Article 10 of the Constitution of

Malaysia

Article 10 of the Constitution of Malaysia guarantees Malaysian

citizens the right to freedom of speech, freedom of assembly and
freedom of association. Article 10 entitles citizens to such freedoms
as are not restricted by the government, instead of absolutely
guaranteeing those freedoms.

Article 10[
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.

History

The Constitution of the independent Federation of Malaya which

later merged with Singapore, Sabah and Sarawak to form Malaysia
was drafted by the Reid Commission, a body of eminent jurists from
the Commonwealth of Nations. In its report, the Commission
recommended that the Constitution protect "certain fundamental
individual rights which are as essential conditions for a free and
democratic way of life". Although the commissioners avoided
recommending that these rights be entrenched finding that they
were "...all firmly established in Malaya"[1] they nevertheless felt
that in light of "vague apprehensions about the future", it would be
well to provide some constitutional safeguards for these rights. The
"vague apprehensions" were mainly those of the non-Malays, who
feared that an independent Malaya would be dominated politically by
the Malays (see ketuanan Melayu). The Reid Commission thus
recommended that the rights "...should be guaranteed in the
Constitution and the courts should have the power of enforcing these
rights"
The draft Constitution prepared by the Commission included an
Article 10 largely similar to the one eventually included in the final
Constitution. However, the draft first clause differed in one important
respect:
Every citizen shall have the right to freedom of speech and
expression, subject to any reasonable (emphasis added) restriction
imposed by federal law in the interest of the security of the
Federation, friendly relations with other countries, public order, or
morality or in relation to contempt of court, defamation or incitement
to any offence.[3]
The other clauses covering freedom of assembly and association also
similarly referred to a "reasonable restriction". Justice Abdul Hamid of
Pakistan, a member of the Commission, wrote a strong dissenting
view that was included in the final report of the Commission. His
dissent criticised, among others, the draft versions of Article 4 and
Article 10.[4] Hamid objected to the inclusion of the word "reasonable",
stating:
If the word reasonable is allowed to stand, every legislation on this
subject will be challenged in court on the ground that the restrictions
imposed by the legislature are not reasonable. This will in many
cases give rise to conflict between the views of the legislature and the
views of the court on the reasonableness of the restrictions. To avoid
this situation it is better to make the legislature be the judge of the
reasonableness of the restrictions... There will always be a fear that
the court may hold the restrictions imposed by it to be unreasonable.
The laws would be lacking in certainty.[5]
Final version[edit]
The Working Committee established by the autonomous Federation's
government adopted nearly all of Hamid's recommendations in his
dissent, thereby eliminating the possibility of judicial review
concerning the reasonableness of laws which infringed on the rights
granted by Article 10. One legal commentator has stated:
It hardly needs to be said that without Justice Hamid's dissent on this
point, the three freedoms under Article 10 would have been more
satisfactorily guarded by the courts.[6]
Lord William Reid, who chaired the Commission, said that:
...a greater part of the changes have been in the direction of giving
more freedom to the executive and Parliament of Malaya and
correspondingly less extensive guarantees of individual rights that we
had recommended. I cannot speak for my colleagues but speaking for
myself I am not dismayed at the changes which have been made. [7]
During the debate over the draft Constitution in the Federal
Legislative Council, K.L. Devaser, an Alliance government
backbencher, criticised the changes, arguing:
...the draft Constitutional proposals take away the right of the court of
law because the government can decide what is necessary and
expedient, whereas the Reid Commission Report gives power to the
court of law and the court of law can say that it is not in the interest of
security of the Federation. As a lawyer I do feel that the right of the
subject is much better safeguarded if the last say is in the court of law
rather than in the hands of the executive authority... [8]
Over his objections, the Legislative Council approved the modified
draft. This version of the Constitution, which contained an Article 10
much more similar to the present day version, also included a new
Article 4(2) which provides that "The validity of any law shall not be
