Freedom of Speech: Relevant Part of Article 10
Every citizen has the right to freedom of
speech and expression
-Right to Access to Information
• Democracy requires participation of the people in
the electoral exercise of choosing leaders.
• It permits people to have a say in the policies and
decisions that affect their lives.
• It requires them to have a lively and informed
interest in the process of Government. Discussion
before decision is the essence of a democratic polity.
• These rights are, therefore, the essential pillars of
a democratic set-up; the life-blood of a free
• Media plays a vital role in providing information
and shaping the society.
• Functions of the media are to inform, to educate
and to entertain.
• Access to information is vital in a democracy -
discussion before decision – informed discussion
may lead to concrete and good decision.
The public must be able to have access to correct and
vital information so that they would be able to
make correct decisions.
• Although free speech is an avenue to the
truth and an instrument of man's highest
intellectual, aesthetic and political
achievements, it is also an instrument of
• All legal systems, including those of the
Western liberal democratic tradition,
impose varying degrees of restraints on this
• In the UK a formidable list of common law
and statutory limits exists and is growing.
• Instances of the limitations are the law of
defamation, seditious libel, contempt of
Court, contempt of the Houses of Parliament,
obscenity, blasphemy and treason regulate,
prohibit or punish free speech.
• The Race Relations Act outlaws insulting
speech likely to cause racial hatred or
• The defence of truth is not allowed by the
law because in this situation, and rightly so,
dissemination of truth is less important than
the maintenance of the social fabric of
• Raja Azlan Shah J in PP v. Ooi Kee Saik  2 MLJ 108
quoted the following passage from
A.K. Gopalan v. State of Madras AIR  SC 27:
• “ There cannot be any such thing as absolute or uncontrolled
liberty wholly free from restraint; for that would lead to anarchy
• 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
• What the Constitution attempts to do in declaring the rights of
the people is to strike a balance between individual liberty and
Freedom of Speech: Relevant Part of Article 10
10 (2) (a)
Parliament may restricts freedom of speech and expression
- in the interest of
the security of the Federation,
friendly relations with other countries,
public order, or
- to protect the privileges of Parliament or of any Legislative
-to provide against
contempt of court,
incitement to any offence.
Freedom of Speech: Relevant Part of Article 10
Restrictions of freedom of speech and expression based on the
interest of the security of the Federation or public order.
Based on the above two grounds Parliament may pass law
prohibiting the questioning of
any matter, right, status, position, privilege, sovereignty or
established or protected by the provisions of
Article 153 or
The Printing Presses and
Publications Act 1984
Printing, publishing, selling, or importing publications
requires a permit.
s. 5(1) and s. 6(1)(b).
The permit is for 12 months or for such period as the
The Minister's discretion to grant or refuse the permit or to
impose conditions to the grant is expressed to be final.
ss. 6(1)(b), 6(2) and 12(2).
He may, in his absolute discretion, suspend or
revoke the permit. No prior hearing needs to be
He may impose any conditions necessary.
As a pre-condition for granting a licence, the
Minister may require deposits.
s.7(2)(d) and s.10.
Under s. 7 of the Printing Presses and
Publications Act, there are strong provisions
against "undesirable publications".
These are publications which are deemed to
be prejudicial to public order, morality or
security or are likely to cause alarm or are
contrary to law or prejudicial to public
interest or national interest.
The Minister may revoke or suspend the import
licence, prohibit a publication, prohibit any other
publication from the publishing house, extend the
prohibition order to future or past publications and
forfeit deposits in cases of sedition or defamation.
If a publication has been prohibited, possession of it is
an offence punishable with a fine not exceeding five
The Printing Presses and Publications Act
Aliran V Minister of Home Affairs
 1 MLJ 440
Aliran had applied for a permit under s 6(1) of
the Printing Presses and Publications Act
1984 to print and publish in Bahasa
Malaysia a magazine.
The application was refused by the Minister
of Home Affairs.
The respondents applied for an order of
certiorari for the purpose of quashing the
decision of the Minister and for an order of
mandamus directing the Minister to hear
and determine the application for the permit
according to law.
The High Court made an order quashing the
decision of the Minister and ordered that the
Minister shall hear and determine according
to law the application for the permit. (See
 1 MLJ 440.]
The appellant appealed.
The Supreme Court allowed the appeal.
Section 12(2) of the Printing Presses and
Publications Act 1984 gives the Minister of
Home Affairs 'absolute discretion to refuse an
application for a licence or permit'.
So unless it can be clearly established that the
Minister for Home Affairs had in any way
exercised his discretion wrongfully, unfairly,
dishonestly or in bad faith, the High Court
cannot question the discretion of the Minister.
Generally, the English Law on sedition may be
encapsulated in the words of Fitzgerald J. in Reg v.
