CHAPTER 6 : ARTICLE 10

LLS3103 CONSTITUTIONAL LAW II SEMESTER II 2013/2014

A. Freedom of speech & expression

General rule : Article 10 (1)(a)

Every citizen has the right to freedom of speech and expression

The meaning of speech & expression

No definition in the Constitution Art.10(1) of the European Convention on Human Rights 1951 Every one has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Limitation
Article 10 (2) (a) (i) Security of federation (ii) Friendly relations with other countries (iii)Public order or morality (iv)Protects privilege of Parliament or SLA (v) To provide against contempt of court, defamation or incitement of offence

(i)Security of federation
Article 10 (4)
Parliament may pass law to prohibit the questioning of any matter, right, status, position, sovereignty or prerogative protected under i. Part III- Citizenship ii. Article 152 iii. Article 153 iv. Article 181

Relevant laws
i. ii. iii. iv. Official Secrets Act 1972 Internal Security Act 1960 Printing Presses and Publication Act 1984 Protected Areas and Protected Places Act 1959, Public Order (Preservation) Act 1958 v. Sedition Act 1948 vi. Telecommunications Act 1950.

(ii)Friendly relations with other countries

No specific law to regulate - but administrative guidelines do exist E.g: use of Internet to disseminate information about a neighboring country that might create animosity or hinder bilateral relationship.

(iii) Public order

Public order is needed to be maintained in a multi-cultural, multi-racial and multireligious country like Malaysia Few bloggers writing on hate speech with the alleged view of inciting the public was charged under Sedition Act 1948 but the cases were yet to be determined.

Relevant laws
i. Sedition Act 1948 ii. Police Act 1967 iii. Printing Presses and Publications Act 1984
Amended in 2012

iv. Communication and Multimedia Act 1998

Morality
Although the freedom of speech and expression is a fundamental aspect in a democratic society, morality or moral values of the society need to be protected as well.

Relevant laws
a) Films (Censorship) Act 1953 b) Lotteries Act 1952 c) Indecent Advertisements Act 1953 d) Penal Code e) Communications and Multimedia Act 1998 . f) Printing Presses and Publication Act 1984

(e) Privileges of Parliament or any legislative assembly

Article 63 (2) members of Parliament enjoy privileges for anything said, any vote given Article 63 (3) MP shall not be liable for anything published by/under the authority of House of Parliament The public cannot sue MP for anything said during the parliamentary proceeding

Limitation to parliamentary privilege

Article 63 (4)- MP would not be protected under parliamentary privilege if: (a) Charged under the law of Article 10 (4) (b) Charged with the offence under Sedition Act 1948

General limitation to freedom of speech and expression

Article 10 (4) cross refer article 10 (2)(a) Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative under Part III, Article 152, 153, 181

Several laws made under article 10 (4)

Official Secrets Act 1972 Printing Presses and Publications Act 1984 Sedition Act 1948 Communication and Multimedia Act 1998

Case: LIM KIT SIANG V PUBLIC PROSECUTOR [1979] 2 MLJ 37

Held: An opposition MP was charged under the Official Secrets Act 1972 for receiving and communicating secret official information relating to the purchase of fast strike crafts for the use of the Royal Malaysian Navy.

Case: MARK KODING V PUBLIC PROSECUTOR [1983] 1 MLJ 111

Held: A MP was convicted for sedition when he advocated in Parliament the closure of Chinese and Tamil Schools.

(f) Defamation
Definition: A false statement made about someone or an organisation that is damaging to their reputation. The publication of a statement, which reflects on a person's reputation and tends to lower him in the estimation of rightthinking members of society generally or tends to make them shun or avoid him.

Defamation
- Slander - libel

Relevant laws:
(i) Defamation Act 1957
Must show that the publication or the statement made with malicious intention and defamatory in nature and with an intention to tarnish the reputation of other Not a fair comment

(ii) Penal Code- section 499

Defamation is a crime under the Penal Code Punishment under section 500 (imprisonment for 2 years or fine or both)

(g) Incitement of any offence

Freedom of speech & expression should be curtailed for the sake of preventing any incitement of any offence E.g: The riot on 13th May 1969 Relevant laws i. Sedition Act 1948 ii. Penal Code E.g: section 130G- inciting for the commission of terrorist acts

B. Freedom of peaceful assembly

Article 10(1)(b) all citizens have the right to assemble peaceably and without arms

Restrictions to freedom of assembly

Article 10 (2)(b) : the right may be restricted for the interest of the federation relating to i. Security ii. Public order

The restrictions
a. b. c. d. Police Act 1967 Societies Act 1966 Public Order (Preservation) Act 1958 Penal Code Section 143- punishment of an offence of being a member of unlawful assembly

Previous law regulating assembly

Section 27 Police Act 1967

Case: LAU DAKKEE v PUBLIC PROSECUTOR [1976] 2 MLJ 229

Facts: The appellant was issued a licence by the OCPD to convene an assembly under which expressly specified a condition that 'Tajuk Syarahan tidak boleh menyetoh

perkara-perkara keputusan MCE.

berhubong

dengan

He breached the condition in the license that therefore was charged undersection 27(4)(b) of Police Act, No. 41/67 and punishable under section 27(8) of the said

Court of Appeal
Article 10(1) (b) is subject to any law passed by Parliament. Such law can, inter alia, impose such restrictions as Parliament may deem necessary or expedient in the interest of security of the Federation or in the interest of public order. section 27 of the Police Act confers the power to the police to regulate public assemblies and meetings

Police Act 1967 Amendment 2012

Before Amendment: Section 27, 27A, 27B, 27C Provides the criteria and conditions needed to get permits for public rallies

After Amendment: Deleted the above provisions from the Police Act 1967

Current law regulating assembly

Peaceful Assembly Act 2012

C. Freedom to form association

Article 10 (1)(c) Every citizen have the right to form association

Restriction
Article 10 (2)(c) Parliament may impose law to restrict freedom to form association to protect the security of the federation public order, and morality

Another restriction
Article 10 (3) the restriction may also be imposed by any law relating to: Labour education

Section 15 of AUKU 1971

A student of a university may become a member of any association, society etc except: (a)Political party (b)Unlawful organisation (c) Any organisation which is deemed to be unsuitable for the interest and well being of a universitys student

Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors (2010)
4 final year political science students were present at the Parliamentary Constituency of Hulu Selangor during the campaign period for the by election in April 2010, faced a disciplinary proceeding with a prospect of expulsion from the university for a clear breach of section 15 of the AUKU 1971.

15(5)(a) of the Universities and University Colleges Act 1971(UUCA).

(a) For completeness it is reproduced and it is as follows:- (5) No student of the University and no organization, body or group of students of the University which is established by, under or in accordance with the Constitution, shall 3 express or do anything which may reasonably be construed as expressing support for or sympathy with or opposition to -(a) any political party, whether in or outside Malaysia.

Court of Appeal

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 Article 10(1)(a) and consequently void by virtue of Article 4(1) of the Federal Constitution

Section 15 of AUKUAmendment
Allows university students to participate and be a member of political organizations. Students are subjected to legal proceeding if they commit offences while participating in the organization Caveat- students should not bring their political ideology in the campus (participation is only allowed off campus)