Tuesday, June 2, 2009

Article 10 of Federal Constitution

Article 10 which provides provision on freedom of speech, assembly and association is one of articles contain in Part 2 Fundamental Liberties. Article 10(1) state about the right of every citizen on speech and expression, assembly peaceably and without arms and the right to form associations. This provision is subject to clauses (2), (3) and (4) of the article.

Although the article gives freedom to the citizen in speech but it also provides some other limitations as in clause (2) where the parliament may impose law on the right in order to give restriction 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 restriction designed to protect the privileges of parliament or of any legislative assembly or to provide against contempt of court, defamation or incitement of any offence.

It shows that this article not merely contains the right of the citizen but more on the obligation of the citizen since there are many limitation provided. A person cannot simply speak out whatever he wants because his right to speech is subject to clause (2). This seems contrary to the draft of constitution contained in Reid Commission Report where it put the duty on courts to protect fundamental liberties provision by taking a critical view of the law restricting fundamental liberties and not just to put into effect any law passed by parliament. In Madhavan Nair v Public Prosecutor [1975] 2 MLJ 265, the accused has contravened a condition annexed to the grant a license to make a speech. The condition was: “…the substance of the speech should not touch on matters relating to the M.C.E (Malayan Certificate Examination, the school leaving certificate examination in which it was necessary to obtain a pass in Malay in order to obtain a certificate) result and the status of Bahasa Malaysia as the official language as laid down in Federal Constitution.” The issue in the High Court was whether the act of imposing a condition on the said license is contravened Article 10? Chang Min Tat J in his judgement said that the police could not impose any condition which contrary to the article and he added that no law power, statutory or otherwise can be exercised so as to contravene any article of the constitution. The judgement was influenced by Sedition Act 1948 and clause 4 0f article 10. In other case of Public Prosecutor v Ooi Kee Saik [1971] Raja Azlan Shah J said “in my view the right to speech ceases at the point where it come within the mischief of … the Sedition Act.”
While article 10(1)(b) gives the right to citizen to assemble peaceably and without arms. Like under clause (a), this right also subject to clause (2), (3) and (4). Does it means any kind of assembly and gathering which is done peacefully is lawful or may a peace assembly be considered unlawful just because there is other law restricts that assembly? In Chai Choon Hon v Ketua Police Daerah Kampar [1986]2 MLJ 203, the peaceful assembly was restricted by Police Act 1967. In that case the act restricted on the number of speakers and the court held that the restriction was void as it was unreasonable.
Looking at same ground, can a peaceful demonstration be done by citizen who disagrees to any government policy? For example what has been done during ‘BERSIH’ assembly on 2008 and ‘ANTI PPMSI’ on 2009. On what basis police has right to prevent the people from holding such assembly? If the police argued that the place was not suitable since it was held in a crowded place so is it will be lawful if it was held in countryside? And if police argued that it will bring harm to the public, on what extent it may cause since the people bring no weapon. So what law used by police to restrict such assembly? So the restriction should be considered as unconstitutional. In contrary, the assembly held by Hindraf on 2008 should be restricted as it against article 10(1)(b) because the Hindraf members when held the assembly has bad intention and also may cause harm to public as they bring dangerous weapons and used criminal force to public servants on duty.

Other right provided under article 10 is the right to association. This article also seems not bring much benefit to the citizen since court itself confused on the extent of the right given to people in association. In the case of Malaysian Bar & Anor v Government of Malaysia [1986] 2 MLJ 225, Harun J held that article 10(1) (c) does not give any right to any citizen to manage association but just the right to form it.

The issue comes to mind is who are given this right? Is this right given to all people regardless their status and age? Can law be biased by giving certain restriction on particular person only for example in University and University Colleges Act 1971 which contain provision restricting university students from involving in political parties? Or is political parties are excluded from the meaning of association? So it seems the provision under the Act is unreasonable. Not only that, although article 10 has given right to the citizen to association but in most universities and colleges, students need to wait for a long time just to form an association. It shows that the right is does not function properly.

Those three rights under article 10 are so important since it becomes the basic of the doctrine of democratic country. From the freedom of speech, assembly and association, the people of the country may express their opinion on important matters of the country especially what are related to their rights and obligation. The court should function and use their power to help people and not just interpret the law in favor of the parliament.