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MALAYSIAN LEGAL SYSTEM
ASSIGNMENT 2: THE RESTRICTION FREEDOM OF
EXPRESSION PROVIDED IN ARTICLE 10 OF FEDERAL
CONSTITUTION
ASSIGNED BY :
PROF. MADYA HAIRUDDIN BIN MEGAT LATIFF
BACHELOR DEGREE OF LAW (L.L.B.)
MALAYSIAN LEGAL SYSTEM (GLUP 1014)
PRODUCED BY :
NURUL IRDA NAZZIRA BINTI KU ZUBIR (227223)
MARILYN KELVIN (227730)
MAS NADHIRAH BINTI BADROLHISHAM (227154)
SURONMANI KRISHNAN (226923)
TISHALINI D/O NAGANATHAN (227711)
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Table of Contents
1.0. INTRODUCTION ............................................................................................................... 3
2.0. THE RESTRICTION OF FREEDOM OF EXPRESSION IN MALAYSIA ...................... 4
2.1. FEDERAL CONSTITUTION.......................................................................................... 4
2.1.1. ARTICLE 10(2) ........................................................................................................ 4
2.1.2. ARTICLE 4(2) .......................................................................................................... 7
2.2. PROVISIONS ................................................................................................................ 11
2.2.1. INTERNAL SECURITY ACT 1960 ...................................................................... 11
2.2.2. PRINTING PRESSES AND PUBLICATIONS ACT 1984 ................................... 14
2.2.3. OFFICIAL SECRET ACT 1972............................................................................. 17
2.2.5. DEFAMATION ACT 1957 .................................................................................... 27
2.2.6. SEDITION ACT 1948 ............................................................................................ 32
3.0. CONCLUSION .................................................................................................................. 36
Bibliography.................................................................................................................................. 38
3
1.0. INTRODUCTION
Freedom of expression is one of the fundamental liberties provided in Part II of the
Federal Constitution. The freedom of expression provided under Article 10 of the Federal
Constitution. The provisions provided are as follow:
(a) every citizen has the right to freedom of speech and expression1
The provision stated above mentions that every person has the right to freedom of
expression. This right shall include freedom to hold opinions and to receive and impart
information and ideas without government interference. So that, all Malaysian citizens have the
right to express views aloud through various way, either through articles, books, television, radio
broadcasting, works of art or through communication in internet.
Article 10 Clause 1(a) therefore, guaranteed the freedom of expression in Malaysia.
However, this Article is subject to certain restrictions. It shows that this article is merely contains
the freedom of expression of the citizen since there are many limitation provided. The freedom
of expression in Malaysia is not absolute. A person cannot simply speak out whatever he wants
because his right to speech is subject to certain restrictions.
1 Article 10 Clause 1(a) of the Federal Constitution
4
2.0. THE RESTRICTION OF FREEDOM OF EXPRESSION IN
MALAYSIA
The freedom of expression in Malaysia is not absolute and restrictions have been
provided under Federal Constitution, provisions and decided cases.
2.1. FEDERAL CONSTITUTION
2.1.1. ARTICLE 10(2)
Even Article 10 Clause 1(a) mentions about the freedom of speech and expression, this
provision is subject to clauses (2) and (4) of the article. Article 10(2) and (4) of the Federal
Constitution allows Parliament to impose limits, if necessary, in the interest of national security,
public order or morality or on issues relating to the position of the National Language, the
special status of Malays and natives of any of the states of Sabah and Sarawak and the legitimate
interest of other communities and the sovereignty of the rulers. This has led to many laws being
passed that controls our freedom of expression. The limitation of freedom of expression provided
in paragraph (a) clause 2.
(2) Parliament may by law impose-
(a) on the rights conferred by paragraph (a) of Clause (1), such restriction as it deems
necessary or expedient in the interest of the security of the Federation or any part
thereof, friendly relations with another countries, public order or morality and
restrictions designed to protect the privileges of Parliament and Legislative
Assembly or to provide against contempt of court, defamation, or incitement to
any offence.2
2 Article 10 Clause 2 Paragraph (a) of the Federal Constitution
5
This provision expressly provide that the parliament may impose law on the right in order
to give restriction as it deems necessary or expedient in the interest of the security of the
Federation or any part thereof, friendly relations with other countries, public order or morality
and restriction designed to protect the privileges of parliament or of any legislative assembly or
to provide against contempt of court, defamation or incitement of any offence.
However, the freedom is only qualified in term of national security, public order, ethics
or morality as stated in Article 10 (2). In Article 10 clause (2) paragraph (a), the Parliament may
by law impose that on the rights conferred by paragraph (a) Clause (1), such restrictions as it
deems necessary or expedient in the interest of the security of the Federation or any part thereof,
friendly relations with other countries, public order or morality and restrictions designed to
protect the privileges of Parliament or any Legislative Assembly or to provide against contempt
of court, defamation, or incitement to any offence.
It shows that this article not merely contains the right of the citizen but more on the
obligation of the citizen since there are many limitations provided. A person cannot simply speak
out whatever he/she wants because his/hers right to speech is subject to clause (2). This seems
contrary to the draft of constitution contained in Reid Commission Report where it put the duty
on courts to protect fundamental liberties provision by taking a critical view of the law restricting
fundamental liberties and not just to put into effect any law passed by parliament.
2.1.1.1. Case Madhavan Nair v Public Prosecutor [1975] 2 MLJ 265
In Madhavan Nair v Public Prosecutor3 , the applicants had applied for and been granted
a permit to speak in a public place under the terms of the Police Act, which grants the Royal
Malaysian Police the power to issue such licenses. The permit prohibited the applicants from
speaking about particular issues, including the status of the Malay language as the national
language, and policies related to education. These issues were considered "sensitive" they had
been entrenched in the Constitution after the May 13 Incident of racial rioting in the federal
capital of Kuala Lumpur in 1969.
3 [1975] 2 MLJ 265,
6
The accused has contravened a condition annexed in order to grant a license to make a
speech. The condition was: “…the substance of the speech should not touch on matters relating
to the M.C.E (Malayan Certificate Examination, the school leaving certificate examination in
which it was necessary to obtain a pass in Malay in order to obtain a certificate) result and the
status of Bahasa Malaysia as the official language as laid down in Federal Constitution.” The
issue in the High Court was whether the act of imposing a condition on the said license is
contravened Article 10? Chang Min Tat J in his judgement said that the police could not impose
any condition which contrary to the article and he added that no law power, statutory or
otherwise can be exercised so as to contravene any article of the constitution. The judgement was
influenced by Sedition Act 1948 and clause 4 of article 10.
