article 10 freedom of speech

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.


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.


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 108Raja 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