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Tuesday, 11 April 2017

ARTICLE REVIEW: Freedom of Speech and the Internet - A Case Study of Malaysia

Journal: Malaysian Law Journal Articles (MLJ)

Title of the Article: Freedom of Speech and the Internet - A Case Study of Malaysia

Citation: [2009] 3 MLJ xxxiv

Written by: Ahmad Masum, Lecturer Faculty of Business and Law, Multimedia University, Malaysia.

1.0 INTRODUCTION

The Internet is a global network connecting millions of computers. More than 100 countries are linked into exchanges of data, news and opinions. Meanwhile freedom of speech refers to political right to communicate one's opinions and ideas using one's body and property to anyone who is willing to receive them[1]. Freedom of speech has been guaranteed under Article 10 of Federal Constitution. However, it is not an absolute right and has become controvercial issue for a long time. The ability to go ‘undercover’ by writing anonymously in an online environment and the advent of blogging have been catalysts for individuals to express their grievances more openly. Ideas and information flow freely and can be transmitted much faster than ever before. Certain provisions has been made to restrict this rights.

It must be recognised that this new found freedom does not mean the absence of rule of law. Article 10 of the Federal Constitution which guarantees the right to freedom of speech and expression recognises that Parliament may enact laws to restrict this freedom in the interest of security, public order, morality and to prevent defamation. Even the UDHR[2] itself allows goverment to give restriction to freedom of speech in the name of social order. Articles 29(2) and 30 of the UDHR stated that rights and freedoms may be limited by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and the rights and freedoms may be limited by law solely to meet the just requirements of morality, public order and the general welfare in a democratic society.

Therefore, from a practical point of view, no community's standards can govern the type of speech permissible on the Internet. The Internet is a powerful and positive forum for free expression. It is the first medium that distributes information globally at almost no marginal cost and introduced a new form of speech in the form of electronic speech, but whatever phrase used in the context of freedom of speech, this right is not absolute.

The Internet not only provides universal access to free speech, but it also promotes the basic concept of freedom of speech. Hence, in Malaysia some forms of speech are thoroughly outlawed. Because of this scenario, governmental censorship would primarily attempt to stop the unintentional effect of certain types of speech or expression on the Internet. This article aims to look into the limitations that the government might impose on free speech in the cyberspace and examine whether such limitations are justified in a democratic environment.

2.0 ISSUES IN THE ARTICLE

The main issue in this article is to determine the scope of freedom of speech given in Malaysia through the internet. There is also an issue whether laws that restricting freedom of speech would be applicable in term of ‘electronic speech’ since there is no restricting laws mentioned about freedom of speech through the internet since this kind of issue is becoming controversial recently.

3.0 LAWS APPLICABLE IN THIS ARTICLE

The author referred to Article 10(1)(a), 10(2)(a) and 10(4) of Federal Constitution that provide the freedom of speech and expression.

Article 10(1)(a) every citizen has the right to freedom of speech and expression;

Article 10(2)(a) parliament may by law impose on the rights conferred by paragraph (a) of the Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the security of the Federation or any part thereof, friendly relations with other countries, public 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;

Article 10(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.

We are referring to Article 149(1) of the Federal Constitution which stated about legislation against subversion and action prejudicial to public order.

Article 149(1) If an act of Parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside federation

(a) To cause, or to cause a substantial number of citizens to fear, organized violence against persons or property; or

(b) To excite disaffection against the Yang di-Pertuan Agong or any government in the federation; or

(c) To promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence; or

(d) To procure the alteration, otherwise than by lawful means, or anything by law established; or

(e) Which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof; or

(f) Which is prejudicial to public order in, or the security of, the Federation or any part thereof,

any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament; and Article 79 shall not apply to a Bill for such an Act or any amendment to such a Bill.

We are referring the Article 29(2) and 30 of Universal Declaration of Human Rights which stated about the power of government in restricting freedom of speech and expression.

Article 29(2) rights and freedoms may be limited by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others;

Article 30 rights and freedoms may be limited by law solely to meet the just requirements of morality, public order and the general welfare in a democratic society.

We are also referring to Section 499 of the Penal Code which stated about defamation.

Section 499 Whoever, by words or either spoken or intended to be read or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm of such person, is said, except in the cases herein after excepted, to defame that person.

4.0 SUMMARY OF THE ARTICLE

The internet has introduced a new form of speech known as ‘electronic speech’. Electronic speech is in the display of words or images on a computer but also include new forms of speech such as internet addresses or domain names. Millions of user can access one’s speech on a web site or bulletin board. Internet fosters freedom of speech on a global scale. It is first medium where information is distributed globally without cost. Internet can raise the quality of political debate, the quality of education, and also the quality of life. Internet is an important tool in disseminating information by not only providing universal access to free speech but also promoting the basic concept of freedom of speech. However, at the same time we have to acknowledge that the internet has facilitated abuse of free speech through electronic means. For example some internet sites contain sexually explicit material, hate speech, libelous material and material advocating illegal conduct.

Freedom of speech is part of fundamental liberties under Article 10 in the Federal Constitution. Article 10(1)(a) of the Federal Constitution states that every citizen has the right to freedom of speech and expression. These rights are however, subject to any law passed by parliament. Based on the above statement, article 10 is remarkable for what it takes away rather that for what it gives[3]. All this is due to the fact that parliament may under the Article 10(2) by law impose restrictions on these rights of freedom of speech and expression, assembly and association. Freedom of speech and expression includes the right to express or disseminate, information and ideas, the right to seek information and ideas, the right to receive information and ideas, and also the right to impart information and ideas. It also shares view among scholars and judicial decisions by communication of signs, symbols and gestures, freedom of the press and freedom to propagate ideas through advertisement.

