDOM OF SPEECH AND EXPRESSION

PARLIAMENT IS NOT SUPREME

Malaysia is a country that applies constitutional monarchy with a democratic

system. Unlike United Kingdom, Malaysia has a written constitution that commonly known
as the Federal Constitution. The freedom of speech and expression is safely safeguarded
in Part 2 of the Federal Constitution.5 As Malaysia applies Constitutional Supremacy
rather than Parliamentary Supremacy applied in United Kingdom. The Malaysian doctrine

Bennet Coleman v Union of India AIR [1973] SC 106

Abdul Aziz Bari, Freedom of Speech and Expression in Malaysia After Forty Years
(n.d.)<http://anwarite.tripod.com/freespeech.html>Accessed on 1 December 2014.
5
Article 10(1) of the Federal Constitution (Freedom of Speech, Assembly and Association); Subject to Clauses (2),
(3) and (4) (a) every citizen has the right to freedom of speech and expression; (b) all citizens have the right to
assemble peaceably and without arms; (c) all citizens have the right to form associations.
4

of constitutional supremacy is clearly stated in its supremacy clause of Article 4 of the

Federal Constitution.6
The wordings in this article implicates that this law has the highest legal validity
than any other law in the federation whether passed by the federal or state parliament.
As the constitution is regarded as the supreme law of the land, then any other law which
is clashing with this constitution, shall be declared void on the ground of constitutionalism.
Article 4 is strengthen by Article 162(6) of the Federal Constitution. The article states
that:
any court or tribunal applying the provision of any existing law which has not been
modified on or after Merdeka Day under this Article or otherwise may apply it with
such modifications as may be necessary to bring it into accord with the provision
of this Constitution.
This article confers powers to the court to modify any existing laws up to their
inconsistency.7 Thus, the courts may amend, adapt or repeal an inconsistent piece of
legislation. As result, the power of Malaysian parliament whether state or federal is limited
and any unconstitutional act of the parliament is limited and can be challenged in the
courts.
Although the constitution can be amended by the Parliament, but special
procedures takes place. Most constitutional amendments needs two-thirds majority of the

Article 4 of Federal Constitution states this constitution is the supreme law of the federation and any other law
which is passed after Merdeka Day which is inconsistent with this constitution, shall to the extent of the
inconsistency, be void.
7
The differences between Article 4 and Article 162 of the Federal Constitution is that the former concerns about
Post-Merdeka laws whereas the latter covers the Pre-Merdeka laws.

total membership of each house. In addition, if the amendment is concerning the state list
or the states of Sabah and Sarawak, the consent of the State legislative Assemblies and
the Governor of Sabah and Sarawak is required.
CONTROLLED EXECUTIVE

As parliament is the creature of the constitution and subjected to the Federal

Constitution, other creatures all executive officials from the Yang Di-Pertuan Agong until
the ordinary public servants are also subjected to its provisions. The courts would
invalidate any actions which is inconsistent with any provisions in the constitution. Thus,
the actions of the Executive officials are limited and they cannot do anything that they
wish with their powers.
JUDICIAL REVIEW ON THE ACT OF PARLIAMENT

As had been stated before, the powers had been conferred to the courts by the
constitution to check on its own creature, the parliament by the virtue of Article 4 and
Article 162(6) of the Federal Constitution. Since independence, there had been 10
cases where the courts held a judicial review and managed to leave a lasting legal impact.
Among those cases are such as Surinder Singh Kanda v The Government of the
Federation of Malaya,8 Aminah v Supt. of Prisons,9 Assa Singh v MB Johore,10 Kerajaan
Negeri Selangor v Sagong Tasi,11 City Council of Goergetown v Government of Penang,12
Mamat Bin Daut & Ors v Government of Malaysia,13 Nordin Salleh v Dewan Undangan

Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ 169
Aminah v Supt. of Prisons [1968] 1 MLJ 92
10
Assa Singh v MB Johore [1969] 2 MLJ 30
11
Kerajaan Negeri Selangor v Sagong Tasi [205] 6 MLJ 289
12
City Council of Goergetown v Government of Penang [1967] 1 MLJ 169
13
Mamat Bin Daut & Ors v Government of Malaysia [1988] 1 MLJ 119
9

10

Negeri Kelantan,14 Faridah Begum v Sultan of Pahang,15 Nguan Chan v PP,16 and PP v
Syarikat Tekala Sdn Bhd.17
It was held in the case of Nordin Salleh v Dewan Undangan Negeri Kelantan that
any restriction can be challenged if it directly affects the fundamental right or the
restrictions inevitable consequence is such that it makes the exercise of fundamental
rights ineffective. Although the number of cases succeed in the judicial review of the act
of parliament are quite small, but it illustrates the doctrine of constitutional supremacy
applied in Malaysia.

