TOPIC :FREEDOM OF SPEECH WITH REFERENCE TO ISLAMIC

LAW AND HUMAN RIGHTS PREPARED BY: NORYASIDAH BINTI YUSOFF

(D20111048989) NUR SHAFIZA BINTI ISMAIL

(D20111048998) HASMUL WAHINI BINTI HASRAM

(D20111048971) SYATIRA BINTI YAHYA (D20111049043)

PREPARED FOR : DR. YUSUFF JELILI AMUDA

“Everyone has the right to freedom of opinion and

expression; this right includes the right to hold opinions with-out interference and to seek,

receive, and impart information and ideas through any media and regardless of frontiers .”

1. DEFINITION OF HUMAN RIGHT 2. DEFINITION OF FREEDOM ( ISLAMIC VIEW) 3. DEFINITION OF FREEDOM OF SPEECH &

EXPRESSION ACCORDING JOHN MILTON 4. FREEDOM OF SPEECH & EXPRESSION

UNDER UDHR 5. THE CONCEPT OF HUMAN RIGHT 6. FREEDOM OF SPEECH WITH REFERENCE

TO MALAYSIAN CONSTITUTION

-basic right and freedom-all people entitled to.-many society believes all people should have regardless nationality, sex, age, ethnic, origin, race, religion, language and other status.

Islam conferred freedom of expression and speech to all people.

Not only given to citizen while against injustice-also for citizens of an Islamic country to have different expression.

Freedom must be use in purpose to upholding welfare and not to spread brutality.

Rasulullah SAW give freedom to all Muslim to express their opinion.

Example: during the batt le of Uhud, the Prophet asked for the views of other fr iends to arrange the posit ion, they asked him about his posit ion. However, when the Prophet said that he gave recommendations as a human being and not from the revelation of god, they continue to defend and to state their views. At last, Prophet agreed to f ight according to the discussion which they had done.

This showed how Rasulullah has set their mind to defend the freedom of speech.

John argued, if the facts are laid brave, truth will defeat false hold in open competition.

Cannot be left for a single individual to determine. It is up to each individual to uncover their own

truth ; no one is wise enough to act as individual as a censor for all individual.

Based on John Milton’s arguments, freedom of speech = multi-faceted rights

Include not only the right to express, or disseminate, information and ideas, but there are another 3 further distinct aspects.

A) rights to seek information & ideas B) rights to receive information & ideas C) rights to impart information & ideas

Article 19 of UDHR guarantee right of freedom of speech & expression in the following terms:

“everyone has the right to freedom of speech & expression; this r ight includes the right to hold opinions without interference & to seek,receive & impart information & ideas though any media & regardless of frontiers”.

The right of men literally means = the right that one has because he/she is human.

2 central:-central senses & political senses such as rectitude

& entitlement Rectitude = speak of “ the right thing to do

something (right / wrong) Entitlement = someone having right Both link into “ right & obligation but in

systematically different way “

Article 10(1) of the Federal Constitution freedom of speech- every citizen has the right to speak and expression as provided by Article 10(1) of the federal constitution.

But not absolutely. Right is stipulated by Article 10(1)-allows

parliament to impose restriction in the interest of nationality security.

For public order / morality contempt of court, defamation / incitement to commit a crime.

Article 10 (1)-Permit Malaysia Parliament to make laws prohibiting questioning issues of;◦ language◦ the powers of prerogative◦ privileges & native Malays & the sovereignty◦ powers of the king

Validity of law can not be questioned on the grounds that it imposed restriction as specified in article 10 (1)-but the restriction was not denned necessary / desirable by the Parliament.

The meaning of human rights according to Islamic point is leant on to Allah because man is created in the world is to serve the Creator. The man must implement and obey the order and he will get his rights when he implemented and obeyed the rule and order.

Islam gave to mankind an ideal code of human rights fourteen centuries ago. These rights aim at conferring honour and dignity on mankind and eliminating exploitation, oppression and injustice.

Islam gave recognition to human rights from the very beginning. Islam provides for security of life and property, the protection of honour, sanctity and security of private life and the security of personal freedom.

Islam gives the right of freedom of thought and expression, the right to freedom of association and religion; “The should be no coercion in the matter of faith” (Surat Al-Baqarah:256) and others.

Human rights in Islam is enshrined in the Quran and the Sunnah of the Prophet Muhammad S.A.W.

