Freedom of speech is not freedom to defame
by Marcel Jude Joseph. Posted on February 14, 2011, Monday
Source: Borneo Post
THERE are a lot of young people in Malaysia who go around blogging under the banner of freedom of speech.
Many of these self-styled bloggers are self-righteous individuals, who have turned themselves into mini gods – they say whatever they like and show whatever they please without due consideration and respect for their elders or the unique social fabric of Malaysia.
They do a great disservice to the responsible elements of the blogging community and are pushing the government to take action to stop the abuse of the Internet.
The Federal Constitution
Malaysians should be aware that we are not the ‘US of A’. Unfortunately many so called bloggers in Malayisa and many other Internet users do not know or even care about the history of freedom of speech in our country. These bloggers are ready to shout freedom of speech but what they actually mean is freedom to defame.
Let’s get one thing clear — freedom of speech is NOT freedom to defame.
Article 10[1][a] of the Federal Constitution provides that every Malaysian citizen shall have the right of free speech and expression. Taken in isolation, it is a guarantee of that right but the guarantee is not absolute. The article reads as follows:-
1. Subject to Clauses (2), (3) and (4) — * (a) every citizen has the right to freedom of speech and expression; * (b) all citizens have the right to assemble peaceably and without arms; * (c) all citizens have the right to form associations.
2. Parliament may by law impose — * (a) on the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence; * (b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, or public order; * (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.
3. Restrictions on the right to form associations conferred by paragraph (c) of Clause (1) may also be imposed by any law relating to labour or education.
4. In imposing restrictions in the interest of the security of the Federation or any part thereof or public order under Clause (2) (a), Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, Article 152, Article 153 or Article 181 otherwise than in relation to the implementation thereof as may be specified in such law.
Other restrictions
Other than the restrictions on the freedom of speech in Article 10, several acts of law regulate the freedoms granted by Article 10, such as the Official Secrets Act, which makes it a crime to disseminate information classified as an official secret.
The Sedition Act 1948 makes it an offence to engage in acts with a ‘seditious tendency’, including but not limited to the spoken word and publications. Conviction may result in a sentence of a fine up to RM5,000, three years in jail, or both.
Under the Public Order (Preservation) Act 1958, the relevant Minister may temporarily declare any area where public order is seriously disturbed or seriously threatened to be a ‘proclaimed area’ for a period of up to one month.
The police have extensive powers under the Act to maintain public order in proclaimed areas. These include the power to close roads, erect barriers, impose curfews, and to prohibit or regulate processions, meetings or assemblies of five persons or more.
General offences under the Act are punishable by imprisonment for a term not exceeding six months; but for more serious offences, the maximum prison sentence is higher (eg 10 years for using offensive weapons or explosives) and sentences may include whipping.
Other laws curtailing the freedoms of Article 10 are the Police Act 1967, which criminalises the gathering of three or more people in a public place without a licence, and the Printing Presses and Publications Act 1984, which grants the Home Affairs Minister “absolute discretion” in the granting and revoking of publishing permits, and also makes it a criminal offence to possess a printing press without a licence.
History of freedom of speech in Islam
According to prominent lawyer Choo Chin Thye, as a constitutional issue, the right of free speech will be better understood by an examination of Malaysia’s constitutional history and the events over the past 50 years. He said by examining key events in that timespan, we may better understand how the status of free speech has evolved over time in the Malaysian context.
But we must begin with an examination of the Islamic notion of free speech with two points in mind. Firstly, Islam is the official religion of Malaysia and demographically, a substantial portion of Malaysia’s population profess the Islamic faith. It is important to establish that Muslims in Malaysia are not inimical to the concept of free speech.
Secondly, the very fact that Islam embraces the notion of free speech points to the universality of this notion, that is to say, the idea of free speech is not merely a product of Western thought and values. This is certainly a revelation to both Muslims and non-Muslims alike because most Malaysians operate under a misconception that everything Western is superior to Asian and non-Western cultures, norms and spirituality.
It is important to note that the human rights schemes propounded by contemporary Islamic scholars, which includes the conceptualising of freedom of speech, is rooted on the primacy of the Koranic Revelation over the logical process of reasoning.
In the opinion of Islamic scholars, human reasoning, independent of God’s guidance and inspiration, is insufficient to provide the best plan for human life. For example, upon citing various passages of the Koran and the Sunna, Islamic scholar Muhammad Asad took the view that, in the context of Islam, the intellectual leaders of the community are morally bound to bring forward whatever new ideas they may have and to advocate such ideas in public. Therefore, the right to a free expression of one’s opinions in speech and writing is one of the fundamental rights of a citizen of an Islamic state.
Further support for this is reflected in Article 12 of the Universal Islamic Declaration of Human Rights which states that:-“Every person has the right to express his thoughts and beliefs so long as he remains within the limits prescribed by the Law. No one, however, is entitled to disseminate falsehood or to circulate reports that may outrage public decency, or to indulge in slander, innuendo, or to cast defamatory aspersions on other persons.
“It is the right and duty of every Muslim to protest and strive (within the limits set out by the Law) against oppression even if it involves challenging the highest authority in the state.”
Choo said these propositions reveal that there is sufficient evidence to demonstrate that Islamic notions including the Koran do support the principle of the freedom of speech, the only issue being the degree of such freedom. That there is a similarity between the democratic notions of free speech developed in the Western world with Islamic notions of free speech, he said, make it a universal notion.
