Freedom of speech from the perspective of mass media, to what extend it has been practiced in Malaysia? Essay

IntroductionMass media atomic number 18 meaning of parleys (as reinvigorateds programprints, radio, or television) that is knowing to reach the mass of the people1. Besides playing the role to inform respective(prenominal) with advanceds, the media together with a sound legal system and an independent d bothy is part of a triumvirate that is essential for a well-functioning democracy2. In a pop system of political science, mass media is performing a bend of essential functions. First, they cause on information or surveillance function.Second, they serve an agenda-setting and interpretation function. Third, they attend us to create and primary(prenominal)tain connections with various groups in society. Fourth, they help us to socialize and to educate us.Fifth, they persuade us to buy certain items or accept certain ideas. Sixth, they entertain us. exemption is the power or chastise to procedure, speak or think freely. We atomic number 18 now living a media cultur e and its influence is be serve very pervasive. The number of hours we spend on the media is mind-boggling. Although the granting immunity of the media should non be in toto, yet the degree of the exemption of the media impart affect the function of the media. Citizens of countries that be democratic see media emancipation as a adept, non a privilege.Nevertheless, thither is no nonice of liberty of the iron or emancipation of the electronic media in our system. However, emancipation of media to exercise its role and functions in society has been enshrined as a organic human right by elan of recognition for the right to emancipation of conductors line, expression and opinion.3Pre- emancipationIn 1930-1940, there be nearly 80 newspaper and pickups create in the Malayan maintain, much(prenominal) as Utusan Melayu, Saudara, Warta Malaya and Majlis. In Warta Malaya, it published article that talk about the social and economic problems faced by the Malay. Howev er, it did non ask for the British to be chased out. The newspaper, Majlis, discussed the policy-making issues. Majlis non sole(prenominal) pay backs to the awakening and fights for Malays right, their office became the place for the nationalist to meet up and ex spay their thoughts.In the newspapers Saudara, there was a column named Persaudaraan Sahabat Pena where the Malay commemorateers transfer their point of assimilate. British was worried on the development of this column and hence took the step tooverseen those who involved in the said column.In view of the number of issuings that existed during the fourth dimension and the situation whereby those newspapers are free to discussed any(prenominal)(prenominal) issues, and the fact that the newspapers has vie a vital role in the movement towards independence, we can answer that low the giving medication of British, the media was enjoying the exemption of talking to.The jurisprudence on the granting immunity o f speech became clearer during the time former to independence. Certain lawfulness has been introduced to the Malay State. One of the laws which governed the freedom of speech at that time was the Sedition minute 1948. class 4 of the proceeding makes it an offence to make, prepare, or to conspire, to do a seditions act, to utter incitive words, and to propagate or import every seditious outlets.Section 3 provides that a seditious style is one which tends to (a) bring hatred or discourtesy to the organisation or excite disaffection against each normal or government, (b) excite the fieldmen to revolt, (c) bring into hatred or patronage or excites disaffection against administration of justice, (d) raise discontent or disaffection among the inelegantmen, or (e) promote feelings of ill- lead and hostility amongst the inhabitants of the country.Besides, there were devil ordinances specifically deal with the printed media at that time, i.e. printing Press symbolise 1948 (Ord 12 of 1948) and Control of Imported exoterications doing 1958 (Ord 14 of 1955). The former deal with the publisher in the Malay State while the later governing the printed material from former(a) country.Those laws were limiting freedom of speech of the media at the British colonial the light of the freedom of speech only shine at the colonial since 1956, when an attempt to draft a national musical composition started. The recommendations were submitted by Reid Commission in 1956-1957 Reports. In the report, there were two paragraphs provides under the title Fundamental Rights 161. A Federal make-up defines and guarantees the right of the Federation and the states it is usual and in our opinion right that it should likewise define and guarantee certain fundamental individual right whichare generally regarded as essential conditions for a free and democratic counseling of sustenance.The rights which are recommend should be defined and guaranteed are all steadfastly est ablished now throughout Malaysia and it whitethorn seen unnecessary to give them picky protection in the administration. But we establish in certain billet vague apprehension about the future. We believe such apprehensions to be unfound, tho there can be no objection to guaranteeing these rights slip to e special(prenominal)(a) exceptions in conditions of emergency and we recommend that this should be done..162. our recommendations afford means of redress, supposeily available to any individual, against unlawful infringements of personal liberty in any of its aspects we further recommend (Art 10) that freedom of speech and expression should be guaranteed to all citizens subject to restrictions in the interestingness of security, public place or morality or in relation to incitement, defamation or contempt of court For the Malayan citizen, the objectives of those who framed the Federal Constitution were still diminutive affected by the epidemic of human rights in the Wes tern world4.It has been sight that the commissions recommendation on the freedom of speech has been vague, peculiarly on the importance of the rights. The commission only devoted two paragraphs. The causation why it was so was clear in the paragraph itself. The draft phrase 10 in our Constitution was as follow10 (1) any citizen shall have the right to freedom of speech and expression, subject to any comely restriction impose by federal law in the