The right to freedom of speech and expression is severely limited. This right is an acknowledged for ‘citizens’. The right conferred by Article 10(1)(a) is also made expressly subject to various limiting constitutional provisions, which make vast inroads into the general principle. Parliament may by law impose restriction of friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or any Legislative Assembly or provide against contempt of court, defamation or incitement to any offence.

Apart from that, security of the federation is the first restriction made by parliament. Many laws impose restrictions on free speech but are legally justifiable by the security grounds in article 10(2). Among such laws under this head are the Official Secrets Act 1972, Internal Security Act 1960, Printing Presses and Publication Act 1984, Protected Areas and Protected Places Act 1959, Public Order (Preservation) Act 1958, Sedition Act 1948 and the Telecommunications Act 1950. It is clear that if someone uses the Internet encouraging provocative discussions, the government or the authority would use or resort to national security laws like the Internal Security Act 1960 or even the Sedition Ac 1948 to press a charge on him.

The restriction impose by parliament is also related to friendly relations with other countries. There is no specific law to regulate free speech on this ground but administrative guidelines do exist. Reference could be made to a situation where the internet is used as a tool of communication to disseminate information about a neighboring country that might create hinder bilateral relationship. Thus, it is possible for ‘electronic speech’ to be controlled.

Restriction made by parliament can also be imposed on the ground of public order. As Malaysian society is made up of many races it becomes necessary to define public order in that context. It is inevitable to make reference to the Sedition Act 1948 on the issue of public order. Seditious tendency is defined as a tendency to bring into hatred or contempt or to excite disaffection against any ruler, person or against any government. Based on the ground of public order, the authority would not allow the internet to be used as a tool of communication in disturbing harmony. For example in the case of Dato’ Rais Yatim had once announced that the government will unleash another set of missiles on internet publications that threaten the country’s security. Citing the increase of hate messages, seditious writings and e-mails advocating religious dissent and others as examples of such publications, the Minister lamented that certain quarters are taking advantage of the government’s no censorship policy. A content Code was drafted which sets out guidelines and procedures for good practice and standards of content disseminated to audiences by service providers in the communication and multimedia industry in Malaysia to identify what is regarded as offensive and objectionable.

Apart from that, morality values have to be assured so that it can be used as an argument to give limitation to the freedom of speech. In this context, it is important to see the issue whether laws existed could be extended to cover the issue of ‘obscene speech’ on the Internet. For instance under section 292 and 293 of the Penal Code, the morality argument can be used to restrict the freedom of speech and expression on the Internet although the act does not directly cover the activity of pornography on the Internet.

In term of privileges of parliament or any legislative assembly, the parliamentarians, in performing their legal duties in the parliamentary proceedings cannot charge or be charged for their words, uttered in the parliamentary proceeding. However, such privileges only applied for them in carrying out their formal duty, and not for personal account. This is because such law was made to protect them from being charge under legal offence, which may at some point obstruct the smoothness of their work. But, this privilege is not available for them in the case where sedition takes place. While that, through the civilian perspective, one’s freedom of speech is hindered when it comes to the privileges of Parliament or any state legislative assembly.

Another limitation where the government might impose the restriction on the freedom of speech is when the issue of contempt of court step into the picture. Here the question of whether the restriction of the freedom of speech in traditional way, covers the internet or cyberspace arises. Contempt of court happens when there are actions of writings published that seems to dishonor or interferes the operation of law. Therefore it is suggested that the Malaysian contempt laws in restricting freedom of speech and expression is relevant in the context of ‘electronic speech’.

It must be noted that limitation also covers defamation. Defamation refers to false or unjustified injury towards the good reputation of another, by means of libel or slander. The jurisdiction such offence lies on both civil and criminal area of law. There are a few Acts which cover defamation in Malaysia for example the Defamation Act 1957 and section 499 of the Penal Code. In another word, these are among the legal way to limits the freedom of speech. However, it is to be made clear whether or not these laws have the jurisdiction on cyber defamation. Looking at how the internet had developed the communications, it will not be shocking if it will also evolve the tort of defamation.

Basically, the defamatory act is expressed through words. At the same time, it may also be represented by images. That held any the written speech containing defamatory words post in the cyberspace as liable as the one conveys through traditional means. The law had not told apart between the online and offline world. This can be seen when there are some examples shows that even the keyboard warriors can be taken to stand in front of the court for the offence made in internet. The sues issued against bloggers like Raja Petra, Jeff Ooi, and Ahirudin Attan are the evidences that offence made in virtual world is no excuse to the operation of law.

On the other hand, there is also the limit made on freedom of speech in the event where sedative speech occurred[4]. Since there are cases where incitement was made online it is questioned now that whether the penal code shall be made available to restrict the freedom of speech in the internet. If the effect of delivering a speech is differentiates through the way it was convey present, even when it delivers the same message, injustice will occurs.

Apart from that, Article 10(4) of the Federal Constitution stated that the parliament holds the power to make any law in order to safeguard the four politically sensitive matters namely the right to citizenship, status of the Malay language, the position and privileges of the Malays and the natives of Sabah and Sarawak and prerogatives of the Malay Sultans. It is highly suggested that this four sensitive issues can be used as a restriction free speech in the internet. Therefore, it is expected from the people to avoid addressing those matters even through the cyberspace.

