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“Free” meaning not under the control or in the power of another, able to act or be done as one wishes, unrestricted and without consequences. Liberty (2014) defines that the freedom of speech includes the right of every citizen in communicating and expressing in any medium, holding opinions, receiving information and ideas and participating in demonstration and protest without the interference of the country or government.
Why is Freedom of Speech Important?
The freedom of speech is considered as the first postulate of liberty. It occupies a very important arrangement in the hierarchy of the liberty. The liberty of freedom of speech means to express one’s own right in a free and unbiased manner which is important in the development of the human being as a human being. It is fairly and factually said that the freedom of speech is the mother of all freedoms and liberties. In the present modern times it is extensively accepted that the right to freedom of speech is the soul of free society and must be protected at all times.
For individual, freedom of speech allows people to expand an understanding of their surroundings and the wider world by exchanging ideas and information without restraint. For state, media analysis of the government and opposition helps to expose corruption or other improprieties and prevents traditions of dishonesty.
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Creating an environment with freedom of speech is significantly helpful in finding truth of a particular issue. The truth would not be obtained if one cannot ask questions, voice out different opinions, make hypothesis, even ponder the unspeakable sometimes. Professor Ivor Jennings said “Without freedom of speech, the appeal to reason which is the basis of democracy cannot be made”. The issue about freedom of speech has been debated and discussed for decades. It happened everywhere, not only in Malaysia. The core argument is that how “free” a speech can be. Is that meaning we can say whatever we want to say, even it is without evidences; even it could incite hate and harm to others?
In the Malaysia context, “free speech” refers to “freedom of speech and expression” as stated in Article 10 of the Federal Constitution, which declares categorically in Clause (1)(a) that “every citizen has the right to freedom of speech and expression”.
Restrictions on Free Speech in Malaysia
Free speech, which is available for Malaysian citizen only, is not absolute because that freedom is subjected to several restrictions as set out in Clauses (2), (3) and (4) of Article 10 of the Federal Constitution. The position in other countries is not that far different. An example can be seen in the case of James v Commonwealth of Australia (1936) AC 578. The House of Lords declared that “free speech” does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it is freedom governed by law.
Clause (2) of Article 10 has stated that the parliament can impose law to restrict the freedom of speech. Such restrictions are said to protect the security of Malaysia, privileges of Parliament and the public order. Clause (4) stated that the law can restrict the questioning of any matter, status, privilege and sovereignty.
In Malaysia, the government has also imposed law to restrict the freedom. Examples are Sedition Act 1948, Police Act 1967, Peaceful Assembly Act, the Printing Presses and Publication Act 1984 and Universities and University Colleges Act 1971. The following cases will be discussed and analyzed on until what extend the freedom of speech is allowed in Malaysia, and whether such restrictions are really protecting the free speech or not.
Case 1: Public Prosecutor v Oh Keng Seng (1978)
The limitation that will be discussed in this case is the Sedition Act. Section 4(1) of the Act states that anyone who utters any seditious words shall be guilty of an offence. Oh Keng Seng was charged under this section due to his speech of supporting a “Malaysian Malaysia”, which opposed the special position of the Malays and natives in Malaysia (as stated in Article 153 of the Federal Constitution). In order to avoid the replay of the 513 riot, freedom of speech has to be restricted. Although Oh Keng Seng contended that he had no intention in causing racial problem, he was found guilty because “seditious” in section 2 of the Act applied to any word or phrase.
Freedom of speech is foundation of being democracy and should not be limited by ethical issue. Whatever ethnic we are, we are Malaysians. The Oh Keng Seng case illustrated that the Sedition Act is safeguarding the good sake of government instead of protecting the freedom of speech.
Case 2: Nik Noorhafizi bin Nik Ibrahim & Ors v Public Prosecutor (2013)
In this case, the Police Act 1967 will be discussed. The appellants were charged under section 27(5) because the assembly they attended at Masjid Negara was not granted license under section 27(2) of the Act. According to Section 27(2), if the police officer finds that the assembly is not a disturbance of a peace, license should be permitted without any form of subjective discrimination. This is useful in preventing the assemblies that may cause public disorder and chaos but there is no clear guideline in defining “disturbance to peace”. It is necessary to amend the Act in order to give better protection to the freedom of speech in Malaysia.
Case 3: Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors (2011)
In this case, the Universities and University Colleges Act 1971 (UUCA) will be discussed. The appellants were undergraduate students above 21 years old and were charged under section 15(5)(a) because attending the by-election at Hulu Selangor. This Act is designed to prevent university students to involve too much into political activities and neglect about their studies. However, it is strange when a working adult above 21 years old can express his political expression but a university student at the same age is not allowed to do so. The appellants finally won at the Court of Appeal.
