13 fundamental liberties 10 11 (9)

FUNDAMENTAL LIBERTIES
Article 10
Freedom of Speech, Assembly & Association

Article 10

•Right to Freedom of Speech &
Expression
•Right to Assemble
•Right to form Associations

Article 10
•Art 10 codifies basic rights common in all
democracies.
•Rights to freedom of expression, assembly &
association are central to democratic process.
•Without these rights it is difficult/even impossible to
have a functioning & healthy democracy.
•However, the rights under Art 10 are limited &
parliament has power to pass various restrictive laws
whose overall implication is to limit democracy in the
country.

Freedom of Speech & Expression

• Nature & Extent of Free Speech
• Article 10(1)(a) of the FC provides ‘subject

to clauses (2),(3) & (4) every citizen has
the right to freedom of speech &
expression’.
• Many forms: Freedom of speech &
expression combines many rights in many
forms which covers political, artistic &
aesthetic field including communication by
word of mouth, signs, symbols & gestures
& through works of art, music, sculpture,
photographic, films, video, books,
magazines & newspapers.


• Press freedom: FC is silent. In

India, a number of cases
upheld the notion that freedom
of speech & expression
includes freedom of press.
Bennet Coleman (AIR 1973)

• Press freedom: Political experiences of the

past have shaped the attitude towards
press freedom. The racial riots in
Singapore in 1950 & in Kuala Lumpur in
1969 are alleged to have been caused
partly by irresponsible reporting of racially
sensitive issues. The press is kept on a
tight control but from time to time
relaxation takes place but things are
tightened again if the exigencies of the
political, economic & social situation so
demand.


• Symbolic speech: It is protected

to the extent of accepting the
act of flag-burning (Texas v
Gregory 1989) & begging under
the US First Amendment. NY
City’s ban on begging on public
streets & in parks was held
unconstitutional!


• Right of association: In many

countries the guarantee of free
speech also covers the right of
citizens to organise themselves into
associations, assemblies/
processions. Malaysia – these rights
are enumerated as distinct rights
with separate scope, extent &
permissible limits from the
provisions on speech.

• Right to information: No direct authority

on point in M’sia. Singapore case Dow
Jones [1989] held that the right of access
to information is not part of the
constitutional guarantee of free speech.
This is likely to be the position in M’sia as
well.
• Advertisement: Commercial expression to
a limited extent are protected including
cigarette advertisements on building &
walls in light of the advertisement rules &
regulations



• Cyber speech: The Computer Crime Act 1997 & the

Communications & Multimedia Act 1998 seek to retain
some control over cyber communication. Tensions are
also developing between ideal of free speech &
proprietory interest of copyright, patent & trade mark.

• Advertisement: Commercial expression to a limited

extent are protected including cigarette
advertisements on building & walls in light of the
advertisement rules & regulations.

• Who is eligible? Natural persons who are citizens &

legal persons like companies, corporation & statutory
bodies. Foreigners are not protected. In Singapore
case of Dow Jones, it was affirmed that foreigners &
foreign publications lack the constitutional protection
of free speech.


• Safeguards for Free Speech

• Parliament is not supreme: Any law that conflicts with

the Constitution may be modified or nullified by the
court including pre-Merdeka law [Art 4(1) &
162(6)].Restrictions on free speech must be confined
to those articulated in the Constitution. Nordin Salleh
[1992] & Madhavan Nair [1975].

• Reasonableness of restrictions: The reasonableness,

expediency or necessity of legislation is for the
Parliament & not the court to decide in light of Art
10(2). Under Art 4(2)(b) the necessity or expediency
of a parliamentary enactment cannot be questioned in
a court of law. However, Parliament can enact laws
only on constitutionality permissible grounds.



• Judicial review of legislation: Case law

affirms the power of the courts to test
the validity of parliamentary
legislation. A number of principles has
been established by the courts to
guide their decisions including no law
authorises restrictions outside the
permissible limits: Pung Chen [1975]
and a restriction can be challenged if
it directly affects the fundamental
rights: Nordin Salleh [1992].