In Malaysia, the prior restraints were made in the state of license and permit requirement. Any expression which wishes to be published will go through the government’s inspection before it is approved. However, it should be noted that having prior restraint on freedom of speech will not come handy while dealing with the internet. The robust nature of the internet made it impossible to block access to information except in controlled circumstances.

The laws used in restricting the Internet speech could be subjected to some forms of challenges. In Malaysia, inadequacy of article 10(2)(a) turned out to be the crucial factor. The maker of the constitution in Malaysia had put the reasonableness, expediency or necessity of legislation on Parliament instead of the court. Since the article in respect allows Parliament to enact such restrictions as it deems necessary or expedient, it gives the notion that the article is ineffective. In addition, some of the phrases used in the Acts could hardly be defined as it have been given vast meanings that at the end of the day nothing is left out.

Although some of these traditional laws limiting freedom of speech could be extended to cover Internet speech or electronic speech, these laws are not enough to cover all activities on the Internet. There is a need for the government to rule out some specific laws to deal with electronic speech on the cyberspace.

In referring the issue of prior restraint, it is not a supported view that that it can be carries out effectively in the world today. In addition, the promise made to the foreign investors during the introductory stage of Multimedia Super Corridor (MSC) years ago had shown a bad after-effect to the country when the government had agreed to deny the practice of censorship on the internet in Malaysia. Looking at the war on cyberspace that the country is facing nowadays, the government is overbearing a huge tension from the people on its omission to carry out the censorship.

Apart from that, the jurisdiction on internet speech is another challenge that needs to be overcome. In the case where a person sends data via the Internet, is there a need for him to stand before the court to defend him. Recently, our country had provided some extra-territorial jurisdiction when the offence was either founded in this country or spread through computers, data or programs in this country. But, there are still restrictions to it. Hence, it is important to note that although some of these traditional free speech laws may be used to control or limit electronic speech, still we are bound to face the problem of sovereignty and jurisdiction in cyberspace when it comes to electronic speech.

Although there is nothing certain as to whether or not the government will carry out the limitation to the freedom of electronic speech, it is to be noted that the government holds the power to regulate speech in order to uphold the interest of the public. The power awarded by the federal constitution to the parliament to regulate the freedom of speech has made it worse as it made the parliament holds an exclusive power to control people on that area. For that, regulation must be drafted as narrowly as possible in order to avoid unnecessary restriction on speech that would not be for the interest of the government. In addition, in regulating the internet speech, law is not the only mean available. Educating the public can be another way that can help controlling the internet speech.

5.0 ANALYSIS OF THE ARTICLE

Due to the expansion of modern technology, specifically the Internet, the issue of freedom of speech is becoming one of the most debated topics among the people. The freedom of speech is stated under Article 10 of Federal Constitution including the other two which are the freedom of assembly and association. It stated that every citizen has the right to freedom of speech and expression. However, the question that arises is that whether it includes the speeches on the Internet? As the constitution is drafted long before the Net has become one of the essential things in our life, it only concerns about the traditional speech rather than the online speech.

With the advanced technology in today’s world, people can access to so many information whether it is blog, websites, Facebook and etc. from computers, television and of course the mobile phone. This makes the spreading of any information is so much easier because it is not only to the citizens of Malaysia but also to the whole world. The problem is that the convenience is often misused by those who are trying to expose their own view to the world. For instance, the hate speech that posted by blogger that is seditious and against the concept of freedom of speech in Malaysia.

In light of Article 10, is the freedom of speech really imposed in this nation? Are the citizens really having that freedom of speech as stated in Article 10? If we look at the Clauses (2), (3) and (4), there is several restrictions on the freedom of speech that is given to the citizen which are on the grounds of safety and security, Parliament privileges, contempt of court, public order, morality and also because of some sensitive matters. Due to these restrictions, it is said that the freedom of speech that is given to the citizens is not absolute and still under control of the authorities. This is very much needed as the absolute power to speech will bring harm to the nation and can cause riot among the citizens. That is why other statutes such as Sedition Act 1948 really necessary in controlling the freedom in order to make sure that the privilege is not to be misused by people.

Now, other problem that exists is that whether Article 10 covers the speech on the Internet? As the constitution does not anticipated the cyber age, there is no provision specifically mentioning the restrictions on internet speech. For that reason, in my opinion it is a necessary for the legislature to come up with new provisions or statutes that specially made to control the freedom of speech on the Internet. The rules and regulations on the use of Internet need to be constructed in order to control the public interest and use so that it is suitable with the cyber age.

Furthermore, reviews on the freedom on using the Internet for the citizens are needed in order to maintain the harmonious of surrounding and also the morality in the nation. Authorities need to pay more attention in the incensement of Internet usage and how it is used by the people. Every offence relating the Internet usage need to be charged and controlled despite it might be difficult to do it because of the nature of the World Wide Web itself. However, there have been few cases where some people and bloggers being charged under Sedition Act 1948 for making seditious statement for instance, controversial Alvivi couple which presumed as making fun of the religion of Islam during Ramadhan[5]. It is a clear proof that people should not being given absolute right in term of freedom of speech and expression even on cyber space.

On the other hand, the issue of censorship also becoming one of the controversial issue as the government has implemented the no censorship rule in the usage of the Internet. Do the people really using the Internet as how it was supposed to be? It is certainly opposites the idea if we look back to the recent case and the reality in the Net. Be it false rumors, hate speeches, obscene materials and many others can easily be accessed as the government has imposed no censorship on the Internet. Relevant actions need to be taken by the government in order to control this in the name of social order.