interest of the security of the Federation, hospitable relations with other countries, public order, or morality, or in relation to contempt of court, defamation, or incitement to any offence.Mr. jurist Abdul Hamid on his note of dissent stated that the word middling wheresoever it occurs before the word restrictions in the three sub- clauses of Article 10 should be omitted. Right to freedom of speech, assembly, and association has been guaranteed subject to restrictions which whitethorn be impose in the interest of security of th e country, public order and morality. If the Legislature imposes any restrictions in the interest of the aforesaid matters, considering those restrictions to be reasonable, that legislation should not be gainsayable in a court of law on the earthly concern that the restrictions are not reasonable.The Legislature alone should be the judge of what isreasonable under the part. If the word reasonable is allowed to stand, every legislation on this subject will be challengeable in court on the instal that the restrictions imposed by the legislature are not reasonable. This will in umpteen cases give rise to conflict between the views of Legislature and the views of the court on the reasonableness of the restrictions.To avoid a situation like that it is better(p) to make the Legislature the judge of the reasonableness of the restrictions. If this is not done the legislatures of the country will not be sure of the state of the law which they will enact. in that location will always b e caution that the court may h ancient the restrictions imposed by it to be unreasonable. The laws would be lacking in certainty. Later, when the Constitution comes into force, the Article 10 provides that (1) subject to clause (2)(a) Every citizen has the right to freedom of speech and expression (2) Parliament may by law impose (a) on the rights conferred by paragraph (a) of clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any legislative Assembly or to provide against contempt of courts, defamation, or incitement to any offenceThere are one case regarding to press reported prior to independence i.e. Public Prosecutor v. The head teacher Times Press Ltd5 In this case, upon the cover of the Public Prosecutor, the Respondents, who are the proprietors of the Straits Times Press L td, were offerd contempt in print a report of the endeavor run of bronze Seng Ann of the Straits Times dated 5 August 1948.The report appeared which, it is now admitted, was jerry-built and inaccurate in that it gave the impression, contrary to the facts, that the first step in the proceeding in that case was a voluntary confession by Tan Seng Ann that he was in possession of a fire-arm and that his arrest was do exclusively as the result of such voluntary confession in the issue.The rule of Motion having set out the marchess of the letter complained of went on to allege inter alia that the criminal case referred to in the letter was sub judice when the letter was published in that an appeal was pending that the terms of the letter did not constitute a fair or accurate account of the trial nor fair commentthereon and that its publication tended to prejudice the fair electric pig of the proceedings and tended to bring into contempt the administration of justice by that Cou rt.Spenser-Wilkinson J held that I would hesitate to follow too about the decisions of face Courts on this subject without first considering whether the relevant conditions in England and this country are at all similar.Quite apart from the present emergency in this country, I do not think it could be suggested that the development of the Press, the general bar of education or the composition of the general public in the two countries are at all comparable and it may, therefore, be necessary to acknowledge a stricter view here of matters which pertain to the dignity of the Courts and the impartial administration of justice than would be taken at the present time in England.Newly Independence (1957-1980)At this period, Art 10 Federal Constitution has been amend twice. The first amendment was on 19636 where the words Clause (2) and (3) had been substituted for the words clause (2) of clause (1) with effect from 16 September 1963.and the words or any part thereof were added to the Art10(2)(a). Further, clause (3) which provides that Restrictions on the right to form a associations conferred by paragraph (c) of clause (1) may also be imposed by any law relating to labour or education. The second amendment was do on 19717 after considering the trouble of May 1969.This time, Clause (4) was added with effect from 10 March 1971. Article 10(4) provides that Parliament may pass laws prohibiting the questioning of intravenous feeding sensitive matters right to citizenship under Part III of the Constitution precondition of the Malay language position and privileges of the Malays and the native of Sabah and Sarawak and prerogatives of the Malay Sultans and the Ruling Chiefs of Negeri Sembilan. The constitutive(a) changes enable Parliament to amend the Sedition Act of 1948 in order to add a new definition of seditious tendency8. The amended sections were Section 3 (1) A seditious tendency is a tendency(f) To question any matter, right, status, position, privilege, s overeignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal ConstitutionSection 2seditious when applied to or used in respect of any act, speech, words, publication or other thing qualifies the act, speech, words, publication or other thing as one having a seditious tendency authorized Secrets Act 1972 is a new law that be introduced at that time. This is the nearly important statute on government secrecy. The gist of the law is that authorized secrets cannot be received, retained, released or used without prior authorization.9 The Act is drafted in the widest executable terms and is not limited in its operation to spies, saboteurs, traitors and mercenaries.The term ex officio secret is not defined in the Act. The courts have pre conjugationptuousness the term the broadest possible definition, and on the generally accepted construction any communication pertaining to the Executive would constitute an offence.10 The right to free speech can be further eclipsed by the special provisions of Art 149 and 150 relating to putrescence and emergency. Art 149 authorises legislative action designed to stop or disallow