23 June, 2016

Topik 1 Pengenalan Kepada Undang-Undang INTRODUCTION TO LAW

TOPIC 1 INTRODUCTION TO LAW

Topik 1 Pengenalan Kepada Undang-Undang

LEARNING OUTCOMES



By the end of this topic, you should be able to:



1. Define law;

2.  Identify the categories of laws;

3.  Explain the Federal Constitution of Malaysia;

4.  Describe the hierarchy of Malaysian courts; and

5.  Discuss press freedom and the Federal Constitution.



INTRODUCTION



In this topic, we will discuss how Malaysian laws are enacted. The power to enact

the various legislations is provided for by the Federal Constitution of Malaysia. It

is important for journalists to know the different types of Malaysian courts, laws

and   the   role   of   the   Federal   Constitution  as   it   will   directly   and   indirectly   help

them in performing their work.



The Constitution is not just another piece of legislation; it is the supreme law of

our   nation.   The   Constitution   gives   this   nation   of   ours   its   name   and   identity.   It

confers on the people various rights and privileges as citizens of Malaysia.



 1.1        DEFINITION OF LAW



In this topic, we are going to discuss the definition of law from two perspectives,

namely,   The   Collins   Cobuild   English   Language   Dictionary   and   Holsinger   and

Dilts (1994).



ACTIVITY 1.1



      In   your   opinion,   do   you   think   journalists   are   above   the   law?   Is   there

      anyone in Malaysia who is above the law? Discuss.



 1.1.1         Collins Cobuild English Language Dictionary



The Collins Cobuild English Language Dictionary (1991) defines law as:



  A system of rules that a society or government develops over time in order

  to deal with business agreements, social relationships and crimes.



The purpose of having laws is to attain justice in society. In other words, laws are

enacted to encourage and promote the doing of what is right or just. This does

not mean that law is synonymous with justice. Justice is a moral ideal that the law

seeks to uphold in the protection of rights and the punishment of wrongs.



From the dictionary definition of the word „law‰, we can derive three important

components:



(a)    The body that enacts the laws;



(b)    The rules that govern everyone and everything; and



(c)    The changing nature of the rules.



Now, let us discuss the components one by one.



(a)    The Body that Enacts the Laws



The     definition highlights    a   salient point   that   laws   are   enacted   by   a   legal body    that   is  empowered      to  perform the task of enacting laws. The body is conferred     with   the   powers    to   enact laws    because   there   is  prior  to  that  a law   that   authorises   it   to   perform   such duties.



Figure 1.1:Malaysian Parliament the   case   of   Malaysia,   the   body   that   is   empowered   to   enact   laws   is   the

       Malaysian      Parliament    (refer   to   Figure   1.1).  The   Malaysian   Parliament   is

       authorised to enact laws as enshrined in the Federal Constitution which we

       will discuss later.



(b)    The Rules that Govern Everyone and Everything

        The definition refers to who is governed by the various enacted rules and

       regulation. In the case of Malaysia, the various legislations govern everyone

       and everything living within the boundaries of the Federation of Malaysia.

       People who live within the boundaries are bound to abide by the rules and

       regulations of this nation.



(c)    The Changing Nature of Those Rules

       The   definition   refers   to   law   as   a   living   thing.   Laws   are   constantly   being

       changed and amended to suit the prevailing needs of the nation. The advent

       of    computers      and    information      technology      and    its   effects   on    the

       telecommunication   and   broadcasting   industry   makes   it   necessary   for   new

       legislation to be enacted to regulate the changing societal and technological

       landscape.      For   example,      the   Telecommunication         Act    1950    and    the

       Broadcasting       Act   1988    were    repealed     with    the   introduction     of   the

       Communications         and   Multimedia      Act  1988    due    to  the  more    advanced

       telecommunications   networks   in   the  developing   world,   utilising   modern

       technologies       such    as   optic    fibres,   satellites,   wireless    transmission,

       digitalisation and satellite services.



1.1.2         Holsinger and Dilts



According to Holsinger and Dilts (1994), the word „law‰ contains two different

meanings, as shown in Figure 1.2.



Figure 1.2: Two different meanings of the word „law‰



Table 1.1 explains the meanings.


