2. Article 10 – FREEDOM OF SPEECH/ASSEMBLY & ASSOCIATION.
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.
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3. 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.
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4. 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 tough 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.
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5. The Race Relations Act forbid insulting speech likely to cause racial
hatred or disharmony. The maintenance of the social fabric of society is
more important.
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.
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6. Freedom of Speech: Article 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: Article 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.
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7. 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).
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8. 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.
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9. 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.
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10. 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.
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11. Generally, the English Law on sedition may be summarized 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.”
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12. 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.
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13. 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.
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14. 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.
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15. 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
unquestionably, 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.
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16. 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
Held that the speech to abolish all chinese & tamil vernacular does amount to
seditious speech.
Ooi Kee Saik v PP [1971] 2MLJ 108
Critism of govt's flaws is allowed.
Burden is on the prosecution to prove that the words uttered have 'seditious
tendency'.
Mistake in making seditious report is not a defence, but a 'true' report is
allowed.
Its unnecessary for the prosecution to prove that the words will caused chaotic.
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17. Section 4(1) Sedition Act
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
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18. 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 [1983] 1 MLJ 111
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19. Art. 10(2) : Restriction may be imposed by Parliament for such right if its deem necessary &
expedient. – security of Fed. / Public Order & Art. 149 (Subversion) & Art. 150
(Proclamation of Emergency)
Police Act 1985 (PA)
had been replaced with Peaceful Assembly Act
Sec.27(1)
Gives power to OCPD (district police), to govern the peace on the specific area &
Power is given to the police to regulate the assembly/speech (include – determine route
used / time of assembly)
CASE : Cheah Beng Poh v PP
The assembly application must be granted if they follow the procedure laid down & if
the assembly doesn’t create any threat to safety/peace/ & interest of public.
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20. Patto v Chief Police, Perak
S.27A – the police officer in charge of Police District (OCPD) is
given discretionary power to either grant / refuse the
application based on the merits of the case. If they decided
the application based on order of Police State/etc (acting
mechanically) , it’ll amount to abuse of power.
It was also held that its unreasonable for the police to refuse
the license just 30 minutes before the assembly began. The
reasonable period of time to refuse is crucial.
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21. Sec.27(2)
License request only granted upon the satisfaction of the OCPD,
OCPD shall consider the application whether it is or it is not
prejudice to the security of the fed, and upon the grant of the
license, condition must be served.
Sec. 27(7) – Dissatisfied with OCPD, the applicant may appeal to
CPO, (Chief Police of State)
Definition of assembly in “Public Place” :
Sec. 3 of Interpretation Act – pub. place any place which the public
will have access (i.e. road, bridge, resort, etc.)
ISSUE : Whether such conditions will be inconsistent with
‘F.O.Speech’? Refer below,
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22. Datuk Yong Teck Lee v PP
Held : Sec. 27(2) is not prohibitory but simply regulate & fulfil all necessity under Art.10(2).
Madhavan Nain v PP
Police imposed cond. saying that the speech shall not touch the issue of SPM(MCE) dec. & Malay
Language, pf challenged on ground of inconsistency with Art.10(1)(a)
Held : The cond. imposed was within the 7 reason given under Art. 10(2), thus its consistent.
Chai Choon Hon v Govt. Of M’sia
DAP wanted to arranged assembly of lion dance & dinner. There were 7 cond imposed by police
where 2 of them been challenged : (i) Number of speakers – 7 only & (ii) Can’t talk on the political
issues. Court decided using ‘Reasonableness’.
Held : (i) Unreasonable – invalid cond. as it go vs the ‘Reasonableness’ Doctrine’ &
(ii) Unreasonable – as a political party like DAP will definitely talk about politic in their meeting.
Cond. on - Time only from 5pm – 11.30pm is reasonable.
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23. WHAT IS ‘UNLAWFUL ASSEMBLY’
Sec.27(5) of PA – ‘Any assembly which :
Carried out without license
Refuse to obey any order given
All person attending the assembly which was held without
license shall liable for an offence.
S.27(5)(a) & (b) – Any person who take part in the assembly.
S.27(5A) – Its not a defence for a person taking part in the
assembly if they are not knowing that the assembly is
unlawful.
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24. S.27A Of PA : WHAT IF THE ASSEMBLY IS NOT HELD IN PUBLIC
PLACE & NO LICENSE GRANTED? Can They Be Charged?
As long as its intended to be done so that person outside will
participate / attract 20 or more people to observe /
prejudicial to security of Fed. & public order it’ll still
chargeable under police act.
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25. ARTICLE 10(1)(c) – FREEDOM OF ASSOCIATION.
CASE : Malaysia Bar v Govt of M’sia
Held : Art.10(1)(c) only give right to form association not to
manage it. Its arguable – how to form without managing?