• Judicial review of executive discretion:

Even if a parliamentary law is
constitutionally valid, executive action
under the law’s authority may be
challenged if it infringes the FC or is
ultra vires the parent law or is in breach
of the principles of natural justices. In
Dow Jones [1989] it was held that the
Minister’s decision on what amounted to
‘engaging in domestic politics’ was open
to judicial review.



• Judicial review of executive discretion: In

Persatuan Aliran [1988] the Supreme
Court expressed that even though section
12(2) of the Printing Presses & Publication
Act gives the Minister an ‘absolute
discretion’ to refuse an application for a
licence or permit, the Minister’s discretion
is, nevertheless subject to judicial review
on the principles of illegality, irrationality
& procedural impropriety.



• Obstacles to judicial review: Since Merdeka no

piece of legislation has ever been struck down
by the courts as violation of Article 10’s promise
of freedom of speech & expression. Such
judicial passivism has been contributed by a
number of legal & political factors including (a)
Parliament has power to pass ‘reasonable
restrictions’ (b) Art 4(2)(b) grants Parliament
the final say (c) Arts 10(2), 10(4), 149 & 150
authorised restriction on free speech on 14
grounds like the Sedition Act, OSA & ISA (d)
Minister is given ‘absolute discretion’ in a
number of statutes like the Printing Presses &
Publication.


• Permissible Restrictions

• Article 10(2)(a): The FC in Art 10(2)(a)

authorises Parliament to impose
restrictions on free speech as it deems
necessary or expedient on the following 8
grounds:
a. Security of Federation or any part
thereof. Examples OSA & ISA.
b. Friendly relations with other countries.
c. Public order – Sedition Act, Police Act &
Printing Presses & Publication Act



• Article 10(2)(a): The FC in Art 10(2)(a) authorises

Parliament to impose restrictions on free speech as it
deems necessary or expedient on the following 8 grounds:

e. Privileges of Parliament or any Legislative
Assembly – House of Parliament (Privileges &
Powers) Act 1952 & the Standing Orders of each
House of Parliament.
f. Contempt of Court – Judicial Proceedings
(Regulation of Reports) Act & Courts of
Judicature Act.
g. Defamation – Defamation Act 1957.
h. Incitement to any offence – obscenity (ss 292294 of CPC)

• Article 10(4): It provides that Parliament

may pass laws prohibiting the questioning
of 4 politically sensitive matters.
• (a)Rights to citizenship (Part III of the FC),
• (b)status of the Malay language
• (c) position & privileges of the Malays &
natives of Sabah & Sarawak &
• (d)prerogatives of the Malay sultans &
Ruling Chiefs of Negeri Sembilan.


• Article 149: This article authorise

legislative action designed to stop
subversion, organised violence &
crime prejudicial to public including
through ISA.
• Article 150: It permits any legislative
action required by reason of an
emergency proclaimed under Art
150(1).

• Permissible Restrictions –Art 10(2)

(a)
• Public Order: The Sedition Act
• Security: The Official Secret Act
• Public Order: The Printing Presses &
Publication Act


• The Law of Sedition 1948

• Definition: Sections 2 & 3(1) state that any

act, speech, words or publication are
seditious if they have a tendency towards
any of the following:
a. to bring into hatred/ contempt/ to excite
disaffection against any Ruler or
government like disloyalty: Param [1986]
b. to excite/ provoke subjects to seek
alteration other than by lawful means of
any matter by law established.
c. to bring into hatred/ contempt the
administration of justice in the country. Lim
Guan Eng [1998].