Table 1.1: The Meanings of the Word „Law‰



Meanings of Law                                      Description



Primary meaning:          

Enacting Laws            

The    primary   meaning    of  the  word  refers  to  legal  rules  that
define    conduct   required   of  us,  or  forbidden  to  us,  for  the

common good and these legal rules are enacted by a legislative

body. This primary meaning is essentially the definition of law

given by the Oxford Concise Dictionary of Law. The dictionary

defines „law‰ as „the enforceable body of rules that govern any

society.‰



Secondary meaning: Administrating Laws      

The    secondary    meaning    refers  to  the  means    of  resolving
disputes    through   the  system  of  courts,  judicial  process,  and

legal officers. In other words, the primary meaning refers to the various laws enacted while the secondary meaning refers to the administration of justice.



ACTIVITY 1.2



Discuss   why   it   is   important   for   a   foreign   correspondent   to   understand

international law.



1.2          CATEGORIES OF LAWS



The various enacted legislation can   be further classified into three categories as

shown in Figure 1.3.



Figure 1.3: Three categories of laws



Now, let us discuss the categories of laws in greater detail.



(a)    Public Laws

        Public laws refer to laws that govern the relationship between individuals

       and the state. Public laws are further subdivided into constitutional law and

       criminal   law.   Constitutional   law   sets   the   rights   of   individuals   in   the state.

       Criminal   law   determines   acts   that   are  considered   as   offences   against   the

       state.



(b)    Private Laws

Private laws   are   concerned   with   matters   affecting   rights   and   duties   of   the individual   in   relation   to   other   individual   or   individuals.   Private   laws   are also   called   civil   laws.   These   laws   are  enacted   to   allow   compensation   for

injured parties and   to  enforce    obligations.    Civil   or  private   laws    can  be

subdivided into contracts, tort and trust. Contracts are based on agreement

signed   between   two   agreeing   and   consenting   individuals   or   two   parties.

Tort refers to offences against other individuals. Trust binds the relationship

between trustee and beneficiary.



(c)    International Laws

The classification of laws into two broad categories as stated above has been

limited   to   laws   enacted   and   imposed   on   individuals   or   entities   within   a

state.   You    can   actually   add   a  third   category    to  the   classification    of  the

different   types   of   laws.   The   third   category   is   for   international   laws.   These

are laws governing the relationship between states.



According to international laws, Malaysia is one state. Every other country

in   this   world    is  called   a  state,  in  legal   terminology.      This   may     sound

confusing to you because we are accustomed to referring to Malaysia as a

country. What makes it more confusing is that within Malaysia there are 13

states. This is well and fine in layman terms but in legal language, a state

has a government and rules that specify who shall govern and how. Thus,

laws   of   international   relations   are   enacted   to   govern   relationships   among

various states.



ACTIVITY 1.3



„Non-smoking laws have recently become societal norms. Today, smoking

is prohibited in most public facilities without question.‰



Are societal norms a kind of law? Is there a need for societal norms when

we have codified laws? Discuss.


1.3          FEDERAL CONSTITUTION OF MALAYSIA



The    act  of  enacting    and    administering      myriad    laws   is  possible    because    it  is

enshrined in the Federal Constitution.


The     Constitution     of  the   Federation     of   Malaysia     is  the  legal   source    of

legitimate authority. It is the fundamental law in Malaysia which designates

the   principal   organ   of   government   and   invests   them   with   authority.   The

Federal Constitution defines and constitutes the Legislative Body.



The     Federal    Constitution      also   gives  legitimacy      to   two    other   branches      of

government which are the executive and the judiciary.



Each of these branches of government is vested with its own functions. In other

words, a constitution is a body of fundamental law which describes the manner

in    which    the   state   is  organised,     government       is  conducted      and    justice   is

administered. It also defines the scope of the law making powers of the state and

institutes procedure for exercising this power.



The     Federal    Constitution     declares    itself  the  supreme     law   of  the   Federation.

Article 4(1) of the Federal Constitution reads:



Article 4(1)



This   Constitution   is   the   supreme   law   of  the   Federation   and   any   law   passed   after

Merdeka Day, which is inconsistent with this Constitution shall, to the extent of the

inconsistency, be void.



In other words, laws enacted by Parliament after the date of Independence that is

inconsistent or ultra vires with the Federal Constitution may be declared void.



Our written Constitution as the supreme law of the land makes known that the

name of this nation shall be Malaysia.


Article 1(1)


The Federation shall be known, in Malay and in English, by the name Malaysia.



