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8/8/2019 Cons Ti Law

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Freedom of Speech and Expression

Prepared for : Madam Irini bt Hj Ibrahim

Prepared by : Ahmad Ismail Illman Bin

Mohd Razali

October 2007, Q2(c), Part C


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The issues of the case. (I)

y Women Solidaritys permit to publish a Newsletter was

granted but subject to the condition that the Newsletter shall

be for internal circulation only amongst members of the

organization.

y Women Solidarity appealed to the Home Minister against the

imposed condition, the appeal however was refused by the

Minister under the Printing Presses & Publication Act 1984,which states the Ministers discretion is final.


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The issues of the case. (II)

y Womens Solidarity now wishes to take the matter to Court

for a declaration that the Printing Presses & Publications Act

198 as well as the condition imposed are unconstitutional.


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The Law

y The issues that have been identified are matters concerningof the fundamental right to freedom of speech andexpression.

y The fundamental right to freedom of speech and expression

is vested in Article 10 (1) (a) where by, the provision statesthat every citizen has the right to freedom of speech andexpression.

y The restraints on this fundamental liberty are laid down in

Article 10 (2) (3) and (4).T

he provision gives power to theParliament to make law to restrict the rights of freedom ofspeech and expression as it deems necessary or expedient.


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The Law

y However, Parliaments legislative power is not unlimited. Itcan enact legislation only on the constitutionally permissiblegrounds and for the purpose only of promoting the objectsenshrined in the constitutional provision dealing with the

freedom.

y In Dewan Undangan Negeri Kelantan v Nordin Salleh it washeld that a restriction can be challenged if it directs affects

the fundamental right or the restrictions inevitableconsequence is such that it makes the exercise of fundamentalrights ineffective or illusory.


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The Law

y There is a strong presumption of the constitutional validity of

legislation.The burden of proof lies on the party seeking to

establish the contrary.

y In this case, this party will beWomens Solidarity.

y If certain provision construed in one way would make them

consistent with the Constitution and another interpretationwould render the unconstitutional, the court should lean in

favour of the former as conveyed in PP v Pung Chen Choon.


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The Law

y Even if a parliamentary law is constitutionally valid,executive action under the laws authority may be challengedif it infringes the Constitution or is ultra vires the parent lawor is in breach of the principles of natural justice.

y Article 4(1) states the Constitution is the supreme law of theFederation, any law passed after Merdeka Day which isinconsistent with the Constitution shall, to the extent of the

inconsistency, be void.

y Article 4(1) is further strengthen with Article 162(6).


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The Law

y Executive action under the laws authority may also be

challenged in court of law.

yJudicial Review may declare ultra vires on unconstitutionalaction of the Executive.


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The Law

y In the case of J.B. Jeyaretnam it was held that a power given

to restrict free speech must not be arbitrary and

untrammeled.

y Arbitrary powers are an affront to Article 8s promise of

equality before the law and equal protection of the law.

y In Dow Jones vs AG Singapore, it was held that the Ministersdecision on what amounted to engaging in domestic politics

was open to judicial review.


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The Lawy In Persatuan Aliran v Minister, an admirable sentiment was

expressed by the Supreme Court that even though section

12(2) of the Printing Presses and Publication Act gives to the

Minister an absolute discretion to refuse an application for a

licence or permit, the Ministers discretion is, nevertheless,

subject to judicial review on the principles of illegality,

irrationality and procedural impropriety principles of

judicial review reformulated in the British case, Council of

Civil Service Union v Minister for the Civil Service.


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The Law

y Unfortunately such liberal sentiments are not always

reflected in actual decisions.

y In the Aliran case the permit was refused, the plaintiff

invoked Article 8 which was equality before the law, Article10 which was freedom of speech and Article 152 which was

the recognition of Malay as the official language to back its

application in court.


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The Law

y The Supreme Court summarily rejected the constitutional

arguments and concentrated on the administrative law issue

of abuse of power which there was no proof.The plaintiff was

denied relief even though it had sought the protection of the

Constitution.


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The Application.y Womens Solidarity may bring the matter to court to claim that both the

Printing Presses & Publications Act 1984 as well as the conditionimposed are unconstitutional.

y Womens Solidarity may claim both of the two has infringe its

fundamental right of freedom of speech and expression in Article 10(1)as well as the promise of equality before the law in Article 8.

y The condition imposed to subject the Newsletter to only internalcirculation was arbitrary.Thus violating Article 8.

y The Ministers discretion on the refusal of appeal forWomens SolidarityNewsletter was deny the freedom of speech and expression ofWomensSolidarity and thus violating Article 10(1).


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The Application

y However, the application that will be made byWomen

Solidarity may be rejected.

yOn the basis of judicial precedent, Persatuan Aliran vMinister claim of infringement of Article 10 and Article 8

failed.Therefore, it would be likelyWomens Solidarity claim

would also fail.


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The Conclusion.

y Printing Presses and Publications Act in sections 3(3), 6(1),and 12(2), confer on the Minister absolute discretion togrant, refuse, or revoke a licence or permit. Section 13Amakes the Ministers decision final and not questionable in

court of law.

y In a legal system with a supreme Constitution, no law canviolate the Constitution; no clause can authorize conduct that

transgresses constitutional limits; no provision can barjudicial review of unconstitutional decision. Onconstitutional issues, courts cannot be excluded.Thisprinciple is at the heart and soul of constitutionalism.


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Dear Madam Irini.I would like to again apologize for my actions on the last day of Constitutional Law

class. I am deeply sorry for not being able to make it.

I did try to reschedule with the Security Commission but they informed me thatthe interview sessions were already full, as they cannot move me into a moreconvenient slot.

Saya memohon maaf teramat kepada Puan!

Thank you Madam for giving me a chance to redeem my mistakes.

I apologize once again Madam.

P.s- Congratulation Madam for getting your PhD !

Sincerely

Ismail Illman

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