• Definition:
• d. to raise discontent / disaffection among

the subjects. Ooi Kee Saik [1971]
accusation of gross partiality in favour of
one race against another.
e. to promote ill-will & hostility between
races/ classes.
f. to question the provisions dealing with
language, citizenship, special privileges of
Malays & natives of Sabah & Sarawak and
the sovereignty of the Rulers. Melan [1971]

• Application of the law: The application of

the Act takes in the following forms:
a. the existence of a seditious ‘tendency’ is
sufficient for the judge to decide. Intention
to incite to violence is not necessary. The
actual caused of hostility or ill will is also
not required.
b. it is no defence to argue that the words
were, in fact, true & honest:Ooi Kee
Saik[1971] & Fan Yew Teng[1975].

• Application of the law: The application of

the Act takes in the following forms:
c. sedition can be committed in public or in
private.
d. all parties involved can be prosecuted
based on the same set of facts including the
speaker, the printer & the publisher of the
speech: Ooi Kee Saik[1971]
e. No exemption for members of Parliament
for their parliamentary words or actions:
Arts 63(4) & (5), Mark Koding [1982]

 The Law of Sedition 1948

Application of the law: The application of the Act

takes in the following forms:
f. Section 4(2) an offence to print/ publish seditious
matter/ possess/ import them. Section 9, courts
have power to suspend a newspaper containing
seditious matter, order seizure, impose an order on
the offender, prohibits him from taking part in any
of the process for one year. Failure, charge of
contempt of court.
g. Section 10 PP may apply to High Court to prohibit
circulation of seditious publications. Wide power of
arrest & search, with/out warrant under Sections 8
& 11.


Application of the law:


In Melan bin Abdullah v PP [1971] 2 MLJ
280 the editor-in-chief of Utusan Melayu had
published an MP’s speech with the editorial
sub-heading ‘Abolish Tamil or Chinese
medium schools in the country’ on 6 April
1971. The reported article was written based
on the speech by a Parliament member,
Encik Musa bin Hitam. The reporter was
found guilty.


Application of the law:

In Mark Koding [1982] it was held that

the accused was found guilty of the
Sedition Act 1948 for requesting the
amendment of the Federal Constitution
to delete Article 152 of the FC (Bahasa
Melayu). The accused was a lawyer &
was a member of the Dewan Rakyat.


Safeguards: a. If tendency is only to show

that any Ruler has been misled/ mistaken
in any of his measures: S 3(2)(a).
b. If tendency is to point out errors/
defects in implementation of administration
of government policies with a view to
remedying the errors/ defects: S 3(2)(b).
c. To seek by lawful means the alteration
of any matter established at law.


Safeguards:

d. Defence of innocent & non-

negligent dissemination: S 6(2)
e. Offending passage must be
read in context & as a whole.
f. Only PP’s written consent is
necessary to prosecute, not
police.

• Access to Information

• No specific Whistleblowers Protection Law:

also no Right to Information Act & no Media
Shield Law to protect journalists’ source of
information.
• A number of prominent incidents of whistle
blowing in Malaysia are:
a. In 1996 High Court judge Syed Ahmad Idid
circulated a 33-page anonymous letter accusing 12
fellow judges of corruption & grave improprieties.
The allegations were officially dismissed as baseless.
He was neither prosecuted/ sued but was forced to
resign from the judiciary.

• Access to Information

• A number of prominent incidents of

whistle blowing in Malaysia are:
b. In July 2006, senior ACA officer
Mohamamad Ramli made allegations
that his boss, Director-General Zulkipli
Mat Noor was involved in corruption &
a sexual assault. After an investigation,
the A-G cleared Zulkipli in July 2007.

• Official Secrets Act 1972

• Offence: ‘Official secret’ cannot

be received, retained, released or
used without prior authorisation.
Art 8(1) makes it an offence for
an unauthorised person to have
in his possession or control any
official secret, to retain it, use it,
communicate it or fail to take
reasonable care of such secret.


• Scope : ‘Official secret’ covers 3 categories

of documents.
a. Federal cabinet documents, state executive
council documents & documents concerning
national security, defense & international
relations.
b. any information relating to the documents
above.
c. all official documents, which are classified
as Rahsia, Rahsia Besar, Sulit & Terhad by
the Minister or public officer charged with
the responsibility concerned.

