On 23 November 2017, the 6th and final Constitutional Law Lecture, as part of the Constitutional Law Lecture Series, was held at the Tun Mohamed Suffian Auditorium, Faculty of Law, University of Malaya. It was an honour to have an address given by the highly-esteemed guest speaker, Christopher Leong, the 30th President of the Malaysian Bar and President of LAWASIA, on the topic of “Freedom of Speech & Expression in a Functioning Democracy.” The talk was moderated by our faculty’s very own Associate Professor Dr Azmi Sharom.
The venue for the 6th Constitutional Lecture, Tun Suffian Auditorium, The Faculty of Law, University of Malaya
Being a democratic country for almost 60 years, Malaysia aspires to be a leading state of progress and democracy in South East Asia. The Federal Constitution, the supreme law of the land, was meticulously drafted by our founding fathers to champion freedom of speech and expression without unreasonable limitations. However, Malaysians are in fact restricted by a plethora of limitations that infringe these freedom. Legislations enacted by the State limit expression to an unjustifiable length, such as detention without trial, arrest for making satire, to the extent that even the academicians are concerned with regards to exercising their academic freedom.
Associate Professor Dr Azmi Sharom as the Moderator
Christopher Leong began the lecture by explaining the definition of a functioning democracy before moving on to discuss whether Malaysia is one. According to the Democracy Index compiled biennially by the Economist Intelligence Unit, a functioning democracy is a democracy scoring an index rating higher than 8.0 in the five categories: electoral process and pluralism, civil liberties, the functioning of government, political participation, and political culture. In the 2016 report, Malaysia ranked 65th and is considered a flawed democracy. Such classification points to the issues in our country’s governance, apart from the underdeveloped political culture due to the low level of public participation in politics. As such, Christopher Leong commented that indeed, Malaysia has yet to achieve the status of a functioning democracy, and this is manifested in the existence of many issues underlying the freedom of speech and expression.
Christopher Leong then proceeded to explain how exactly Malaysia is a flawed democracy. Article 19 of the Universal Declaration of Human Rights (UDHR) has been the basis for construing freedom of speech all around the world, including Malaysia. Article 10 of the Federal Constitution is based on this declaration except that it is restrictive. Section 4(4) of the Human Rights Commission of Malaysia Act 1999 provides that the UDHR shall be referred to so long it is not inconsistent with the Constitution. However, the Constitution provides that in Article 10(2), rights of freedom to speech can be restricted by the Parliament if deemed necessary or expedient. Christopher Leong opined that the term “expedient” confers wide power to the Parliament; even if what Parliament imposes may be unreasonable, it is not illegal and hence enforceable.
Mr. Christopher Leong while delivering the lecture
The passing of the Internal Security Act 1960 allowed the police to detain anyone without warrant or trial. The Act spawned many contentious operations such as the infamous Ops Lalang. Although the Act was repealed in 2012, its existence was simply one of many instances on how the Parliament had infringed the freedom of speech. Another prime example is the Sedition Act 1948. Even ministers who supposedly enjoy Parliamentary privilege under Article 63 of the Constitution were charged under the Sedition Act 1948. This could be seen in PP v Mark Koding  1 MLJ 111.
It is important to note that the problem lies in the wording of Article 10, which is inconsistent with the UDHR that provides for a liberal exercise of freedom of speech. Courts had also refused to address such inconsistency as in the case of Sepakat Efektif Sdn Bhd v Menteri Dalam Negeri & Anor  2 CLJ 328, in which the court decided against applying the UDHR as the courts was of the view that it need not apply international law to supplement domestic provisions.
