It will take a constitutional overhaul before true legal reforms can pave the way for press freedom in Malaysia.

Until then, all efforts to review legislation will be bogged down by a fundamental problem of the constitution, said two members of the legal community.

International Islamic University law professor Dr Abdul Aziz Bari said provisions under Article 10 of the constitution are problematic because these allow the right to freedom of expression to be curtailed or even taken away by Parliament.

"And the matter has been made worse by a judiciary that is not committed to democratic ideals. This is funny in a country where the constitution, as stated in Article 4, is supreme," he said.

Provisions under Article 4 note that the validity of laws governing the press are not to be questioned. Coupled with Article 10, which is subject to laws enacted by Parliament, courts basically are powerless when it comes to press freedom.

Original shape gone

On how this can be overcome, lawyer Sankara Nair ( right ) said the judiciary needs its original independence to be able to declare laws unconstitutional.

"The constitution has to guarantee that the judiciary can rule without being coaxed by the government, and Parliament must not make laws that are inconsistent with the constitution," he said.

Asked if the constitution breeds arbitrariness, he said that since the government has never lost its two thirds majority, the constitution has been cut and snipped so much that a lot of its original shape has gone.

A major concern of both Abdul Aziz' and Nair's is the absence of checks and balances to control the abuse of Parliament where the Barisan Nasional coalition has always been able to obtain a majority.

"We need press freedom, for no country can live without it," said Abdul Aziz.

He also agreed with recommendations by the Human Rights Commission of Malaysia in 2003 on enacting Freedom of Information legislation and to review provisions under existing acts that are incompatible with this.

On the Official Secrets Act 1972 (OSA) and Sedition Act 1948, Nair agreed that the initial reasons for enacting these acts were good and valid as there was a communist insurgency and severe communal problems at that time.

"But we have moved ahead so much, and the communist insurgency has been wiped out, making these laws obsolete and open to abuse.

"The biggest impediment to press freedom, which needs to be repealed, is the Printing Presses and Publications Act 1984 (PPPA)," said Nair.

Premier's task

When asked how all these legal reforms can become a reality, Nair said it all comes down to the political will of the ruling coalition, and the move will have to start with the prime minister.

Malaysian society today, said Nair, is more mature and discerning and can accept, argue, and discuss issues without having to resort to violence.

"We are economically well off compared to societies like Indonesia and the Philippines. Chances of communal violence breaking out is low and shouldn't be used as an excuse anymore," he said.

However, a street poll conducted by a team of malaysiakini trainees showed that although 80 percent of respondents felt that press freedom was important, only 55 percent claimed to have any knowledge about press freedom.

The poll also showed that 35 percent showed little or no knowledge about government controls over the media. 40 percent were either not aware or felt that the OSA, PPPA, and Sedition Act does not restrict press freedom. (See figure 8, 9, 11)

"The government has to ask themselves why this is an issue raised by civil society groups. They have to start listening to the people. Even (former premier Tun) Mahathir (Mohamad) is calling for referendums now," he said.

So, will legal reforms ever be achieved?

"It's a pipe dream."