Severe restraints on media operations
REFLECTING ON THE LAW
While there is a plethora of laws and regulations governing the mass media, it is difficult to oversee the free flow of information over the Internet.
LAST Saturday the National Union of Journalists organised a forum at which the role of the media was examined critically. All speakers agreed that compared with the new electronic means of communication, traditional newspapers, radio and television operate under severe restraints.
As one of the speakers, I had the privilege of pointing out that the mass media have a power and a responsibility to inform, to educate and to entertain. In addition, it can act as the conscience-keeper of society by exposing wrong-doing in the public and private sectors.
It can supply an informal, expeditious and inexpensive grievance-remedial instrument to the public. It can promote social responsibility and generate public support for reforms that expand the horizons of justice.
READ MOREThe media can act as a check and balance against all citadels of power – be they public or private.
However, it is also generally agreed that just as free speech is an avenue to the truth and an instrument of the highest intellectual, aesthetic and political achievements of man, it is also an instrument of much mischief.
Some controls are, therefore, necessary and unavoidable. The question is what type of controls should there be, to what extent, and by whom?
The Malaysian approach is to have prior and post-event restraints; to regulate access to information as well as to punish illegal dissemination of classified information.
Media freedom is not mentioned explicitly anywhere in the Constitution but all constitutionalists agree that it is part of the broader mosaic of the fundamental right to free speech and expression. In addition, the right to equality and to property may also be invoked by media practitioners.
In Article 10 (1)(a) all citizens are entitled to freedom of speech and expression. Non-citizens are not entitled to this freedom. However, this does not mean that they are entirely unprotected.
In the landmark case of John Peter Berthelsen, the court used common law principles to protect the legitimate expectation of a foreign journalist. The summary withdrawal of his work permit without a prior hearing was declared to be null and void on the ground of breach of natural justice.
The fundamental right conferred by Article 10 (1)(a) is subject to eight explicitly enumerated restrictions in Article 10 (2)(a).
Parliament is permitted to restrict speech and expression on the ground of security of the federation, friendly relations with other countries, public order, morality, privileges of Parliament, contempt of court, defamation, and incitement to any offence.
Further, Article 10 (4) makes it lawful to prohibit the questioning of a number of matters which are deemed to be sensitive in Malaysian politics. These matters are right to citizenship, status of the Malay language, position and privileges of the Malays and the natives of Sabah and Sarawak, as well as the prerogatives of the Malay Sultans.
In addition, Article 149 permits legislative action to combat subversion. Article 150 authorises laws to combat an emergency. All in all there are 14 permissible grounds on which Parliament can pass laws to curtail free speech.
These grounds are immensely broad. Nevertheless, they constitute the general legal framework within which Parliament must act. Parliament is not supreme and cannot pass restrictive laws without pegging them to one of the 14 permissible grounds.
In reality things have not worked that way. Relying on its constitutional powers, Parliament has constructed an elaborate system of prior and subsequent restraints to regulate the media, to control access to information and to punish unauthorised publication of information.
There are nearly 35 or so laws that directly or indirectly impinge on media freedom. Among them are the Official Secrets Act, Printing Presses and Publications Act, Internal Security Act, Penal Code, Sedition Act, Defamation Act and Multi Media Act.
Some of the laws confer on the Minister concerned absolute and unfettered powers. For example, under the Printing Presses & Publications Act, the Minister’s discretion in the matter of granting, refusing, revoking or suspending a licence or determining the period of the licence is absolute.
Judicial review of the Minister’s discretion is not allowed. The Minister is not required to give to the parties a prior hearing.
In granting a licence, the Minister may impose such conditions as he deems fit. Deposits may be required. The deposit may be forfeited if an offence under the Act is committed. An unlicensed press or publication may be seized and forfeited even if there is as yet no conviction.
The constitutional protection for the right to property in Article 13(2) is unlikely to apply.
The law is indeed severe. Its conferral of absolute discretion and exclusion of judicial review raises complex issues of constitutionality under Article 10 (2)(a).
From the constitutional law perspective, the Minister should exercise his discretion to refuse, revoke, etc, only on the basis of the permissible grounds in Article 10 (2)(a). If he has absolute discretion, that is an affront to constitutional supremacy.
Likewise under the Official Secrets Act, any official document or information relating to any public service cannot be received, released or retained if it is classified as Rahsia, Rahsia Besar, Sulit or Terhad. The content of the document i.e. whether it touches on security or public order, etc, is irrelevant.
The defence of public interest is not available. The fact that the information may have already reached the public domain through other means is also not a defence.
Parliament’s over-assertiveness in the realm of media control could have been checked by the courts by way of judicial review on constitutional grounds. Regrettably in 52 years no law has ever been struck down on constitutional grounds.
As a result, the validity of a parliamentary enactment goes unexamined. The Minister’s exercise of discretion is scrutinised to see whether it conformed to the statute.
However, as knowledge of the Constitution spreads and public expectations increase, we may see more constitutional challenges and some judicial receptivity to such arguments.
Until then, we have to wait and pray that the imperatives of the Constitution will one day become the aspirations of the people.
In one area, however, positive developments are unmistakable. Some significant legal and political restraints on the free flow of information are losing their effectiveness because of developments in modern information technology.
It is difficult to envisage how laws on censorship and restrictions on imports will cope with the globalisation trends set into motion by the Internet, e-mail and the fax machine.
Emeritus Professor Datuk Dr Shad Saleem Faruqi is Professor of Law at UiTM and Visiting Professor at USM.
