Freedom of Speech and Democracy in Malaysia

Mohd Azizuddin Mohd Sani

This article seeks to understand the situation of political speech in Malaysia, the
argument in favour of restrictions on political speech, and the problems that prevent
political speech from being practised effectively. For example, two particularly
sensitive issues*ethnic rivalry and religion*are considered taboo and discussion of
these issues is severely restricted. Article 10 of the Malaysian Constitution, in
reflecting the sensitiveness of these issues, specifies a list of restrictions, which limit
the right of free speech on the grounds of guarding political stability and racial
harmony. Furthermore, freedom of political speech and the political rights of
individuals are secondary to the goals of national prosperity and national
development, and the government is predisposed to impose some form of political
discipline in order to serve the greater social good. However, the Malaysian
government has taken a step further to control not only hate and racial speech, but
also any political speech that seriously challenges the government. In this respect,
the Malaysian government can be accused of being less democratic for its restriction
on political speech.
Keywords: Malaysia; Political Speech; Freedom of Speech; Asian Values;
Democracy; Strong Liberalism; Reasonable Regulation
Introduction: Democracy in Malaysia
In Malaysia, freedom of speech is formally assured by Part II of the Federal
Constitution under Article 10(1) entitled Freedom of Speech, Assembly and
Association. Article 10(1) specifies that (a) every citizen has the right to freedom of
speech and expression; (b) all citizens have the right to assemble peaceably and
without arms; and (c) all citizens have the right to form associations. However,
although citizens have a right to freedom of speech, Section 2 of the Article limits the
right where Parliament may by law impose restrictions as it deems necessary or
expedient in the interest of the national security and relations with other countries, to
public order or morality, to protect the privileges of Parliament or of any Legislative
Assembly or to provide against contempt of court, defamation, or incitement to any
offence (Comber, 1983; Federal Constitution, 1999). The constitution and other laws
however have provisions that seek to punish those who are found to be exceeding
their right of expression by expressing controversial views on issues such as the
special rights of the Malays and other indigenous people (bumiputera), Islam as
national religion, the rights of immigrant races (especially Chinese and Indians) to
citizenship, the position of the King, and the status of the Malay language as the
national language and a host of other issues that could potentially be sensitive in the
context of the fragile race relations in the country. It is argued that Malaysia as a
multiracial society, liable to racial conflict, requires such laws to prohibit the
propagation of racial prejudice and religious bigotry. The constitution also prohibits
speech that advocates the forcible overthrow of the government. Political speech, it

is argued, must be circumscribed by the need for national stability and racial
harmony. Democracy ala Malaysia (Muzaffar, 1989) or democracy according to our
own mould (Saliha Hassan, 1997) as asserted by the Barisan Nasional (BN)
government, so it is argued, enables Malaysia to maintain its racial harmony, political
and social stability and internal security without compromising its economic
resilience or beingover-zealous about the democratic system (Saliha,1997:10).
Mahathir Mohamad, Malaysias prime minister, defended his record on the eve of his
final parliamentary appearance in October 2003 in regard to democracy and
reiterated his position that too much freedom could lead to anarchy and the
destruction of Malaysias multiracial society. Measures such as detention without trial
of terrorist suspects and the banning of the Communist party from participating in the
elections are essential to maintain democracy and harmony. Whilst believing in free
speech the government had to ensure that racial sentiment in the country would not
be inflamed. He further added:
If an individual or a small group tried to incite a (race) riot they are actually
rejecting democracy and the right of majority ... That is why actions that
seem undemocratic towards the individual or the minority need to be taken
to protect real democracy ... Anarchy can take place because of an
obsession with demo-cratic. (SUARAM, 2004: 21)
Mahathirs successor, Abdullah Ahmad Badawi, in his first speech to the Parliament
on assuming his appointment as the Prime Minister in November the same year,
pledged to uphold democracy while fighting terrorism and corruption. He also
expressed his conviction that democracy is the best system of governance, and the
government must be open and ready to accept criticism and contrary views if the
culture of democracy is to thrive. He added however that:
Democracy does not mean absolute freedom. Issues that inflame religious,
racial, and cultural sentiments should not be sensationalised, while
attempts to under-mine national security must be dealt with firmly.
(SUARAM, 2004: 21)
Abdullah will obviously continue to take responsibility in managing and ruling the
country, ensuring racial harmony and stability, and also continue Mahathirs policy of
restricting political freedom and speech that are deemed to be a threat to national
security, public order and the governments position in power. Shad Faruqi (2004a:
136), in acknowledging that Malaysia has achieved high levels of tolerance through
the strict policy of prioritising national stability, argues that Malaysia is an excellent
example of religious and cultural tolerance. Chinese and Indian migrant communities
were granted citizenship rights at the time of independence. They were allowed to
preserve their culture language and religion, and hate crimes against the minority
groups are largely unknown. Instead Malaysia has created a melting pot, weaved in
a rich cultural mosaic. This has resulted in the emergence of an extraordinarily
multifaceted society with plural lifestyles. However, the governments lack of
tolerance shown to the opposition party makes openly critical political speech difficult