Another issue being discussed was the reluctance of the courts to interpret Article 10 in a liberal manner. In PP v Pung Chen Choon  1 MLJ 566, the Supreme Court rejected the notion that legislation restricting fundamental rights must be reasonable for its purpose or objective. The court did not deem it necessary for an Act passed by the Parliament to be reasonable in restricting freedom of speech; it held that, the defendant is under a strict liability since the laws are stated as such. The Supreme Court adopted the “proportionality” test whereby the means used to restrict the right asserted must be proportionate to the object it seeks to achieve. This means that freedom of speech can only be infringed when the actions of the defendant are real and proximate. This narrow approach was criticised in Prince Pinder v The Queen  UKPC 46. In this case, it was held that the courts are protectors of the fundamental rights. They are the ones who interpret the rights to ensure that citizens will enjoy the fundamental liberties which they are entitled to. As such, provisions that are meant to clamp these freedom must be read narrowly and cannot be given broad application.
However, it is heartening to note that in 2006, the doctrine of rational nexus was propounded by the Malaysian Court of Appeal in Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia  6 MLJ 213. According to this doctrine, any restriction of a fundamental right must be objectively fair and must not render the rights under Article 10 illusory. Thus, it can be seen that the courts have started to question whether such restrictions are reasonable. The rational nexus doctrine was affirmed in 2010 by the Federal Court in Sivarasa Rasiah v Badan Peguam Malaysia  2 MLJ 333. Recently, the conflation of reasonableness and proportionality has been recognized by the Court of Appeal in Mat Shuhaimi Shafiei v Kerajaan Malaysia  1 CLJ 404. Such decision is laudable, as it shows that the courts are now more willing to expand the right to freedom of speech and expression, which serves as a strong endorsement for such freedom.
On another note, Christopher Leong pointed out that there is still a cause for concern as authorities have made recent attempts to infringe freedom of expression through the Immigration Act which seeks to ban certain ministers, artists, and political activists from leaving the country. This is a blatant attempt to impede the people’s right to freedom of movement and expression. Adding to that is the recent amendment of the Sedition Act which imposes a travel ban on persons charged with sedition. Although the amendment is yet to be in force, this spells trouble as this instigates fear in the people to speak freely.
During the “Question and Answer” session, Christopher Leong addressed the issue of whether atheism is unconstitutional as it goes against the principle of the “Rukun Negara” and provisions in he Federal Constitution as asserted by Deputy Minister in the Prime Minister’s Department, Datuk Dr Asyraf Wajdi Dusuki, when asked by the audience. He opined that firstly, the “Rukun Negara” is not prescriptive but aspirational. Secondly, the Constitution must not be read in silos; instead it is to be read together with corresponding articles in the Constitution. All fundamental rights are interlocking and mutually supportive; fundamental rights are not as simple as to be only be bound by a single article. As such, to express oneself free from any religious beliefs by being an atheist should not be unconstitutional.
Mr Christopher Leong and Dr Azmi Sharom during the Q&A Session
When asked whether Malaysia is ready to have open discourse on whether our nation is on the way to be a functioning democracy, Christopher responded by saying we will never be ready if we starve the process of discourse in the first place. To starve maturity is detrimental to the process of learning through failures and successes. Communication itself is educational and communication will only be effective if people can express their thoughts. A functional democracy is less of a destination but more of a journey. Malaysia can only be ready if we allow effective discourse to take place at every level.
At the end of the Q & A session, Christopher spoke on national harmony. He believes that national harmony is indeed important but criminalising hate speech that disrupts harmony will not help in the long term. On the surface, criminalising hate speech is appealing because it is the easy way out. However, such an act does not address the crux of the issue regarding why hate speech exists and how we should educate people about it. He opined that putting people behind bars on charges of hate speech will do nothing but cause bitterness among the people. The objective to unite the people will never be achieved this way. Segregating dissidents from the society will not result in national harmony. Instead, mature discourse and continued education are the way forward to attaining the goal of becoming a functional democracy. Being bold is dealing with grievances instead of shutting them out. Bold governance brings about a mature society, which in turn, forms a functional democracy.
Danesh Ram Aggarwal
(Edited by Lily Sabreena and Michelle Soin)