LIMITATIONS TO FREEDOM OF SPEECH

SPECIAL CLAUSE TO RESTRICT THE FREEDOM OF SPEECH

Even though Article 10(1) safeguards the freedom of speech in the constitution,
but Article 10(2)(a) authorizes and confers much powers to impose restrictions as it
deems necessary or expedient on eight grounds namely:
1) Security of the Federation or any part thereof. (Official Secrets Act 1972, Internal
Security Act 1960, Printing Presses and Publications Act 1984, Protected Areas
and Protected Places Act 1959, Public Order (Preservation) Act 1958, and
Sedition Act 1948)
2) Friendly relations with other countries.

14

Nordin Salleh v Dewan Undangan Negeri Kelantan [1993] 3 MLJ 344

Faridah Begum v Sultan of Pahang [1996] 1 MLJ 617
16
Nguan Chan v PP [2001] 2 MLJ 129 CA
17
PP v Syarikat Tekala Sdn Bhd [2007] 6 MLJ 500
15

11

3) Public order. (Police Act 1967, Sedition Act 1948, Printing Presses and
Publications Act 1984)
4) Morality
5) Privilege of Parliament or of any Legislative Assembly.
6) Contempt of court
7) Defamation
8) Incitement to any offence.
In addition of the Article 10(2), the Article 10(4) continues to provide the
parliament with powers to pass laws which denied any questions regarding four sensitive
matters which is the rights to citizenship, status of the Malay language, special privileges
of the Malays and native of Sabah and Sarawak and the prerogatives of the nine Malay
Sultans. Then, Article 149 of Federal constitution states:
"(1) If an act of parliament recites that action has been taken or threatened by any
substantial body of persons, whether inside or outside the Federation (a) to
cause, or to cause a substantial number of citizens to fear, organised violence
against persons or property; or (b) to excite disaffection against the Yang diPertuan Agong or any Government in the Federation; or (c) to promote feelings of
ill-will and hostility between different races or other classes of the population likely
to cause violence; or (d) to procure the alteration, otherwise than by lawful means,
of anything by law established; or (e) which is prejudicial to the maintenance or the
functioning of any supply or service to the public or any class of the public in the
Federation or any part thereof; or (f) which is prejudicial to public order in, or the
security of, the Federation or any part thereof, any provision of that law designed

12

to stop or prevent that action is valid notwithstanding that it is inconsistent with any
of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside
the legislative power of Parliament; and Article 79 shall not apply to a Bill for such
an Act or any amendment to such a Bill.
Article 149 confers powers to the parliament to violate Article 5, Article 9, Article 10
and Article 13 of the Federal Constitution, thus preventive detention can be ordered
on virtue of this provision to ground the freedom to speech. Lastly, the Proclamation of
Emergency virtue under Article 150 of the Federal Constitution is even more severe
as it would grounded all rights if it is declared.
CHALLENGES FOR JUDICIAL REVIEW

It is really hard for the courts to invalidate laws passed under the virtue of Article
10(2) as the phrase deems necessary and expedient on those grounds mentioned are
too broad when interpreted. Then Article 10(2)(b) gives discretion to the Parliament as
the final decision maker in describing what is deems necessary and expedient on those
permissible restriction grounds. Thus, the government has no issue in defending some
laws such as the Sedition Act.