Despite having laws, be it the both or new ones, it may not be good enough to curb the situation and regulating internet speech. Perhaps, the actions need to come from the user itself. Other mechanism need to be developed in educating public and foster the right way of using the Internet and also facilitating the abuse of freedom of speech.

It must be noted that, these kinds of restrictions are not violating human rights and also rule of law as being stated by Dicey and also in Federal Constitution itself. The Universal Declaration of Human Rights also allows government to give restriction to the freedom of speech even though according to some activist, it has violated human rights. Dicey stated about supremacy of the law and rule of law should be followed to be an ideal government. Under article 4(1) of Constitution, any law passed after the Merdeka day that inconsistent with the Federal Constitution shall be void to the extent of the inconsistencies. This has made Sedition Act 1960, Internal Security Act 1948 and other provisions that restricting human rights including freedom of speech seems as inconsistence with article 4(1) of the Federal Constitution. However, article 149 of Federal Constitution given the rights for parliament to make laws that violates article 5, 9, 10 and 13 of the Federal Constitution for the welfare of public at large and to prevent anything that might harm the peace of the nation. That is why Sedition Act and et cetera are still being used and not void due to inconsistency fundamental liberties as stated under Federal Constitution.

6.0 CONCLUSION

The right to freedom of speech trumps all government rights to regulate it, others contend that the charm of the Net’s unique communicative possibilities would be lost if governments were to regulate its content. However, it is equally important to note that the government may regulate, or censor speech if it has a compelling interest, is a public concern, or threatens national security. Globally, it would appear that democracies do not necessarily view an unregulated Internet as a more democratic institution than a Net with particular speech restrictions. Rather, democratic societies are almost certain to impose their existing speech regimes on the Net precisely because they believe such restrictions will ensure the Net’s positive role in their democracies.

This point is too often in the internet ‘freedom of speech’ is used as a defense mechanism to deflect criticism, when in reality it was framed in order to promote self-policing and self-criticism of communities and governments by the people. In short, freedom of speech means everyone gets to speak publicly, whether they agree or disagree.

The situation is made worse because the Federal Constitution makes Parliament the repository of wisdom on the restraints needed to curb free speech. It gives Parliament the exclusive power to draw the balancing line between the might of the state and the rights of the citizens. However, it must be made clear that laws enacted by the parliament which are restricting human rights especially when it comes to freedom of speech and expression are not violating Federal Constitution. That is how goverment is trying to control society and to make sure no one will be given absolute rights to speak and stirred the harmony of the nation. Even it may looks like a violation to human rights, however, in the name of social order and for the public welfare at large, these rights need to be restricted.

In the nutshell, since the internet has become vast in promoting freedom of speech, then goverment can also restrict it even though cyber space never stated under Federal Constitution. There is also a need for parliament to enact new laws specifically for Internet usage since the whole world is changing towards globalization.

7.0 REFERENCES

Joanna. L. (2009). Freedom of Speech on the Net – An Illusion or Reality?

Retrieved on November 12, 2014 from http://www.skrine.com/freedom-of-speech-on-the-net--an-illusion-or-reality

Nadhir. F. (2008). The Doctrine of Rule of Law in Malaysia.

Retrieved on October 26, 2014 from http://www.lawteacher.net/constitutional-law/essays/the-doctrine-of-rule-of-law-in-malaysia-law-essay.php

Vangie. B. (2014). Internet.

Retrieved on November 12, 2014 from http://www.webopedia.com/TERM/I/Internet.html

Vicky. S. (2010). Human Rights Violation.

Retrieved on October 26, 2014 from http://www.humanrights.com/what-are-human-rights/violations-of-human-rights/slavery-and-torture.html

[1] (http://www.skrine.com/freedom-of-speech-on-the-net--an-illusion-or-reality)

[2] Universal Declaration of Human Rights

[3] Comments from Andrew Harding

[4] Document of Destiny by Prof Dr Shad Saleem Faruqi

[5] August, 2013.

RULE OF LAW AND VIOLATION OF HUMAN RIGHTS IN MALAYSIA

1.0 INTRODUCTION

The rule of law is an ideal of good government and just constitutional arrangements. At its inception it merely implied a preference for law and order over anarchy and strife. But over the years the concept has acquired legal, political and economic implications. Today, it overlaps with many other venerated ideals like those of limited government, constitutionalism, due process and just legality.

The main objective of rule of law in Malaysia is to control on arbitrary powers. The existence of a supreme Constitution, the safeguards for an independent judiciary and the constitutional power of judicial review, are clear proof that the legal system was built to protect the rule of law. A regular system of independent courts has existed since independence. Laws are made by Parliament or its delegates. No one is deprived of life, liberty or property saved under the law. No summary executions take place. The army and the police are under civilian control.

However, it must be noted that even though rule of law is such an ideal government, but if human rights are being violated grossly, then the principle of rule of law has no bearing. There are few human rights being violated which are the right to life, liberty and property, the right to due process of law, and et cetera. For instance, liberty of person as guaranteed under article 5[1], freedom of banishment and freedom of movement as stated under article 9[2] and the freedom of speech, assembly and association and few others can be violated by Sedition Act 1948, Peaceful Assembly Act 2012, Police act, Printing Presses and Publication Act and Internal Security Act 1960 by virtue of article 149 of Federal Constitution.