in Malaysia. Opposition activities apart from being curbed by restrictive laws are also
controlled by a complex web of institutional networks such as municipal councils,
district offices, schools and state sponsored religious establishments. The
preservation of inter-racial harmony appears to be the legitimising factor that props
up the argument supporting the ruling elites domination of the government,
proposing the idea that political organisations should consent to the larger
programmatic mission of the state representing the nation (Nair, 1999: 92 93).
Generally, the government, including the prime minister, does not set a high priority
on free speech. Indeed, the government is of the view that opposition parties and
human rights activists, often encouraged by foreign countries and organisations, are
a hindrance to the countrys economic development and jeopardise its stability (Milne
and Mauzy, 1999: 105).
Mahathir (1982: 127) argues that the activities of movements in civil society
that tend to meddle in politics should be curbed as they clearly aim to weaken
government authority and do not contribute to the public good. The government is of
the opinion that opposition parties and non-governmental organisations (NGOs)
should be closely monitored as they have the ability to influence public opinion,
endanger public order and even obstruct well-planned, national development (Tan
and Singh, 1994: 24). Restrictive laws and the full authority vested in the Minister of
Home Affairs to decide on the establishment and activity of any association under
the Societies Act 1966 (1998) has diminished the role of political organisation and
political speech. The Societies Act 1966 consolidates the various existing ordinances
that regulated and restricted the formation and activities of societies, clubs,
organisations, associations and political parties in Malaysia. In 1981, the category of
a political society, subject to specific restrictions, was introduced. A political society
was defined as any group or body that sought to influence in any manner the
policies or activities of the Government of Malaysia, or of the Government of any
State, or of any local authority. Once designated political, a societys membership
was effectively restricted. Under previous legislation, members of certain
professions, including university lecturers, are not allowed to take part in political
activity, and would therefore be prevented from joining a political society.
The 1981 amendments introduced a clause that allows the minister to
categorise an organisation as political, suggesting that the Act could be used
against any pressure group seeking to comment on or influence government policy.
It was sharply criticised by a broad spectrum of social and political organisations,
leading to its amendment in 1983. A range of restraints however still remains in place
or has been added, including the effective denial of judicial review of government
decisions. The denial of political speech to the civil society or even the opposition
may leave the government unchecked and facilitate the abuse of power and
corruption. Abdullah, on assuming the office of the prime minister in 2003,
implemented a tough policy on corruption. According to Anil Netto (2003: 1-2), one of
the stumbling blocks in the battle against corruption, however, is that the AntiCorruption Agency(ACA) is hardly independent as it reports to the Prime Ministers

Department. He, then, argues that it is thus difficult for the ACA to investigate highlevel corruption involving ministers and senior officials without clearance from the
very top. In cases where investigations actually take place, the probes are likely to
drag on for years, often with a finding of insufficient evidence. There have been
numerous calls for the ACA to be converted into an independent commission, to be
made accountable to an independent authority. The direction of Malaysian politics is
to a considerable extent determined by leaders, such as Mahathir and Abdullah, and
United Malays National Organisation(UMNO) the most dominant Malay party.
Although the existence of opposition parties, associations and cause oriented groups
are permitted, their rights to political speech and their capacity to mobilise masses to
impact on policy-making have been diminished. The government has either sought
to eliminate those groups that serve as a mediator between individuals and the state
or to cut them off from competition for power, thus undermining the possibility of their
influencing decision-making especially in policy-making process.
Several arguments are advanced to justify the regulation and restriction of
political speech in Malaysia; principally protecting public security, upholding Asian
values and combating racial hatred. These arguments have been examined in
general terms earlier, but it is necessary now to examine each of them as they apply
in the Malaysian context in a little more detail. However, before entering into those
discussions, this article should also examine the theoretical arguments of political
speech regulation in the next section in order to understand the issue of
implementing freedom of political speech.
Theories of Political Speech Regulation
There is an argument that political speech, even if worthless or harmful, must be
tolerated and unregulated because of the risks created by suppression. According to
Justice John Harlan, an attempt to purge public discourse of everything offensive
and obnoxious would drastically impair robust and uninhibited public debate. There
is also force in Harlans argument that it is risky to make any exceptions on this
point, lest there be no principled stopping place. But is he justified in his faith that
society is strong enough to shrug off the side effects of allowing even the most
debased messages their place in the marketplace of ideas (Harlan and Shapiro,
1969; Farber,1980)? Harlans view is similar to the view of several writers such as
William O. Douglas and Hugo Black who advocate the idea of strong liberalism.
They reject any regulation of political speech by the government (Sunstein, 1993:
58). They believe that the government is the enemy of freedom of political speech
and any effort to regulate speech by the government threatens the principle of free
speech. Government may not draw any lines between speech it likes and speech
that it hates: all speech stands on the same footing. The protection given to speech
extends equally to the well-known extremists and racists like the Communists, Nazis,
and Ku Klux Klan in the United States. The government, in their view, should ensure
that broadcasters, newspapers, and others may say what they wish, constrained
only by the imperatives of the marketplace of ideas. Strong liberals also accept the