The applicants argued that these restrictions issued by the Police were
unconstitutional, contravening Article 10, which provides for freedom of speech (subject to any
legislation that Parliament may pass restricting this freedom). In their view, a person ought to be
able to speak on any issue he likes. But, if in doing so, he runs the risk of violating the law
(questioning the "sensitive" provisions of the Constitution constitutes a crime under the Sedition
Act), so be it. They argued that the Police did not have the right to impose prior restraint in the
issuing of permits, and this was thus ultra vires (beyond the power granted by) Article 10.
The applicants had been charged with contravention of a condition of a license to
convene a public meeting, that is, that no reference should be made to the results of the M.C.E.
examination and the status of Bahasa Malaysia as the national language of the Federation.
Counsel for the applicants had argued that the condition imposed was ultra vires article 10 of the
Federal Constitution. The learned magistrate decided to refer the matter to the High Court.
Justice Chang Min Tat rejected the arguments of the applicants. In his judgment,
Chang stated that clauses (2), (3) and (4) of Article 10 allowed Parliament to restrict the
freedoms of Article 10, and thus there was no unconstitutional infringement of the applicants'
rights. Chang also cited the judgment in the British case of R. v. Comptroller of Patents-ex parte
Bayer Products Ltd. (1941), stating:
“...if a regulation is expressed to have been made because it appeared to the authorities to
be necessary to secure, inter alia, the public safety, the defense of the realm and the maintenance
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of public order then the court had no jurisdiction to investigate the reasons which impelled the
authorities in question to the conclusion that it was necessary or expedient to effect any of the
specified purposes.
At last, the court held that if the condition imposed had contravened article 10 of the
Federal Constitution, it was clear that no such condition could be imposed. In this case, however,
the condition was not in contravention of article 10 of the Federal Constitution and therefore the
police had powers under section 27 of the Police Act, 1967, to impose the condition.
2.1.1.2. Public Prosecutor v Ooi Kee Saik &Ors [1971] 2 MLJ 108
The restriction freedom of expression under Federal Constitution can also be seen in case
Public Prosecutor v Ooi Kee Saik &Ors4. The first accused was charged with an offence under
section 4(1) (b) of the Sedition Act, 1948, the second accused was charged with publishing the
alleged seditious words and the third and fourth accused were charged with printing the alleged
seditious words. The seditious words were alleged to be uttered by the first accused at a dinner
held by the Democratic Action Party.
The court held that the speeches taken as a whole went beyond the limits of freedom of
expression. It accused the government of gross partiality in favour of one group and this was
calculated to inspire feelings of enmity and disaffection among the people of Malaysia. The
speech was also apt to promote feelings of ill will and hostility among the different races in
Malaysia and touched on the sensitive issue of the special rights of the Malays. The speech was
therefore expressive of a seditious tendency and the accused must be found guilty.
2.1.2. ARTICLE 4(2)
4 [1971] 2 MLJ 108
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Article 10 (4) in imposing restrictions in the interest of the security of the Federation or
any part thereof or public order under Clause (2) (a), Parliament may pass law prohibiting the
questioning of any matter, right, status, position, privilege sovereignty or prerogative established
or protected by provision of part III, Article 152, 153 or 181 otherwise than in relation to the
implementation thereof as may be specified in such law.
In Article 152, Article 152 states that the national language is the Malay language. In
relation to other languages, the Constitution provides that:
(a) Everyone is free to teach, learn or use any other languages, except for official purposes.
Official purposes here mean any purpose of the Government, whether Federal or State,
and includes any purpose of a public authority.
(b) The Federal and State Governments are free to preserve or sustain the use and study of
the language of any other community.
Article 152(2) created a transition period for the continued use of English for legislative
proceedings and all other official purposes. For the States in Peninsular Malaysia, the period was
ten years from Merdeka Day and thereafter until Parliament provided otherwise. Parliament
subsequently enacted the National Language Acts 1963/67 which provided that the Malay
language shall be used for all official purposes. The Acts specifically provide that all court
proceedings and parliamentary and state assembly proceedings are to be conducted in Malay, but
exceptions may be granted by the judge of the court, or the Speaker or President of the legislative
assembly. The Acts also provide that the official script for the Malay language is the Latin
alphabet or Rumi; however, use of Jawi is not prohibited.
For Article 153, it explains about the Yang di-Pertuan Agong responsibility for
safeguarding the rights and privileges of the Malays and other indigenous people of Malaysia.
The article specifies how the Federal Government can protect the interests of these groups by
establishing quotas for entry into the civil service, public scholarships, and public education. It is
often considered to be part of the "social contract".
Article 153 is one of the most controversial articles in the Malaysian constitution. Critics
consider it to create an unnecessary and racialist distinction between Malaysians of different
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ethnic backgrounds, because it has led to the implementation of affirmative action policies which
benefit only the Bumiputra, who comprise a majority of the population. Technically, discussing
the repeal of Article 153 is illegal even in Parliament, although it was drafted as a temporary
provision to the Constitution. Despite this prohibition on discussion, the article is heatedly
debated both privately and publicly among Malaysians. Opposition groups, especially the
Democratic Action Party, are often against the implementation of the article although ostensibly
maintaining support for it. Nevertheless, the article is viewed as a sensitive matter by many, with
politicians who are in favor or oppose it often being labeled as racist.
The article is primarily seen as a continuation of previous laws made by the British to
protect the indigenous peoples from being overwhelmed by the immigration of Chinese and
Indian workers into Malaya. In the years after independence in 1957, the Chinese and Indians
were generally rich urban dwellers, whilst the Bumiputra were mostly poor farmers or manual
laborers.
In Article 181 guarantees the sovereignty, rights, powers and jurisdictions of each Malay
Ruler within their respective states. They also cannot be charged in a court of law in their official
capacities as a Ruler. No Malay Rulers can be charged on any personal wrongdoing, outside of
their role and duties as a Ruler. However, the charges cannot be carried out in a normal court of
law, but in a Special Court established under Article 182. Special Court for Proceedings against
the Yang di-Pertuan Agong and the Rulers the Special Court is the only place where both civil
and criminal cases against the Yang di-Pertuan Agong and the Ruler of a State in his personal
capacity may be heard. Such cases can only proceed with the consent of the Attorney General.
The five members of the Special Court are (a) the Chief Justice of the Federal Court (who is the
Chairperson), (b) the two Chief Judges of the High Courts, and (c) two current or former judges
to be appointed by the Conference of Rulers.
The freedom is restricted and certain issues like the status of national language, Malay’s
special rights, the status of Islam as national religion and others that we should not question as
stated in the Federal Constitution. This means that we have the rights to say whatever we like
without breaking the rules or regulations that threaten the society and even causes any public
disorder or riot.