One thing that the informed have agreed upon is that the Rule of Law does not mean rule by law. The latter implies that any law, be it wicked or good, is valid and will be enforced. The former is a more complex proposition, for it means that we are ruled by laws and not the discretion of man and furthermore, that law has to guarantee certain principles.

1.1 History of Rule of Law

Rule of law derived the idea from A.V Dicey and his primary concern was for the avoidance of arbitrary and thus unjust power. To this end, he identified three main principles of the Rule of Law and these were, a person can only be punished after a fair trial, the law is to treat everyone equally and the rights of individuals are to be protected by law.

One of the main issues is the concept of ‘equality’. Taken at face value, Dicey’s ‘equality’ sounds very much like the Aristotelian concept of ‘formal equality’, where the government treats all persons the same. However, some of the principle of rule of law has been ignored to avoid harshness and which, in court opinion is not suitable to apply on some circumstances. For example, a child killing another person should not be given the same punishment as an adult. Which is killing with intention for adult, would be death sentence meanwhile, according to latest provision of Child Act, child who kills cannot be sentenced to death[3]. The rational is a child has not attained sufficient maturity yet in understanding the consequences of their act.

Apart from that, it is clear that the Reid Commission intended to build the Malaysian Constitution based on the doctrine of rule of law. Hence, in order to acknowledge and appreciate the position taken by the Commission, a simple reference must be made to Part II of the Federal Constitution, within which are embedded the fundamental liberty provisions prepared by the Commission. If the original renditions of Articles 3, 4, and 10 of the Reid Commission recommendations in regards of fundamental liberties had been accepted altogether, Malaysia would now be more officially rooted in the doctrine of rule of law than it is at present. In the draft proposal, Article 3(1) and 3(2) reads:

“The Constitution shall be the supreme law of the Federation, and any provision of the Constitution of any State or of any law which is repugnant to any provision of this Constitution shall, to the extent of repugnance, be void.”

“Where any public authority within the Federation or within any State performs any executive act which is inconsistent with any provision of this Constitution or any law, such act shall be void.”

Looking at the provision of Article 3(1) and (2) above, there is no doubt in coming to a conclusion that the Reid Commission was dedicated to the idea of having the Malaysian Constitution built on the noble foundations of the doctrine of rule of law. Taking its place, as stated under Article 4(1) of Federal Constitution came as a substitute for the Commission's draft Article 3. This peculiar line of reasoning is required due to the fact that the original purpose of Article 4 is evidently to set up the Constitution as the foundations of the rule of law. However, separating theoretical assumptions from real-world practice, it is still a debatable issue as to whether the Federal Constitution embodies this fundamental doctrine as part and parcel of our legal system.

2.0 PRINCIPLES OF RULE OF LAW

There are several kind of principles laid down in rule of law. In term of legality, the rule of law requires that a society must be governed by a government of laws and not by a regime of arbitrary powers. There must be supremacy of laws. Government officials must show respect for the law and must observe the limits on their power. Besides, all powers must be subject to limits. There must be controls on executive discretion so that discretionary authority does not degenerate into arbitrariness. To enforce the rule of law, there must be an independent judiciary with the power to enforce its verdicts without fear or favor. The judiciary must be independent and free from extraneous pressures. It also must be invested with all the necessary powers to interpret and enforce the law and to keep public authorities within the limits of their competence. This principle has been laid down under article 162(6) of Federal Constitution whereas court has power to modify any law which is considered to be inconsistent with Federal Constitution as supreme law.

Next, under the principle of rule of law, it has been made to be a just legality. Adherence to the law by the state is necessary but not enough. If the system of law is unjust and oppressive, adherence to it can become an instrument of tyrannical rule. The rule of law insists on compliance with some substantive human rights values. The law that reigns supreme must honor and promote individual freedom and dignity. In this sense, the rule of law is different from rule by law. Rule of law expresses ideals about citizen-state relationship. Besides the law must provide safeguard for liberty, equality and dignity as stated under fundamental liberties in Federal Constitution.

In addition, legal has guaranteed that human rights provided under rule of law are not enough. They must be accompanied by socio-economic and educational measures so that formal rights can find expression in reality and the individual can realize his dignity. There must be vigorous state support for socio-economic policies to help the weak, the oppressed and the marginalized. The state must be involved in social amelioration schemes to bring welfare to those who for whatever reason, are unable to actualize their freedoms and rights. The state must be committed to the welfare and to the rights and dignity of all its citizens.

On the other hand, principle of rule of law is also as a more effective government. The threat to the rule of law comes as much from abuse of liberty as from abuse of power. The government must be capable of enforcing law and order and ensuring socio-economic and legal justice. Hence, crime could be controlled.

3.0 RULE OF LAW AND VIOLATIONS OF HUMAN RIGHTS

3.1 Violation of Human Rights in Malaysia

There is several human rights violation happening in Malaysia. Human rights concerns include Malaysia’s poor ratification record on core international human rights treaties, restrictions on freedoms of expression and peaceful assembly, the preventive detention of criminal suspects for long periods of time without charge or access to a judge. In addition, there are also human rights violations at the hands of the security forces including torture and other ill-treatment. Other concerns include the treatment of migrant workers, indigenous peoples, refugees and asylum-seekers, as well as freedom of belief and religion, and also recently about LGBT[4] rights and discrimination.