questioned on the ground that...it imposes such restrictions as are
mentioned in Article 10(2)". In light of these changes, a Malaysian
lawyer has argued that "It is clear ... that freedoms of ... speech,
assembly and association (Article 10) were intended to be restricted
Implementation[
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. The Public Order (Preservation) Ordinance 1958
allows the Police to declare certain areas "restricted", and to regulate
processions or meetings of five persons or more. The maximum
sentence for the violation of a restricted area order is imprisonment of
10 years and 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 offense to possess a printing
press without a licence.[11]
The Sedition Act in particular has been widely commented upon by
jurists for the bounds it places on freedom of speech. Justice Raja
Azlan Shah (later the Yang di-Pertuan Agong) once said:
The right to free speech ceases at the point where it comes within the
mischief of the Sedition Act.[12]
In 2009, the government announced it was considering amendment
of several laws which impinge upon freedom of speech, including the
controversial Internal Security Act (ISA), which has been used to
detain numerous politicians and activists without trial. Home Minister
Hishammuddin Hussein, accompanied by Inspector-General of Police
Musa Hassan, Attorney General Abdul Gani Patail, Information,
Communication, and Culture Minister Rais Yatim, and Minister in the
Prime Minister's Department Nazri Aziz, told the press that the ISA,
Police Act, Multimedia and Communications Act, the Restrictive
Residence Ordinance, and the Emergency Ordinance would be
reviewed with an eye to relaxing restrictions on freedom of speech.
Rais also said that the Police Act would include provisions allowing
peaceful assembly in certain designated places such as stadiums,
without the need to obtain a permit from the police. The government
plans to table amendments to these laws during the October sitting of
Parliament, and pass them by December.
Legal criticism
Legal scholars have suggested that compared to other fundamental
liberties set out in Part II of the Constitution, the freedoms of speech,
association and assembly are easily abridged by both the executive
and legislative branches of the government. Most of these freedoms,
such as freedom from slavery, double jeopardy, etc., are not
subjected to the same exclusions as set out in Article 10(2), (3) and
(4). Instead, they are rights which are guaranteed without any
qualification. The rights of Article 10 are subject to the exclusions of
the aforementioned clauses.[14] Under Articles 149 and 150, during a
state of emergency, the executive is granted the power to legislate,
even if the resulting laws contravene the Constitution; however, this
power does not extend to any matter pertaining to Islamic law, Malay
customs, the customs of the indigenous peoples of Sabah and
Sarawak, religion in general, citizenship, and language.[15] In light of
this, one scholar (Shad Saleem Faruqi) has gone as far as to argue
that:
...the only genuinely safeguarded provisions of the Constitution are
not those contained in Part II but those given under Article 150(6A).
They enjoy greater sanctity and are more entrenched in the
Constitution than any other rights.[16]
It has been remarked that although the "fundamental" rights of Article
10 were not entrenched, other portions of the Constitution namely
those related to the Malaysian social contract such as those
provisions concerning the national language of Malay, the national
religion of Islam, the position of the Malay rulers, the special position
of the Malay majority, and citizenship were entrenched. These
provisions may only be amended with the consent of the Conference
of Rulers a body comprising the Malay rulers and the Governors of
those states without a monarch.[17] In criticising the Reid Commission's
finding that the freedoms of Article 10 were "all firmly established in
Malaya" prior to independence, it has been suggested that:
...these basic rights had not been clearly formulated or seen as being
concrete and traditional. In contrast, what were really regarded as
'traditional elements' of the Constitution were matters of citizenship
(Part III), the special position of the Malays (Article 153), the national
(Malay) language (Article 152), and the sovereign rights of the Rulers
(Article 181).[18]

KUALALUMPURMalaysia'sparliamenthas
approvedafiveyearextensionofacontroversialanti
terrorismlawthatallowsfordetentionofupto28days
withouttrialfollowingalivelydebate.
TheextensionofSecurityOffences(SpecialMeasures)
Act2012,orSosma,waspassedlateonTuesday(April
4)with93MPsforand77against,TheStarreported.
DeputyHomeMinisterDatukNurJazlanMohamedhad
arguedthatSosma,whichwasintroducedin2012,was
neededtoprotectnationalsecurity.