Freedom of expression has a clear constitutional dimension in Malaysia - but Parliament ignores it, the courts pay lip service to judicial review of laws, and the executive meddles freely.

This indictment was handed down by constitutional law scholar Shad Saleem Faruqi at a forum organised on Sunday in conjunction with World Press Freedom Day which was marked yesterday.

   

shad faruqi 02 “You can’t question the reasonableness of laws, unlike in other parliamentary systems. (As a result) Parliament’s powers to restrict press freedom is unfettered,” he said.

This has led to Parliament passing laws as it “deems fit” and which cannot be reasonably challenged.

Among some 35 to 40 laws that impinge on freedom of expression - and by extension on press freedom - are the Printing Presses and Publications Act (PPPA) and the Official Secrets Act (OSA).

But that is only half the tale, said Shad, as he went on to the matter of executive interference.

“How can we have a supreme constitution, (alongside) the monster of executive discretion?” he asked.

“Sometimes the minister may not act, but there will be a phone call from his officers and you (the media) ignore the call at your peril,” he said.

azlan The minister often exercises his powers more directly when renewing or revoking the printing and publication permits of newspapers under the PPPA, although he may hide behind “orders from superiors” or “complaints from certain parties”.

Describing this as an abuse of power, Shad said ministers should take responsibility for their decisions.

Absence of judicial review

Another bugbear is the absence of judicial review of ministerial decisions in such laws as the PPPA, while designated government officials have carte blanche to declare documents secret under the OSA.

“All of us who have worked with the government, including myself, have done this. When we write letters we label it ‘secret’. Most times, it is not even important stuff, but we do this to hide certain things,” he said.

press freedom Shad said that, despite the legal bulwark against it, press freedom is guaranteed under the constitution under Article 10 (on freedom of expression).

“Constitutionalists all over the world agree that press freedom and (freedom of) cyber-speech  are part and parcel of freedom of expression,” he said.

“Ministers must abide by parliamentary rules and the Parliament must abide by the constitution. Any infraction of any of the two can be considered ultra vires the constitution,” he added.

However, the law professor conceded that, in Malaysia, that is not always the case.