slippery slope argument, where any restrictions on political speech, once permitted,
have a sinister and nearly inevitable tendency to expand. To allow one kind of
restriction is in practice to allow many other acts of censorship as well. The risk of
censorship is so serious and omnipresent because seemingly small and innocuous
acts of repression can turn quickly into a regime of repression that is anything but
innocuous. Judges should not uphold restrictions on speech simply because
government seems to have good reasons for the restriction in a particular case.
Neither should they examine the value of the speech at issue, compare it against
the harm of that speech, and announce a judgement based on weighing value
against harm. In any such judgements, there is far too large a risk of bias and
discrimination. Strong liberals argue that if judges were to balance harm against
value, they would be likely to uphold a wide range of laws censoring political dissent,
literature, and other forms of speech. However, the strong liberals are not only
advocating complete freedom of political speech, but also the constitutional
protection of all speech including commercial speech, sexually explicit speech, libel,
publication of the names of rape victims, advocacy of crime, the violent overthrow of
the government and flag-burning (Sunstein, 1993: 5 8).However, many are critical of
the argument of strong liberals. Most of the criticisms come from the advocates of
reasonable regulation, who call for a form of balancing between the interest in free
speech and the likely harms in some particular cases in the US. The opponents were
led most vigorously by Felix Frankfurter, who waged a challenge for balancing and
against strong liberals, especially in the area of constitutional law (Sunstein, 1993:
7).
Frankfurter, in Bridges v. California 1951 and Beauharnais v. Illinois 1952,
and, later, others, such as Robert Bork (1971) and Alexander Bickel (1976), argue
that balancing is a healthy and even an inevitable part of a sensible system of free
speech and political speech. Judges should take into account the various conflicting
interests that are inevitably at stake. Speech that threatens real harm may
legitimately be prohibited. This category includes political speech calling for violent
overthrow of the government, libel of racial groups, and publishing a threatening
message to a judge with reprisal if he rules against one of the parties. These thinkers
argue that reasonable regulation should not protect the advocacy of crime,
commercial speech, hate speech, obscenity, and the libel of individuals and groups.
The government is not an enemy of free speech, in fact, it should be allowed to
maintain a civilised society.
This principle means that the government must not restrict any legitimate
political speech, especially for public policies and interests, expressed by, for
instance, the opposition, pressure groups and civil society. At the same time, the
government may also guard against the degradation produced by, for example,
obscenity, the risk to social order posed by speech advocating violently overthrow of
the government, and the threats to equality and civility produced by racial hate
speech. This is parallel with John Stuart Mills (1859/1974) view that states
censorship is only a prima facie wrong, recognising as well that censorship can be

justified on the basis of protecting others from harm. Edmund Lambeth (1986), after
reviewing Mills arguments for free speech, pointed out that all aspects of liberty can
be limited to prevent harm to the interests of others. The importance of political
speech for the democratic system means that we need protection from political
speech as well as protection for it, and both are consistent with the ideal of freedom
of speech. Judith Lichtenberg (1987: 329-355) explains that the commitment to
freedom of speech has two different strands: The first is an opposition to censorship,
based on a belief that one should not be prevented from thinking, speaking, reading,
writing, or listening as one sees fit; the second, equally fundamental, is our
conviction that the purposes of freedom of speech are realised when expression and
diversity of expression flourish. While government intervention seems to intrude
upon the first principle, it may advance the second. Based on this argument, the
state has a duty and responsibility to protect the right to political speech. However,
restrictions or regulations in these areas are only permitted if they are prescribed by
law and are necessary in a democratic society in order to maintain public good. The
restrictions must also pursue a legitimate aim and be proportionate to the public
interests pursued such as restricting hate speech for racial harmony. The state that
restricts political speech more than acceptable or agreeable, according to the
argument of reasonable regulation, could be considered as non-democratic, less
democratic or autocratic state. Therefore, in the next section, this article will explore
Malaysias experience and practice with regard to the regulation of freedom of
speech.
Public Security
The government evidently uses the threat of the Internal Security Act (ISA) as
a device to quell dissent and bypass due process of law. A culture of fear and apathy
has resulted in an ever-shrinking democratic space in Malaysian society. Mahathir, in
the budget speech in September 2002, hailed the ISA as the main instrument that
saved the country and further asserted that liberal western countries have now
realised(since 11 September 2001) the importance of such preventive laws in
safeguarding the security of the nation (SUARAM, 2003: 21). Although the ISA is
designed to countersubversive activity in Malaysia, the law is also disproportionately
prejudiced against those who engage in opposition politics, or groups that oppose
government policies and as such are deemed political by the Attorney General such
as in the issue of police permit for public gathering. There is generally less scope for
spontaneous protest because of legal prohibitions and the policy requiring police
permits for any public gathering. The Police Act 1967(2002) effectively circumvents
the rights to free speech and free assembly, and confers wide discretionary powers
on the police to regulate assemblies, meetings and processions in both public and
private places. For instance, when political tensions increased sharply following the
dismissal of Anwar Ibrahim from his post as Deputy Prime Minister and Deputy
President of UMNO in September 1998 and later imprisonment for the charges of
corruption and sexual misconduct, the application of the Police Act intensified. On 24
October 1998 police came on to the platform at a forum held to discuss the repeal of

