In 1948, the Sedition Act was enacted by the British colonial government to combat the Communists. Amendments were made through an Emergency Ordinance 1971, not long after the riots of 1969, to criminalise any questioning on Part III (on citizenship), Article 152 (on national language), Article 153 (on the special positions of the Malays and the rights of other races) and Article 181 (the Rulers’ sovereignty) of the Federal Constitution.
A discussion on freedom of expression in Malaysia cannot start without looking into the legal context of the issue. However what follows is not an exhaustive list of laws regulating the press in Malaysia. There is no current estimate for the number of laws affecting freedom of the press in Malaysia, but informal estimates range from 20 to 50 pieces of legislation. What follows is a selection of the most important existing and proposed laws restricting press freedom.
The Sedition Act 1948
The Printing Presses and Publications Act was first introduced by the British colonial government as the Printing Ordinance of 1948 at the beginning of the state of emergency, in order to counteract Communist activities seen as a threat to the establishment. The Act required all newspapers and printing presses to obtain an annual publishing license.
The Official Secrets Act 1972 (OSA)
Early history Official secrets in Malaya was first protected under the UK’s Official Secrets Act 1911 and 1920, then under the Official Secrets Ordinance of the States of Malaya and another for the state of Sabah.
Article 10 of the Federal Constitution
Guarantees every citizens with the right to freedom of speech and assembly. In practice, Malaysia’s experience on many counts of people’s right to exercise their freedom of expression is limited and selectively based on the discretion of the government and its security institutions like the police. Restrictions are usually justified under the broad stroke of maintaining racial harmony and public order.
Experts such Professor Dr. Shad Saleem Faruqi have argued that the Malaysian Federal Constitution provides a rather weak provision for freedom of speech primarily as a result of amendments following the May 1969 clashes, known as the Sensitive Matters Amendment to allow Parliament to “impose on the above right, restrictions on eight grounds – public order, national security, incitement and offence, friendly relations with other states, contempt of court, contempt of Parliament, defamation, morality” (theSun, 1 October 2005).
Another view is that historically, the free speech guarantee has from the start been weakened since at the drafting stage, as the final draft failed to ensure any restriction imposed on fundamental liberties are “reasonable”. The draft has adopted the view by a member of the Reid Commission, Justice Abdul Hamid of Pakistan who feared that the word “reasonable” might gave rise to a conflict of interpretation between the legislature and the judiciary. As it stands today, the omission of “reasonable” in the final draft of the Constitution precluded judicial review on the powers of the Parliament. In 1963, clause (3) – restriction on the right to form associations- was added on the ground of fighting communism. The most comprehensive clipping of the Article 10, clause (4) was added in 1971, shortly after the May 13 race riot. It reads as thus:
In imposing restrictions in the interest of 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 provisions of Part III, Article 152, Article 153 or Article 181 otherwise than in relation to the implementation thereof as may specified in such law.
