The Federal Constitution of Malaysia is the absolute law in the nation, which came into force back in 1957. Originally, the Federation was known as the Federation of Malaya, and the name Malaysia was adopted when the States of Sarawak, Sabah, and now independent, Singapore, came to be the part of the Federation. The Constitution has been divided into fifteen parts, which have 230 articles and 13 schedules. Under Part II of the Constitution, are the fundamental liberties, which are contained in Article 5 to Article 13, for different purposes. For instance, Article 5 relates to the right to life and liberty and Article 10 relates to freedom of speech, assembly and association. It has been noted in the recent times that the courts of the nation are involved in taking a liberal approach for the interpretation of the articles, especially when it comes to Article 5 (Harding, 2012). In the following parts, the legal rights contained under part II of the Federal Constitution have been elaborated. The impact of such rights over the person and the industry has also been discussed. An emphasis has been made on the Article 10, where the case laws have been discussed, to analyze this article.
Under Part II of the Federal Constitution of Malaysia, the fundamental liberties have been stated, which are subjected to certain exceptions and limitations, and some of these are only available to the citizens (Lee, 2017). Article 5 contains the right to life and liberty for an individual. As per this, the individuals cannot be deprived of their personal liberty or life, save for as per the provisions of law. The right of habeas corpus is also given under this article, as per which, the individual who has been detained in an unlawful manner, can be released by the High Court. An individual has been given the right to be told the basis for being taken into custody and of being represented in the court through a lawyer chosen by him. This right also provides that an individual cannot be arrested for over twenty four hours without the permission of a magistrate (Attorney General’s Chamber of Malaysia, 2010).
The liberal interpretation of article 5 can be seen in a range of cases, for instance, in the matter of Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1993] 3 MLJ 265. In this case, the detention order contained some grounds based on which, the detainee was seized, with the wordings “or”, instead of an “and” in between. It was presented by the court that the statement with regards to the alternative form basis denied the detainee the right to know the reasons for the arrest, which is a constitutional right for the purpose of record. This decision was on the lines of Article 5(3). In Ooi Ah Phua [1975] 2 MLJ 198, the public interest contained in Article 5(3) of the Federal Constitution was interpreted by the court and it was held that the constitutional right to the lawful representation could be, awaiting the inquiry by police, be postponed (Seng, 2017).
Article 6 of the constitution defines that a person cannot be held in slavery. The forced labor, in any form is prohibited in the nation. An exception to this rule lies in the federal law of National Service Act, 1952, as per which the same could be done, for national purpose, for providing compulsory services. The sentence of imprisonment, awarded by the court cannot be deemed as a forced labor (Attorney General’s Chamber of Malaysia, 2010). In the matter of Barat Estates Sdn Bhd & Anor v Parawakan a/l Subramaniam & Ors [2000] 4 MLJ -S 12, it was held that the right to make the choice of employment was a constitution right. And in case, an employee is compelled by the employer to work for him, it would be deemed as a forced labor as per Article 6 of the constitution (Karean, 2007).
Article 7 of the constitution provides certain protections with regards to the criminal law and its related procedures. An individual cannot be punished for any omission or an act, which was not punishable under the act at the time it was made or was done. An individual cannot be made to suffer high sentence for an offence which has been set by law, when the same was undertaken. Lastly, an individual cannot be convicted or acquitted for such an offence, for which he already has been tried for the same offence, when a retrial had been ordered through the court (Attorney General’s Chamber of Malaysia, 2010). Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187 was related to the rights assured by the Constitution and with regards to the level to which the Constitution can be amended through the Parliament. Through this case, the punishment was interpreted for the criminal sanctions alone and for the civil issues, they could still be backdated (Jayasuriya, 2006). In Sau Soo Kim v PP (1975) 1 LNS 158 this article was used to provided that the sentence which had been decided earlier by the court could not be changed on the basis of amendments in the law at the present day (Faruqi, 2017).
Article 8 of the constitution provides the equality related provision. Under this, the people are deemed as equal in front of the law and hence, are entitled to equal protection. Even though this article provides equality, cases of gender discrimination have been noted in different cases (Attorney General’s Chamber of Malaysia, 2010). For instance, in the matter of Fernandez v Malaysia Airlines [2004] 4 MLJ 466, the employment terms allowed the female airline stewardesses to be dismissed when they became pregnant. This was stated as unequal as the males could not get pregnant; hence, they were against article 8 (Din, Rahmat & Mashudi, 2011).
Article 9 of the constitution prohibits banishment, as well as, freedom of movement. Hence, the citizens of Malaysia are protected from being banished from the nation. Though, a person may be stopped from leaving the nation in case of pending criminal charges (Attorney General’s Chamber of Malaysia, 2010). In the case of Government of Malaysia & Ors v Loh Wai Kong [1979] 2 MLJ 33, it was held that the refusal of passport was a breach of article 9 (Ginsburg & Chen, 2008).