the ISA in the Malaysian Trades Union Congress headquarters in Kuala Lumpur, and
declared the meeting illegal, ordering the 200participants to disperse within 10
minutes or else face arrest. The Penal Code (2002) also places restrictions upon the
right to peaceful assembly. The Code defines unlawful gatherings and riots, police
powers of dispersal and penalties upon conviction. Incidents in which the Police Act
and/or the Penal Code have been applied include, for instance, the disruption by a
group of over 100 protestors including leaders and members of UMNO Youth in the
second Asia Pacific Conference on East Timor (APCET II) on 9 November 1996. It
was a legal closed-door or invitation-only NGO forum in Kuala Lumpur to discuss
peaceful solutions to the problem of East Timor. Due to the disruption, the police
intervened, arrested several demonstrators and ordered the meeting to disperse. All
of the international participants were deported and 59 of the local APCET organisers
and participants were arrested. The violent disruption of a peaceful forum prompted
critical commenting Malaysia and abroad. However, four of the demonstrators were
subsequently charged under the Penal Code (Section 146*rioting) and the Police Act
(Section 27A (2)*refusal to disperse). They were convicted and each fined RM1500
(Amnesty International, 1999). In April 2002, the Home Ministry Parliamentary
Secretary Abu Zahar Isnin defended the governments comprehensive ban on
political gatherings since July 2001, saying that it was necessary to maintain public
order. He insisted that the police would continue to take preventive measures
allowed by the law to contain any threatening political activities. He claimed that
political rallies (ceramah) were a waste of time and blamed the opposition for
wasting police resources to curb such activities. He asserted that the police had
identified 28 political rallies held without permits between July 2001 and February
2002. He also said that the police were in the midst of going through the recorded
political rallies to see whether any individuals involved could be charged under the
ISA. The late Parti Islam Se-Malaysia (PAS, Pan-Malaysia Islamic Party) President
Fadzil Nor told the news agency Agence France-Presse (AFP): The mainstream
media*television and newspaper*are closed to us. We are under attack by the ruling
BN with false allegations. Political rallies are our only avenue to the people to clear
these allegations (SUARAM, 2004: 123124).
He noted that the police have since been more active in disrupting PAS
political rallies. In response to the governments ban on public assemblies, PAS
vowed to defy the ban on the grounds of its unconstitutionality and has also filed a
civil suit against the government over the ban. The Suruhanjaya Hak Asasi Manusia
(SUHAKAM, Malaysian Human Rights Commission) has since said that the ban on
general assemblies is a violation of human rights and reiterated that the right to
assemble peacefully is a fundamental human right guaranteed by the Malaysian
Constitution. The commission also said that there is no legal provision for such a
blanket ban as long as the gathering is conducted peacefully and without violence.
The policy of banning public gatherings by the government shows the unfair
treatment of political opponents and denies the right to political speech to the
opposition. The latest case was the 2007 Bersih (the Joint Action Committee for

Electoral Reform) Rally held in Kuala Lumpur on 10 November 2007. The nonviolent and peaceful rally organised by the opposition parties and civil society
movements to campaign for electoral reform was denied a permit by the police and
was marred by the confrontation between the police and the rally participants nearby
Masjid Jamek. The police arrested 34 people, released a night later, and injured
several more (Bersih, 2007).3Itis apparent that this is not primarily a matter of
restricting the content of the speech per se, but rather a matter of directly restricting
the speakers or the organisations that the speakers represent because they threaten
the power and status quo of the ruling government. This case clearly shows that
Malaysian government rejects explicitly no tonly the argument of strong liberalism,
but also the acceptable argument of the reasonable regulation on political speech
by denying an equal opportunity for the opposition and civil society movements
actively participating in political arena.
Asian Values
The idea of Asian values stresses the role of the culture, including religion, in
determining the identity and distinctiveness of the Asian peoples. It is clear that a set
of core Asian values has been identified by Asian political leaders as being deeply
entrenched in the local culture, extending over a conceptually homogenous Asian
region. The concept therefore is very much intrinsic to the idea of an Asian society.
It also emphasises the significance of what should and must constitute the
foundations of a genuine Asian polity. By extension these values must inform a
conception of democratic government that is acceptable, viable and truly authentic in
the Asian context. The definitive elements of Asian democracy are often highlighted
by the process of comparing and contrasting Asian values against certain Western
values. The process provides the necessary foundation for the assertion of a broad
Asian identity, a political identity that facilitates the legitimisation of a particular form
of democracy, which is put forward especially to the extent that it is firmly linked to
some kind of cultural base which in turn purports to lend authenticity and legitimacy
to the model. These kinds of formulations are common to nationalist constructions of
identity.
In this respect regionalism is evident in the process of conceptualising an
Asian identity and an Asian version of democracy, and may be seen as an extension
of the nationalist device. Of the values proposed as constituting the core Asian
culture and identity, and by implication Asian democracy, consensus, harmony, unity
and community have been most emphasised and contrasted favourably with values
that are said to be characteristic of Western polities namely, dissensus, conflict,
disunity and individualism. The Asian values highlighted appear to be opposite to the
corresponding Western values and, with the possible exception of individualism, to
be more admirable. However, appearances can be deceptive and on closer
examination, especially in terms of how each set of values operates, things may not
be that straightforward (Lawson, 1996: 119).The cause of Asian democracy that is
being championed by Malaysian political elites has produced a vision of Asianness