10
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2.2. PROVISIONS
2.2.1. INTERNAL SECURITY ACT 1960
The Internal Security Act 1960 (ISA) or Akta Keselamatan Dalam Negeri was a
preventive detention law in force in Malaysia before the announcement of Security Offences
(Special Measures) Act 2012 (SOSMA), in force since July 2012 (Article 19 2013). ISA was
enacted after Malaysia gained independence from Britain in 1957. It’s allows for detention
without trial or criminal charges under limited, legally defined circumstances. In 1960, the
government passed the Internal Security Act (ISA) under the authority granted by Article 149 the
Malaysian Constitution.
The major purpose of the ISA was to deter communist activity in Malaysia during the
Malayan Emergency and afterwards. The first Prime Minister of Malaysia, Tunku Abdul
Rahman, defined the purpose of the act as to "be used solely against the communists...My
Cabinet colleagues and I gave a solemn promise to Parliament and the nation that the immense
powers given to the government under the ISA would never be used to stifle legitimate
opposition and silence lawful dissent". The third Prime Minister, Tun Hussein Onn, stated at the
same time that his administration had enforced the act only with a view to curbing communist
activity, and not to repress "lawful political opposition and democratic citizen activity".
(Saravanamuttu n.d.)
However, ISA had created so many critics from many people. The ISA is said to be not
democratic and was open to abuse. This is contra with freedom of expression under Article 10 of
the Federal Constitution. The first internal security minister, Ismail Abdul Rahman, denied the
statements of critic and mentioned:
“I am convinced that the Internal Security Act as practiced in Malaysia is not contrary to the
fundamentals of democracy. Abuse of the Act can be prevented by vigilant public opinion via
elections, a free Press and above all the Parliament…” (Ismail's struggle to form Malaysia and
Asean 2007)
12
The provision under Internal Security Act that restrict freedom of expression is provided
under Section 73(1) of Internal Security Act 1960. This section mentions 5:
Any police officer may without warrant arrest and detain pending enquiries any person in
respect of whom he has reason to believe—
(a) that there are grounds which would justify his detention under section 8; and
(b) That he has acted or is about to act or is likely to act in any manner prejudicial
to the security of Malaysia or any part thereof or to the maintenance of
essential services therein or to the economic life thereof.
Section 8 of ISA provides:
*(1) If the Minister is satisfied that the detention of any person is necessary with a view
to preventing him from acting in any manner prejudicial to the security of Malaysia or
any part thereof or to the maintenance of essential services therein or to the economic life
thereof, he may make an order (hereinafter referred to as “a detention order”) directing
that that person be detained for any period not exceeding two years.
Both provisions restrict freedom of expression of the detained person. It is against the
fundamental liberty of a citizen under Article 5(3) of the Federal Constitution. Article 5(3) states
that “Where a person is arrested he shall be informed as soon as may be of the grounds of his
arrest and shall be allowed to consult and be defended by a legal practitioner of his voice. This
Article 5(3) and Article 10 Clause 1(a) is interrelated, especially when it comes to arrestment.
The policy under ISA did not allow the detainers to consult any lawyer. In fact, they are not
allowed to see anyone during that time. This policy under ISA had violated freedom of
expression of the detainer as he has the right to be heard in court. Every citizen is subject to the
right of expression under Article 10 Clause 1(a). So that, everyone has the right to be consult and
defended by a legal practitioner, to ensure that their voice being heard.
Section 8(1) theoretically restricts detention to a period not exceeding two years but this
limit is actually not absolute. This is because it can be extended according to Section 8(7) of the
Internal Security Act:
5 Section 73(1) of Internal Security Act 1960
13
(7) The Minister may direct that the duration of any detention order or restriction order be
extended for such further period, not exceeding two years, as he may specify, and
thereafter for such further periods, not exceeding two years at a time, as he may specify,
either—
(a) On the same grounds as those on which the order was originally made;
(b) On grounds different from those on which the order was originally made; or
(c) Partly on the same grounds and partly on different grounds:
Provided that if a detention order is extended on different grounds or partly on different grounds
the person to whom it relates shall have the same rights under section 11 as if the order extended
as aforesaid was a fresh order, and section 12 shall apply accordingly.
Under Section 8(7), the duration of the detention order may be extended indefinitely in
increments of up to two years. The duration of the detention may be extended as long as they do
not get what they want from the detained person.
All provisions stated under ISA had absolutely restricted freedom of expression of the
citizen. The detained person had been restrict from seen anybody even to consult their own legal
practitioner to prove that they are not guilty. In fact, this ISA is detention without trial. The
individual is punished without the benefit of an open trial before a court of law. Not only does it
violates every known human rights principle, including the very basis of the legal system, that
one is presumed to be innocent until proven guilty, it is also cruel and unjust to do this to another
human being. ISA has violated our Malaysia court’s system because the courts have been
excluded since 1988 from exercising judicial review of the detention.
We can obviously see the restriction of freedom of expression by ISA during the
detention of Anwar Ibrahim. Following his arrest in September 1998, Anwar was allegedly
beaten by police. Pictures of the accused politician with a black eye and bruises appeared after
his first night in police detention and contributed to concern that he was not being treated fairly.
Subsequently, Anwar and his counsel were prevented from presenting a full defense by threats of
14
contempt of court proceeding by the statement of the former Prime Minister (Tun Dr Mahathir
Mohamad). Anwar's own lawyer Karpal Singh found himself charged with sedition and
contempt of court.
2.2.2. PRINTING PRESSES AND PUBLICATIONS ACT 1984
The Printing Presses and Publications Act 1984 is a statute which governs the publishing
and the usage of printing presses in Malaysia. It was first introduced by the British colonial
government as the Printing Ordinance of 1948 at the beginning of the state of emergency. It is
introduced in order to prevent Communist activities. This Printing Presses and Publications Act
required all newspapers and printing presses to obtain an annual publishing license from the
Home Affairs Minister. It is a criminal offense to posts or uses a printing press without a license
granted by the Home Affairs Minister.
The Minister is given "absolute discretion" in the granting and revocation of licenses, and
can also restrict or ban any publications that are likely to endanger national security interest or
create social unrest. If any person possess or use an unlicensed printing press, he may be
imprisoned for up to three years and/or fined up to RM20, 000. A deposit made under Section 10
of the Act will also be forfeited in such a case. (Rachagan 1993).
There has been quite a debate on the Printing Presses and Publications Act 1984 in
Malaysia. Although the PPPA was meant to maintain genuine news stories, create a regulated
press sector, and provide legal guidelines to reporters, some say that the legislation is restricting
political discourse, silencing political opponents and manipulating the news delivered to
consumers. The Act has been restricting the freedom of speech in Malaysia, which is subject to
any restriction Parliament may impose under Article 10 of the Constitution. The restriction
freedom expression under PPPA is obvious in Section 6(2) and Section 12(2) of Printing Presses
and Publications Act 1984. The provisions are as follow:
Section 6:
15
(2) The Minister may at any time revoke or suspend a permit for any period he considers
desirable.