Art. 10(2) – Parliament may be imposed any law to restrict the
above right if it find its necessary & expedient to do so, as it
touch on security of Fed / Public order / morality.
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26. CASE : Dewan Undangan Negeri Kelantan V Nordin Salleh
FOC : In the Article of Kelantan’s Consti, its stated that Adun
Kelantan which is also a member of political party, after his
resignation / expel from that party must also resign from being
ADUN.
Held : whether the Art. in the Kelantan Consti is unconsti. or not.
Qs to be asked : Does this Art of Kelantan Consti goes under
restriction allowed by FC as per Art. 10(2)(c) – Court held ‘NO’ as :
Its Parliament jurisdiction not State Assembly to impose restriction.
Restriction can only be done on ground of security of fed. / public
order / morality.
Art. of Kelantan Consti doesn’t belong to any ground in Art.10(2)(c)
of FC.
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27. CASE : Abdul Karim v Legislative of Sabah
Parliament can never imposed any restriction for any member
of Parliament to change / dismiss themselves from their
original political party after won the election as this will
contravene with Art. 10(2) – only for security of Fed / public
order & morality.
Art. 10(3) – Restriction may also be imposed in any law
relating to labour/edu.
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28. Printing, Presses & Publication Act 1984 (Amended on 1987)-
comparison between 1984 & 1987;its significance.
Sec.3(3) – Minister may in his absolute discretion grant any
person a license for the printing press, and he also may, in his
absolute discretion refuse any application, at any time
revoke/refuse such license if he consider it is desirable to do so.
Sec. 8A(1) – upon the publication that had been done
MALICIOUSLY and it’s a FALSE NEWS, all 4 of the Printer, Publisher,
Editor and the Writer will be held liable guilty for an offence and
shall be served with punishment of imprisonment not more than 3
years, or fine not exceeding RM20k, or both.
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29. PP v Pury Chen Choon
Sec. 8A(1) had been challenged on the ground that this law which enacted under
guardian of Art.10(1)(a) of FC, was vs the Art. 10(2)(a), thus must be declared void.
Held :
i. Any restrictive law made under Art.10(1)(a) is valid as long as it has sufficient interest
with the subject under Art. 10(2)(a) of FC.
ii. The issue with regard to the unreasonableness was not relevant at all as, the freedom
of newspaper in Malaysia must not be comparable to the freedom sustained in India,
England or US. This is because, we totally have different. background culture of society,
politic range & etc.
Sec.6 – The minister is given discretionary power to the application & revocation of the
license.
Sec.12 – Duration of the permit to publish & print only last for 12 months, after that, the
applicant must make a fresh application to get the license and not the extension
application.
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30. Operasi Lalang – 1997
A few newspapers had been banned to slow down their critical warning & at the
same time to make such media to fear & lean more to govt.
This include, Akhbar Watan, Sin Jiew Chek Poh & The Star.
The Star in which was so critical before the suspension had slow down their
radical news & had put up a safer kind of comment which lean more to govt as
afraid their license may be revoked back.
Significance of Amendment :
• JR had been totally excluded on the application to challenged the ground
in which is used by the minister to derive to his decision.
• This subsequently denied the Right to be heard of the applicant on the
process of the application of the license and on the revocation of the permit.
• The renewal license system had been replaced with the fresh application
system for the purpose of sustaining the license.
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31. OFFICIAL SECRETS ACT 1972
OFA v F.O.Information
OFA – All the info belong to govt are off. Secrets unless its de-classified.
v F.O.Information – All govt. info are open to public unless its classified as
secret & confidential.
Great countries which support ‘democracy’ should applied F.O.Information.
Sec. 2 of the OFA
v Any doct. / info / etc that may be classified as top secret / confidential /
restricted/ any info that the minister / chief minister classified as the OS info.
Sec. 8(1) of the OFA – offence under this act
Communicates the info to other party
Use the info as to prejudice the safety of M’sia
Retain in the possession of such info when he had no right to do so
Fail to take reasonable care of such info
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32. PP v LIM KIT SIANG
About warship’s tender
Principle :
i. The act of ‘receiving’ such info is an offence under the act.
ii. Offence still committed despite the fact that the info was
obtained from non-official resource.
iii. Good faith in disseminating the info is not a defence.
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33. DATUK HAJI DZULKIFLI’s CASE
Principle :
i. Document will not lose it status as OS if the info is disseminate without
knowing the sender = the recipient still liable
ii. Even if the info is a ‘public knowledge’s info’, the status still sustain as OS
iii. Once the info is classified as secret, only the same person who ‘classified’
can ‘declassified’.
AKTA KOLEJ & UNIVERSITI 1971
• To regulate the universities movement / discussion on the public law
issues.
• Peak era : 1970 student activisim.
• CASE : MOHD HILMAN IDHAM
COA – the students were suspended because they presented at election.
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