that is aimed at highlighting the virtues of the existing social and political
arrangements while at the same time condemning what are alleged to be Western
social and political values. In the statement published by Asian Wall Street Journal
on 1213 November 1993, Mahathir claims that values based on the spiritual, on
peace of mind, and on belief in feelings loftier than desire, have no place in the
Western psyche (Lawson, 1996: 121). He further argues that autochthonous forms
of political rule are quite obviously much more appropriate incultural terms (Case,
1993: 203). These claims according to Stephanie Lawson (1996:121) are directed at
both domestic and external audiences. For a domestic audience it operates to
produce a unified nationalistic rallying point, differentiating us from the external
them, despite the considerable internal cultural and social diversity that
characterised Asian polities. Externally, against the West it serves as a useful
defence*sometimes in an offensive manner, against criticism and prescription such
as the diplomatic incident caused by the remarks made by Australian Prime
Minister, Pau lKeating, in November 1993 when he described Mahathir as
recalcitrant for the latters refusal to attend Asia-Pacific Economic Cooperation
(APEC) summit in the US. It was made clear on the Malaysian side that Keatings
remarks were evidence of the lack of manners and respect in Australian culture*an
obvious contrast to the Asian culture. With Mahathir remaining aloof to the remarks,
the general impression created by the Malaysian government was that the
Malaysian people had been offended by the remarks rather than Mahathir
personally. Negative and exaggerated external criticism can easily be depicted as an
insult to the cultural values of the people. In this case, Keating provided some very
convenient material that enabled the Malaysian government to exercise its political
chauvinism effectively, targeting both the domestic and external audiences (Lawson,
1996: 122). Malaysia is also obsessed with its social stability. As there is a large gap
in economic well-being between the various levels of society, and society is itself so
diverse, communal politics are potentially explosive. The successful defeat of the
communists and the avoidance of racial tensions have made some leaders argue
that a strong controlling hand is a guarantee of stability and national security.
Stability is widely valued and is deemed good for everyone. So, much of the citizenry
surrenders itself to the strong government; that is one of the most important features
of Asian values. Malaysia, like Indonesia, Singapore, and China, often uses this
argument to defend the strong stance taken by their governments and political
leaders (Foong, 1999: 240).
Cultural sensitivities, especially concerning race and religion, are the main
obstacles to the implementation of political freedom in Malaysia. Great care is taken
not to impinge on the religious sensitivities of various groups. Given the fact that
Islam is the official religion, care is taken not to publish articles that cast a slur,
intended or otherwise, on the religion or its adherents. All the media, including those
operated by the opposition, follow this policy. Malays, by constitutional definition, are
Muslims and with the inclusion of some aspects of Chinese, Indian, and tribal
culture, and no media can carry articles that question the faith or ridicule it (Moses,

2002: 102-107).No pictures of pigs are used and pornographic expressions are
banned. There is strong consensus amongst Malaysians whether they are Malays
(or other indigenous tribes), Chinese, or Indians, which rejects materials of a
pornographic or sexua lnature as immoral and obscene. Pornography is seen as a
kind of exploitation as it degrades, endangers, and harms the lives of women.
Although many in the business argue that the womens involvement in pornography
is voluntary, many Malaysians believe that there is an element of exploitation by the
pornographic industry. Mahathir argues in this context:
... there are limits to freedom, and I believe it is important for every
member of asociety to know these limits. One good example is
pornography. You can have computer animation, which may be ever
so creative*and thus should be freely available*but if this freedom is
used to produce pornographic films that are purveyed to the
impressionable young, then the fruits of the freedom should not be
accepted and allowed by society. In Malaysia, it is not my impression
that business ingenuity or creativity have been stifled by our
Malaysian value system which sets clear limits to individual freedom
and generally emphasises the community over the individual. To the
contrary, I believe that our value system has been the foundation for
our societys stability and prosperity, at least until the economic crisis
struck. (Mahathir, 1999: 73-74)
On this matter, the government takes the initiative to protect public morality
and the traditional way of life from pornography and sexual exploitation. For
instance, in February 2002, the government banned a rerun of the controversial
feminist play The Vagina Monologues. The play, presented by local performers, and
according to the producer of the show, contained adult material but was neither
vulgar nor obscene. The play was banned because of alleged complaints by
members of the public on the vulgar content and title of the play. Religion is
significant in determining the values that Malaysians hold. Thus, Malaysian (Asian)
values are influenced much by the Islamic values that give greater importance to
moral beliefs and human dignity. In the context of the Malaysian state, the fusion of
religious and political authority in public life is claimed to help to avoid the moral
decadence of the West and irresponsible political speech, and to contribute to the
tolerance of different religions. Attempts to disrupt religious harmony are severely
dealt with in Malaysia. Unlike in England where blasphemy4is an offence only
against the Church of England, the Malaysian Penal Code in sections 295298A,entitled Offences Relating to Religion, punishes offences against all religions.
However, on 4 February 2002, the issue of blasphemy became a national
issue when groups led by the Muslim Scholars Association of Malaysia (MSAM)
submitted a memorandum to the Conference of Rulers urging action against several
individuals said to have insulted Islam in their writings. Those named in the
memorandum included theMalaysian Human Rights Commissioner and the leader of

