Freedom of speech is one of the inherent and the most important human right, which supports the freedom of individuals or organizations to voice their opinions and ideas publicly without fear of legal retaliation, censorship and punishment by governments. “Speech” is not restricted to public speech only but also contained various types of expression and further specific aspects such as right to seek, impart message or ideas and speak in oral or print.
There is a long development history of freedom of speech in some ancient countries, such as England, Roma, France. In those days, the concepts of freedom of speech only stated that everyone has the right to freedom of opinion and ideas (hold, speak, write and print expression with freedom). Nowadays, freedom of speech is recorded in international and regional human rights law which the freedom of speech are protected from being violating under the principle.
The right is preserved in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most countries. However, the degree of the realization of this right varies greatly from one nation to another in practice due to various type of legal systems. It is mainly because that legal systems often has the conflicts with other rights and freedom, especially in the case of libel, slander, pornography, obscenity, fighting words, and intellectual property.
There are three general crucial value in freedom of speech. Firstly, Freedom of speech contributes the public’s recognition of truth. Truth is achieved through collective deliberation, through the sharing of ideas and information among community members. Secondly, freedom of speech is also necessary to maintain democracy for the country. In the society, democracy understood as collective self-determination involves the formation of public opinion through the free and open debate on public issues. So, the responsibility of citizens for the governance of their community is actualized in public discussion and deliberation in the democracy society. Lastly, it is also essential to protect the self-realization. In the society, Freedom of expression is valuable because in communication with others individual gives shape to his or her ideas and aspirations, becomes capable of reflection and evaluation, and gains a greater understanding of others and the world.
Freedom of speech in Malaysia
Due to the influences to the British Empire, Malaysia has learned and applied legal system and constitution from British include the right of freedom of speech. In Malaysia, the freedom of speech has been covered in the Federal Constitution. It has been stated in Article 10 which is under the fundamental liberties in Federal Constitution. In the Article 10 Clause1 (a), it has expressed that every Malaysia citizen has the right to freedom of speech and expression. It provides the basic right of man in Malaysia.
Besides, it has also ensure that the democracy of Malaysia could be guaranteed because the freedom of speech is one of important factors that establish and maintain the democracy society. Lord Denning has express this freedom of speech in his book Freedom under the Law which he has written that The freedom of the individual, which is so dear to us, has to be balanced with his duty; for, to be sure everyone owes a duty the society of which he forms part. By personal freedom I mean the freedom of every law-abiding citizen to think where he will on his lawful occasions without let or hindrance from any other persons. It must be matched, of course, with social security, by which I mean the peace and good order of the community in which we live. The freedom of the just man is worth little to him if he can be preyed upon by the murderer or thief. Every society must have the means to protect itself from marauders. It must have powers to arrest, to search and to imprison those who break the laws.
Freedom of speech has inherent legality in Malaysia since it has been stated in federal Constitution. In other words, freedom of speech is a basic right of man in Malaysia just like other country which are using democratic in their society. In a democratic society, everyone is equal and therefore the freedom of speech is no longer the privilege of a minority but is universal. Everyone has the same right of expression freedom, and the law provides equal protection for the right to freedom of speech. Nowadays, the internet is one of the very few places that are available for Malaysian to express their views and thoughts freely. Internet had become a medium for the freedom of speech and expression especially bloggers of opposition. The country’s newspaper which need to be licensed annually under the Printing Presses and Publications Act 1984. This makes the bloggers want to share their critics towards the government as the public have the rights to know anything about the country.
However, the right of freedom of speech is a relative right but not an absolute power Therefore, freedom of speech would be subjected to legal constraints. No one may engage in activities that incite anti-government, endanger national and social stability on the grounds of freedom of speech. Raja Azlan Shah J. in the case of Public Prosecutor v Ooi Kee Saik & Ors  2 MLJ 108 has quoted from other cases and said that There cannot be any such thing as absolute or uncontrolled liberty wholly free from restraint; for that would lead to anarchy and disorder. Therefore, the right for freedom of speech need to be control. It is also supported by Mohamed Azmi J (later SCJ) in the case ofLau Dak Kee v. Public Prosecutor  2 MLJ 229 which he has expressed that, Article 10(1) of the Federal Constitution guarantees the rights of every citizen to freedom of speech, assembly and association. These rights are, however, subject to any law passed by Parliament.
In Malaysia, the parliament may impose law to restrict the right to freedom of speech and expression on the rights conferred as it deems necessary or expedient to be restricted. In the federal constitution, there are about 12 limitations of freedom of speech which has listed in Article 10 Clause2 (a) such as the interest of security, friendly relations with other states, public order and morality. The restriction is also designed to protect the privileges of parliament and against the contempt of court, defamation and incitement to an office.
In additional, Parliament is authorized to criminalize any questioning of sensitive issues such as citizenship, the status of the Malay language and special position of the Malays and the natives of Sabah & Sarawak. It has been also declared in Federal Constitution which is in Article 10 Clause4. There are some of the law that restrict Freedom of Expression in Malaysia based on the constitution such as The Sedition Act 1948, Internal Security Act and Police Act 1967, Film Censorship Act 2002 and State-based religious law governing Islamic publications.
Raja Azlan Shah J. has said in the case of Public Prosecutor v Ooi Kee Saik & Ors  2 MLJ 108, a meaningful understanding of the right to freedom of speech under the constitution must be based on the realities of our contemporary society in Malaysia by striking a balance of th1e individual interest against the general security or the general morals, or the existing political and cultural institutions. It is important in Malaysia’s freedom of speech because the degree of freedom of speech is determined by the court or parliament. The constitution has given the parliament the rights to interpret the speech or expression is whether invalid in the Federal Constitution or no. In the case of Pengurusan Danaharta Nasional Berhad v. Yong Wan Hoi & Anor  6 MLJ 709, Abdul Malik bin Ishak J has express the presumption of Article 10 Clause2(a), (a) The test of constitutionality is objective not subjective. There is always a presumption in favor of constitutionality and the burden is upon him who challenges the provision to show that it is unconstitutional.
