Constitution, courts and free speech

Some judges have already planted the seeds of human rights activism.

IN the Federal Constitution, Article 10(1)(a) explicitly confers a “right to freedom of speech and expression”.

The inclusion of the word “expression” implies that the horizon of freedom extends to communication in all its forms – by word of mouth, signs, symbols, gestures, art, music, sculpture, photographs, films, videos, books, magazines, newspapers, notices, advertisements, banners, bunting and cyber speech.

Even symbolic speech (like the manner of one’s dressing and grooming) can be regarded as part of one’s freedom of expression. This was established in the cross-dressers’ case of Muhamad Juzaili (2015).

Elsewhere in the Constitution, there are rights to assemble peaceably, to form associations, and to practise and propagate one’s religion. These are also manifestations of free speech.

However, rights cannot be absolute and must be accompanied by responsibilities and restraints.

Therefore, Articles 10(2), 10(4), 11(4), 11(5), 149, 150 and Schedule 9 List 2 Para 1 supply 17 grounds on which federal or state law may impose restrictions on free speech.

These grounds include public order, national security, incitement to an offence, morality and defamation.

The 17 grounds are indeed very broad and have led some to believe that despite the theory of constitutional supremacy, Parliament’s power to restrict speech, assembly and association is almost limitless.

This view is bolstered by the existence of Article 4(2)(b), which excludes judicial review and makes Parliament the final judge of whether a restriction is necessary or expedient.

Relying on their constitutional powers, Parliament and the state assemblies have enacted about 35 statutes that impinge on freedom of speech and expression.

Prominent on the list are the Sedition Act, Printing Presses and Publications Act, Official Secrets Act, Communication and Multimedia Act, Peaceful Assembly Act, Penal Code, Film Censorship Act and Defamation Act.

Despite this phalanx of laws, the courts have tried gallantly to evolve some principles for testing the constitutionality of legislation.

In the SIS Forum case (2012), it was ruled that the restrictions imposed by Parliament must be confined to the permissible, enumerated grounds.

The Constitution must be read as a whole (conjunctively). Article 10 must be read along with the equality clause of Article 8, which requires fairness (Dr Mohd Nasir, 2006).

The law restricting rights must be precise and not vague (Pung Chen Choon, 1994). The restriction imposed must be reasonable and proportionate (Dr Mohd Nasir, 2006; Sivarasa, 2010; and Mat Shuhaimi Shafiei, 2014). However, the judiciary is deeply divided on this issue.

Fundamental rights are part of the basic structure of the Constitution (Sivarasa, 2010, and Semenyih Jaya, 2017).

A Constitution is a living and organic thing (Tan Tek Seng, 1996).

Regrettably, however, such scintillating principles have not produced much result.

In 60 years, there have been only a handful of cases of successful judicial review of legislation on the ground of violation of Article 10. These cases are Hilman Idham, Mohd Juzaili, Mat Shuhaimi, Nik Nazmi, Nik Noorhafizi, and Fathul Bari.

Only one case survived the appeal process and left a lasting impact. That was the “UKM Four” case of Hilman Idham (2011), which struck down Section 15 of the Universities and University Colleges Act.

In many instances of successful judicial review of legislation by the High Court or the Court of Appeal, the rulings were demolished by a conservative and cautious Federal Court – sometimes on very unconvincing technical grounds. See Muhamad Juzaili (2015) and Mat Shuhaimi (2014).

Judicial review of Article 10 legislation is obviously not a significant feature of our Constitution. But it would be overly pessimistic to conclude that citizens have no fundamental right to speech.

Though most judges do not question the power of Parliament, many of them show the willingness to review executive decisions under Article 10 legislation.

In the SIS Forum case, the court held that an executive order to ban a book must be pegged to the permissible restrictions in Article 10. The purported justification by the Home Minister that “the book may confuse Muslim women” is not an authorised ground.

In other orders to ban books or assemblies, courts have applied objective criterion to test the executive’s subjective satisfaction that public disorder is likely, such as in the cases of Berjaya Books (2015), SIS Forum (2012), Edge Communications (2016) and Mohd Faizal Musa (2018).

Courts have ruled that the anticipated danger must not be too remote or fanciful (Sepakat Efektif ).

The “absolute discretion” of the minister under the Printing Presses and Publications Act cannot be interpreted literally.

Absolute discretions are a violation of Article 8’s promise of equal treatment.

There must be an objective basis for his exercise of discretion (Darma Suria, 2010).

Finality clauses in legislation cannot oust judicial review (Darma Suria).

Fundamental rights in the Constitution must be interpreted prismatically and broadly. Restrictions on fundamental rights must be read narrowly (SIS Forum, Sivarasa, Hilman Idham and Shamim Reza Abdul Samad).

In some cases, courts have thrown out the charge wrongly made (Tan Jye Yee, 2014).

In public interest privilege cases like BA Rao v Sapuran Kaur, the court and not the executive decides whether evidence should be disclosed or suppressed.

In sum, judicial review of legislation that curbs free speech is not a significant feature of our legal system.

Barring some honourable exceptions, judges speak boldly but act timidly.

However, there are glittering examples of judicial review of administrative action. Courts have evolved sterling principles to keep absolute powers in check.

What the future holds is difficult to predict. The seeds of human rights activism have already been planted by some judges. These seeds may blossom one day. The situation is akin to a forest in which there is no path.

But then some people begin to walk through. Their footprints leave a trail. A path emerges.