13

SEDITION ACT 1948; LAWS OVERREACH

The Malaysian Sedition Act 1948 was enacted by the British colonial authority
and came into force even before the independence of Malaya, primarily to combat the
Communists. The Sedition Act continues to be used with full force until today, despite
the communist insurgency18 had long ended. Under Section 4 of the Act, those who
commit an offence can be fined up to MYR 5,000 and/or imprisonment up to three years.
A second offence carries a sentence of up to five years imprisonment.
The improper and indiscriminate use of the Sedition Act resulted in many
individuals being charged and convicted for merely raising issues of public interest that
highlighted unfairness in government policies and actions with the sole intention of
seeking justice and social change.
The definition of sedition in the Section 3 of the Sedition Act are so vague and
broad. A seditious tendency is defined when an individual utter words or write anything
which:
(a) brings into hatred or contempt or to excite disaffection against any Ruler or
against any Government;
(b) excites the subjects of any Ruler or the inhabitants of any territory of the Ruler
or governed by the Government, the alteration otherwise than by lawful means, of
any matter as by law established;

18

The Communist Party of Malaysia laid down weapons and surrendered to the Malaysian and Thai governments
by signing a peace accord on Dec 2, 1989.

14

(c) brings into hatred or contempt or excites disaffection19 against the

administration of justice in Malaysia or in any State;
(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan
Agong or the Ruler of any State or amongst the inhabitants of Malaysia or of any
State; or
(e) promotes feeling of ill-will and hostility between the different races or classes
of the population of Malaysia; or
(f) questions any matter, right, status, position, privilege, sovereignty or prerogative
protected by the provisions of Part III of the Federal Constitution or Article 152,
153 or 181 of the Federal Constitution.
The Act declares that intention is irrelevant if in fact the speech or publication had a
seditious tendency, thus making it an offence of strict liability.
In PP v Mark Koding,20 Justice Azmi observed it is immaterial whether the
accuseds intention or motive was honourable or evil when making the speech. The
decision of the High Court in PP v Ooi Kee Saik21 established that the truth or falsity of
the words uttered is immaterial and it is not a defense to a charge for sedition.
It is also immaterial whether or not the words complained of could have the effect
of producing or did in fact produce any of the consequences enumerated in Section

19

Disaffection in the context of the Sedition Act means more than political criticism; it means the absence of
affection, disloyalty, enmity and hostility. To excite disaffection in relation to a government refers to the
implanting or arousing or stimulating in the minds of people a feeling of antagonism, enmity and disloyalty,
tending to make the government insecure. Per Justice Raja Azlan Shah in PP v Ooi Kee Saik.
20
PP v Mark Koding [1983] 1 MLJ 111
21
PP v Ooi Kee Saik [1971] 2 MLJ 108

15

3(1)(a) to (f). That means the prosecution need only prove that words were spoken. This
is one of the reasons why the charged is reasonably unfair and prosecutions for sedition
almost always end in conviction. Thus, there seems no line drawn between legitimate
criticism and criticism that leads to incitement to violence and disorder. It seems that any
criticism aimed at the government or its institutions is capable of having seditious
tendencies under the Act.
In other common law jurisdictions such as Canada and India, it has been
established that sedition cannot be established without proof of acts that have implicit in
them the idea of subverting the government by violent means and inciting others to
violence and disorder. Even in Kenya, the Kenyan government had repeal its Sedition Act
after they realize that it was unfair and tends to be use as a political tools to silent the
opposition. Unfortunately, Malaysian government still refused to follow the evolving trends
of the law.

16

DOWNSIDE OF CURRENT SYSTEMS

Although the Federal Constitution of Malaysia managed to secure and defines
the freedom of speech and expression as widely and not just as a word of mouth but
applies to many other actions and publications, but, the restrictions it imposed is also
wide and reasonably broader than the safeguard provisions.
This creates an issue when it is interpreted, Malaysian witnesses many of their
friends, family and also their leaders are charged with the Sedition Act, one of the laws
imposed to restrict the free speech although the words are in fact true and honest such
as in the case of PP v Ooi Kee Saik.22

RECOMMENDATIONS
Article 10 of the Constitution of Malaysia guarantees Malaysian citizens the right
to freedom of speech, freedom of assembly and freedom of association. Unlike another
provisions such as the First Amendment to the United States Constitution, Article 10
entitles its citizens to such freedoms by restricting the government to pass laws on the
subject matter, instead of absolutely guaranteeing the freedoms.
The First Amendment of the United States Constitution prohibits the making of any
law which restricting any elements in the Bill of Rights. This approach by limiting the power
of the parliament to make restrictions seems more effective rather than merely a guarding
clause.