a NGO Sisters in Islam Zainah Anwar, Malaysia kini and New Straits Times columnist
Farish A. Noor, formerSun columnist Akbar Ali, writer Kassim Ahmad, University of
Malaya researche rPatricia Martinez, and lawyer Malik Imtiaz Sarwar. They were
accused of blasphemy by insulting Islam, the Prophet, belittling verses in the Quran
and Hadith, and questioning the intellectual role of Muslim religious scholars or
ulama. What began as a religious issue, however, turned into a sensational political
theatre when several UMNO members tried to respond to the issue and criticised
MSAM because of itsclose links with the opposition party, PAS. For instance,
Mustapa Muhamad,Executive Director of National Council of Economic Action,
supported the writers and said, There is nothing wrong if their opinions do not go
against the aqidah (faith) and Islam. Difference of opinion is normal in Islam.
Furthermore, Zainuddin Maidin, Parliamentary Secretary for Information Minister,
said, Their (the writers) writings can improve the image of Islam that has been
damaged by the frozen-minded and fusty orthodox scholars. Their (the writers)
thoughts are respectable, through them people see the true Islam (MSAM, 2002:
4243). The support from several UMNO members was a surprise, even to the
secular-liberal NGOs themselves, because the ruling government, particularly during
Mahathir leadership, had never shown much intention of allowing free speech, or any
space for dissent. In this regard ,the UMNO support was understandable because
Mahathir himself has been the favourite target of the MSAM and other Islamic
bodies wrath. Clearly, this issue has become an issue of political contestation
between two strong Malay-based parties, UMNO and PAS. The MSAMs
memorandum triggered a confrontation between Islamic NGOs, supported by the
Islamic party PAS, and secular-liberal NGOs, supported by the Nationalist party
UMNO, on the issue of free speech, especially on the boundary of free speech with
respect to Islam. If Malaysia believes in a democratic system which encourages
freedom of speech as well as freedom of religion, there should be a meeting
between the MSAM and those writers where dialogue takes place in a civil and
peaceful manner because this issue involves Islam, the national religion, and
because of the sensitivity surrounding it. Freedom of speech should not be sacrificed
on this issue, but all parties should show a sense of social responsibility in
discussing such a sensitive matter. Through dialogue, this issue can be resolved
peacefully, disagreement can be avoided, and compromise can be achieved. In
conclusion, the use of cultural and religious sensitivities as arguments in restricting
political speech is considered a free speech violation from the liberalism standpoint.
On the contrary, reasonable regulation theorists believe that the arguments
of cultural and religious sensitivities are strong enough to legitimise restriction on
free speech. Michael Sandel (1996) and George Will (1983) argue that pornography
and racist religious agitation that undermine cultural and religious values ought not to
enjoy the same protection as other speech or expression. Wil l(1983: 84-85), for
instance, argues that the political community, acting in its own interest and on its
sense of responsibility, and in the interest of the moral betterment of its citizens,
ought presumptively to have the right to impose prudential restrictions. This

argument by the reasonable regulation theorists to back the restrictions is, indeed,
compatible with the argument of Asian values brought by Malaysian leaders such as
Mahathir in protecting cultural and religious values. The Malaysian restrictions on
free speech are defended in terms of Asian values with the strong influences of
Islam and Confucianism. Ideologically, the elites, and their intellectual supporters,
express a preference for systems of government that are underpinned by moral
values, social norms and cultural attitudes, which are said to be derived from
religious and philosophical traditions, and historical experiences. Itis also clear in
Malaysia that, from the perspective of elites seeking to exert domestic control, Asian
values is part of their dominant discourse, and laden with hegemonic intent (Khoo,
1999: 181192). Husin Ali (2004: 10 14) criticises this notion of Asian values
because the political elites use the argument of, for instance, strong government for
national stability to justify their paternalistic attitudes toward the ruler ruled relation.
He, further, argues that the government tries to attract peoples loyalty and rejects
dissident views as unpatriotic. Thus, government leaders dominate political speech,
and limit the opposition right to political speech, as a means to control public opinion
and stay in power (Husin Ali, 2004: 10-14).
Racial Issues
Racial hostility, degenerating into racial hatred, is an ongoing threat in Malaysia. It
could be found in the attitude of certain non-Malay-based opposition parties in the
1960s. They were opposed to the status of Malay, instead of English,
Mandarin/Cantonese or Tamil, as the sole official and national language of the
country because this policy jeopardised the vernacular schools, especially the
Chinese schools and the Indian schools which used their own languages as official
language in school. Likewise, a Malay party of the same period was angry that
citizenship was given to the non-Malays on such a liberal basis and wanted Malay
sovereignty restored (Muzaffar, 1986: 61-62). The violence of the racial conflict on
13 May 1969 and the problem of multiracial relations resulted in the government
taking a major policy initiative involving the formal declaration of a national ideology
called the Rukun negara on 31 August 1970. It was designed to be the basis for
creating a consensus on communal issues by establishing principles that could be
invoked to restrain the more extreme demands of ethnic chauvinists (Means, 1991:
12). In Malaysia, there is a view that the Malays as bumiputera or sons of the soil
should defend the special right and preserve the historical character and original
Malay sovereignty of the land. Non-Malays, however, demand equal rights in
keeping with the notion of modern democracy and popular sovereignty (Said, 1992:
254-281). One of the latest cases that has sparked the crisis between races in
Malaysia is the issue of Suqiu Demands. On 16 August 1999, a few months before
the 1999 general election, 11 Chinese NGOs7established a lobby group called the
Malaysian Chinese Organisations Election Appeals Committee (or its acronym
Suqiu) and launched their 17-point Election Demands. The Suqiu demands could be
divided into two types. First, the Suqiu supported a number of universal goals similar
to the ones promoted by other groups and which were incorporated into the