The   Federal   Constitution   also   states   the  territorial   perimeters   of   our   nation   in

relation to other neighbouring countries. Article 4(2)-(4) state:



Article 4(2)-(4)



4(2) The States of the Federation shall be Johore, Kedah, Kelantan, Malacca, Negeri

Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor and Terengganu.



4(3) Subject to Clause (4) the territories of each of the States mentioned in Clause (2)

are the territories comprised therein immediately before Malaysia Day.



4(4) The territory of the State of Selangor shall exclude the Federal Territory of Kuala

Lumpur established under the Constitution (Amendment) (No. 2) Act 1973 and the

territory    of  the  State   of  Sabah    shall  exclude    the   Federal    Territory   of  Labuan

established under the Constitution (Amendment) (No. 2) Act 1984, and both the said

Federal Territories shall be territories of the Federation.



The     legitimacy     of   both    the   Federal    Parliament      and    the   13   State   Legislative

Assemblies to enact laws is conferred under Article 73 of the Federal Constitution.

In essence, Article 73 clearly defines the relations between the Federation and the

various states. Article 73 reads:



Article 73



In exercising the legislative powers conferred on it by this Constitution:



(a)     Parliament   may   make   laws   for   the   whole   or   any   part   of   the   Federation   and

laws having effect outside as well as within the Federation; and



(b)     The   Legislature   of   a   State   may   make   laws   for   the   whole   or   any   part   of   that

State.



If there is any law at the State level that contradicts any Federal law, the Federal

Constitution   states   that   the   Federal   law  shall   prevail.   The   part   of   the   State   law

which is inconsistent with Federal law shall become void. This is provided for by

Article 75 of the Federal Constitution.


To differentiate laws made by the Federal Parliament from that of the State Legislative       Assemblies,       all   federal    legislation     are    called    Acts.    Before Independence, federal laws are called ordinances.



Ordinances are legislation that is enacted by Parliament after 1946 but before

MalaysiaÊs Independence in 1957.



The    various    laws    enacted     by   the  State   Legislative     Assemblies       are  called

Enactments, except for the case of Sarawak. In Sarawak, the laws enacted by

the Sarawak Legislative Assembly are called Ordinances.



Article 74 of the Federal Constitution clarifies the various types of legislation that

the    Federal    Parliament      and    Legislature    of   a  State   can   make.     Article   74(1)-(2)

reads:



Article 74(1)



Without prejudice to any power to make laws conferred on it by any other Article,

Parliament   may   make   laws   with   respect   to   any   of   the   matters   enumerated   in   the

Federal List or the Concurrent List (that is to say, the First or Third List set out in the

Ninth Schedule).



Without prejudice to any power to make laws conferred on it by any other Article,

the   Legislature    of  a  State   may    make    laws   with   respect   to  any   of  the  matters

enumerated   in   the   State   List   (that   is   to  say,   the   Second   List   set   out   in   the   Ninth

Schedule) or the Concurrent List.



The   Federal   List   summarised   from   List   I  of   the   Ninth   Schedule   of   the   Federal

Constitution is as follows (see Figure 1.4):



Figure 1.4: List I of the Ninth Schedule of the Federal Constitution





The   State   List   as   stated   in   List   II   of   the   Ninth   Schedule   covers   matters   such   as

follows (see Figure 1.5):



Figure 1.5: List II of the Ninth Schedule of the Federal Constitution



The     Concurrent      List   as  stated    in  List  III  of  the   Ninth    Schedule      covers    the

following matters (see Figure 1.6):





Figure 1.6: List III of the Ninth Schedule of the Federal Constitution



1.4     LAW IN MALAYSIA



In Malaysia, two types of laws are enforced (see Figure 1.7):



Figure 1.7: Two types of laws



Now, let us discuss the types of laws one by one.



(a)    Federal Laws

Federal laws cover every person that resides in the Federation of Malaysia.

State   laws   can   only   be   enforced   on   those   people   residing   in   a   particular state. Thus, you would find that state laws may differ from one state to the other.



Figure    1.8  explains    the  process    of  creating    the   federal   law   before    it  is

submitted to the Malaysian Parliament:


Figure 1.8: The process of creating federal law before submission to the Malaysian Parliament


We are going to discuss further on the Malaysian Parliament in the next topic.