For the example, Raja Azlan Shah J. It has define sedition in the case of Public Prosecutor v Ooi Kee Saik & Ors  2 MLJ 108. He conclude that, If the court comes to the conclusion that the speech used naturally, clearly and indubitably but it has the tendency of stirring up hatred, contempt or disaffection against the Government, therefore it will be caught within the ban of paragraph (a) of section 3(1) of the Act. In other contexts, the word disaffection might have a different meaning, but in the context of the Sedition Act it means more than political criticism; it means the absence of affection, disloyalty, enmity and hostility. In the case of Mark Koding v Public Prosecutor  2 MLJ 120 and Public Prosecutor v Mark Koding  1 MLJ 111, Mark Koding who is the member of Parliament from Sabah was found guilty in suggesting seditious amendments to Article 152 saying that the Chinese and Tamil vernacular school should be abolished and the usage of Chinese and Tamil language on the road sign should be restricted. The contents that Mark Koding suggested were seen as seditious and offending of sensitive issues.
Lastly, the right to freedom of speech has political attributes Freedom of speech is a kind of spiritual freedom which means the freedom of purely inner spiritual activity. It determines the external speech of human beings. Spiritual freedom is the basis and premise of freedom of speech. At the same time, freedom of speech is a basic constitutional right of citizens, and it has its political value.In Malaysia, the freedom of speech has been guaranteed by the federal constitution but it could be impose restrictions in the different circumstances based on the measurement of circumstances which it has been declared in Article 10 Clause2(a) and Clause 4. Besides, the government can curtail freedom of speech under the subversion and emergency laws which has listed in Articles 149 and 150. Besides, Malaysia’s parliament may impose law to prohibit that may affect Malaysia’s political and constitution such as the questioning or suspense of Article 152, 153 or 181 which has been declared in Federal Constitution.
Freedom of speech in Asia country- Japan and China
In China, the freedom of speech has been written in Constitution of the People’s Republic of China which is under the Chapter II: The Fundamental Rights and Duties of Citizens, Article 35:
Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.
In additional, the restriction for freedom of speech has also been written in Article 51 of the same chapter in Constitution of the People’s Republic of China:
Citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens.
The similar for both Malaysia and China is that they emphasize that when citizen are carrying out their right of freedom of speech, the interest of security of the Federation or the country and society cannot be destroyed.
However, China citizen more concentrate toward protect other citizens’ rights when they are using their freedom of speech. Unlike China, Malaysia focuses more on the protection towards privileges of parliaments and authority of court, and relations with other countries need to be consider when exercising rights. Furthermore, there are more specific restrictions in ‘Sensitive issues’ due to the history of ethnicity and region in Constitution of Malaysia.
The biggest difference between China and Malaysia is the restriction for freedom of speech. In China, restrictions on the exercise of the right to freedom of speech are expressly provided for in the Constitution. However, Malaysia’s parliament can impose new laws to restrict right to freedom of speech in special circumstance. The main reason for this differences is due to the difference in the legal systems of two countries, which are common law system in Malaysia and civil law system in China.
In Japan, freedom of speech is written in The Constitution of Japan which the freedom of speech is documented in Chapter III: Rights and Duties of The People, Article 21:
Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.
Unlike Malaysia, the right to freedom of speech is simply expressed in the constitution without any restriction in Japan. On the contrary, Constitution emphasizes the protection towards the privacy of speech. In other hands, Japan is also a civil system country which similar with China so that the contents about freedom of speech, including rights and obligations, cannot easily add or deduct by Diet of Japan.
Freedom of speech in US
The right of freedom of speech in US has been declared in the First Amendment of the United States Constitution which it has declared that the congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. In other words, the US citizen can express their opinion freely because the US government doesn’t have the rights of law impose to restrict the freedom of speech. In Malaysia, there are certain circumstance that will imposed by law to restrict. As the result, US’s freedom of speech could be considered as an absolute right but Malaysia’s freedom of speech is more likely to relative right.
The decision and area of restriction for freedom of speech is also very different between US and Malaysia. In Malaysia, parliament has the right to impose law in any area of society to restrict the freedom of speech according to the right that given by the federal constitution. However, US’s parliament could impose the restriction in the area which has no covered in the First Amendment of the United States Constitution. In Mohd Azizuddin, M. S.’s 2008 study, he has concluded that it is mainly because Malaysia does not accept the ‘strong liberalism’ approach which the approach that US accept and apply. Therefore, it makes Malaysia has less degree of freedom of speech than US especially in the sensitive issues.
Moreover, US’s Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. It means that the Supreme Court has the right of restriction in the freedom of speech in US. Unlike US, Malaysia’s parliament is the one who has the right to impose law for the restrictions which is necessary or expedient because of the declared of Federal Constitution.
As a fundamental right of citizen, freedom of speech is written into the Constitutions of major contemporary countries, regardless of western or eastern, capitalism or socialism countries. The freedom of speech has been recorded in International Covenant on Civil and Political Right, which was passed through United Nations General Assembly as a basic principle. However, it could be different practices in different countries due to legal system and political factors.
Free of speech and expression allows for a critical thinking and express their opinions in different matters. It is very important especially in democracy society because different opinion will increase the public intellectualism and also the choice of society that they can made. However, certain degree of restriction is needed otherwise it will be fell into manipulation or violence of the society. So that, the society can have participated in policy and decision making without any bias or corruption.