“Sedition has been described as disloyalty in action,
and the law considers as sedition all those practices
which have for their object
to excite discontent or disaffection,
to create public disturbances or to lead to civil war,
to bring into hatred or contempt the sovereign and
government, the laws or the constitution of the realm and
generally all endeavours to promote public disorder.”
Our own law, though deriving its origins from
English Common Law, is based on the Sedition
which was earlier promulgated as the Sedition
Ordinance 1948 in Malaya and extended to Sabah
and Sarawak in 1964.
It is seditious where what is said or done has a
The Sedition Act
Section 3. Seditious tendency.
(1) A "seditious tendency" is a tendency -
(a) to bring into hatred or contempt or to excite disaffection
against any Ruler or against any Government;
(b) to excite the subjects of any Ruler or the inhabitants of any
territory governed by any Government to attempt to procure in
the territory of the Ruler or governed by the Government, the
alteration, otherwise than by lawful means, of any matter as by
(c) to bring into hatred or contempt or to excite disaffection
against the administration of justice in Malaysia or in any State;
The Sedition Act
(d) to raise discontent or disaffection amongst the subjects
of the Yang di-Pertuan Agong or of the Ruler of any State
or amongst the inhabitants of Malaysia or of any State;
(e) to promote feelings of ill-will and hostility between
different races or classes of the population of Malaysia; or
(f) to question any matter, right, status, position, privilege,
sovereignty or prerogative established or protected by the
provisions of Part III of the Federal Constitution or Article
152, 153 or 181 of the Federal Constitution.
Public Prosecutor v Ooi Kee Saik & Ors  2
Raja Azlan Shah J.
“A line must therefore be drawn between the right
to freedom of speech and sedition. In this country
the court draws the line.
The question arises: where is the line to be drawn;
when does free political criticism end and sedition
In my view, the right to free speech ceases at the
point where it comes within the mischief of
section 3 of the Sedition Act.
The dividing line between lawful criticism of Government
and sedition is this —
if upon reading the impugned speech as a whole the court
finds that it was intended to be a criticism of Government
policy or administration with a view to obtain its change or
reform, the speech is safe.
But if the court comes to the conclusion that the speech used
naturally, clearly and indubitably,
has the tendency of stirring up hatred, contempt or
disaffection against the Government,
then it is caught within the ban of paragraph (a) of section
3(1) of the Act.
In other contexts the word "disaffection"
might have a different meaning,
but in the context of the Sedition Act it means
more than political criticism;
it means the absence of affection, disloyalty,
enmity and hostility."
Any person who -
(a) does or attempts to do, or makes any preparation to do, or
conspires with any person to do,
any act which has or which would, if done, have a seditious
(b) utters any seditious words;
(c) prints, publishes, sells, offers for sale, distributes or
reproduces any seditious publication; or
(d) imports any seditious publication,
shall be guilty of an offence and shall, on conviction, be liable
for a first offence to a fine not exceeding five thousand
ringgit or to imprisonment for a term not exceeding three
years or to both
Any person who without lawful excuse has
in his possession any seditious publication
shall be guilty of an offence.
He shall be liable to a fine not exceeding two
thousand ringgit or to imprisonment for a
term not exceeding eighteen months or to
Article 63. (2)
No person shall be liable to any proceedings in any court
in respect of anything said or any vote given by him
when taking part in any proceedings of either House of
Parliament or any committee thereof.
Clause (2) shall not apply to any person charged with an
offence under the law passed by Parliament under
Clause (4) of Article 10 or
with an offence under the Sedition Act 1948 .
The Sedition Act 1948
Mark Koding V PP  2 MLJ 120
Mark Koding V PP  1 MLJ 111
Notes de l'éditeur
Greek philosopher who initiated a question-and-answer method of teaching as a means of achieving self-knowledge.
His theories of virtue and justice have survived through the writings of Plato, his most important pupil. Socrates was tried for corrupting the minds of Athenian youth and subsequently put to death (399).
When compared with its corresponding Indian provisions which only allows such restrictions as are reasonable (a justiciable issue in the Indian Courts)
the Malaysian Article 10 does not contain anything to suggest that the Courts have any right to review the restrictions which Parliament has “deemed necessary or expedient”.
In Public Prosecutor v Param Cumaraswamy (1986) 1MLJ 512 at 517 Chan J. said “the validity of any law which Parliament under Article 10(2)(a) has deemed necessary to pass to impose restriction or freedom of speech shall not be questioned.”
In Public Prosecutor v Pung Chen Choon (1994) 1 MLJ 566 at 575 Edgar Joseph S.C.J has held that a law can be impugned on the ground that the restrictions which it seeks to impose has gone beyond the restrictions permitted by Article 10(2).
Although that case was a failed attempt to impugn Section 8A of the Printing Presses and Publication Act 1984, the decision provides a modicum of comfort that it is still remotely possible to ventilate the issue of whether a law is constitutionally valid.