(b)    State Laws

As   stated   before,   state   laws   can   only  be   enforced   on   people   residing   in   a particular state. The Legislature of the State is made up of the Ruler and one House, the Legislative Assembly which acts as the highest law making body at the state level.


This    is  provided     for   by   Section    3,   Eighth    Schedule      of  the    Federal

Constitution that reads:



Section 3. Eighth Schedule:


The Legislature of the State shall consist of the Ruler and one House, namely,
the Legislative Assembly.




Figure 1.9 explains the process of creating State Law:



Figure 1.9: The process of creating State Law



SELF-CHECK 1.1



What do you understand by the term federal laws and state laws? Surf

the Internet for the full text of the Federal Constitution at:



http://www.agc.gov.my/images/Personalisation/Buss/pdf/Federal%

20Consti%20(BI%20text).pdf.


1.5          MALAYSIAN PARLIAMENT



The Parliament as the highest law making body of the country is essentially made

up of three components (see Figure 1.10):


Figure 1.10: Three components of MalaysiaÊs Parliament



This is specified in Article 44 of the Federal Constitution that reads:


Article 44


The legislative authority of the Federation shall be vested in a Parliament, which shall

consist   of   the   Yang   di-Pertuan   Agong and  two  Majlis  (Houses  of Parliament)   to  be

known as the Dewan Rakyat (House of Representative) and Dewan Negara (Senate).



The   Dewan     Rakyat    currently     comprises     193  members      who    are  elected   for  a

maximum term of five years. A federal election will be held every five years or

sooner to elect members to the House of Representative.



Members of Dewan Negara on the other hand are appointed and sit for a six year

term.   There   are   69   Senate   members;   26   are   elected   by   the   13   state   assemblies

while the other 43 members are appointed by the Yang di-Pertuan Agong .



Previously   at the Federal Laws, we have  discussed on how the draft   of the bill

will have to be submitted to the Malaysian Parliament after the approval of the

Cabinet. What is the next step?



Figure     1.11  explains    the  process    of  creating   Federal    Law   after   it  has  been

submitted to the Malaysian Parliament:



Figure 1.11: The process of creating Federal Law after submission to the Malaysian Parliament




ACTIVITY 1.4



Who   are   the   current   members   of  Dewan   Negara   and   Dewan   Rakyat?

Identify the current paramount ruler of the country. To find out, visit:



http://www.parlimen.gov.my/index.php.


1.6         HIERARCHY OF COURTS IN MALAYSIA


ACTIVITY 1.5


What     are  the  different   Malaysian    courts   that  you   have   come    across?
Where     does   the  Malaysian     High   Court    (Mahkamah      Tinggi    Malaysia)
stand in the hierarchy of Courts in Malaysia? Which court is the highest
judicial authority in Malaysia? Discuss.



As    we   mentioned     in  the  previous    section,  the   judiciary   is  one  of  the  three

branches of government. As an important organ of the government, the judiciary

plays    a  central  role   in  the  administration     of  justice.  The  independence      and

integrity of the judiciary have to be maintained so that the public will continue to

have   trust   and   confidence   in   the   judiciary.   Thus,   the   administration   of   justice

must be free from improper interference and obstruction.


The    Malaysian     judiciary   is  empowered      to  hear  and   determine     civil  and
criminal cases.



The    Federal   Constitution     provides   for  the  judiciary   to  exercise   its  power.   In

exercising its authority, the Malaysian judiciary has set up a hierarchy of courts

(see Figure 1.12).


Figure 1.12: Judicial system currently being practised in Malaysia



Figure 1.12 shows an illustration of the judicial system currently being practised

in Malaysia. The hierarchy of courts as practised in Malaysia is made up of two

sets of courts:



(a)    Superior courts; and



(b)    Subordinate courts.



The   setting   up   of   superior   courts   is   in   accordance   with   the   provisions   of   the

Courts of Judicature Act 1964 while subordinate courts are established under the

Subordinate Courts Act 1948.


Figure 1.13: Judicial system (between 1st January 1987 and June 23, 1994)


Figure 1.14: Judicial system practised in Malaysia before 1st January 1987



Figure 1.14 shows the judicial system before 1st January, 1987. Before that date, the

final court of appeal of Malaysia was the Privy Council in England. Appeals to the

Privy Council on criminal and constitutional matters were abolished on 1st January


1978. Between 1st January, 1978 and 1st January, 1987, appeals to the Privy Council

were  limited  to  civil  cases  only.  On  1st  January,  1987,  no  more  appeals  could  be

submitted   to   the   Privy   Council.   The   highest   court   of   appeal   for   Malaysia   at   that

time was the Supreme Court.



