How free are we to express ourselves under the Federal Constitution?

Courts have the power to declare a law passed by Parliament as being contrary to the Federal Constitution and void (without effect and ceasing to exist). It can also invalidate a government decision. The courts would do this through the process known as judicial review.

By Fahri Azzat, LoyarBurok

ALTHOUGH the right to freedom of speech is often expressed as a separate right, in truth it is part of the right to freedom of expression. On a personal level, this is your essential right to manifest yourself and your thoughts by words, dressing and actions. 

 

For example, you can jog backwards through town while dressed in a cheap pirate costume while reciting erotic Latin poems. Though it is not encouraged because it is a silly thing to do (and it definitely won't help you in becoming a chick magnet), but hey, that's your constitutional right as enshrined in Article 10(1)(a) of the Federal Constitution. Nobody can prevent you from doing this, although your loved ones will try very hard to dissuade you (and you should listen to them). 

 

On a social level, that freedom of expression is manifested in several ways. 

 

The first is the ability to move about freely and unhindered, or to stay in any part of Malaysia. It is entirely understandable however if you choose not to stay in Kangar, Perlis. This right to freedom of movement is enshrined in Article 9(2) of the Federal Constitution. 

 

The second is the right to "assemble peaceably and without arms" as provided in Article 10(1)(b) of the Federal Constitution. You may be relieved to know that cutting off your arms is not a precondition to a peaceful assembly. Your arms don't even need to be well toned. Hell, you don't even need them because "arms" here refers to weapons. Salt or mineral water bottles do not count. 

 

The third is the right to engage with others no matter how undesirable they are to your family or friends and to form "associations" with them. 

 

Associations here do not refer to your machas whom you hang out with at mamaks, no matter what your little group is. It is used in the broader sense to mean organisations such as societies; organisations and parties such as the Malaysian Nature Society,  National Human Rights Society and United Malays National Organisation. This is contained in Article 10(1)(c) of the Federal Constitution. 

 

These rights are known as fundamental liberties because they are fundamental to every human being regardless of race, religion, class, wealth or political affiliation. 

 

It is in the exercise of all these rights that we are able to fully manifest our humanity, and hopefully that would lead to contentment and productivity on a personal, societal, and national plane. They are also important to realising our humanity, to cultivating a democracy, and to keeping governments accountable. Or a whole lot of wicked fun. It's really up to us. 

 

Having said that, these rights are not absolute. They are subject to the limitations that promote public order, public health, security, and responsibility to those rights. 

 

Your right to freedom of speech and expression is restricted to the extent necessary to preserve national security, friendly relations with other countries, public order and public morality. 

 

You also cannot simply say nasty untrue things about others, or persuade someone to commit an offence. For these same reasons you will, for example, not be allowed to dress in the tightest speedos and walk about town no matter how nonchalantly. You could be arrested on grounds of public morality, or public order, regardless of how buff you are. 

 

Your right to freedom of movement is subject to the laws relating to security, public health, public order, and private property. For example, you cannot simply wander into an army camp. The government can restrict your entry where a landslide took place for your safety. You also cannot simply enter someone else's property at will. That's trespass, and you can be sued and charged for doing that. 

 

The right to assemble peacefully without weaponry and the right to form associations can be restricted for security purposes or to ensure public order. The right to associate can also be restricted in law that relates to employment and education.  

 

Even though the government can enact law or make decisions that restrict these fundamental liberties, its power to do this is theoretically supervised by the judiciary. Courts have the power to declare a law passed by Parliament as being contrary to the Federal Constitution and void (without effect and ceasing to exist). It can also invalidate a government decision. The courts would do this through the process known as judicial review. 

 

The courts can set aside a government decision for four reasons. 

 

The first is that the decision was illegal i.e. it had no power to make such a decision. The second is because the decision was irrational i.e. there was no logical or rational basis in making the decision. 

 

The third is because the government failed to comply with the procedure set out in law. If a government department or organisation fails to follow procedure, its action or decision can be set aside. Finally, where the decision or action taken is not proportionate to achieving the policy. For example, if the police issues a directive to police officers to use lethal force for petty crime, that decision can be set aside on the grounds of a lack of proportionality. 

 

Now that you know what your freedom of expression rights are, its limitations and how to keep the government in line, get out there and exercise them.