Apart from that, there has been abuse of power by the police. This kind of abuse of power remained unchecked while the Government continued to drag its feet in setting up the Independent Police Complaints and Misconduct Commission (IPCMC) that had been recommended by the Royal Police Commission[5]. In 2013, SUARAM recorded 12 cases of deaths in police custody while a total of 124 people were shot dead by the police from 2009 to August 2013. There was also a case about Uthayakumar, which was a former Internal Security Act (ISA) detainee, was jailed for two years and six months over a sedition charge on June 5 and died under the custody of the police. While in prison, Uthayakumar alleged he was tortured and denied medical treatment. His wife, S Indra Devi went so far as to send a letter to Najib and Home Minister Ahmad Zahid Hamidi claiming that her husband who is a diabetic and suffers from a degenerative prolapsed disc in his spinal lumbar, had been locked up in dark isolation for 28-days and was forced to sleep on concrete despite the condition. She also alleged that he was fed food and water through unsanitary means. In fact, it was not just case about Uthayakumar only. It was like giving police veto power to do and detain people like provided under section 23 of Police. However, this kind of provision has been amended and replaced by Peaceful Assembly Act 2012 for social order and also to protect human rights and liberty of person as stated under article 5 of Federal Constitution.

Apart from that, in term of freedom of speech and expression, press freedom continued to decline in world rankings with Malaysia placed at an all-time low position of 145 out of 179 countries, the country’s worst showing since 2002. Malaysia’s 13th general election saw increased attacks on freedom of expression. In April 2013, just days after parliament had been dissolved and new elections declared, various alternative media websites including Free Malaysia Today, Malaysiakini, The Malaysian Insider and Sarawak Report were sustained restricted under Sedition Act 1948. Independent radio stations Radio Free Sarawak and Radio Free Malaysia also had their broadcasts systematically jammed. This is of course has become a controversial issue. Everyone wanted to be given freedom of speech and expression. However, even though Malaysia ranked as one of the most restricted country in giving such freedom, but under social order and for public welfare, such absolute freedom should not be given. Government has to control to keep the peace of the nation and it proven until now, Malaysia is one of the safest countries to live in compare to other nation. There has been few people detained and charge under Sedition Act 1948 for giving seditious statement such as the couple of Alvivi. They has made seditious statement by saying “Selamat berbuka puasa” while eating pork in a video that went viral on 2013. People presumed those couple were making fun of the religion of Islam. It proves that, in order to keep the peace and for public welfare, there is a need to control people’s rights and freedom.

In term of freedom of assembly as stated under article 10 of the Federal Constitution, the PPA 2012[6] was enacted by the government apparently to uphold, protect and promote freedom of assembly in 2012. The Act is riddled with inconsistencies. For example, there are contradictions in the definition of a moving assembly and a street protest. At least 26 people were charged under the PAA 2012 during the post-election rallies and 33 others were charged under Section 143, while 17 people were charged under Section 147 of the Penal Code for unlawful assembly and rioting. The right to assembly is also one of the controversial issues. Before, under Police Act and Internal Security Act, police can detain and arrest any person, who he belief has committed certain act prohibited by law. Then of course people who making unlawful assembly was caught and charge also. But now, those veto power from the police has been abolished and replaced by Peaceful Assembly Act. Some activist and people has claimed that the new act are making it worst and restrict more of the rights of the people, but government has think it through to prevent uproar and problem, then the assembly must be tighter such as giving notice to police 10 days before the assembly. All of these are being done in the name of social order even though people claimed it has violated human rights stated under Federal Constitution.

3.2 Principles of Rule of Law and Violation of Human Rights in Malaysia

Under the principle of rule of law, it is clear that administrative law principles of ultra vires and natural justice have grown stronger. These developments favor the idea of a government under the law. But laws like the Internal Security Act (ISA) and the Police Act give unlimited power to the executive. Many non-reviewable and non-justiciable powers permit uncontrolled executive discretion.

In term of human rights, the supreme Constitution and a large amount of legislation guarantee political and socio-economic rights. Elections are held regularly. The government is representatives of the people. Opposition parties and NGOs are allowed. But laws like the ISA and Police Act prevent citizens from exercising some of their rights. However, articles 149 and 150 itself has permit suspension of human rights even though it violates article 5 to article 13. This is under a reason where court believes that, people should not be given absolute power in those rights in order to prevent uproar from happening in Malaysia.

Having mentioned earlier on the fact that the rule of law is one of the fundamental principles of the constitution, it would appear that in Malaysia with our current written constitution, the doctrine is still regarded as well recognized and accorded with respect. For instance, we are told by our political leaders from time and time again that we are a government of laws and not men. This may not be an act of upholding the doctrine per se, but it shows that they know and respect the difference between both doctrines.

Dicey stated in his 1st postulate that the rule of law requires that no one would be punished except for a conduct which represents a clear breach of law. This would imply that all laws must be open, clear, and prospective in nature. Hence, in the case of Public Prosecutor v Mohamed Ismail[7], the defendant was charged with the offence of drug trafficking which was punishable with life imprisonment or death under section 39B(1) of the Dangerous Drugs Act 1952. While his trial was still going on or pending, the law was substantially amended in deliberation to provide for a mandatory death penalty. At the final stage of the said trial, the public prosecutor suggests the court to impose the enhanced penalty. In refusal to the request, the court held that the amendment could not be applied to the instant case, as it was only enacted after the offence was committed. At such, the decision of the said court was in line with the Article 7(1) of the Federal Constitution which is about protection against retrospective criminal laws and repeated trials.

