chapter 6-article 10

7/14/2019 Chapter 6-Article 10

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CHAPTER 6 : ARTICLE 10LLS3103 CONSTITUTIONAL

LAW IISEMESTER II 2013/2014


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A. Freedom of speech &expression

General rule : Article 10 (1)(a)

Every citizen has the right to freedom ofspeech and expression


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The meaning of speech &expression

No definition in the Constitution

Art.10(1) of the European Convention onHuman Rights 1951

Every one has the right to freedom ofexpression. This right shall include freedomto hold opinions and to receive and impartinformation and ideas without interferenceby public authority and regardless offrontiers.


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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


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(i)Security of federation

Article 10 (4)Parliament may pass law to prohibit the

questioning of any matter, right, status,position, sovereignty or prerogativeprotected under

i. Part III-Citizenshipii. Article 152iii. Article 153iv. Article 181


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Relevant laws

i. Official Secrets Act 1972ii. Internal Security Act 1960iii. Printing Presses and Publication Act 1984iv. Protected Areas and Protected Places Act1959, Public Order (Preservation) Act

1958v. Sedition Act 1948vi. Telecommunications Act 1950.


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(ii)Friendly relations with othercountries

No specific law to regulate - butadministrative guidelines do exist

E.g: use of Internet to disseminateinformation about a neighboring countrythat might create animosity or hinderbilateral relationship.


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(iii) Public order

Public order is needed to be maintained ina multi-cultural, multi-racial and multi-religious country like Malaysia

Few bloggers writing on hate speech withthe alleged view of inciting the public wascharged under Sedition Act 1948 but thecases were yet to be determined.


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Relevant laws

i. Sedition Act 1948ii. Police Act 1967iii. Printing Presses and Publications Act1984

Amended in 2012iv. Communication and Multimedia Act1998


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Morality

Although the freedom of speech andexpression is a fundamental aspect in ademocratic society, morality or moral

values of the society need to be protectedas well.


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Relevant laws

a) Films (Censorship) Act 1953b) Lotteries Act 1952c) Indecent Advertisements Act 1953d) Penal Codee) Communications and Multimedia Act

1998 .f) Printing Presses and Publication Act 1984


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(e) Privileges of Parliament orany legislative assembly Article 63 (2) members of Parliament

enjoy privileges for anything said, any votegiven

Article 63 (3) MP shall not be liable foranything published by/under the authorityof House of Parliament

The public cannot sue MP for anythingsaid during the parliamentary proceeding


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Limitation to parliamentaryprivilege

Article 63 (4)- MP would not be protectedunder parliamentary privilege if:

(a) Charged under the law of Article 10 (4)(b) Charged with the offence underSedition Act 1948


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General limitation to freedom ofspeech and expression

Article 10 (4) cross refer article 10 (2)(a)

Parliament may pass law prohibiting thequestioning of any matter, right, status,position, privilege, sovereignty orprerogative under Part III, Article 152,153, 181


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Several laws made under article10 (4) Official Secrets Act 1972 Printing Presses and Publications Act 1984 Sedition Act 1948 Communication and Multimedia Act 1998


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Case: LIM KIT SI NG V PUBLICPROSECUTOR [1979] 2 MLJ 37

Held: An opposition MP was charged underthe Official Secrets Act 1972 for receivingand communicating secret officialinformation relating to the purchase offast strike crafts for the use of the Royal

Malaysian Navy.


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Case: M RK KODING V PUBLICPROSECUTOR [1983] 1 MLJ 111

Held: A MP was convicted for sedition whenhe advocated in Parliament the closure ofChinese and Tamil Schools.


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(f) Defamation

Definition:

A false statement made about someone oran organisation that is damaging to theirreputation.

The publication of a statement, whichreflects on a person's reputation and tendsto lower him in the estimation of right-thinking members of society generally ortends to make them shun or avoid him.


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Defamation

- Slander

- libel


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Relevant laws:

(i) Defamation Act 1957 Must show that the publication or the

statement made with malicious intention

and defamatory in nature and with anintention 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 (imprisonmentfor 2 years or fine or both)


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(g) Incitement of any offence

Freedom of speech & expression should becurtailed for the sake of preventing anyincitement of any offence

E.g: The riot on 13thMay 1969

Relevant laws

i. Sedition Act 1948ii. Penal CodeE.g: section 130G- inciting for the commission

of terrorist acts


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B. Freedom of peaceful assembly

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


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Restrictions to freedom ofassembly

Article 10 (2)(b) : the right may berestricted for the interest of the federationrelating to

i. Security

ii. Public order


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The restrictions

a. Police Act 1967b. Societies Act 1966c. Public Order (Preservation) Act 1958d. Penal Code-

Section 143- punishment of an offence ofbeing a member of unlawful assembly


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Previous law regulatingassembly

Section 27 Police Act 1967


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Case: L U D KKEE v PUBLICPROSECUTOR [1976] 2 MLJ 229Facts: The appellant was issued a licence by

the OCPD to convene an assembly underwhich expressly specified a condition that

'Tajuk Syarahan tidak boleh menyetohperkara-perkara berhubong dengankeputusan MCE.

He breached the condition in the license thattherefore was charged undersection27(4)(b) of Police Act, No. 41/67 and

punishable under section 27(8) of the said


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Court of Appeal

Article 10(1) (b) is subject to any lawpassed by Parliament.

Such law can, inter alia, impose suchrestrictions as Parliament may deemnecessary or expedient in the interest ofsecurity 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


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Police Act 1967Amendment 2012

Before Amendment: Section 27, 27A, 27B, 27C

Provides the criteria and conditions needed to getpermits for public rallies

After Amendment:

Deleted the above provisions from the Police Act

1967


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Current law regulatingassembly

Peaceful Assembly Act 2012


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C. Freedom to form association

Article 10 (1)(c)

Every citizen have the right to formassociation


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Restriction

Article 10 (2)(c)Parliament may impose law to restrict

freedom to form association to protectthe

security of the federation

public order, and

morality


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Another restriction

Article 10 (3) the restriction may also beimposed by any law relating to:

Labour

education


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Section 15 of AUKU 1971A student of a university may become a

member of any association, society etcexcept:

(a)Political party

(b)Unlawful organisation

(c)Any organisation which is deemed to beunsuitable for the interest and well beingof a universitysstudent


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Muhammad Hilman bin Idham Ors vKerajaan Malaysia Ors (2010)4 final year political science students were

present at the ParliamentaryConstituency of Hulu Selangor during

the campaign period for the by election inApril 2010, faced a disciplinaryproceeding with a prospect of expulsion

from the university for a clear breach ofsection 15 of the AUKU 1971.


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15(5)(a) of the Universities and University

Colleges Act 1971(UUCA).

(a) For completeness it is reproduced and it is asfollows:- (5) No student of the University and

no organization, body or group of students ofthe University which is established by, under orin accordance with the Constitution, shall 3express or do anything which may reasonably

be construed as expressing support for orsympathy with or opposition to -(a) any politicalparty, whether in or outside Malaysia.


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Court of Appeal

Section 15(5)(a) of the UUCA does not comewithin the restrictions permitted underArticle 10(2)(a) of the Federal Constitutionand is accordingly in violation of Article10(1)(a) and consequently void by virtue of

Article 4(1) of the Federal Constitution

S i 15 f AUKU


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Section 15 of AUKU-Amendment

Allows university students to participate andbe a member of political organizations.

Students are subjected to legalproceeding if they commit offences whileparticipating in the organization

Caveat- students should not bring their

political ideology in the campus(participation is only allowed off campus)


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chapter 6-article 10

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