The successive generations of Muslim scholars gradually built elaborate and comprehensive structures of rights and obligations on the basis of the Quran and the Sunnah.

The Prophet Muhammad S.A.W with his companions in the first year of Hijri (622 M) has made a community covenant (Social Contract) with the people of Medina both Muslim and Non Muslim.

This agreement known as the Medina Charter or the Charter of the Prophet Muhammad S.A.W.

The community agreement made in writing and covers nine chapter. The second chapter is about human rights

(Clause 2 - Clause 10). The Charter is the world’s oldest written agreement. This

Charter is written by the Prophet Muhammad S.A.W with the people of Medina consisting of Quraisy, Yathrib and who follow the Prophet Muhammad S.A.W.

The Medina Charter is the first Islamic Constitution in the world. Based on Chapter II (Human Rights) and Chapter IV (Association a group of all citizens).

This Charter is a fair organized by the fundamental rights of all the citizens who live in Muslim countries. With these facts, we get a conclusion by syarie and history that Islamic countries had recognize and properly manage the fundamental rights of every citizen.

Based on Muslim scholars conference, both Sunni and Syiah held in Karachi on January 21 to January 24, 1951, the principles Islamic rule which read:- the rights of citizens of all things given to them by Islamic

law, they are fully guaranteed within the bounds of the law, in the case of mental peace, wealth, dignity, freedom of religion and belief, freedom to move, personal freedom, freedom of expression, freedom to work and others.

Human rights is guaranteed by Islam to the people. It is can be classified into two categories: (a) Basic human rights that have been placed by Islam for a human such as the right to live as a human being, the right of ownership, the protection of honour, sanctity and security of private life, the security of personal freedom, protection from arbitrary imprisonment impunity and the right to protest against injustice. For example, the right to live (Surat Al-Isra’:33)(b) Human rights granted by Islam to a group of people who different in status, position and others such as special rights for non Muslim, women rights, labour rights, children rights.

For example, the right to work (Surat At-Taubah:105)

Islam confers the right to freedom of thought and opinion to all human being. Freedom of expression is not only given to citizens when fighting injustice but also for the citizens of an independent Islamic State to have different opinions.

Freedom of expression should be used for the purpose of making welfare and not for spreading evil and wickedness.

Freedom of expression that occurs in an ideal society is under the leadership of the Prophet Muhammad S.A.W. For example, the Prophet Muhammad S.A.W during his life had given freedom to the Muslims in their different opinion to him.

Human rights in Islam are firmly rooted in the belief that God, and God alone, is the Law Giver and the Source of all human rights.

The Universal Islamic Declaration of Human Rights is based on the Quran and the Sunnah and had been compiled by Muslim Scholars, jurists and representative of Islamic movement.

This declaration announced at the International Conference on the Prophet Muhammad S.A.W held in London from 12 to April 15,1980. It will give a powerful impetus to the Muslim peoples to stand firm and defend resolutely the rights conferred on them by God.

All public affairs shall be determined and conducted, and the authority to administer them shall be exercised after mutual consultation (Shura) between the believers qualified to contribute to a decision which would accord well with the law and the public good.

This human rights that consider are enjoined by Islam:(a) Every person has the right to express his thoughts and beliefs so long as he remains within the limits prescribed by the law. No one, however, is entitled to disseminate falsehood or to indulge in slander, innuendo or to cast defamatory aspersions on other persons.(b) Pursuit of knowledge and search after truth is not only a right but a duty of every Muslim.(c) The right and duty of every Muslim to protest and strive (within the limits set out by the law) against oppression even if it involves challenging the highest authority in the state.(d) There shall be no bar on the dissemination of information provided it does not endanger the security of the society or the state.(e) No one shall hold in contempt or ridicule the religious beliefs of others or incite public hostility against them; respect for the religious feelings of others is obligatory on all Muslims.

The main aspect in freedom of speech/expression is impart information and ideas.

The purpose of freedom of speech is to give opportunity to citizen not just contribute but also allows to have wide range of information and point of view of other.

It is the responsibility of all citizen to support those who wish to receive and impart information and ideas. The right of freedom not just right to seek, receive and

impart information but also include the right to access records by public authorities.

Information and ideas that considered useful, meaningful and also fact or opinion which can be communicated are all applies in the rights of freedom of speech/expression.

