Freedom of Press
The Federal Constitution is silent on the freedom of press. However the law has always exercised extensive control over publication whereby it is governed by the Printing Presses & Publication Act 1984
Section 3 of Printing Presses & Publication Act 1984 provides it is mandatory to obtain license before own own a printing press.
Section 3(3) of Printing Presses & Publication Act 1984 – This license is given refused and revoked by the minister in his absolute discretion.
Section 5 of Printing Presses & Publication Act 1984 requires anyone who prints, imports, publishes, sells or circulate any newspaper printed in Malaysia to obtain license.
Section 6 of Printing Presses & Publication Act 1984 – This license can be given revoked or refused by the minister in his discretion.
Issue
Whether there is a possibility for Judicial review
Persatuan Aliran Kesedaran Negara v Minister for Home Affairs - The applicant who were denied a license by the minister under the Printing Presses & Publication Act 1984 applied to the court to reverse the decision of the minister. The Court : Harun J: The exercise of the discretion by the minister is subject to judicial review. Granting of license should be made subject to fulfillment of all the requirement for the permit is complied with. At the granting stages : The discretion of minister is limited to protect public, national interest in respect of public moral and order as well as security. If the printer or publisher goes against it, they are subject to prosecution under OSA, Penal Code or Seditions Act. Minister decision was quashed.
However at appeal stages the court reverses the decision. Section 12(2) of the Act gives the Minister Home Affairs absolute discretion to refuse the application.
PP v Pung Chin Choon – D was charged under Printing Press & Publication Act 1984 for malicious publishing false news. Malicious means an item of news published without its authenticity being confirmed with the sources.
Section 8(a) of Printing Presses & Publication Act 1984 provides the presumption of malice, if the accused fails to prove that he has taken reasonable efforts to check the proof of the news (3 years or $20,000). To bring a case within Section 8(a) it was held that :
1. The court will see whether it is sufficiently connected to the ground provided in Article 10(2)(a).
2. The connection cannot be farfetched and remote.
Therefore section 8(a) of Printing Presses & Publication Act 1984 is valid within the scope of Article 10(2) of Federal Constitution.
Contempt of Court
Article 10(2) (a) of Federal Constitution safeguard the reputation of the court. Parliament may provide against contempt of court. Article 126 of Federal Constitution gives Supreme Court or High Court the power to punish any contempt of itself. Similarly Article 13 of Federal Constitution gives legislative power to punish for contempt. However this provision did not mention what amount to contempt. Court refers to common law.
Lim Kit Siang v Dato’ Seri Mahathir – The PM criticized the court for interpreting statutes contrary to the intention of Parliament. Mr Lim alleged that this criticism were challenging the judiciary and the separation of powers and intimation of judiciary. Held : The PM’s remarks did not constitutes contempt of court but were an articulation of the executives frustration.
MBF Holdings v Hong Huan Koy – A company got an interlocutory order ex parte preventing the B company to published or circulates anything which will injure company. But there were after the news follows. A company then asked the court to institute a proceeding for contempt as against B co. The court did co. the B co pleaded that they did not commit any contempt as regulated under Article 10(2)(a) of Federal Constitution but court held that it was under Order 45 of Civil Procedure Court the contempt the court judgment. Held : Liable.
License
License is an important mechanism for any government to control/regulate activities which is considered potentially harmful to the country.
Police Act 1967 – License is governed by this act.
1. Section 27 of Police Act 1967 gives power to OCPD to regulate, assemblies, meetings and processions. License must be obtained from OCPD to have a public meeting.
2. Section 27(2) of Police Act 1967 – OCPD may impose conditions if it is prejudicial to the interest of the security of the country or any part of it.
The Law Can Be Challenged On Two (2) Grounds
1. Challenge the law giving the official power to grant or refuse license as unconstitutional.
2. Accept the law but challenge the exercise of the power.
Mdhavan Nair & Anor v PP – The accused had contravened a condition annexed to the grant of a license to make a speech. The condition was … the substance of the speech should not touch on matters relating to the MCE i.e in which it was necessary to obtain a pass in Malay in order to obtain a certificate. Bahasa Malaysia is an official language as laid down in FC. The D pleaded that the condition was unconstitutional. Held : The Police grant permission to rally means to regulate the provision of Article 10 of Federal Constitution ie peace and order to the district therefore the police has right to impose such condition. Sedition tendencies in Section 391) of Police Act 1967 does not ultra vires Federal Constitution.
Chai Choon On v KPD Kampar – Relating to Section 27 of Police Act 1967. Police imposed condition limiting the number of speaker in public gathering after a dinner. Held : The restriction is void.
Lau Dak Kee v PP – Article 10(2) of Federal Constitution provides freedom of speech, assembly and association but subject to restriction. One of this restriction is provided under Section 27 of Police Act 1967.
Defamation
Criminal Defamation is dealt under Section 499-502 of Penal Code. Anyone who says anything with the intention, knowing or having reason to believe that it will harm another’s reputation is guilty.
In New York v Sullivan in America a person will be liable for defamation only malice is proven.
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