In addition, when we discuss Dicey’s perspective of rule of law, it advocates for 'equality before the law of all classes to the ordinary law of the land administered by the ordinary law courts'. This means no one is above the law, and the society must be governed by law and that all must be equally subject to the law, and to law only. Making references to some court decisions would lead to such conclusion that the rule of law is recognized and much respected under the Federal Constitution. For instance, in the case of Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia & Anor[8], the order of detention stated few grounds on which the supposed detainee was apprehended with the word 'or' and not 'and' in between. The court held that the statement in regards of the grounds in the alternative form denied the detainee the right to know the reason for his arrest, a constitutional right for the record. The decision of the court was in line with the Article 5(3) of the Constitution which is any person should have a right to be informed the reason of his arrestment as soon as possible.

Coming back to Article 4(1) of the Federal Constitution, as it is viewed as the foundation of the rule of law for the Constitution, probably it would be imperative to make reference to the case of Ah Thian v Government of Malaysia[9], with focus on the observation of Suffian LP. His Lordship observed that the doctrine of Parliament does not apply in Malaysia since here we have a written constitution. The power of Parliament and State Legislatures in Malaysia is limited by the Constitution, and they cannot pass any law as they please.

Disregarding other criticisms, it should be acknowledged that we do practice the basic checks and balances as required by the upholding of the doctrine of separation of power and the rule of law. For instance, as much as the criticisms were raised against article 159 of the Federal Constitution, the Federal Constitution did place limits on the power of amendment of the constitution. It is not mere theory but of legal reality.

Though the initiatives of the government in upholding the rule of law in certain extent should be rightfully acknowledged and recognized, the government should not have taken this for granted. This is due to the fact that there are still loads of weaknesses to be improved on as far as the operation of the rule of law is concerned. For an example, Article 150(3) of the Constitution in requiring the YDPA to lay the proclamation of emergency before both Houses of Parliament which are given power to pass resolutions to annul them and the executive in their given powers to enforce its will on Parliament under Article 55(2) to enable the government to rule the country by executive flat would inevitably, require the government to re-evaluate and re-look into the future of the rule of law under the Federal Constitution. No doubt, reformation needs to be done to improve the efficacy and efficiency of the existing checks and balances.

Not only that, the seemed-to-be positive initiative of the procedural limits on the power of Parliament in amending the constitution should not be taken for granted. Instead, we should study in depth the issues of the legitimacy and efficacy of the substantive limit. It is true that two-thirds majority is needed to make constitutional amendments. However, that does not mean that the Parliament has the power to pass legislation so long as the authority being exercised is legitimate and constitutional. It is still unacceptable for them to pass any laws to their discretions irrespective of the reasonability of the law.

In plus, we should always bear in mind that in rule of law, there is no room for unjust law. Thus, the assertiveness of the judges and the judicial creativity are important. This is so because the superior courts are the ones who are able to protect and defend the basic charter against all the evil hands and they are nonetheless, the ultimate arbiters of disputes between the citizen and the state and between federal and state governments. If they are deprived of such assertiveness and creativity, there would be no room for justice and equality.

On the other hand, it must be noted that the media could influence constitutionalism and rule of law in every imaginable ways. The media could ‘check’ on the government, it plays a vital role in the check and balance of the system. The media could raise issues that concern the laws and the people, and raise the awareness regarding such issues, which could in turn determine the constitution and the rule a country. The media, however arguably, is the only or at least, the most common avenue for the people to evaluate the performance of the government. And hence, the media has that magical power to rally masses to turn against the ruling government, rendering the people having opinions and criticisms towards government policies, and in turn, forcing the government to give in to the needs and wants of the people.

In addition, if injustices resulting from the transgression of rule of law are now widely reported in the local media, it would lead towards the respect and practice of the doctrine of rule of law. Thus, the government would be more cautious and more accountable for their actions, as the whole nation is watching. However, in the Malaysian context, this stage is extremely hard or impossible to achieve, as the Malaysian government has strict controls and restraints over the media and the government also owns the media through privatization and or a complex hierarchy of corporate companies.

It would seem so in Malaysia, the fundamental principle of constitutional supremacy that was brought to life under Article 4(1) that embeds the doctrine of rule of law, can only be maintained and achieved through judicial creativity in methods of interpretation of certain constitutional provisions which are regarded as a deterrent to the spirit of constitutionalism and the rule of law. It is about time for the Malaysian courts to shift from their reluctant attitude towards striking down legislation of the parliament, or even to the point of challenging actions of the executive on the grounds of unconstitutionality. We must always keep in mind that without the respect to the doctrine of the rule of law, the said democratic state will be short of the legal framework necessary for a civilized society to nurture and in turn give sufficient checks and balances on the executive and legislative branches of government and necessary legal foundations for fair electoral and political processes.

There are several Malaysian laws are being used to restrict basic human rights in Malaysia. Recent sweeping changes in these laws have been described by the government as human-rights reforms but, according to critics, have actually in some regards made restrictions even more stringent.

The country's Ministry of Foreign Affairs has defended its strict controls on human rights with the explanation that the nation takes a holistic approach to human rights in that it views all rights as indivisible and interdependent. In Malaysia, the rights of every citizen are protected by legal provisions in the Federal Constitution, but these rights are not absolute and are subject to public order, morality and security of the country. Hence, while claiming to uphold the universal principles of human rights, Malaysia finds it important to take into consideration the history of the country as well as the religious, social and cultural diversities of its communities. This is to ensure that the respect for social harmony is preserved and protected.

Apart from that, Malaysia is well known for arresting persons without warrants and detaining them indefinitely without trial, and for placing strict limitations on freedom of speech, press, assembly, and association in the name of social order.