The UN Human Rights Committee (the body that oversees implementation of the ICCPR) has stressed this point; Art icle 19, paragraph 2, every form of subjective ideas and opinions capable of transmission to others, must be interpreted compatible with art icle 20 of the Covenant.

John Stuart Mil l (1806-1873) stated four argument on why it is crucial to have a controversial speech :

◦ If an opinion is silenced, we will never know whether or not it was correct; to deny the possibility that another’s opinion is correct assumes one’s own infallibility.

◦ Opinions are rarely entirely wrong or entirely correct. If an opinion is silenced, the ‘correct’ part will be lost.

◦ Even if an accepted idea is indeed the correct one, it can only fully convince the public if it survives an open and fair contest with an opposing idea.

◦ Why a particular idea is correct might easily be forgotten, if that idea is not periodically challenged and its strengths so exposed.

The freedom of speech not only use to deliver information and ideas, but also applicable in dissatisfaction.

UDHR and ICCPR make clear, the right to freedom of expression is not limited by national boundaries, means everyone should be allow to express themselves though any media.

The right to freedom of expression is not absolute; both international law and most national constitutions recognise that it may be restricted. However, any limitations must remain within strictly defined parameters. Article 19(3) of the ICCPR lays down the conditions which any restriction on freedom of expression.

I t may therefore be subject to certain restrict ions, but these shall only be such as are provided by law and are necessary:◦ (a) For respect of the rights or reputations of others;◦ (b) For the protection of national security or of public

order (order public), or of public health or morals.

DEFAMATION

OFFICIAL SECRETS

CONTEMP OF COURT

SEDITION ACT

POLICE ACT 1967

The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). ARTICLE 19 defends the right to freedom of expression and information. The right is guaranteed in international human rights law, but is not absolute and can be limited.

CONT;

In principle, the right to freedom of expression protects any activity involving the exchange of information or ideas between individuals against interference by the state.

The great majority of such activities are completely harmless but it is clear that the notion of ‘seeking, receiving and imparting information or ideas’ also encompasses activities which few societies could tolerate, such as incitement to murder, unauthorised graffiti on public walls or the sale of pornography to children.

While the right to freedom of expression is universally recognised as one of fundamental importance, it is therefore also accepted that the right is not absolute. Certain important public and private interests may justify action by the authorities which interferes with or limits the exercise of the right.

The International Covenant on Civil and Political Rights (ICCPR) intended to elaborate the UDHR and contains a very similar statement of the right to freedom of expression (again in Article 19) but with added detail:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;(b) For the protection of national security or of public order

(ordre public), or of public health or morals.

The following hadiths give an idea as to what the Holy Prophet (sa) preached and practiced with respect to exercising freedom of speech:

1. “A believer does not taunt, or curse or abuse or talk indecently”.

2. “Ruined are those who exaggerate”.3. A good word is a charity

In three simple sentences, the Holy Prophet (sa) has taught us the core principles of freedom of speech:

1. Don’t be indecent2. Don’t embellish stories3. Saying good things is a virtue provided that the good things said are true.

Freedom of speech is a noble value. But it must be exercised within the framework of decency, honesty and respect. Otherwise, freedom of speech will become a nuisance.

When speech is driven by insults, it reinforces stereotypes and prejudices, which is clearly something we neither want nor can afford to have in a pluralistic society.

The values taught to us by the Holy Prophet(sa) are simple but elegant which once incorporated in any setting, personal, cultural, national or international, will guide towards truth while preserving justice and promoting social harmony.

RESTRICTIONS or LIMITATION on this

freedom has been imposed to protect national security,

maintaining public order, harmony and unity among various ethnic groups as

well as good relations with other countries.

SOUTH AFRICA

Freedom of expression:(1) Everyone has the right to freedom of expression, which includes;

(a) freedom of the press and other media; (b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and (d) academic freedom and

freedom of scientific research.