Alternative Front (BA or Barisan Alternatif* a coalition of opposition parties). These

include the enlargement of democratic rights; the elimination of corruption, cronyism,
and nepotism; the protection of freedom of speech, press, assembly and association;
and the repeal laws such as the ISA, Official Secrets Act (OSA), Sedition Act (SA),
Printing Presses and Publications Act (PPPA) and Universities and University
Colleges Act(UUCA). On the other hand, it emphasised the usual Chinese concerns
for equality of economic, education, cultural, and political rights. The Suqiu also
recommended that steps be taken to abolish all aspects of the bumiputera/nonbumiputera dichotomisa-tion (or special Malay rights) as stated in the Article 153 of
the Federal Constitution. In terms of economic policy it advocated abolishing the
quota system based on race and replacing it with a means-tested sliding scale; and
finally it was in favour of removing the racial-based quota system for university
admission (Lee, 2002: 184).However, at a national-day speech delivered on 31
August 2000, Mahathir publicly named Suqiu as one of the Chinese extremists group
and claimed the group was using communist tactics. Any removal of the special
rights, according to Mahathir, would lead to social chaos and political instability and
would be deemed a direct challenge to Malay political supremacy (Chin, 2001: 88).
He warned people, whom he labelled extremists, not to politicise the issue of
language, education, and quota in public service by raising racial issues. Mahathir
also attacked Western liberal democracy which often tolerates offensive and hate
speech:
Malaysian democracy is not a liberal democracy and not bound to accept
every new interpretation of democracy in the West where democratic
fanatics have pushed devotion to a pedantic notion of democracy to
include the protection of neo-fascists or the empowering of a vocal
minority of political activists over the silent majority of ordinary citizens.
(Leigh and Lip, 2004: 320)
In maintaining peace and stability in a communally divided society, the
government takes an initiative to restrict offensive and hate speech, and this includes
speech advocating the overthrow, forcibly or peacefully, of the ruling government.
There are two court cases that support Mahathirs decision to restrict hate speech. In
Public Prosecutor v. Ooi Kee Saik & Ors. 1971, Justice Raja Azlan Shah adopts a
strict rather than a liberal interpretation of free speech. He observes that while it is
true that freedom of speech should be given the greatest latitude, it is also true that
free and frank political discussion and criticism of government policies cannot be
developed within an atmosphere of surveillance and constraint. He, then, comes to
his judgement and says:
But as far as I am aware, no constitutional State has attempted to
translate the right into an absolute right. Restrictions are a necessary
part of the right ... The dividing line between lawful criticism of
Government and sedition is this*if upon reading the impugned speech as
a whole the court finds that it was intended to be a criticism of

Government policy of administration with a view to obtain its change or

reform, the speech is safe. But if the court comes to the conclusion that
the speech used naturally, clearly and indubitably has the tendency of
stirring up hatred, contempt or disaffection against the Government, then
it is caught within the ban of paragraph (a) of section 3(1) of the
(Sedition) Act. (Rais Yatim, 1995:170)
In Public Prosecutor v. Oh Keng Seng 1977, the Federal Court sets out the
guidelines which determine if legitimate criticism transgresses the limits of freedom
of speech and constitutes sedition within the ambit of the SA. In this case, Justice
Wan Sulaiman maintained that a speech stating that the army is composed of one
hundred percent of one ethnic group consequent on the governments policy to
favour that ethnic group to ensure political hegemony is clearly illegal under the SA
because there is a clear intention by the speaker to incite hatred between races or
contempt or to excite disaffection against the government. He explains that words
having a tendency to bring about hatred or contempt of any ruler or against any
government, or promote feelings of ill-will and hostility among the various ethnic
groups can be uttered before a handful of persons and yet be seditious under our
law (Rais Yatim, 1995: 171). The Malaysian law of racial hatred and court
judgements are in the same category with US laws and court cases under the bad
tendency test.
Furthermore, K. J. Ratnam (2003: 3435) rejects the liberal argument that
everytime a regime embarks on actions that curtail political freedoms it does so
without legitimate cause and only for self-interested reasons, or that opponents of
governments are themselves always believers in democracy and civil rights. He
argues that the importance of social and political stability, especially in multiracial
society, is strong enough to justify substantial restrictions on political freedom and
speech. With regard to the media, Ratnam (2003: 54 55) urges that editors should
disallow the publication of views that inflame racial feelings or in other ways
undermine the fabric of society, even though the reasons for publishing those views
are to honour their commitment to freedom of speech and their opposition to
censorship. He concurs with the decision by the editor of a major Malaysian
newspaper not to published letters, reports or articles that incite people to racial
hatred. Conversely, those arguments in support of restricting racially motivated hate
speech will be condemned by those liberal advocates who believe that individuals
are entitled to express any views including racist views. Sumit K. Mandal (2004: 57)
criticises the Malaysian governments policy on racial hatred because he argues that
racialised, and even racist, instruments of state and politics find their place in the
public spaces of Malaysia without much sustained and rigorous criticism. Notable
examples of racialised language are the primordialist terms Malay supremacy
(ketuanan Melayu) and newcomer or immigrant (pendatang) used by chauvinist
elements in the Malay leadership to assert an inherent difference between their own
and migrant others. In recent decades, according to Mandal, these chauvinist term
shave come to the fore during elite political crises in order to galvanise groups along