While Section 12(2) mentions:
(2) The Minister shall have the absolute discretion to refuse an application for a license or
permit.
Based on these two provisions, our Malaysia actually has so-called democracy as the
citizen is not allowed to voice out their ideas. It is clear when the Minister is given the power to
revoke or suspend any press as they think it may be necessary at any time6. This is unjust to the
press company as it will affect their company profit and consequently can collapse their
company. The Minister should consider the circumstances first before he revoke or suspend any
press. Besides, the Minister also have the absolute in granting the license or permit to the press
company. Just imagine if the Minister is in the government side while the company who apply
for the license or permit is in the opposition side. It is almost impossib le that the Minister will
give the license as he himself would know the consequences.
Sometimes, this provision may seem unjust. Even if they got the license, they still are
restricting under Federal Constitution7. The Federal Constitution, prohibiting the press from
questioning any matter regarding the citizenship8, national language9, reservation quotas in
respect of services, permits for Malays and natives of states of Sabah and Sarawak10 and
regarding the rulers’ sovereignty11.
6 Section 6 (2) Printing Presses and Publications Act 1984 7 Article 10(4) of the Federal Constitution 8 Part III of the Federal Constitution 9 Article 152 of the Federal Constitution 10 Article 153 of the Federal Constitution 11 Article 181 of the Federal Constitution
16
2.2.2.1. Persatuan Aliran Kesedaran Negara v. Minister of Home
Affairs [1988] 1 MLJ 440
Despite, in Persatuan Aliran Kesedaran Negara v. Minister of Home Affairs12, High
Court Justice Harun Hashim has asserted that the Home Affairs Minister's actions in granting the
license or permit may be subjected to judicial review. Harun quashed the decision of the Minister
to refuse Aliran, a reform group, permission to publish a Malay publication. His decision was
reversed on appeal in the Supreme Court, where Supreme Court Justice Ajaib Singh ruled that
the amended section 12 of the Act did exclude actions of the Home Affairs Minister from
judicial review.
2.2.2.2. Public Prosecutor v. Pung Chen Choon [1994] 1 MLJ 566
Furthermore, the constitutionality of the Act had also been called into question. In Public
Prosecutor v. Pung Chen Choon13, it was argued that the restrictions placed by section 8(A)(1)
of the Act on freedom of speech violated Article 10 of the Constitution. Section 8(A)(1)
mentions that:
“Where in any publication there is maliciously published any false news, the printer,
publisher, editor and the writer thereof shall be guilty of an offence and shall, on
conviction, be liable to imprisonment for a term not exceeding three years or to a fine not
exceeding twenty thousand ringgit or to both.”
The Supreme Court held that although the Act did restrict freedom of speech, such
restrictions were permitted by Articles 4(2) and 10(2) of the Constitution, and that the right to
freedom of speech was not an absolute right. While the Constitution of Malaysia does allow
freedom of speech and for the press, there is a very crucial limitation - The Constitution provides
that freedom of speech may be restricted by legislation "in the interest of security (or) public
order.
12 [1988] 1 MLJ 440 13 [1994] 1 MLJ 566
17
Hence this means the government can enact legislation to determine the way information
is disseminated by the mass media industry if the government feels that the national interest has
been threatened. Supreme Court Justice Edgar Joseph stated:
“The Government of this country has always recognized the important influence which the press
exerts on the public mind, especially in the area of politics, and understandably, therefore, it has
enacted laws which have imposed wide control over publications generally.”
Although Pung's counsel presented various authorities from other jurisdictions, the Supreme
Court dismissed them, holding that "the Malaysian press is not as free as the press in India,
England or the United States of America and cases from these jurisdictions are of little
relevance."
2.2.3. OFFICIAL SECRET ACT 1972
The Malaysia Official Secret Act is the Act which was brought in force in 1972, is a
broadly-worded law that entrenches a culture of secrecy in all matters relating to public
administration. It contains a very large package of broadly framed prohibitions which effectively
prevent the free flow of information from official sources. These prohibitions are backed by
severe criminal sanctions and the State is armed with extensive powers which enhance its ability
to detect infringements and secure convictions under the Act. The State holds the prerogative to
withhold an expansive range of information from public view. This special right is placed firmly
beyond judicial scrutiny. In addition, the Act grants the State extensive powers to intrude in and
interfere with private speech.
Section 2 of the Official Secret Act 1972 defines an ‘official secret’ as:
Any document specified in the Schedule and any information and material relating
thereto and includes any other official document, information and material as may be
classified as “Top Secret”, “Secret”, “Confidential” or “Restricted”, as the case may be,
by a Minister, the Menteri Besar or Chief Minister of a State or such public officer
appointed under section 2B.
18
Section 2 of the Act specify that the ‘official secret’ may be classified as “Top Secret”,
“Secret”, “Confidential” or ‘Restricted”. The Schedule to the Act lists three categories of
documents that are always considered ‘official secret’. First are cabinet records, records of
decisions and deliberations including those of Cabinet Committees. Second, State Executive
Council documents, records of decisions and deliberations including those of State Executive
Council committees. Third are documents concerning national security, defense and international
relation. However, only public officer with the power given to him by the Minister, the Menteri
Besar or the chief Minister of a State can classify whether a document falls under “Official
Secret” or not. This is by virtue of Section 2B of the Official Secret Act 1972:
“A Minister, the Menteri Besar or the Chief Minister of a State may appoint any public
officer by a certificate under his hand to classify any official document, information or
material as “Top Secret”, “Secret”, “Confidential” or “Restricted”, as the case may be”.
Section 4(3) (a) mentions that:
It shall not be an offence to take or make any document, measurement, sounding or
survey if such taking or making is done with the prior written permissio n of the
competent authority.
This provision provides that it is not an offence if a person make any document,
measurement, sounding or survey, as long as he/she get the permission from the competent
authority. But, section 5 of the Act has provided the restriction:
If any person makes or assists in making a declaration or statement false in any material
respect for the purpose of obtaining permission under paragraph 4 (3) (a) from a
competent authority he shall be guilty of an offence punishable with a fine not exceeding
two thousand ringgit.
Section 5 of Official Secret Act restrict citizen of Malaysia from making declaration or
false statement in their document, measurement, sounding or survey in order to get the written
19
permission from the competent authority, or else they will be punished with fine not exceeding
two thousand ringgit. Based on Section 2B, Section 4(3) (a) and Section 5 of the Official Secret
Act, the Minister, the Menteri Besar and the Chief Minister of a State has the absolute power in
any matter pertaining to “official secret”.