There are several strong and sweeping pieces of legislation that have long been used by Malaysia to restrict the human rights of individuals and thus preserve, in its view as social order. In 2008, Amnesty International summed up the state of human rights in Malaysia in part by noting that the government had tightened control of dissent and curtailed the right to freedom of expression, arresting bloggers under the Sedition Act, using the Printing Presses and Publications Act (PPPA) to control the content of newspapers, and arbitrarily arresting several individuals under the Internal Security Act 1960 (ISA). Meanwhile in 2012, there were major changes in a number of these laws that were officially described as human-rights reforms but that have been widely criticized either for not going far enough or in fact, further restricting human rights.

The best known of these laws is the Internal Security Act 1960. Widely viewed as draconian, it permits long-term detention without trial, and over the decades has been used systematically against individuals who have been viewed, for various reasons as threats to Malaysia's government or to the social order.

Another powerful and widely employed piece of legislation, which dates back to 1948, when Malaysia was still a British colony, is the Sedition Act, which criminalizes speech or writing that is considered to be seditious. A great many critics and political opponents of the Malaysian regime have been arrested and held under the Sedition Act, the effect of which has been to restrict freedom of expression in Malaysia.

In addition, law that has passed in 1984, which is the Printing Presses and Publications Act, makes it a crime to publish anything without a government license that must be renewed every year by the Home Minister. This statute has been used to silence government critics and to ban various publications for a variety of reasons. As with the Sedition Act, the practical effect of the Printing Presses and Publications Act has been to severely restrict freedom of speech in Malaysia.

On the other hand, the Police Act 1967 allows the Malaysian police to detain persons without warrants, and has been used especially to restrict the freedom of assembly. Under the Police Act, police permits were required for gatherings of over four people, other than strikes. This is of course has violated article 5 and 10 of Federal Constitution.

However, Prime Minister Datuk Seri Najib Tun Razak announced that the ISA would be totally repealed and be replaced by a new law that incorporates far more judicial oversight and limits the powers of the police to detain suspect for preventive reasons[10]. The government also committed itself to the repeal of some of its other best known legal instruments for restricting human rights, including the Sedition Act and Emergency Declarations and Banishment Act. In addition, the government agreed to review several laws, including Section 27 of the Police Act, the Printing Presses and Publications Act and the Official Secrets Act.

In a June 2012, an article has been published in the East-West Centre in Asia Pacific Bulletin and reprinted in the Bangkok Post and on the website of Human Rights Watch, writer Mickey Spiegel noted that in April 2012, the Malaysian parliament had passed the replacement for the ISA, called the Security Offences (Special Measures) 2012 Act (SOSMA). Spiegel complained that SOSMA does not go far enough to protect the fundamental rights and freedoms of Malaysians. In fact, SOSMA is actually more repressive and retrograde than the ISA in some ways, an indication that the government was playing 'bait and switch' with human rights.

For instance, coupled with amendments to other laws, SOSMA tightened restrictions or banned outright activities which are already under constraint by adding limits to previously unrestricted activities, and broadened police apprehension and surveillance powers in new and innovative ways. In addition, it further erodes citizens’ individual protections, such as ceding to the police rather than judges the power to intercept communications.

On the other hand, the Peaceful Assembly Act 2012 (PAA) replaces Section 27 of the Police Act, which required police permits for large gatherings. Under the new act, such permits are not necessary. Instead, organizers must give the police 10 days’ notice of any planned gathering, after which the police will reply, outlining any restrictions they wish to place on the gathering. The new act forbids street protest, prohibits persons under 15 from taking part in gatherings, prohibits persons under 21 from organizing them,and bars them from taking place near schools, mosques, airports, railway stations, and other designated places. Though touted as a reform of Section 27 of the Police Act, the PAA has been severely criticized by the government opponents and by others as more restrictive than the legislation it replaced, with one opposition leader saying that the PAA gives ‘absolute powers to the police.’

Prime Minister Datuk Seri Najib Tun Razak has signed the first human-rights declaration by the ASEAN nations[11]. It was an action that officially committed the nation to its first foreign convention to promote fair treatment of every individual irrespective of race, religion and political opinion. This signing, it was noted, took place at a time when Malaysia had come under close international scrutiny for its alleged mishandling of several recent human rights issues, including crackdowns on two major pro-democracy protests[12]. The Human Rights Commission of Malaysia expressed its disappointment that the declaration permits restrictions to be made on grounds wider than what are accepted internationally, and pointed especially to General Principle 7, which declares on the one hand, that all human rights are universal, indivisible, interdependent and interrelated, recognizes on the other, that Member States may take into consideration their political, economic, legal, socio-cultural, and historical backgrounds in the realization of human rights in their countries

CONCLUSION

In the nutshell, the rule of law by Dicey is an ideal law and should be respected and followed. The principle of rule of law also protected basic human rights and Federal Constitution itself following the rule of law like stated under fundamental liberties of citizen. However, violation to some of the human rights proving that the principle of rule of law has no meaning. Liberty of person, freedom of expression and speech are not absolute and are being controlled by virtue of article 149 and 150 of federal Constitution. Police Act, Sedition Act, Peaceful Assembly Act, Internal Security Act and few other provisions are restricting human rights and it is not consistent with the purpose of rule of law.

However, it must be noted that if these human rights are not giving any restriction, then people can do anything they pleased even in making any statement that can stir social harmony and causing uproar. Under this reason, government are not giving citizen absolute rights to speak and expressed as they pleased. The public welfare must be the main priority.