1.6.1          Superior Courts


SELF-CHECK 1.2


Reflect on the judicial system; which court do you think is responsible
for hearing appeals on decisions by the High Court? Explain.



The Courts of Judicate Act 1964 provides for the establishment of the following

superior courts (see Figure 1.15):


Figure 1.15: The Courts of Judicate (Act 1964)



Let us discuss the Courts of Judicate in greater detail now.



(a)    Federal Court
This   is   the   highest   court   in   Malaysia.   The   Chief   Justice   presides   over   the
Federal Court.


Section 74 Courts of Judicature Act 1984 states that every proceeding in
the Federal Court shall be heard and disposed of by three judges or such
greater uneven number of judges.


Members of the Federal Court are:

(i)    Chief Justice;

(ii)   President of the Court of Appeal;

(iii)  Chief Judge of Malaya and Chief Judge of Sabah and Sarawak; and

(iv)   Six Federal Court judges.

The jurisdictions of the Federal Court are:

(i)    To hear criminal appeals, Section 86 and civil appeals, Section 96, from decisions of a High Court.

(ii)   To exercise exclusive original jurisdiction under Article 128(1) and (2) of the Federal Constitution. This is the jurisdiction to hear disputes on any matter between any State and the Federal Government.

(iii)  To resolve any constitutional questions referred by the High Court.

(iv)   To   give   its   opinion   on   any   questions   referred   to   it   by   the   Yang   di-
Pertuan Agong.



(b)    Court of Appeal The   President   of   the   Court   of   Appeal  presides   over   this   court.   The   Court consists of:


(i)    President of the Court of Appeal; and


(ii)   Eight Court of Appeal judges.


The    Court    of  Appeal     has  appellate    jurisdiction    against   any   High    Court
decision on criminal cases as stated by Section 50 of the Courts of Judicature
Act.


Section     67   of  the  said   Act   confers    the   Court    of  Appeal     appellate
jurisdiction   to   hear   and   determine   over   civil   cases   of   any   judgment   or
order by any High Court.



(c)    High Court
The   High   Court   consists   of   two   Chief  Judges,   one   in   Peninsular   Malaysia
and the other in Sabah   and Sarawak. The High Courts are conferred with
unlimited      jurisdiction    over   criminal    and   civil  cases   brought     before   the
courts. The High Courts are also vested with the powers to refer any points
of law arising to the Court of Appeal for a decision.


Part II of the Courts of Judicature Act 1964 confers the High Courts with
unlimited powers to hear and determine criminal and civil cases.



In criminal cases, the High Court may pass any sentence as allowed by law.

Criminal      cases   may    only    be  brought     to  the   High    Court    only   after   an

offender   is   properly   committed   for   trial   after   a   preliminary   hearing   in   a

MagistrateÊs   Court.   The   jurisdiction   of  the   High   Court   on   civil   cases   shall

include,   as   stated   in   Section   24   of   the   Courts   of   Judicature   Act,   but   not

limited to:

(i)    Divorce and matrimonial causes;

(ii)   Matters pertaining to admiralty;

(iii)  Bankruptcy;

(iv)   Appointments of guardian for infants;

(v)    Appointments of guardian for mentally disordered person; and

(vi)   Grant probates of wills and testaments and letters of administration.

ACTIVITY 1.6

KUALA LUMPUR: Datuk Seri Anwar Ibrahim wants to include fresh evidence in his hearing, in the event the Federal Court allows him a leave application for

judicial   review   of   its   decision   to   uphold   his   conviction   and   sentence   on   four

counts of corrupt practice last July.



Counsel S. N. Nair said the fresh evidence was included in AnwarÊs affidavit,

which supported the motion filed at the Federal Court registry on March 10.



In his affidavit, Anwar claimed that the fresh evidence was based on his recent

discovery     of  facts  following   a  complaint   lodged    by  lawyer   Manjeet    Singh

Dhillon   to  the  Chief  Justice  against   High   Court   judge   Datuk    S. Augustine

Paul /



Based   on   the   above   article   and   scenario,   why   does   Datuk   Seri   Anwar

IbrahimÊs case fall under the jurisdiction of the federal court? Discuss.