8. (1) If any person having in his possession or control any official secret or any secret official
code word, countersign or password which—
(a) relates to or is used in a prohibited place or relates to anything in such a place;
(b) relates to munitions of war and to other apparatus, equipment and machinery
which are used in the maintenance of the safety and security of Malaysia;
(c) has been made or obtained in contravention of this Act;
(d) has been entrusted in confidence to him by any public officer; or
(e) he has made or obtained, or to which he has had access, owing to his position as a
person who holds or has held office in the public service, or as a person who
holds, or has held a contract made on behalf of the Government, or as a person
who is or has been employed by or under a person who holds or has held such an
office or contract, does any of the following:
(i) communicates directly or indirectly any such information or thing to any
foreign country other than any foreign country to which he is duly
authorized to communicate it, or any person other than a person to whom
he is duly authorized to communicate it or to whom it is his duty to
communicate it;
(ii) uses any such official secret or thing as aforesaid for the benefit of any
foreign country other than any foreign country for whose benefit he is duly
authorized to use it, or in any other manner prejudicial to the safety or
interests of Malaysia;
(iii)retains in his possession or control any such thing as aforesaid when he
has no right to retain it, or when it is contrary to his duty to retain it, or
fails to comply with all lawful directions issued by lawful authority with
regard to the return or disposal thereof; or
20
(iv) fails to take reasonable care of, or so conducts himself as to endanger the
safety or secrecy of, any such official secret or thing,
He shall be guilty of an offence punishable with imprisonment for a term not less
than one year but not exceeding seven years.
Section 8(1) restrict any person who has the possession or control of any official secret
or any secret official code word, countersign or password from doing these four things:
i. Communicates any information regarding the “official secret” to any foreign
country or any person, unless the foreign country or person to whom he is asked
to communicate it.
ii. Uses any “official secret” for the benefit of any foreign country, unless to the
country which is authorized to use it, or any manner that will prejudicial the
safety or interest of Malaysia.
iii. Retains the “official secret” under his possession when he has no right to retain
the “official secret” or when it is contrary to his duty to retain it, or fails to follow
the directions given by the competent authority regarding the return or disposal of
the “official secret”.
iv. Fails to take reasonable care or conduct that endanger the safety of the “official
secret”.
If any person who has the possession or control of any “official secret” did any act that
mentions in Section (1), he shall be guilty of an offence punishable with imprisonment for a term
not less than one year but not exceeding seven years.
Thus, it is clear that any citizen of Malaysia, who has the possession on any matter
regarding the “official secret”, will be restrict under the Official Secret Act 1972. This restriction
under Official Secret Act 1972 is very important in order to maintain the secrecy of the “official
secret’. Murugiah in the protection security convention said:
“As government servants, they must walk a fine line between information exchange and
information protection. Protect the documents or assets with a sense of mission and treat
21
them like your own,” he (Murugiah) said at the opening of a protection security
convention here. “Civil servants who leaked official documents risked losing their jobs.
“If there is sufficient proof, they can be charged under the Official Secrets Act
(OSA).”(NST, June 17, 2008)
2.2.4. UNIVERSITIES AND UNIVERSITY COLLEGES ACT 1971
Universities and university colleges Act get the royal assent from Yang di-Pertuan Agong
on the 27 April 1971 and immediately has been gazette in the Federal Constitution on 29
April1971. The Act is enacted by Seri Paduka Baginda Yang di-Pertuan Agong with the advice
and consent of the Houses of Parliament which are Dewan Negara and Dewan Rakyat
respectively14 . University stands for all governments’ higher education institution and university
colleges define the private colleges that already get the status of university in Malaysia.
The Act contains five parts which consist of 27 sections. The five parts are related to
various matters which is titled as preliminary, higher education, universities, university colleges
and general stuff that are very important to all the higher educational institution in Malaysia. The
Universities and Colleges University Act are the guidance for the administrator of the
universities to run a university in a proper way. The Act contains of rules and regulations for the
students on what they can and which they cannot do in university while still holding the status of
student in that particular university. The objectives of the Act are mainly to prevent problems
and misbehave of students in university compound. Overall the Act covers all the matters that
related to administrative processes, students activities in universities and so on.
The Universities and University Colleges Act is strongly implanted in all universities and
university colleges in Malaysia. The authority of the Act is very high. There are several sanctions
or punishment for the students who disobey the provisions in the Act.
As we all know, according to article 10 (1) (a) stated that every citizen has the right to
freedom of speech and expression. It is also clearly stated that one cannot question the position
14 Universities and university Colleges Act 1971
22
of national language, national religion15, the nationality16, the status of the Majlis Raja-Raja, the
position of the Bumiputeras’ and also the position of the native people in Sabah and Sarawak17
and the services given to them by government. The law to prohibit the questioning of these
matters can be enacted by the Parliament without stating any reason to public. In imposing
restrictions in the interest of the security of the Federation or any part thereof or public order
under paragraph (a) of Clause (2), 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, 153 or 181 otherwise than in relation to the
implementation thereof as may be specified in such law.
Other than these prohibitions, there is also a restriction in freedom of speech and
expressions among higher education’s students. As I stated before, all the universities students
have to follow the Universities and University Colleges Act in addition to the Article 10 (1)(a) of
the Federal Constitution.
Under the title of prohibition on a student or a students’ organization, body or group
associating with societies, etc., except as provided under the Constitution or approved by the
Vice-Chancellor18, section 15 (3) which stated that no person, while he is a student of the
University, shall express or do anything which may be construed as expressing support,
sympathy or opposition to any political party or trade union or as expressing support or
sympathy with any unlawful organization, body or group of persons.
There is also another section which is related to the freedom of speech and expressions in
the sais Act which is section 15 (4); no organization, body or group of students of the University
which is established by, under or in accordance with the Constitution, or any other organization,
body or group of students of the University, shall not express or do anything which may be
construed as expressing support, sympathy or opposition to any political party or trade union or
as expressing support or sympathy with any unlawful organization, body or group of persons.
15 Part 1 Article 3 of Federal Constitution 16 Part 3 of Federal Constitution 17 Article 161(a)(5) of Federal Constitution 18 Universities and university colleges act 1971
23
The both sub-section of article 15 of the Universities and University Colleges Act 1971
clearly shows that any students or group of students that are still holding or recognized as the
particular university student should not engaged in political matters, illegal associations and also
gangsters group. They are restricted from having contacts and relations with those groups
because their involvement in that type of groups can harm the students and also the university.
For an instance, one student or a group of students cannot organize a talk or campaign
that related to any political party in Malaysia such as Barisan Nasional. Even when the season of
the election is just around the corner, they cannot run a campaign neither inside nor outside of
the university compound, no matter to support or critic the particular party. They cannot
influence others to support or critic the parties or the persons who are standing for the coming
election.
On top of that, students are also are prohibited to join the illegal groups such as mafia and
gangster groups. There are a lot of mafia groups outside there. The students of universities are
mostly in the age of 21-25, who are tends to easily join such unlawful groups. Once they enter
into such groups, it is very difficult to come out. Once the students enter into such groups, their
intention to study well will destroy. They will not pay attentions in studies because their mind is
set up to involve in fights and so on.