racial lines. Hence, when oppositional groups, including NGOs, accuse the state of
racist politics, their arguments often run aground and do not find wide spread
support. The racialisation of state initiatives like the New Economic Policy
(NEP)soon after the watershed of 13 May 1969 have institutionalised race and made
it part of an effective political system, thus furthering its unproblematised existence.
As a result, according to Mandal, the state may be credited with making colonial era
racialisation, with a policy of divide and rule, a post-colonial success. Jomo (1988)
supports Mandals argument and argues for the discontinuation of ethnic-based
affirmative action on the grounds that the Malays had reached*or even
surpassed*the targets set for them. He echoes that far from promoting national unity
and improving the livelihood of all ethnics groups including the Chinese and Malays,
the implementation of the NEP had engendered ethnic polarisation. Rais Yatim
(1995: 171-173) disagrees with Justice Raja Azlan Shahs judgement on seditious
speech, arguing that the government hides behind the convenience afforded by the
SA, with the line between criticism and sedition vis-a`-vis the government being
very thin. The words naturally, clearly and indubitably used by Raja Azlan Shah can
be directed against the accused person quite conveniently after, for example, an
election campaign where a candidate criticises the authorities. He argues that these
are convenient adjectives without any true measure of an established standard and
they could be abused.
The cases cited above are directly connected with political speech. Unlike the
common law offence of sedition, which requires the prosecution to establish the
condition of rousing to rebellion, tumult or rioting to have been met by the person
making the speech, the offence created by the SA is committed by a person whose
words are spoken with only a seditious tendency. Rais argues that with the complete
exclusion of common law principles in the area of freedom of speech and
expression, assembly and association under Article 10 of the Constitution, true
democratic practices inevitably suffer, especially the citizens rights to assemble and
to engage in other related functions. All political talk has to be with a police permit
issued under the Police Act. Ethnicity has been asserted as the dividing line in
Malaysian society. It is evident that the post-independence political leadership has
organised its support base by continuing to emphasise race as the most important
dividing line between peoples. With the concern about racial tension in the future, it
can plausibly be argued that Malaysia has to maintain the current legislation on
racial hatred except, probably, by adding a few amendments to the provision as has
been suggested by Rais Yatim. This is important because the law should have a
clear standard of enforcement and be equal for all citizens, including government
leaders and officers.
The restriction on hate speech is definitely in line with the argument of
reasonable regulations, but not strong liberalism that allows of such speech.
However, restriction and censorship aimed at preventing offensive and hate speech,
including racial and religious sentiments that can cause hatred and intolerance,
should not be used as justification for suppressing open and responsible discussion.

However, in the name of maintaining peace and stability, the Malaysian government
has used the regulation of racial hatred not just to restrict racial and hate political
speech, but to illicitly control opposition which is totally against both arguments of
strong liberalism and reasonable regulations.
Conclusion
It is obvious that Malaysia does not accept the strong liberalism approach in
relation to political speech. Moreover, it does not fully support the argument of
reasonable regulation. Although Malaysia seems to embrace the reasonable
regulation arguments especially on the issues of cultural and religious sensitivities,
and hate speech, Malaysian government appears misusing those arguments to
manipulate the political system by limiting political freedom of the opposition and civil
society in which makes Malaysia a less democratic state. These occur because the
power to utilise political speech is concentrated within the political elite. The main
circuit of influence passes from this elite through the political system to other groups
and power centres in society. The political elite generally uses state power to
develop aclientelist system of patronage and influence. The Malaysian state, as the
peoples guarantor, censors and limits issues that can be discussed, marginalises
people seen to hold views critical of government policies, dislikes the creation of
formal avenues to articulate dissent, and tries to win support for its policies by
promoting them as being in the national interest or as part of its endeavour to
achieve national unity. Only the government is allowed to define what is in the
national interest and what is not. Restriction on racial hate speech is justifiable in a
multiracial society like Malaysia, but to restrict non-hate or non-racial political speech
is unjustified in a democratic system. In the context of Malaysian politics, the
government is clearly undermining the democratic process and freedom of speech
by restricting the right of the opposition parties and even the NGOs to make their
views publicly available. The public are also denied of their right of political speech.
The Malaysian government has obviously used the laws to strengthen its power, to
restrain opposition and to control public opinion. Power has increasingly been
concentrated in the hands of the Executive, and the centralisation of power has
blocked the opposition, the NGOs and the media from serving as an effective check
and balance on the powers that be. The right to political speech in Malaysia remains
imperative to the proper functioning of a well-informed society and democratic
practices. Although many would agree that racial harmony, civil order, and political
stability are always the main objectives of the multiracial society in Malaysia, there is
no reason that legitimate political speech, which is essential for any democracy,
should be sacrificed in achieving those objectives.