1.6.2        Subordinate Courts



The Subordinate Courts Act 1948 provides for the establishment of the following

subordinate courts to administer civil and criminal law (see Figure 1.16).


Figure 1.16: The Subordinate Courts Act 1948



Now, let us discuss the Subordinate Courts Act 1948 in greater detail.



(a)    Sessions Courts
A judge presides in a sessionÊs court.


Section 62, Subordinate Courts Act states that the Sessions Courts have
the jurisdiction to hear and deal both criminal and civil cases.


(i)    Criminal Cases
For criminal cases, Section 63 of the Subordinate Courts Act gives the Sessions    Courts    jurisdiction   to  try all  offences   other   than   offences punishable   with   death.   Section   64   empowers   the   Sessions   Court   to pass any sentence allowed by law other than the sentence of death.



(ii)   Civil Cases
In civil cases, Section 65 defines the jurisdiction limits of the Sessions
Court.   Section   65(1)(a)   states   that  the   Sessions   Courts   can   trial   cases
where the amount in dispute does not exceed RM250,000.


However, Section 65(3)-(4) allows the Sessions Courts to conduct hearing in civil cases where the value of the dispute is above the aforesaid amount if both parties agree to it.



(b)    MagistrateÊs Courts

A   magistrate    presides    in  a  magistrateÊs    court.   There   are   two   types   of MagistratesÊ      Courts;    First  Class   MagistrateÊs     Court    and    Second    Class

Magistrate's Courts. Both courts have the jurisdiction to hear and determine

any civil or criminal cases arising within the local limits of its authority.



(i)   First Class Magistratei's Court
The    First  Class   MagistrateÊs     Courts    have   the   jurisdiction   to  hear

criminal cases as stated in Section 85 of the Subordinate Courts Act.



Section 87 of the Act states that it may impose sentences that does

not exceed five years imprisonment, a fine of RM10,000, whipping

up to   12 strokes or any sentence combining any of the sentences

aforesaid.



Most    of  the  court   reporting    that  appears    in  the  local  mass    media

originates from the hearings of these magistratesÊ courts.


(ii)  Second Class MagistrateÊs Court


The Second Class MagistrateÊs Courts have the jurisdiction to hear criminal cases but Section 89 of the Subordinate Courts limits the
sentences it can impose.


The     Second    Class   MagistrateÊs     Court    can  only   pass    sentence    not
exceeding six monthsÊ imprisonment, a fine not exceeding RM1,000 or
any sentence combining either of the sentence aforesaid.



(c)    PenghuluÊs Courts
Even    though     hearing    of  cases    at  PenghuluÊs      Court    has   never    been
highlighted by the media, the Subordinate Courts Act 1948 confers it with
jurisdiction to trial civil and criminal cases.


Section 94 of the said Act allows the PenghuluÊs Court to hear civil cases
in which plaintiff seeks to recover debt or liquidated demand in money
not exceeding RM50.


As   stated   in   Section   95,   96   of   the   said  Act,   it   also   has   the   authority   to
trial minor offences where the fine imposed shall not exceed RM25.



Hearings   at   all   superior   or   subordinate   courts   shall   be   at   all   times   open   to   the

general     public.   Because    media    practitioners    are   considered    members      of  the

public, they are allowed in so as to allow them to report courtsÊ proceedings. The

public    may    be  barred    from   entering   the  courtroom      as  this  is  allowed   for  in

Section 102 of the Subordinate Courts Act 1984. The court can hear any matter or

proceedings       or  any   part   thereof   in  camera    should    it  be  satisfied  that   it  is

expedient in the interest of justice, public safety, public security or propriety or

for other sufficient reasons.


ACTIVITY 1.7


In your opinion, why is it important for media practitioners to know and
understand the various aspects of law? Explain.



1.7          PRESS FREEDOM AND THE FEDERAL CONSTITUTION



SELF-CHECK 1.3


The Federal Constitution guarantees freedom of speech to every citizen
subject to certain limitations. Does this right apply to the freedom of the
press in Malaysia?



In the previous section, we have discussed at some length the power vested in the

Federal   Constitution   to   the   judiciary   and  legislature.   Now,   we   move   to   discuss

the Federal Constitution as it relates to the workings of the media organisations.

The Federal Constitution guarantees freedom of speech to every citizen subject to

certain limitations.