The effects of students engagements in groups mentioned above can be predicted. There
will be dispute among the students itself. Generally not all the people have the same opinion and
thinking like us. One student cannot go along with others even though they studied in the same
course in the same university. For an example, every student must have their own choice in
selecting the parties or the persons who are standing for the election. So when others critics his
choice, there could be a fight between them. They will start arguing among themselves, then
which can lead to a big fight in university compound.
So the rulers of our country mainly our Yang di-Pertuan Agong had think about all this
negatives effects and that is the reason the Universities and University Colleges Act 1971 was
enacted and gazette in Federal Constitution right after 14 years Tanah Melayu get it
independence from Britain. They want to protect the students mind from the negative stuff
because students are not mature enough in these kinds of matters because they never had
24
experience before this. Therefore they should not engage in these kinds of matters which can
cause trouble to our education system and harm the student itself.
On the other part, the restriction of freedom of speech and expression in Universities and
University Colleges also can be said injustice. This is because it prevents the students from
expressing their opinion related to political matters. In my point of view, students nowadays are
the future leaders that will guide the nation. So they cannot be treated as robots or ‘numb’
society. A student that can talk in front of public regarding any matters including political stuff
can lead any society or organization with a good leadership and credibility in future. Thus,
students who are capable should not be restricted from voicing out their opinion.
There is a question rose among people why the voting of university students in general
election will cause harm to public orders and will affect morality. A person who has reached the
age of twenty-one years is legally competence to vote19 . Most of the University students are in a
range of 21-25 years who can vote. In my opinion, voting will not cause harm to anyone because
the electors are not going to show or tell to the others for whom they are voting for. There is a
sayings which is ‘vote is secret’. So they will not be any arguments or dissatisfaction among the
electors that can cause fight. Thus this principle gives the right to students who are at the age of
21 and above to vote. The voting will be held peacefully without harming anybody. There is a
decided case which can answer this issue, Muhammad Hilman bin Idham & ors v Kerajaan
Malaysia & ors.20
19 Section 119 of Federal Constitution 20 [2011] 6 MLJ 507
25
2.2.4.1. Muhammad Hilman bin Idham & ors v Kerajaan Malaysia &
ors [2011] 6 MLJ 507
In the case Muhammad Hilman bin Idham & ors v Kerajaan Malaysia & ors ,the judge of
Court of Appeal, Mohd Hishamudin JCA stated that he was unable to find any explanation as to
the link between prohibiting university students from expressing support for or opposition
against a political party and the maintenance of public order or public morality. Indeed, in the
speech of the Minister, there is not even any mention of public disorder as a result of students
expressing their view in support for or in opposition to political parties. On the contrary, the
Minister spoke about the preservation of the fundamental rights of the students as provided for
by the Federal Constitution and in accordance with 'international best practices'; for he said:
‘Mereka juga merupakan bakal pewaris kepada kepimpinan negara. Justeru,
kebajikan dan hak asasi pelajar hendaklah sentiasa dipelihara dan mengikut Perlembagaan
Persekutuan dan amalan terbaik (best practices) antara bangsa’.
In fact the Minister even conceded that students are matured enough in exercising their
fundamental rights. Thus, according to what the Minister said in Parliament about preserving the
freedom of speech of students and what s 15(5) (a) provides to be irreconcilable or contradictory.
Mohd Hishamudin JCA concluded that freedom of expression is one of the most
fundamental rights that individuals enjoy. It is fundamental to the existence of democracy and
the respect of human dignity. This basic right is recognized in numerous human rights
documents such as article 19 of the Universal Declaration of Human Rights and article 19 of the
International Covenant on Civil and Political Rights. Free speech is accorded pre-eminent status
in the constitutions of many countries.
The second judge, Linton Albert JCA stated that its unreasonableness, section 15(5)(a) of
the UUCA does not come within the restrictions permitted under art10(2)(a)of the Federal
Constitution and is accordingly in violation of art 10(1)(a) and consequently void by virtue of art
4(1)of the Federal Constitution which states:
26
‘This Constitution is the supreme law of the Federation and any law passed after Merdeka
Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be
void.’
In conclusion, its unreasonableness, section 15(5) (a) of the UUCA does not come within
the restrictions permitted under Article 10(2)(a) of the Federal Constitution and is accordingly
in violation of art 10(1)(a) and consequently void by virtue of art 4(1)of the Federal
Constitution which states:
This Constitution is the supreme law of the Federation and any law passed after
Merdeka Day which is inconsistent with this Constitution shall, to the extent of
the inconsistency, be void.
Thus, the order of the High Court was set aside.
Moreover, there are several updates made to the Universities and University Colleges
Act1971 regarding to the section 15 which is clause (4) Notwithstanding subsection (3), a
student of the University shall not be prevented from:
(a) Making a statement on an academic matter which relates to a subject on which he is engaged
in study or research; or
(b) expressing himself on the subject referred to in paragraph (a) at a seminar, symposium or
similar occasion that is not organized or sponsored by any unlawful society, organization, body
or group of persons, whether in or outside Malaysia, or any society, organization, body or group
of persons determined by the Board under paragraph (3) (b) to be unsuitable to the interests and
wellbeing of the students or the University.
From this we can see that Malaysian Government is fair enough to all the students. The
Government did not prevent the student to broaden and share their knowledge that related to
their studies with others. They have the rights to share their research with other students at any
kind of seminar or talk. This is because their intention is good and will not harm anyone.
27
2.2.5. DEFAMATION ACT 1957
The restriction freedom of expression can also be found in Defamation Act 1957. To put
it in simple term, defamation occurs when a person expresses words that may lower another
person’s reputation in the eyes of the public. There are two types of defamation in Malaysia:
libel and slander. Libel is when such words are expressed in a permanent form which is usually
visible to the eye, like in a book, e-mail or picture. Slander is when such words are expressed in a
temporary form, usually when spoken or made by body movements.
The law governing defamation in Malaysia is Defamation Act 1957. In civil cases of
defamation, when a private person sues another private person for defamation, the Defamation
Act 1957 is applicable. Both libel and slander are civil and criminal offences. Thus, a person
who is guilty of libel or slander may be sued in court, and also face jail sentence. In civil cases,
the person so defamed will normally sue the maker of the defamatory words for compensation.
The amount of the compensation depends on the damage caused to the reputation of the person
suing.
The law of defamation functions as a restriction on a person's right to freedom of speech.
The law of defamation has its roots in the common law which existed before the enactment of
the Constitution in 1965. As such, the courts must take Article 162 of the Constitution into
consideration when deciding whether the common law tort of defamation offends the
fundamental liberty of freedom of speech and expression. The Article provides that all existing
laws shall be continue in force after the commencement of the Constitution subject to
"modifications, adaptations, qualifications and exceptions as may be necessary to bring them into
conformity" with the Constitution.