• Applicability of the law: Applies to all persons, those

to whom information was entrusted in confidence
including former government employees or firm
dealing with the government. It operates extraterritorial – offences committed abroad may be
prosecuted locally.
• Defences available :
a. information concerned had not been classified by an
authorised officer under s 2.
b. not covered by the definition of an ‘official secret’.
c. disclosure was on a ‘privileged occasion’ including
parliamentary & judicial proceedings.

d. mens rea/ criminal intention is a necessary ingredient of the
offence: Phua Keng Tong [1986].

Official Secrets Act 1972

In Mohammad Ezam Mohd Nor v PP [2004] 2
CLJ 595, the chronological events were:
(1) During a press conference on 6 November
1999 in Petaling Jaya, Ezam disclosed 2
reports on investigations into alleged corrupt
practices of two Ministers to a group of
reporters.
(2) The reports were undated & unsigned.
(3) After few months, the reports were certified
on 24 August 2000.

Official Secrets Act 1972

In Mohammad Ezam Mohd Nor v PP [2004]
2 CLJ 595, the accused was acquitted &
discharged because the prosecutor failed to
provide an original copy of a classified official
secret documents dated before 6 November
1999 (the date the offence was committed).
The 2 documents were “born”/ dated official
secret on 24 August 2000.

• Media Laws – Printing Presses & Publications Act
•

•

•
•

1984
Printing Presses: Owners of printing presses are
required to apply for a licence from the Home
Ministry to keep for use or to use a ‘printing press’ (s
3). Period of licence is 12 months or shorter (s12(1).
Minister discretion is ‘absolute’ in the grant, refusal,
revocation/ suspension of a licence/ determination of
its period: s 3(3) & judicial review is not allowed:
s13A.
Minister is not required to give the parties a prior
hearing: ss 13(1) & 13B.
Minister can exercise his discretion to refuse/ revoke
only on the basis of the permissible grounds in Art
10(2)(a) or Art 149 or Art 150.

• Media Laws – Printing Presses & Publications Act

1984
• Printing Presses:
• Absolute discretion is challengeable under Art 8 &
this approach has gained a foothold in a number of
cases that rely on Arts 5 & 8 as the doctrine basis
for substantive fairness. Tan Tek Seng [1996] &
Sugumar [1998].
• Judicial review cannot be ousted despite the clear
language of the PPP Act because the Act is
subordinate to the supreme Constitution & the
constitutionally permissible restrictions in Art 10(2)
can be superimposed on every statute restricting
free speech.

Freedom of Assembly
• Importance
• The freedom to assemble, to picket & to

parade [Art 10(1)(b)] along with the right
to free vote [Art 119] & to form political
parties & associations [Art 10(1)(c) are
essential features of a liberal democratic
set-up.
• The liberty of the citizens to protest publicly
is an important characteristic of a free
society.

Freedom of Assembly
• Importance

• Freedom of assembly is important

because it is part of the broader
mosaic of freedom of speech &
expression as well as an integral part
of the right to practise one’s religion &
the rights of workers to express
common concerns & to exercise their
right to picket under s 40(1) of the
Industrial Relations Act 1967.

Freedom of Assembly
• Constitutional approach
• Article 10(1)(b) provides that all citizens have the

right to assemble peaceably & without arms.
Presumably, it includes the right to picket & to
procession.
• Article 10(2)(c) permits Parliament to impose
restrictions on freedom of assembly on grounds of
security & public order to strike a balance between
legitimate political expression & the need to
preserve peace. Federal Parliament has power to
determine the necessity under Art 4(2)(b).
• Article 10(2)(b), Art 149 & Art 150 can suspend the
constitutional safeguard for freedom of assembly.

Freedom of Assembly
• Penal Code
• Section 141 provides that participation in a public

or private gathering can amount to an unlawful
assembly if a gathering of five or more persons has
the common object:

a. of overawing by criminal force a public servant/ the
government in power/
b. to resist the execution of any law
c. to commit mischief / trespass
d. to obtain any property by criminal force
e. to deprive another of his rights
f. to compel any person to do what he is not legally bound to
do.
Unlawful possession of weapons (ss 144&148), rioting (s 147)
& affray (s 159).

