Freedom of Speech and
Expression

Freedom of Speech: Relevant Part of Article 10
10 (1)(a)
Every citizen has the right to freedom of
speech and expression

Democracy-Free Speech
-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
society.
• 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
much mischief.
• All legal systems, including those of the
Western liberal democratic tradition,
impose varying degrees of restraints on this
fundamental freedom.

• 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
disharmony.
• 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
society.

• Raja Azlan Shah J in PP v. Ooi Kee Saik [1971] 2 MLJ 108
quoted the following passage from
A.K. Gopalan v. State of Madras AIR [1950] SC 27:
• “ 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.

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
morality
and
- to protect the privileges of Parliament or of any Legislative
Assembly
and
-to provide against
contempt of court,
defamation, or
incitement to any offence.

Freedom of Speech: Relevant Part of Article 10
10 (4)
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
prerogative
established or protected by the provisions of
Part III,
Article 152,
Article 153 or
Article 181.

Examples of Restrictions on
Freedom of Speech and Expression

The Printing Presses and Publications Act
1984
The Sedition Act 1948

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
Minister specifies.
s. 12(1).
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
given.
s. 6(3).
He may impose any conditions necessary.
s. 12(1).
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
thousand ringgit.
s. 8.

The Printing Presses and Publications Act
(PPPA)
Aliran V Minister of Home Affairs
[1988] 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
[1988] 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.
Sullivan:
“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
Act 1948
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
seditious tendency.

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
law established;
(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 [1971] 2
MLJ 108
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
begin?
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."

Melan bin Abdullah v PP [1971] 2MLJ
280
Ooi Kee Saik v PP [1971] 2MLJ 108

Section 4(1)
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
tendency;
(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

Section 4(2)
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
both.

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.
Article 63.(4)
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 [1982] 2 MLJ 120
Mark Koding V PP [1983] 1 MLJ 111