Under Article 149(1) of the Constitution, provide that:
(1) If an act of parliament recites that action has been taken or threatened by any substantial
body of persons, whether inside or outside the Federation –
28
(a) to cause, or to cause a substantial number of citizens to fear, organized violence
against persons or property; or
(b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the
Federation; or
(c) to promote feelings of ill-will and hostility between different races or other classes of
the population likely to cause violence; or
(d) to procure the alteration, otherwise than by lawful means, of anything by law
established; or
(e) which is prejudicial to the maintenance or the functioning of any supply or service to
the public or any class of the public in the Federation or any part thereof; or
(f) which is prejudicial to public order in, or the security of, the Federation or any part
thereof,
any provision of that law designed to stop or prevent that action is valid notwithstanding that it is
inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article
be outside the legislative power of Parliament; and Article 79 shall not apply to a Bill for such an
Act or any amendment to such a Bill.
Article 149(1) had made it clear that any provision that had been designed to stop or
prevent any defamation act whether inside or outside of Malaysia is valid, even though the
provision is inconsistent with any provisions of Article 5, 9, 10 or 13.
Most of the provisions under Defamation Act 1957 restrict citizen of Malaysia from
doing anything or expresses words that may lower another person’s reputation in the eyes of the
public. The restriction is thus providing in the provisions below:
Section 4 of Defamation Act 1957:
Words spoken and published which impute unchastity or adultery to any woman or girl
shall not require special damage to render them actionable.
Any person living in Malaysia is restricted from doing anything or expresses anything that
slander women. They should not lower any women reputation in the eyes of the public especially
29
the action or word is regarding the inchasity or adultery of the women. If he did so, he should be
punished in accordance with law without that girl or women had to proof any special damage.
This provision is really good in order to protect women dignity.
Section 5 of Defamation Act 1957:
In an action for slander in respect of words calculated to disparage the plaintiff in any
office, profession, calling, trade or business held or carried on by him at the time of the
publication, it shall not be necessary to allege or prove special damage whether or not the
words are spoken of the plaintiff in the way of his office, profession, calling, trade or
business.
This provision provides that if any slander done by any person, the plaintiff or the person who
had been slandered shall not prove any special damage or loss he suffered.
Section 6 of Defamation Act 1957:
(1) In any action for slander of title, slander of goods or other malicious falsehood, it shall not be
necessary to allege or prove special damage—
(a) if the words upon which the action is founded are calculated to cause pecuniary
damage to the plaintiff and are published in writing or other permanent form; or
(b) If the said words are calculated to cause pecuniary damage to the plaintiff in respect
of any office, profession, calling, trade or business held or carried on by him at the
time of the publication.
(2) Section 3 of this Act shall apply for the purposes of this section as it applies for the purposes
of the law of libel and slander.
30
2.2.5.1. Datuk Seri Anwar bin Ibrahim v Utusan Melayu (M) Bhd &
Anor [2013] MLJU 121
The restriction of freedom of expression can be seen clearly in the case of Datuk Seri
Anwar bin Ibrahim v Utusan Melayu (M) Bhd & Anor [2013] MLJU 121. In this case, Datuk
Seri Anwar Ibrahim claim libel against Utusan Melayu for defamation, based on two articles
published by the defendants on the front page and 10 page of the ‘Utusan Melayu’ dated
17.1.2012. The defamatory articles published by the defendant were supposedly based on the
statement given by the plaintiff during an interview conducted by the British Broadcasting
Corporation (BBC) on 12.1.2012. The plaintiff has pleaded that the defamatory articles and
words that have been published in the 'Utusan Malaysia' newspaper dated 17.1.2012 had
damaged his reputation as the opposition and political leader. Accordingly, the plaintiff has filed
this suit against the defendants for damages and injunction.
The plaintiff therefore claims against the defendants damages. S. 9 of the Defamation Act
1957 reads:
"In an action for libel or slander in respect of words consisting partly of allegations of
fact and partly of expression of opinion, a defense of fair comment shall not fail by
reason only that the truth of every allegation of fact is not proved if the expression of
opinion is fair comment having regard to such of the facts alleged or referred to in the
words complained of as are proved."
According to the Judge of High Court Kuala Lumpur VT Singham, “the law of
defamation is the culmination of a conflict between society and the individual. The law of
defamation seeks to attach a balance between two competing freedoms, the fundamental right to
freedom of speech and expression enshrined under Article 10 of the Federal Constitution and to
safeguard the right of the individual to have his reputation intact. The right to publish news
report or article should not be construed as free-for-all as there is no absolute freedom without
any restriction so that the press will not be misused to defame others. The restrictions is
important to ensure that the press act professionally and be responsible and be sensitive towards
an individual's reputation and not just act as a recording machine so that it will not be used as an
31
instrument by some unscrupulous or by political or commercial people for their own hidden
agenda or to defame an individual”.
In accordance with the rules of reasons and justice, the plaintiffs claim against the
defendants on liability is allowed with costs. Costs of this action is fixed at RM45,000.00 to be
paid by the defendants to the plaintiff. The assessment of damages is fixed for Case Management
on 15.2.2013 before the court.
32
2.2.6. SEDITION ACT 1948
In 1948, the Sedition Act was enacted by the British colonial government to
combat the Communists in Malaya. This Amendment was made through an Emergency
Ordinance 1971, not long after the riots of 1969. The Sedition Act 1948 was established in order
to criminalize any questioning on Part III (on citizenship), Article 152 (on national language),
Article 153 (on the special positions of the Malays and the rights of other races) and Article 181
(the Rulers’ sovereignty) of the Federal Constitution.
Section 4(1) of the Sedition Act 1948 restricts citizen of Malaysia from:
(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;
According to Sedition Act 1948, people are prohibited to try, to do or to makes any
preparation to make other people to do any seditious tendency. Any citizens of Malaysia are
prohibited to do or to make any preparation for any illegal activities which will destroy the peace
and harmony in the country. The obvious example can be seen in 2007 HINDRAF rally. In late
2007, several prominent members of the HINDRAF were arrested, some on charges of sedition;
following an enormous rally organized by HINDRAF in November. This activity was mainly
about the status of the Hindu in Malaysia in order to get compensation from the Government.
HINDRAF activity is an illegal activity that make all the Indians to come and argued for their
rights.
(b) utters any seditious words;
Moreover, people also are prohibited to talk utters or create seditious words. We are
prohibited to talk about the special status of Bumiputra, the status of Bahasa Malaysia as a
National language and many more this is by virtue of Article 10(4) of the Federal Constitution.
Any citizen of Malaysia should not express or create any words that questioning the matter under
Part III, Article 152, 153 or 181.
