26/02: Government’s might vs citizens’ right
Outside the Bukit Aman PDRM Headquarters after giving statements on OSA investigation.
Posted by: Raja Petra
The ban on disclosure of road toll deals between the Government and the concessionaires raises interesting constitutional issues.
By Shad Faruqi
A FEW weeks ago four opposition politicians were questioned by the police for disclosing confidential contents of highway toll agreements between the Government and private concessionaires.
Several citizens’ groups including Transparency International were quick in expressing concern about the use of the Official Secrets Act in this situation. It was argued, and rightly so, that the imperatives of good government demand more openness in government and protection for whistle-blowers.
Those who act in the public interest to expose corrupt practices in government should be viewed as public benefactors, and not as criminals.
Public law issues
From the perspective of constitutional and administrative law, the toll deals between the Government and the concessionaires draw our attention to the following engaging issues of constitutionalism and good governance.
·What is the extent of freedom of speech and expression under the Constitution, and the corresponding power of Parliament to enact laws like the Official Secrets Act to impose restrictions on this fundamental right?
·Does the law relating to “government secrets” as contained in the Official Secrets Act give to the Government unfettered discretionary power to suppress any or all information in the public sector?
·Is there legal basis to the Minister’s claim that though the Prime Minister and the Cabinet are willing to de-classify the concession agreements, the prior consent of the concessionaires is required?
Article 10(1) (a) states that “every citizen has the right to freedom of speech and expression”. There is no elaboration of the exact scope of this freedom or its constituent parts. Specifically, there is no mention of freedom of the press or freedom of the electronic media.
In constitutional law, however, it is generally understood that the right to freedom of speech and expression is a combination of many rights in many forms.
Communication by word of mouth, signs, symbols and gestures and through works of art, music, sculpture, photographs, films, video, books, magazines and newspaper are all part of free speech. In India, a long line of cases has upheld the notion that freedom of speech and expression includes freedom of the press.
Advertisements are part of constitutionally protected free speech if they express ideas or promote human thought. But in India a commercial advertisement having an element of trade and commerce and promoting business is outside the Constitution’s protection.
Even “symbolic speech” like the manner of one’s dressing and grooming can be treated as part of one’s freedom of expression. In the US, flag burning has been treated as an expression of free speech protected by the Constitution: Texas v Gregory Lee Johnson (1989).
The guarantee of free speech covers not only the political but also the artistic and aesthetic field. It is available not only to natural persons who are citizens but also to legal persons like companies, corporations and statutory bodies if they are incorporated or established under Malaysian law.
Does Article 10(1) (a) include the right of access to information? The position is not entirely clear. In India, the Bennet Coleman case suggests that freedom of the press includes the right of the people to read. But in Singapore Justice Chan in Dow Jones Publishing v AG (1989) stated that the right of access to information is not part of the guarantee of freedom of speech.
Restrictions on free speech
The Constitution, in Article 10(2)(a) authorises Parliament to impose restrictions on free speech on the following eight grounds: national security, friendly relations with other states, public order, morality, privileges of Parliament and of any State Assembly, contempt of court, defamation and incitement to any offence.
In addition, Article 10(4) prohibits the questioning of citizenship rights, status of the Malay language, privileges of Malays and natives of Sabah and Sarawak, and prerogatives of the Sultans.
Freedom of expression can also be restricted by laws relating to subversion under Article 149 and emergency laws under Article 150. All in all, Parliament has authority to abridge free speech on 14 constitutionally permissible grounds. These grounds are indeed very broad. Nevertheless they do draw some lines beyond which Parliament cannot transgress.
Theory vs reality
The legal and political reality is, however, very different. A plethora of parliamentary laws imposes a blanket ban on freedom of expression even if the constitutionally enumerated grounds (like national security) are not involved.
For example the Statutory Bodies (Discipline & Surcharge) Act prohibits employees from making any critical comment about government policies. The Printing Presses and Publications Act vests the Minister with “absolute discretion” in relation to licences and permits.
Section 13A declares that “any decision of the Minister to refuse to grant or to revoke or to suspend a license or permit shall be final and shall not be called in question by any court on any grounds whatsoever.”
Can judges examine the constitutionality of laws or executive actions that impose restrictions on free speech?
It is conceded that Parliament’s power to restrict free speech is indeed very broad. But the power is not limitless. Any restrictive law or executive action must fall within one of the fourteen permissible grounds or fit into one of the constitutional pigeon-holes enumerated earlier. Otherwise judicial review is a distinct possibility.
In Madhavan Nair v PP (1975), Justice Chang Min Tat said: “Any conditions limiting the exercise of the fundamental right to the freedom of speech not falling within the four corners of Article 10 Clause (2), (3) and (4) of the Federal Constitution cannot be valid.
“No power, statutory or otherwise, can be exercised so as to contravene an article of the Constitution.”
Similarly, in Persatuan Aliran v Minister (1988), the Court accepted the principle that the Minister’s absolute discretion was subject to judicial review.
In conclusion, it is submitted that despite the wide powers conferred on Parliament by Article 10 clauses (2) and (4), provisions of the fifty-or-so statutes which directly or indirectly impinge on freedom of speech can all be tested by the yardstick of the Federal Constitution.
The courts are the repository of this power of review. They have the duty to give life to the Constitution; to make our basic law the chart and compass and the sail and anchor of all governmental action.
The writer, Dr Shad Faruqi, is Professor of Law at UiTM.