The Printing Presses Ordinance was first introduced by the British in 1948. Under it all newspapers and owners of printing presses were required obtain an annual license. After subsequent amendments the statute was revamped and came out as the Printing Presses and Publications Act 1984. The Act now required the keeper of the press to make a deposit, the amount of which fixed by the Minister, who issued an annual license which the Minister could refuse to renew at his discretion. By Section 13(1) of the Act the refusal was not subject to judicial review.
After a rise in communal tensions in 1987, the English Daily “Star”, the Chinese “Sin Chew Jit Poh” and the Malay weekly “Watan” all had their licenses revoked. A large number of political personalities were also detained in what was called “Operation Lallang.” The licenses of the three papers earlier mentioned was restored after a few months but Tunku Abdul Rahman’s weekly column “As I See It” no longer appeared in the Star. The aging Tunku is then reputed to have remarked ,”There are two doctors who are keeping me alive-one is my personal physician, and the other is Dr.Mahathir Mohamed!!”
After Operation Lallang the Printing Presses and Publications Act was further amended to give the Minister “absolute discretion, which was not to be questioned in any Court of Law, to ban publications present and future which he considered prejudicial to public order morality or security, or likely to be prejudicial to the public or national interest.”
A most eloquent expression for the rationale for such absolute power was made by Tan Teng Leng in his Occasional Paper No.3/1989 for the Institute of Policy Studies Singapore. It is entitled “The Singapore Press: Freedom, Responsibility, and Credibility” and is quoted in “Constitutional Law in Malaysia and Singapore” (Tan, Min, Seng) (1991)M.L.J. 657. He said:-
“For developing countries wrestling with the problem of Independence, the concept of an omnipotent Press holds no appeal. The hungry, the unemployed, the uneducated, and the homeless exact immediate attention and action. At the same time, the disparate demands of competing races, languages, and religions dictate adroit responses. Such exigencies of development and nation- building tend to engender strong pragmatic policies which might compromise freedoms and rights deemed fundamental in the West. Whether the ends justify the means is, however an issue not permitted for debate in the media because of the potentially divisive impact of divergent views..”
Although licenses have since been freely issued to the Opposition publications since 1988 and articles highly critical of the Government are regularly published, the fact remains that 581 journalists have felt inhibited by the existing statutory controls to the point that on World Press Freedom Day on the 3rd May 1999 they presented a Memorandum to the Home Minister calling for the repeal of the Printing Presses and Publication Act 1984.
The “compelling arguments” they made in favour of abolishing the Act are as follows:-
- Existing libel laws more than adequately safeguard against irresponsible journalism as well as provide legal recourse for parties who feel they’ve been wronged.
- The local media have over the years shown themselves to be mindful of the fact that we live in a multiethnic society.
- So long as the Act exists, with all its attendant controls on the media the power to shut down a newspaper, withdraw a publisher’s license indefinitely and “arrest without warrant any person found committing any offence under this act” – the local press will continue to be viewed with a certain amount of distrust by ordinary Malaysians.
- The arbitrary and absolute powers of the Home Ministry over the local press, only serves to reinforce the impression the Malaysia is undemocratic, with an opaque and authoritarian system of administration.
In this case, the respondents had applied for a permit under s 6(1) of the Printing Presses and Publications Act 1984 to print and publish in Bahasa Malaysia a magazine under the name and style of Seruan Aliran. The application was refused by the Minister of Home Affairs. The respondents applied for an order of certiorari to remove into the High Court for the purpose of quashing the decision of the Minister and for an order of mandamus directing the Minister to hear and determine the application for the permit according to law. The High Court made an order quashing the decision of the Minister and ordered that the Minister shall hear and determine according to law the application for the permit. (See  1 MLJ 440.] The appellant appealed.
Held, allowing the appeal:
(1) Section 12(2) of the Printing Presses and Publications Act 1984 gives
the Minister of Home Affairs &apos;absolute discretion to refuse an application
for a licence or permit&apos;. So unless it can be clearly established that the
Minister for Home Affairs had in any way exercised his discretion wrongfully,
unfairly, dishonestly or in bad faith, the High Court cannot question the
discretion of the Minister.
(2) On the information that was before him, it could not be said that the
Minister of Home Affairs had acted with any impropriety in exercising his
discretion in rejecting the respondent&apos;s application for a permit. There is
no evidence that the Minister was in any way prejudiced or biased or had
acted in bad faith. It also cannot be said that the Minister had acted
contrary to the rules of natural justice. He had considered the written
application of the respondent for a permit and had taken all relevant
considerations into account as set out in his affidavit before he arrived at
his decision to reject the application.
(3) There is nothing in evidence to show that the Minister had taken
irrelevant matters into consideration or that he had acted without any or in
excess of his authority. There is no evidence on which the respondent can
base its claim for quashing the decision of the Minister on the ground of
illegality, irrationality or procedural impropriety.
(3) For the purpose of proving the commission of any offence against this Act the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact the act had, or would, if done, have had, or the words, publication or thing had a seditious tendency.