Freedom of speech should never be equated with freedom of the press. Since the

Federal Constitution is silent about freedom of the press, we can safely conclude

that   these   rights   have   never   been   conferred   upon   the   media   organisations   or

media   practitioners   in   this   nation   of   ours.   This   is   different   from   what   is   being

practised   in   the   United   States.   Amendment   I   to   the   Constitution   of   the   United

States categorically states that:


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.



The     provision      on   freedom       of  the    press    is  not   enshrined       in  the    Federal

Constitution       of  Malaysia.     What     types    of  freedom      is  bestowed      on  citizens    of

Malaysia?



The     various    freedoms      enshrined      in  the  Federal     Constitution      as  stipulated     in

Article 10(1)(a)-(c) covers the following acts:


Article 10(1)


Subject to Clauses (2), (3) and (4)


(a)    Every citizen has the right to freedom of speech and expression.


(b)    All citizens have the right to assemble peaceably and without arms.


(c)    All citizens have the right to form associations.


These   rights   as   guaranteed   by   the   Federal   Constitution   are   subjected   to   various
limitations as stated in Article 10(2)-(4).


Article 10


(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  any  Legislative    Assembly     or  to  provide
against contempt of court, defamation, or incitement to any offence;


(b)    On the right conferred by paragraph (b) of Clause (1), such restrictions
as it deems necessary or expedient in the interest of the security of the
Federation or any part thereof, or public order;


(c)    On the right conferred by paragraph (c) Clause (1), such restrictions as
it deems necessary or expedient in the interest of the Federation or any
part thereof, public order or morality.


(3)    Restrictions   on  the   right   to   form   associations   conferred   by   paragraph   (c)   of
Clause (1) may also be imposed by any law relating to labour and education.


(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 laws.



In    other   words,     while    Article    10  of  the   Federal     Constitution      confers    certain

freedom to all citizens, it at the same time imposes limitations. These limitations

as   outlined   in   Article   10(2)-(4)   confer   power   on   the  Federal   Parliament   to   enact

laws     that   limit   such   said   freedom.      The  different     scope    of  laws    that   may    be

enacted to limit such freedoms as derived from the above mentioned Article is as

follows:


(a)    Security of the Federation;

(b)     Friendly relations with other nations;

(c)     Public order;

(d)     Morality;

(e)     Privileges of Parliament and Legislative Assembly;

(f)     Contempt of court;

(g)     Defamation;

(h)     Incitement of any offence; and

(i)     Questioning of „sensitive matters‰.



When   Article   10(2)-(4)   is   read   together   with   List   I   of   the   Ninth   Schedule   of   the

Federal      Constitution,     the   Federal    Parliament      is  vested   with    the   legitimacy     to

enact   laws   to   curtail   such   freedoms.   Since   the   Federal   Constitution   is   silent   on

freedom of the press, the Federal Parliament has the right to curtail such freedom

to   preserve   the   interest   and   security   of  the   Federation.   The   various   legislations

that limit freedom of the press as passed by the Federal Parliament are as follows:



(a)     Printing Presses and Publication Act;

(b)     Official Secret Act;

(c)     Sedition Act;

(d)     Internal Security Act;

(e)    Defamation Act; and

(f)    Penal Code.



We will deal in great length the above set of legislations in the following topic.


ACTIVITY 1.8


The   full   text   of   the   Constitution   of   the   United   States   of   America   can   be
downloaded from the following site:


http://www.law.cornell.edu/constitution/constitution.table.html.


Try   to  spot  the   major   differences  between       the  Federal    Constitution
and   the Constitution of the United States of America.


SELF-CHECK 1.4


Explain the following terms:
(a)   Press freedom;

(b)   Freedom of speech; and

(c)   Manipulation of reality.



? In this topic, we have discussed the Federal Constitution as the supreme law
of this country.



? The   Federal   Constitution   allows   for   the   setting   up   of   the   three   branches   of
government: legislative, executive and judiciary.



? Authority of the three branches of government is subject to the provisions of
the Federal Constitution.



? Even though the press could be considered the fourth branch of government
in   the   west,   but   the   Federal   Constitution   of   Malaysia   does   not   make   any
provisions for this.




Court of Appeal                              
Legislative



Executive                                    
MagistrateÊs Courts



Federal Constitution                          
Sessions Court



Federal Court                                
Subordinate Courts



High Court                                    
Superior Courts



Judiciary

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