The paradox surrounding free speech in Malaysia comes to the forefront as Article 10 of the Federal Constitution, which guarantees freedom of speech and expression, contends with curbs imposed by various laws.
Recent cases indicate a trend of restrictions on free speech, raising concerns about the stifling of diverse viewpoints and robust public debate.
Recent Restrictions on Free Speech
Malaysia’s recent instances of limiting free speech include investigations into the former attorney-general’s memoir, criminal charges against an online publisher for contempt of court, and criticism related to the COVID-19 pandemic.
In a democratic society with diverse perspectives, the act of taking offense at contrary viewpoints should not lead to prosecutions aimed at silencing discourse.
With a new government, Malaysia has the chance to rejuvenate its commitment to free speech values.
Upholding this commitment requires overcoming challenges posed by existing legislation, such as the Sedition Act 1948 and criminal defamation provisions under the Penal Code.
These laws risk inhibiting the range of perspectives expressed online and in traditional media.
Evolution of Legislation
The repeal of the Anti-Fake News Act 2018, aimed at curbing dissent, highlighted changes in legislation. However, new laws like the Emergency (Essential Powers) (No 2) Ordinance Bill have emerged, targeting misinformation during the COVID-19 pandemic.
The use of the Communications and Multimedia Act 1998 to prosecute speech on various platforms has raised concerns and led to calls for reform.
While authorities contend that these laws counter harmful speech, the lack of clear guidelines and justifications remains problematic. Courts have upheld restrictive legislation based on minimal jurisdiction to review constitutionality.
The absence of the word ‘reasonable’ in Clause 2 of Article 10, which allows legislative restrictions on speech, contributes to this stance.
Courts must strike a balance between individual liberty and social order when evaluating cases involving harmful speech.
This balance should be fair, reasonable, and proportionate, adopting a comprehensive rights-based approach. Free speech can serve as a crucial check on government bodies and officials.
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International Norms and Guidelines
International norms, as seen in Article 19 of the International Covenant on Civil and Political Rights, allow for restrictions on freedom of expression provided they are imposed by law and necessary for specific reasons.
Malaysian courts can consider these norms when evaluating cases, weighing the government’s interests against collective benefits.
To ensure justified prosecutions, establishing clear guidelines for charging, akin to international models, is necessary. Public interest and proportionality should be central in determining whether charges are warranted.
The UK’s guidance on social media prosecutions sets a precedent, focusing on justifiability and necessity, providing factors for prosecutors to consider.
Recent discussions around revising the Sedition Act 1948 emphasize the need to safeguard royal institutions while addressing provocations involving religion and race.
Proposed revisions should align with principles of free speech and balance the protection of crucial institutions with individual rights.
Malaysia faces the challenge of maintaining free speech while navigating a complex legal landscape.
Striking the right balance between preserving individual liberties, protecting key institutions, and upholding public interests requires transparent guidelines and a comprehensive understanding of international norms.
As Malaysia’s government evaluates legislative revisions, its commitment to free speech and expression will shape its democratic trajectory.