33
(c) Prints, publishes, sells, offers for sale, distributes or reproduces any seditious
publication
Section 4(1) (c) prohibits a person from printing, publishes, selling, offering, offer
for sale, distributing or reproducing any material or books that contains sedition. Any printing
material that contains sensitive issue is prohibited. This sensitive issue include the matter contain
in Part III, Article 152, 153 and 181 of the Federal Constitution.
(d) Imports any seditious publication,
Section 4(1) (d) prohibits any person to import any seditious publication. This is crucial
for the safety purpose of Malaysia. This provision prohibits the people to import any seditious
publication such as articles, magazines, books, newspapers and so on because such seditious
publication may influence people’s mind to go against the government of Malaysia as this
seditious publication will also destroy the unity of the races and will cause many conflicts
between the races. This provision is also important in order to prevent any communist movement
in Malaysia. This provision was originated from the British era in order to curb any left handed
movement and it is still been used until now. Without this provision, the opposition site or any
group of people could bring any seditious publication into Malaysia. If this happen, the racial riot
in May 13 would happened again. That is why the restriction under Sedition Act is provide so
that racial riot can be curb.
Besides, Dr Shad Saleem Faruqi, a professor of law and legal advisor at the Universiti
Teknologi Mara, in his interview with The Sun said, “From day one, freedom of speech and
expression was not one of the better protected rights… The restrictions have been enhanced
because of the 1971 Constitutional amendment. We call it the sensitive matters amendment. Now
sensitive matters cannot be questioned, even in Parliament. So the law of sedition applies fully in
Parliament. So freedom of speech and expression was never really as well protected even on
August 31, 1957”. (Foong 2013)
34
Thus, what is sedition matter had been clarified under Section 3(1) of the Sedition Act 1948.
Those acts defined as having a seditious tendency are acts with 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 the 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;
(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.
If any person is found guilty in spreading seditious act or words, he will be punished
based on Section 9 of the Act;
(1) Whenever any person is convicted of publishing in any newspaper any matter having
a seditious tendency, the court may, if it thinks fit, either in lieu of or in addition to
any other punishment, make orders as to all or any of the following matters:
(a) prohibiting, either absolutely or except on conditions to be specified in the
order, for any period not exceeding one year from the date of the order, the
future publication of that newspaper;
(b) prohibiting, either absolutely or except on conditions to be specified in the
order, for the period aforesaid, the publisher, proprietor, or editor of that
newspaper or from publishing, editing or writing for any newspaper, or from
35
assisting, whether with money or money's worth, material, personal service, or
otherwise in the publication, editing, or production of any newspaper; and
(c) That for the period aforesaid any printing press used in the production of the
newspaper be used only on conditions to be specified in the order, or that it be
seized by the police and detained by them for the period aforesaid.
(2) Any person who contravenes an order made under this section shall be guilty of an
offence and shall, on conviction, be liable to a fine not exceeding five thousand
ringgit or to imprisonment for a term not exceeding three years or to both.
(3) Nothing in this Act shall affect the power of the court to punish any person
contravening an order made under this section for contempt of court
On conviction, a person with first offence will be liable to a fine not exceeding RM5, 000
or to imprisonment up to 3 years or both; for subsequent offence, to imprisonment up to 5 years.
A person found guilty of possessing seditious publication shall be liable for a first offence to a
fine less than RM2, 000 or to imprisonment up to 18 months or both, and a subsequent offence,
to imprisonment up to 3 years. Any seditious publication found will be forfeited and destroyed or
otherwise disposed as the court directs.
36
3.0. CONCLUSION
The freedom of speech in our country has brought both pro and cons. However, the pros
are much more obvious than the cons. The restriction freedom of speech based on Federal
Constitution, Provisions and decided cases is very crucial in order to maintain and protect our
country peace and harmony.
This can be proven through the restriction of people from talking regarding the matters
related to nationality, status of national language and also the official religion of Malaysia by
virtue of Article 10(2) and 4(2) of the Federal Constitution. The Malays automatically get the
nationality because they are the people of land (originated in Tanah Melayu). The most sensitive
issue that we as a citizen of Malaysia should not question is regarding the status of our Raja-Raja
Melayu. Questioning about these matters can cause misunderstanding among different races in
Malaysia. When a person from other races other than Islam talks about any other matters listed
above, it will make the Malay people angry at that person and this can lead to fighting among
races.
But Malaysian Government is fair to other races too. They allow the people that are not
Muslim to stick to their own religion. They are free to build their temple for the religious use. In
the usage of language, they also can practice their mother tongue in daily life. But when it comes
to the official situation such as in school the students is compulsory to use the national language.
They cannot question why it is so. Some national school allowed the Tamil class to be held once
a week for the Indian students. This shows that no discrimination for other religion and language
in Malaysia.
Official Secret Act 1972 is also enacted for a good purpose. The act will prevent the
competent authorities from leak out the official secret of the government to the other countries.
For an instance, under the Armed Forces Act 1972, the documents of the private and confidential
matters related to the military cannot be shown or told to the other countries in order to protect
the safety of Malaysia. This matter is also related to Official Secret Act 1972, as long as the
matter is pertaining to “official secret. Any person that leaked out the “official secret” matters to
other country will be punished according to the law because he is disloyal or a traitor of the
country.
37
Defamation Act 1957 also brings positive effects in order to maintain the peace of the
people. Nowadays a lot of rumors are being spread. Most of the rumors and gossips are spread
through social media such are Facebook and Twitter. We can see a lot of fake edited pictures and
videos in Facebook. Some people create fake pictures and videos to humiliate his or her enemy.
They might have revenge on the particular person and they tend to embrace the person. Such
defamation act can affect ones dignity and reputation. Once a person is slandered by any other
person, his or her respect cannot be retrieve. Thus, it is a big offence that one can be punished
under the Defamation Act 1957.
Universities and University Colleges Act 1971 prevent the students from participating in
the campaign related to election. The student cannot express their support or opposition relating
to any parties or candidates that are standing for the election. This situation can threaten or
endanger the status of the particular university. Thus, the Act is very effective in order to stop the
students’ involvement in political matters. But the Act also prevent the student from broaden
their capabilities in political matters, if there is any. As we know, the students are the future
rulers. Thus, they have to learn from now the ways and steps on how to rule and run a country in
a peaceful manner.
Last but not least, the Internal Security Act 1960. It has been demolished and substitutes
with the Security Offences (Special Measures) Act 2012 (SOSMA). The act is demolished
because the competent authority of the ISA uses violence towards the accused. If the accused is
proven not guilty; the accused cannot sue the ISA for their mistakes. This is very injustice to the
accused as the person who has been detained under ISA is been restricted from express any
opinion or provide their own legal officer in order to prove they are not guilty. For this particular
reason, the Internal Security Act 1960 was substituted with the Security Offences (Special
Measures) Act 2012 (SOSMA).
38
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