Article 10 of the Federal Constitution provides the guarantee to the citizens of Malaysia, the right of freedom of association, speech and assembly (Attorney General’s Chamber of Malaysia, 2010). There are different restrictions which can be imposed on this article, and it includes the restrictions for security purposes. In order to understand the nature of this article in the nation, it is crucial to note that all these cases which relate to the freedom of expression, are based on a central theme of respecting the three Rs, which are royalty, race and religion. If the individuals, politicians and the media houses stay clear of these three Rs, prosecution would not be attracted. Even though article 10 brings forward the freedom of expression, through the passing of different laws, this freedom has been curtailed. These laws include the Sedition Act, 1918, the Printing Presses and Publications Act, 1984 and the Communications and Multimedia Act 1998 (Dipendra, 2014).
The role of Sedition Act was seen in the case of Public Prosecutor v Oh Keng Seng [1977] 2 MLJ 206, in which the reasoning of the court in the matter of sedition and freedom of speech was explained, along with the explanation of the limitations put on by the applicable law. Certain seditious words were uttered by Oh Keng Seng in Mandarin. The question which was decided in this case was whether the words uttered by Seng were a fair criticism of the government or did it have the seditious tendency (Shariff, 2015). In the matter of Public Prosecutor v Ooi Kee Saik and Ors [1971] 2 MLJ 108, it was held that a line had to be drawn between the sedition speech and the freedom of speech. And this line was drawn by the court of law in the nation. The question which is raised in such cases though, relates to where the line has to be drawn and where do the political criticism stop and the sedition begins? The answer lies in section 3 of the Sedition Act, as per which, the free speech ends when the same becomes mischief as per the quoted section (Sani, Nakamura & Taya, 2010).
The Communications and Multimedia Act also has its share of case laws. In the matter of PP v Rutinin bin. Suhaimin [2013] 2 CLJ 427, the accused had been charged with the violation of section 233 of the Communications and Multimedia Act as he posted insulted remarkets on a webpage of the Sultan of a state of Malaysia. In this case, article 10 could not provide the safeguard to the accused owing to a history of such abuses in the past (Leong, 2015). In the matter of Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354, the order was overturned by the Court of Appeal of Singapore as per which a journalist was required to disclose the source of their article on the blog written by him covering a relationship of a former Vice President of Fifa and the one time AFC, i.e., Asian Football Confederation. It was held that this order was not right to be issued and hence, it was quashed (Singapore Law, 2013).
The Printing Presses and Publications Act was also questioned with regards to article 10 in the famous case of Aliran v Minister of Home Affairs [1988] 1 MLJ 440. In this case, the plaintiff made an application for getting a permit under the act. However, the Minster of Home Affairs refused the application. It was held in this case by the Supreme Court that the rejection of application by Minster of Home Affairs could be not challenged, till it could be shown to the satisfaction of the court that the same was done in bad faith or in a dishonest manner (Chang et al. 2014).
Article 10 of the Federal Constitution is quiet crucial for the media houses as due to the applicability of freedom of speech, the media is able to clearly express their views on a particular news item and also are able to bring the same before the general public. In order for them to have the freedom of covering all the news items, without the fear of being brought down, Article 10 is crucial. This freedom is crucial to allow the media to cover sensitive issues, which would not be possible if there is a restriction on the freedom of speech, which was earlier present in the nation. And even now, there are certain restrictions when it comes to freedom of speech for the Malaysian journalists and social media activists (Buang, 2015).
In Malaysia, freedom of speech is present; however, the freedom which has been given by the Federal Constitution is not absolute. The internet is amongst the few places where the people of Malaysia are able to express their thoughts and views in a free manner. The internet is not only being used by the media industry, but also by the individuals, as a medium for freedom of expression, and speech, in particular by the bloggers (Kenyon, Marjoribanks & Whiting, 2013). A fixed diet of pro-government propaganda is fed by the newspapers of the nation, which are licensed annual through the Printing Press and Publication Act. This results in the governments being criticized by not only the media, but by the public of the nation as well. Due to the rising demands of absoluteness to the freedom of speech and expression, the pre-existing restrictions over the freedom of speech and expression had to be removed. This is one of the reasons why the liberal approach is adopted by the judicial commissioners when a case is brought in front of them (Schneider & Gräf, 2011).
However, when it comes to the freedom of speech with regards to defamation, the courts undertake a strict approach is adopted by the judicial commissioner, so that the rights provided under this article are not misused by the individuals (Tew, 2016). Defamation refers to the actions through which the reputation of an individual or a person is damages, and takes form of libel and slander. When the cases relate to issues like sedition, blasphemy or obscenity, the judicial commissioners make it their duty to deal with the matter in a strict matter, instead of being liberal about interpretation and application of rights granted through Article 10 (Sani, 2009).