(2) The right in subsection (1) does not extend to;

(a) propaganda for war; (b) incitement of imminent

violence; or (c) advocacy of hatred that is

based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

MALAYSIA

Malaysian citizens do enjoy the right to freedom of speech and expression as provided by Article 10 of the Federal Constitution but there are certain limitation in terms of breach and threaten national security, public order or morality, racist statements, challenge the Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence may be prosecuted or convicted;

1) The Printing Presses and Publications Act 1984,

2) Broadcasting Act 1988, 3) Official Secrets Act 1972, and4) Sedition Act 1948.

vsHis Majesty The King of

Johor, DYMM Sultan Ibrahim Ismail Ibni Al-Marhum

Sultan Iskandar

The Chief Minister Of Penang,

YB Lim Guan Eng

"Penang is in first place last year in terms of reducing crime rate by 27%. For the first six months, the rate of crime is reduced by 25 percent. BUT IN JOHOR, A SINGAPOREANS can be kidnapped. You will not facing that problem if you

come to Penang.”

IMPLICATIONS

freedom of speech has been abused and leave a negative impact to the State of Johor.

This statement is not polite and can affect foreign investment in Johor as among the factors attracting foreign investors are the political stability, good facilities and infrastructures, and not forgetting the safety factor.

Penang Chief Minister's actions have affected the friendship relations between the states in the Federation, and also bringing a bad image to the country. Outspokenness on the Chief Minister leave the big impact on investment in Iskandar Malaysia and in Senai Hi-Tech Park.

Muslim Scholars Association of Malaysia

(PUM)

VS

Sister In Islam Executive Director,

Zainah Ali

Political Scientist, Farish A Noor

Lawyer, Malik Imtiaz Sarwar

-The Sun Columnist, Akhbar Ali-Academic, Kassim Ahmad-University Malaya Lecturer, Patricia Martines

Malaysian Bar Council

VS

Those writers ‘insulting’ the Ulama (religious scholars) and Islam. The Muslim Scholars Association Of Malaysia (PUM) and seven

other Islamic Organizations submitted the memorandum to The Conference of Ruler, urging them to take actions against those actions.

PUM also attacked the Malaysian Bar Council for ‘interfering’ in Islamic matters when the council came in defense of the writers.

IMPLICATIONS:

Freedom of speech has been abused and leave a negative impact to the Islamic Institution and also the sensitivity of Muslim in Malaysia.

The writers involved in the controversy caused confusion rather than enlightenment, resulting in disorientation among the public with regard to the true understanding of Islam.

ENFORCEMENT

International guarantees of the right to freedom of expression can be enforced,

1) Domestic Courts (DC)

Under Article 2(3) of the ICCPR, states parties must ensure that persons whose rights under the ICCPR have been violated have an effective remedy.

This means that every state which has ratified the ICCPR must have some sort of mechanism in place through which an individual can enforce his or her human rights, including the right to freedom of expression.

There are 2 approach under DC:

i) The ‘dualist approach’

International and domestic law are seen as separate spheres. It is not possible to invoke international norms directly before a court; the only way in which international rules can find their way into the national legal system is through a legislative act ‘transforming’ a particular treaty or rule of customary international law into domestic law. One peculiar consequence of the dualist approach is that if the government fails to translate international law properly, some things which are illegal under international law may still be legal under domestic law.

ii) The ‘monist’ approach

Regards international and domestic law as a single body. The courts are authorised to apply treaties (and sometimes customary law) in the same way as any law adopted by the national government.

In most monist countries, international law is considered to be hierarchically superior to law of domestic origin, with the exception of the constitution; this means that if there is a conflict between national and international law, the international rule will prevail.

In practice, many states take an intermediate approach and are

preponderantly, rather than strictly, monist or dualist. It is also not

uncommon for courts in a country that is supposedly monist simply to ignore international law, usually because the

judges are unfamiliar with or hostile to it

2) International level

International law has traditionally favoured domestic courts as the place to resolve disputes between states and individuals.

Although a number of international bodies are willing to hear claims that an individual’s human rights have been violated, they will normally entertain such complaints only if the individual in question can show that he or she has exhausted all local remedies or that no such remedies exist (known as the ‘rule on exhaustion of domestic remedies’).

The main reason for this is that a state should not be held to be in breach of its international obligations if a remedy for such breach exists at the national level. More pragmatically, national remedies are a good way for the authorities to discover problems with the implementation of human rights without the need for external involvement.

We’re not been given fully freedom of speech

There’s certain l imitations and restrict ions that we have to follow

WHY?

Every human being all over the world are entit le to hold and practice the l imitations and respect the

restrict ions given by the local authority in order to maintain peaceful and harmony not only in our country but also in the international level….

THANK YOUSYUKRAN JAZILAN