General election 2004, as with GE1999, saw the Barisan Nasional (BN) taking out political advertising in the newspapers. Monitoring by Aliran-Charter 2000 this year indicates whether or not the media has contributed to the level-playing field in electoral campaigning by the BN.

Political advertising is recently considered a serious threat to the integrity of the political system. The influence of advertising was not so overwhelming before, as it is today. There is also the pervasive and destructive influence of money connected in political advertising.

Election Commission (EC) chairperson Abdul Rashid Abdul Rahman (photo left) had proposed broadcasting law or changes to existing media law. 'Media' is certainly a wider concept than broadcast. We have however not seen any concrete recommendation or a draft law by the EC on this point. The last electoral law amendments were effective in 2003.

It is an open question whether an enabling law per se would be able to level the playing field on political advertising. As we have a written constitution, it is still possible to develop case law or precedents on principles around equality and free speech with regard to political advertising.

The late Justice Lionel Murphy (Australia) had occasion to remark that the written constitution of Australia itself facilitates a democratic political system. This is "enough to warrant a more alert judicial scrutiny than has traditionally been undertaken".

Judges should read the constitution in a creative way. In his view, Australian judges are not bound by the English doctrine of parliamentary supremacy. Judges, Murphy insisted, have a duty to delieneate the unencumbered rights implied by the constitution's structural arrangements.

Malaysia, like Australia, inherited parts of the English Westminster system. However, both countries have a written constitution which espouses parliamentary democracy and not parlamentary supremacy like the UK.

There is no equivalent of a US Bill of Rights in Australia. We have a chapter on fundamental liberties in Part II of the Federal Constitution with an equality clause in Article 8 and a free speech clause in Article10.

Philosophical and political theories

Democracy requires a kind of judicial review that secures fundamental civil and political rights. Murphy, like John Hart Ely (1980) admires the 'Warren Court', a reference to the US Supreme Court under Chief Justice Warren. Judges, said Murphy, should rely on liberal philosophical ideals and political theories to guide their judgements.

Australian legal scholars say that the 'representation-reinforcing' notion developed by Ely allows some Australian cases to go around the perception that the Australian judiciary is subordinate to Parliament. By claiming that the judiciary is the only neutral umpire able to ensure that Parliament is actually accountable to the people, judges are able to reconcile their decisions with what they take to be the democratic theory assumed by the framers of the constitution.

However, Australia's maiden attempt at adjudicating a political advertising case floundered. This is the 1992 case, Australian Capital Television case (ACTTV).

ACTTV had to decide on an amendment to a broadcast law, The Political Broadcasts and Political Disclosures Act 1991. The parent law itself dates from 1942. The 1991 amendment sought to prohibit the broadcasting on radio or television of political advertisements during an election campaign.

The Australian High Court in ACTTV struck down the 1991 amendments on the basis that there should not be a restriction on free speech. The case has been widely criticised. The judges placed undue reliance that more speech would lead to discovery of truth, it failed to take into account the potentially deleterious effect of political advertising on truth. It assumes that equal access to the media is possible and limitations on access to the media would have similar effect on different political actors.

Political advertising is not aimed at the discovery of truth. The content and manner of presentation is not aimed for accuracy. Techniques of advertising are largely emotional techniques and are not aimed at information or content.

Political messages are often presented as statistical proof, propaganda merges with information. In the short period of campaigning, (GE 2004 had less than eight days) truth may not have time to prevail. These are some arguments put forward by social science writers and activists like Noam Chomsky.

Manufactured consent

Chomsky (1989), contends that commercial imperatives militate against finding truth. The truth is obscured in the marketplace where there is a domination by ideological interests which serve certain classes or sectors, by concentration of media ownership, restrictions and pressure on journalists to conform, high costs of access to media and more. These factors undermine the diversity of views. Consent of people to democracy is not based on a range of plural views, but is 'manufactured'.

If we take into consideration these views, then the 1991 law which was banned by ACTTV, was not designed to interfere with the marketplace so as to avoid truth. The law was to facilitate the discovery of truth by reducing domination of the marketplace by those who could afford to advertise.

The 1991 law sought to reduce domination by groups holding economic and political power, thus contributing towards 'unmasking truth' and consent of the elected would be real than manufactured. However, ACTTV merely endorses the symbolic value of the idea of free speech in a democracy. It failed to clarify the actual value of the speech involved.

We cannot expect our judges judges to act as moral philosophers when they have to decide on rights. Legal writers however think that judges must at least have some discussion on 'representative democracy'. 'Democracy' itself is a word not without controversy.

In ACTTV, there is some discussion on democracy. There is a 'top-down' view of democracy where the people's participation is confined to choosing an elected representation at an election. The other view of democracy places more emphasis on individual self-government and free speech is valued as being related to personal autonomy. A top-down approach allows a limited right to political speech at election period. The other extends this right beyond election.

Political perspective

Judicial decisions that involve issues of political perspective like democracy and representative government are central in legal systems where there are constitutional provisions on fundamental liberties.

After the ACTTV case, it is recognised that conditions of democracy (eg. political speech/advertising as free speech) are not necessary democratic. Legal writers have in fact suggested that measures (whether legislation or judicial pronouncements), which may on the face of it appear 'undemocratic' are needed to redress the problem.

Thus, where the concentration of economic and political power blocks effective dissent and real consent, thereby stifling a democracy, redressal becomes necessary. In the case of political advertising, it may mean that what needs to be done is perhaps reduction of speech opportunities for some in order that others' rights are increased.

No effective dissent is in any case facilitated by advertising. Some scholars maintain that there should be a general prohibition on political advertising. This is more so where there is no free and equal time provisions for all political groups.

We have not yet brought a case on political advertising to our courts. Perhaps the time is right to do so now. A challenge may perhaps be explored on the basis (though not exclusive) of our fundamental rights under Article 8 (equality) and Article 10 (free speech).

We should begin engaging our courts with the wider issues of representative democracy and political perspectives in the strengthening of our constitutional rights.

For this article, the columnist referred to the following sources:

John Hart Ely (1980), 'Democracy and Distrust: Towards a Theory of Judicial Review'. Cambridge MA: Harvard University Press

Deborah Z Cass, 'Through the Looking Glass: The High Court of Australia and the Right to Political Speech'; David Tucker, ' Representation-Reinforcing Review: Arguments about Political Advertising in Australia and the United States', in Tom Campbell et.al (eds), (1994), Freedom of Communication. England:Darmouth Publishing Company.

Australian Capital Television Pty Ltd v The Commonwealth

(1992) 66 ALJR 695.