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The Malaysian Sedition Act 1948

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MEMORANDUM on the Malaysian Sedition Act 1948 by ARTICLE 19 Global Campaign for Free Expression London July 2003 I. Introduction Sedition as an offence came into existence in Malaysia during the British colonial era. The crime of sedition has its roots in an era when statesmen and political leaders were considered to be largely above reproach by the common man, and when the institutions of government were far more parlous than at present. Coups and revolutions were a constant threat, and the resort to political violence a common phenomenon. Sedition as a concept is largely antithetical to the underlying premises of modern democracy. As a result, sedition laws in many countries have either been repealed or have fallen into disuse for some time. Against this backdrop, it is surprising to find that prosecutions for sedition are becoming increasingly common in Malaysia. The Sedition Act was first introduced in Malaysia in 1948 by the British, who used it as part of a set of legal restrictions designed to silence dissent against colonialism and British rule. This Memorandum analyses the Sedition Act 1948 in light of international and comparative standards regarding the guarantee of freedom of expression. It also provides an outline of those standards, as well as our reasons for recommending that the Sedition Act 1948 be repealed. II. International and Comparative Standards II.1 International Guarantees of Freedom of Expression Article 19 of the Universal Declaration on Human Rights (UDHR), 1 a United Nations General Assembly resolution, guarantees the right to freedom of expression in the following terms: Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. The UDHR is not directly binding on States but parts of it, including Article 19, are widely regarded as having acquired legal force as customary international law since its adoption in 1948. 2 Freedom of expression is also guaranteed at Article 19 of the International Covenant on Civil and Political Rights (ICCPR), 3 a treaty with 149 States Parties, as well as in all three regional treaties on human rights, specifically at Article 10 of the European Convention on Human Rights (ECHR), 4 at Article 9 of the African Charter on Human and Peoples’ Rights ,5 and at Article 13 of the American Convention on Human Rights .6 II.2 Constitutional Guarantees Article 10(1) of the Malaysian Federal Constitution guarantees freedom of speech and expression to every citizen. Subject to Clauses (2), (3) and (4) - (a) every citizen has the right to freedom of speech and expression; Articles 10(2) and (4) of the Malaysian Constitution provide for restrictions on freedom of expression as follows: 1 UN General Assembly Resolution 217A(III), adopted 10 December 1948. 2 See, for example, Filartiga v. Pena-Irala , 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd Circuit). 3 UN General Assembly Resolution 2200A(XXI), 16 December 1966, in force 23 March 1976. 4 Adopted 4 November 1950, in force 3 September 1953. 5 Adopted at Nairobi, Kenya, 26 June 1981, entered into force 21 October 1986. 6 Adopted at San José, Costa Rica, 22 November 1969, entered into force 18 July 1978. 2 (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; … (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, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law. It may be noted that these protections are weaker than those of international law. The Malaysian Constitution has additional grounds for imposing restrictions, namely friendly relations with other countries and the privileges of Parliament or of any Legislative Assembly. More seriously, under the Malaysian Constitution, the test is not whether or not the restriction is necessarily but the much lower standard of whether or not Parliament deems the restrictions necessary or even expedient. There is no objective requirement that the restriction actually be necessary or expedient and the latte standard is much lower than that of necessity. II.3 The Importance of Freedom of Expression International bodies and courts have made it very clear that freedom of expression and information is one of the most important human rights. In its very first session in 1946 the United Nations General Assembly adopted Resolution 59(I) which states: Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated. 7 As this resolution notes, freedom of expression is both fundamentally important in its own right and also key to the fulfilment of all other rights. It is only in societies where the free flow of information and ideas is permitted that democracy can flourish. In addition, freedom of expression is essential if violations of human rights are to be exposed and challenged. The importance of freedom of expression in a democracy has been stressed by a number of international courts. For example, the African Commission on Human and People’s Rights has held: Freedom of expression is a basic human right, vital to an individual’s personal development, his political consciousness, and participation in the conduct of public affairs in his country. 8 7 14 December 1946. 8 Constitutional Rights Project and Media Rights Agenda v. Nigeria , 31 October 1998, 3 Similarly, the Inter-American Court of Human Rights has stated: Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. ... [I]t can be said that a society that is not well informed is not a society that is truly free. 9 This has repeatedly been affirmed by both the UN Human Rights Committee and the European Court of Human Rights. The fact that the right to freedom of expression exists to protect controversial expression as well as conventional statements is well established. For example, in a recent case the European Court of Human Rights stated: According to the Court’s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. 10 These statements emphasise that freedom of expression is both a fundamental human right and also key to democracy, which can flourish only in societies where information and ideas flow freely. II.4 Media Freedom The guarantee of freedom of expression applies with particular force to the media, including the broadcast media. As the Inter-American Court of Human Rights has stated: “It is the mass media that make the exercise of freedom of expression a reality.” 11 Because of their pivotal role in informing the public, the media as a whole merit special protection. As the European Court of Human Rights has held: [I]t is … incumbent on [the press] to impart information and ideas on matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’. 12 Communications 105/93, 130/94, 128/94 and 152/96, para. 52. 9 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism , Advisory Opinion OC-5/85, 13 November 1985, Series A, No. 5, para. 70. 10 Nilsen and Johnsen v. Norway , 25 November 1999, Application No. 23118/93, para. 43. 11 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism , op cit. , para. 34. 12 Thorgeirson v. Iceland , 25 June 1992, Application No. 13778/88, para. 63. 4 This applies particularly to information which, although critical, relates to matters of public interest: The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest [footnote omitted]. In addition, the court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. 13 This has been recognised by the constitutional courts of individual States around the world. For example, the Supreme Court of South Africa has recently held: The role of the press is in the front line of the battle to maintain democracy. It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators.
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