22

Ibid

17

CONCLUSION
In conclusion, the Freedom of speech and expression is safeguarded in Malaysia
but like all other rights, subjected to certain restrictions. The Federal Constitution of
Malaysia more or less provide and ensure the eligibility of this rights for its citizens. This
issue appears as an important matter that needs to be handled carefully by the authority
specifically and the society generally.
Although there are many arguments viewed by researchers about the government
intervention in restricting these rights is only for political patronization, but the Parliament
still enlarge their stands on the grounds for national harmony and greater good of the
people. All in all, Malaysia still provides rights to free speech, but with some big chains
around it.

18

REFERENCES
PRIMARY SOURCES
STATUTES
International Covenant on Civil and Political Rights
Universal Declaration of Human Rights
European Convention on Human Rights
Federal Constitution of Malaysia
The Malaysian Sedition Act
CASES
A.K. Gopalan v State of Madras AIR [1950] SC 27
Aminah v Supt. of Prisons [1968] 1 MLJ 92
Assa Singh v MB Johore [1969] 2 MLJ 30
Bennet Coleman v Union of India AIR [1973] SC 106
City Council of Goergetown v Government of Penang [1967] 1 MLJ 169
Faridah Begum v Sultan of Pahang [1996] 1 MLJ 617
Kerajaan Negeri Selangor v Sagong Tasi [205] 6 MLJ 289
Mamat Bin Daut & Ors v Government of Malaysia [1988] 1 MLJ 119
Nguan Chan v PP [2001] 2 MLJ 129 CA

19

Nordin Salleh v Dewan Undangan Negeri Kelantan [1993] 3 MLJ 344

PP v Mark Koding [1983] 1 MLJ 111
PP v Ooi Kee Saik [1971] 2 MLJ 108
PP v Syarikat Tekala Sdn Bhd [2007] 6 MLJ 500
Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ 169

SECONDARY SOURCES
BOOKS
Shad Saleem Faruqi, Document of Destiny; The constitution of the Federation of
Malaysia (Star Publications 2008)

ARTICLES
Abdul Aziz Bari, Freedom of Speech and Expression in Malaysia After Forty Years
(n.d.)<http://anwarite.tripod.com/freespeech.html>Accessed on 1 December 2014

20

BIBLIOGRAPHY
PRIMARY SOURCES
STATUTES
International Covenant on Civil and Political Rights
Universal Declaration of Human Rights
European Convention on Human Rights
Federal Constitution of Malaysia
Official Secrets Act 1972
Internal Security Act 1960
Printing Presses and Publications Act 1984
Protected Areas and Protected Places Act 1959
Public Order (Preservation) Act 1958
Sedition Act 1948
Police Act 1967

CASES
A.K. Gopalan v State of Madras AIR [1950] SC 27
Aminah v Supt. of Prisons [1968] 1 MLJ 92

21

Assa Singh v MB Johore [1969] 2 MLJ 30

Bennet Coleman v Union of India AIR [1973] SC 106
City Council of Goergetown v Government of Penang [1967] 1 MLJ 169
Faridah Begum v Sultan of Pahang [1996] 1 MLJ 617
Kerajaan Negeri Selangor v Sagong Tasi [205] 6 MLJ 289
Mamat Bin Daut & Ors v Government of Malaysia [1988] 1 MLJ 119
Nguan Chan v PP [2001] 2 MLJ 129 CA
Nordin Salleh v Dewan Undangan Negeri Kelantan [1993] 3 MLJ 344
PP v Mark Koding [1983] 1 MLJ 111
PP v Ooi Kee Saik [1971] 2 MLJ 108
PP v Syarikat Tekala Sdn Bhd [2007] 6 MLJ 500
Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ 169

SECONDARY SOURCES
BOOKS
Mehta P.L., and Verma N., Human Rights under the Indian Constitution; The
Philosophy and Judicial Gerrymandering (Deep & Deep Publication Ltd 1999)

22

Rais Yatim, Freedom under Executive Power in Malaysia; A Study of Executive

Supremacy in Malaysia (Endowment Publication 1995)
Harding A., Law, Government and the Constitution of Malaysia (Kluwer Law
International 1996)
Abdul Aziz Bari, Malaysian Constitution: A Critical Introduction (The Other Press 2003)

23