A prime example of such strict interpretation, against the freedom of speech, in the matter of defamation was noticed in the recent cases of Synergistic Duo Sdn. Bhd. v Lai Mei Juan [2017] AMEJ 0588. In this case, the defendant had posted two posts on her Facebook account, after visiting the restaurant, where they neither ate, nor dinned. These two posts defamed the restaurant and so the plaintiff initiated a case against the defendant. Even when an Ad Interim Injunction was granted against the defendant, the defendant chose to ignore the same and continued the two posts to be posted till date. The freedom of speech was taken under consideration in this case and the freedom of press was evaluated against the plaintiff’s reputation. After thorough evaluation, it was held by the court that in order to save the damages to the reputation of the plaintiff, from continued posting of the posts, an interim injunction was granted to restrain the defendant from posting themselves, or through others, that post or related posts. Further, to protect the plaintiff, the defendant was ordered to pay damages of RM 5,000 to the plaintiff (Westlaw, 2017).
This case shows the strict approach which is undertaken by the JC in cases which require urgent attention and are sensitive in nature. However, such cases also have an impact over the rights of the individual, particularly the defendant. The defendant had a right of freedom of speech, granted through the federal constitution. However, these rights of the individuals are subjective and can be infringed by the judiciary in necessary case (Dixon & Ginsburg, 2014). In the given case, it was crucial that the rights of the defendant were infringed to safeguard the rights of the plaintiff. The rationale behind the supremacy of rights of plaintiff over the rights of defendant stem from the trueness of the facts. The defendant had lied about the restaurant and this was the reason why their rights were infringed, as the JC does not safeguard the rights in cases of falsehood.
With the passage of time, the freedom of speech and its ambit has been increased. It is a well known fact that both the electronic and the print media of the nation are being restricted and controlled. Yet, the people can gain and retrieve the information through internet and this has become a medium for the expression and freedom of speech. Though, when these rights are abused, even the content on media can be restricted by the JC, to uphold the theme of law, instead of its literal interpretation. In order for the media industry and the people in it to enjoy the rights granted through the federal constitution of the nation, it is crucial for both the industry and the individuals to be committed towards these rights in the manner of upholding its theme, instead of infringing the same.
Article 11 of the constitution relates to freedom of religion. So, in Malaysia, an individual has the right to profess their own religion and practice the same. The government still has the option of put restraints on this article (Attorney General’s Chamber of Malaysia, 2010). In the matter of Halimatussaadiah bte Hj Kamaruddin v Public Services Commission, Malaysia & Another [1994] 3 MLJ 61, the contention of the women was rejected where she asked to be permitted to wear purda at the work place under this article, stating that the religious tradition was optional with regards to the public service interest (Documents, 2015).
Article 12 contains the rights regarding education. As per this article, a person cannot be discriminated against on the basis of religion, race, birthplace, descent for the administration of educational institution, especially with regards to the admission of students (Attorney General’s Chamber of Malaysia, 2010). In the case of in Teoh Eng Huat v Khadi of Pasir Mas [1986] 2 MLJ 228, it was held that the non-Muslim students could not be forced to learn the Islamic subjects which were otherwise compulsory to the Muslims, unless the same is done in a voluntary manner (Faruqi, 2005).
Article 13 of the constitution relates to the right to property. An individual cannot be deprived of the property, unless the same is done as per the provisions of the law. Even the law cannot provide for the use of property or its compulsory acquisition without proper compensation (Attorney General’s Chamber of Malaysia, 2010). In the matter of Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418, which was the initial case for the Malaysian indigenous person, the court awarded compensation for the loss of ancestral land to fifty two Jakuns (Crook, 2005).
The above case highlights that the articles contained in the constitution of Malaysia are interpreted in a liberal manner by the court. However, these are done with a view to uphold the spirit of law and to uphold justice for both the parties involved in the disputes. These articles provide the rights to the individuals, as their protection from unequal treatment or for providing them with the freedom of speech. It is crucial that these rights are safeguarded by interpreting the articles in a liberal manner, as is being presently done, so that the stringent interpretation of articles does not confine the justice.
It is crucial that the media is given the protection of freedom of speech and expression under Article 10. In case this freedom is not granted to the media, they would not be able to do a just job and the truth would not be brought before the general population. The JCs, generally adopt a liberal approach with regards to this article, but when the matters relate to the issues of defamation, obscenity or the like, a strict approach is taken, so that the rights granted through the articles are not taken undue advantage of. Hence, in the areas where it is crucial to uphold the spirit behind the articles and to respect justice, the courts take a strict approach, which is contrary to the statement made in the title of this assignment, as per which a liberal approach is taken by the courts.
References:
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Chang, W., Thio, L., Tan, K.L., & Yeh, J. (2014). Constitutionalism in Asia: Cases and Materials. Oxford: Hart Publishing.
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