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Having a voice is powerful. Freedom of speech stands as one of humanity's oldest recognised rights, pivotal for fostering a diverse marketplace of ideas — a cornerstone of liberty and democracy.
Today, the rise of social media has provided each of us with a personal soapbox. It often feels as though we can express ourselves freely, without consequence. But is this truly the case?
Despite a seemingly more liberal government, we still hear about people getting into trouble with the law due to their words (Nevyn knows this all too well 😏).
So, what's up with the freedom of speech in Malaysia? What limits exist, and more importantly, are they applied fairly?
(Not so) Fundamental Liberty
Free speech is guaranteed under Article 10 of the Federal Constitution. Or is it? I dunno, kinda? Let's just compare our Article 10 with the First Amendment of the Constitution of the United States.
🦅 American Constitution
🌺 Malaysian Constitution
Immediately, one would notice a stark difference between the American Constitution, which guarantees free speech absolutely ("Congress shall make no law"), and our Federal Constitution, which allows for restrictions on free speech ("Parliament may by law impose"). Among others, free speech can be curtailed on these grounds:
Security interests of the nation;
Public order or morality; and
Against the incitement of any offence.
As a result, the Malaysian Parliament can enact laws restricting free speech with more ease compared to the American Congress, given the readily available justifications outlined in the Federal Constitution.
However, it is important to acknowledge that no right is absolute (for instance, free speech cannot be used to incite hatred). Thus, it might be prudent for the drafters of the Federal Constitution to outline the restrictions on free speech. Nothing wrong with that.
That is why the real issue at hand is the result of these constitutional restrictions. Are the laws that result from Article 10 appropriately tailored, or are they applied too broadly?
Let's delve into this and examine whether these limits to free speech are justified or if they are excessively restrictive.
Sedition
Malaysians are no strangers to the Sedition Act 1948, which has been a source of controversy since before independence. Countless individuals have been arrested and imprisoned under its provisions, from small-time journalists to big-time politicians.
The most glaring issue with the Sedition Act is its criminalisation of speech that with a "seditious tendency", including a tendency to stir up hatred or contempt against "any government." This raises a fundamental question — how can one express discontent with the government without the fear of prosecution?
In 2015, the Barisan Nasional government did amend the Sedition Act to allow for criticism against the government, but the amendments never came into force. it is truly mind-boggling.
Adding to the problem is the Sedition Act's unique feature: unlike other criminal offenses, sedition does not require proof of a guilty mind (mens rea) for conviction. Meaning that one can be convicted of sedition even if there is no intention to insult or incite; even if they are speaking the truth.
In an attempt to address this, the Court of Appeal ruled in Mat Shuhaimi bin Shafiei v Public Prosecutor [2014] 2 MLJ 145 that intention must be proven for every sedition charge. Unfortunately, this decision was overturned by the Federal Court on appeal.
While the Sedition Act has its merits, particularly in combating racial and religious hate speech, its draconian aspects — those that can and should be divorced from its necessary functions — grant the government excessive power to stifle dissent, creating a chilling effect on free speech in Malaysia.
Both Barisan Nasional and Pakatan Harapan governments have promised to repeal the Sedition Act in the past, but they were nothing more than lip service, as proven by the 2015 amendments which did not come into force at all.
Ironically, they're still using it for political arrests, more and more even. Will things be different with the Unity Government this time round? (Maybe two negatives can actually make a positive haha.)
It is high time to review the necessity to amend (or better yet, repeal) sedition laws — as these draconian laws prohibit other restrictive laws from being questioned and challenged in the first place. With sedition laws in place, the society will never be granted free range of discourse, the fundamental feature of a functioning democracy.
Online Speech
Unlike the attention-grabbing Sedition Act, the seemingly unassuming Communications & Multimedia Act 1998 (CMA) is emerging as a significant threat to free speech in the digital age.
Sections 211 and 233 of the CMA prohibit online communications that are "indecent, obscene, false, menacing, or offensive with intent to annoy, abuse, threaten or harass any person". These restrictions may appear innocent enough, but the devil is in the details, or the lack thereof.
All the terms stipulated are not defined in the CMA. This ambiguity gives the authorities an unfettered discretion to prosecute. Here's a list of online postings that may get you into trouble:
Drawing caricatures of the Prime Minister.
Questioning the Prime Minister's involvement in the opening of a casino.
Making fun of the logo of governing political parties.
Publishing a political book with sensitive cover (so much for not judging a book by its cover)
Maybe these postings have touched on what the authorities deem indecent... oh wait, was it obscene? No, it should be menacing and offensive?... Which one is it again? Whatever it is, by suppressing these posts (which actually bring into light certain important issues), it makes it harder for others to voice out without the fear of prosecution.
Although there are some necessary arrests for obviously unacceptable postings, this does not detract from the fact that the law is drafted so vaguely that anything remotely sensitive or threatening to the government also goes under.
Similar issues exist in other laws restricting free speech such as the Printing Presses and Publications Act 1984, Film Censors Act 2002, Indecent Advertisements Act 1953,
and sections 292 to 294 of the Penal Code.
Moving Forward: The 3-Part Test
Despite being labelled a "fundamental liberty" in our Federal Constitution, the freedom of speech was never viewed by those in power as fundamental or essential at all.
Relying on (or by abusing) the constitutional justifications, the government has made so many laws that unduly burdens free speech in Malaysia — the Sedition Act, CMA, Printing Presses and Publications Act 1984, Film Censors Act 2002, Indecent Advertisements Act 1953, and sections 292 to 294 of the Penal Code.
To ensure that laws restricting free speech — or any human right for that matter — are not enacted for ulterior motives to oppress or silence discourse, they must pass the three-part test of legality, legitimacy, and proportionality as adopted by international human rights bodies and courts (or else in the bin it goes).
Legality
The law must be clear and unambiguous. Otherwise, people won’t know when and how they might be accused of doing something wrong.
The lack of parameters as to what amounts to “indecent”, “obscene”, “false”, “menacing”, or “offensive with intent to annoy, abuse, threaten or harass any person” in the CMA is a prime example of a failure of this part.
The Sedition Act criminalising speech which tends to bring the government into hatred and contempt is also too broad because any form of criticism can be said to do just that.
Legitimacy
Proportionality
Speak Up for Free Speech
Oppressive laws that unduly curb free speech is only a reflection of how us as a society undervalue this fundamental right.
A government that disregards free speech will find any excuse they can to control the marketplace of ideas in order to stay in power, rather than being welcoming of criticism and rising above it. This is for the government to figure out where their values lie.
For you and me, the constitutional guarantee of free speech loses its power if we remain silent in the face of oppressive laws. We cannot wait for political will to kick in, we need to let representatives know that it is a non-compromisable issue. When more people understand that free speech is essential for societal progress and unity, the collective voice advocating for change becomes louder and harder to ignore by those in power.
Only then, change might be probable. So, let's use our voices to champion free speech.
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