Freedom of Assembly
• Police Act 1967
• Empowers the police to:

a. erect barriers in any public place to control
the movement of persons/vehicles (s 26)
b. regulate the playing of musical instruments
in public places (s 28)
c. regulate on flags, banners, emblems,
placards & loud speakers to prevent
disturbance of the peace (s 30)
d. make orders to require persons to remain
indoors up to a period of 24 hours (s 31).

Freedom of Assembly
• Police Act 1967
• Police Approval Needed
• All assemblies, meetings & processions of more

than 3 persons in any public place require a prior
police licence from the Officer in Charge of Police
District (OCPD) (s 27(2)

• Who: the application must be for a registered organisation or

three organisers jointly.

• Duration: made 14 days in advance
• Disobey: if 3 or more participants of an assembly disobey any

police order, the entire assembly shall be deemed to be an
unlawful assembly & all persons taking part knowingly shall
be guilty of a criminal offence.

• Private premises: directed at or attracts 20 or more persons

from outside the premises / danger to security/ peace, the
police may order the activity to stop (s 27A).

Freedom of Assembly
• Internal Security Act
• Empowers the Home Minister to prohibit

•
•
•
•

organisations & associations of a political / quasimilitary character (s 3) & once prohibited, not
allowed to apply for police licence to hold
assembly.
Forbids training or drilling for the use of arms (s 7)
Permits prohibition, in the national interest, of
flags, banners, badges, emblems & uniforms (s 8)
Regulates (s 32) or prohibits (s 35) places of
entertainment & exhibitions.
YDPA may proclaim any area in M’sia as a ‘security
area’ (s 47). Restricts on entering/remaining in this area
(ss 48-50). The OCPD may exclude any person (s 51)/ may
put the area under curfew (s 52)

Freedom of
• Scope & Extent

Association

• Article 10(1)(c) provides ‘all citizen

have the right to form association’
including political parties, trade unions,
non-governmental organisations
(NGOs), clubs & religious groups.
• Freedom of association includes the
right to refuse to associate.
• This right also includes the right to
dissolve an existing association & right
to resign from an association. Nordin
Salleh [1992]

Freedom of Association
• Scope & Extent
• It is strengthened by Art 11(2)(b) which

confers on every religious group the right to
establish & maintain institution for
religious / charitable purposes & Art 12(2)
the right to establish & maintain institutions
for the education of children in its own
religion.
• Does not confer right to membership of a
club or right to manage its affairs
(Malaysian Bar [1986]) or go on strike.

• Constitutionally Permissible Restrictions
• Subject to regulation by Parliament on one

or more of the following grounds:
a. security of federation/ any part thereof :
Art 10(2)(c)
b. public order: art 10(2)(c). The Societies
Act 1966 is a law for the purpose of
safeguarding security & public order.
c. morality: Art 10(2)(c). Sivarasa [2006]
‘cover almost every aspect of human
conduct’. Cf Nordin Salleh [1992].

• Constitutionally Permissible Restrictions
• Subject to regulation by Parliament on one or more of the

following grounds:

d. Law relating to labour: Art 10 (3).Trade
Union Act 1959.
e. Law relating to education: Art 10(3).
Universities & University Colleges Act 1971.
f. Art 149 , laws enacted under the authority
of this article to combat subversion – ISA.
g. Art 150, law enacted under the authority
of this article to combat emergency.

• Societies Act 1966
• All societies are required to register with the

Registrar of Societies (RoS).
• The Act gives wide powers to the RoS & the
Minister to refuse/ cancel registration/ to ban a
society on a number of grounds relating to
security, public order & morality.
• A significant feature is that internal disputes within
a society are required to be resolved by the society
itself / RoS & courts are not allowed to intervene.

13 fundamental liberties 10 11 (9)

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