subversion, organized hysteria and crimes prejudicial to the public. Art 150 permits any legislative action required by reason of emergency.The grounds enumerated above permitting follow outsizing of free speech are so broad and comprehensive that in 49 divisions no Act of parliament even been found by the courts to have violated the Constitution. Besides printed media, television was introduced in Malaysia in 1963. The television was under the control of the Department of Broadcasting (RTM). What is apparent is that television and more generally transfering in Malaysia was form its inception closely aligned to the government. Both the RTM channel were established via decisions made by the thence Alliance coalition government.Because of the circumstances a t that time, there was no any specifics rule to govern the broadcasting. One of the cases that being identifyd at that time was Melan bin Abdullah v Public Prosecutor.11 The fact of the case was that On 6 April 1971 the Utusan Melaya newspaper published a report of a talk assumption by minded(p) by Inche Musa Hitam, a prominent Malay leader and member of Parliament, at the National Education Congress held in the Dewan Bahasa dan Pustaka, Kuala Lumpur..In the report was an editorial sub-heading, which in the English translation reads subvert Tamil or Chinese medium schools in this country. The first appellate was the editor-in-chief of the Utusan Melayu,and the second appellant the author of the sub-heading inserted in the report. Sanction for their prosecution was given under s 5(1) of the Sedition Act 1948, and they were tried in collectable course in the special sessions court on a fringe of publishing a seditious publication in contravention of s 4(1)(C) of the Sedition Ac t, punishable under the same section.The learned special chairwoman held the publication to be seditious, that the first appellant was responsible for all publication in the Utusan Melayu, that the second appellant was the author of the impugned subheading, and that consequently they were both guilty. They were convicted and fined the sum of $500 and $1,000 respectively, in default one month and two months imprisonment, both appellant appealed.CJ Ong, on hearing of the appeal accepted the first appellant evidence that he had organised seminars and discussions, relating in particular to the sensitive issues and had instructed his ply on the relevant law as he understood it. He had sponsored a talk to journalists given on this subject in February 1971 by the Attorney General as well as the Solicitor-General. Therefore, the first answering appeal was allowed. But the court dismissed the second respondent appeal. other case is Public Prosecutor v Straits Times (Malaya) Bhd.12 The Publ ic Prosecutor applied in this case for leave to issue a writ or writs of attachment for contempt of court on the respondents for publication of articles in The Straits Times. The grounds upon which relief was sought was that the publications of the said articles hire matters which are tendentious and constitute contempt of court, because they are prejudicing and embarrassing the applicant in the exercise of his statutory functions and also prejudicing a fair trial concerning the circumstances of the death of one Robert Lee.Abdul Hamid J held that I do not think that it is reasonable to go through these words as having any special meaning. There is no dispute that the reports do reveal that there had been an assault, a commotion and firing of a shot and that allegedly, a police officeholder was involved. But these facts are not challenged. As regards the previous episode encountered by Robert Lee there is nothing to show that this was not true.Further it is not uncommon for newspa pers to publish matters concerning scholastic achievement of and other good kit and boodle rendered by a person on his death particularly ifthe breathless person enjoys a certain standing in the community or he is in one way or some other connect to any prominent personality. For that reason it is unreasonable to isolate certain passages from the reports and construe them unfavourably or to impute improper motive on the publisher.What may appear to be an embarrassment or prejudicial if that part is read in isolation may not be so if the reports are read as a whole taking into account the circumstances surrounding such publication particularly if it relates to a matter which will promote public sensation or a matter of quaint occurrence. The application was therefore dismissed.Malaysia under Tun Dr. Mahathir (1981-2002) over this period, more laws are introduced and come into force to govern the media. In 1984, Printing Presses and Publications Act came into force on the 1st of September 1984 as a consolidating Act, and in turn repealed the Printing Presses Act 1948 and the Control of Imported Publications Act 1958. The Act is designed to bewilder the use of printing, presses and the printing, importation, production, reproduction, publishing and scattering of publications and for matters connected there with.Through such control, the government uses it power to delimit what it is the public has a right to know, or exactly what form freedom of speech should take13. This is an Act designed distinctly to ensure that the press does not get out of line, imposes both a system of licensing and censorship14. Section 3 of the Act makes it mandatory to obtain a license to own a printing press. The Minister has absolute fragility on giving, refusing, and revoking a license15. Further, judicial review of the Ministers prudence is not allowed16 and the Minister is not required to give the parties a prior hearing17. The period of the license is 12 months or shorte r period as minister specifies18. This means that all publishers in this country essential stimulate the pangs of uncertainty about whether their permit will be renewed for the succeeding(a) year. There is less control of what may be written in foreign publications, controls have been exercised through deliberate delay in distribution and sometimes outright ban on their sale where officials deemed reports to be disgustful or inaccurate19. In 1988, another law governing the media came into force on 1st August i.e.The Broadcasting Act 1988. The preamble to the Act states An act to provide for the control ofbroadcasting services and for matters connected therewith. The Act is both stringent and inflexible. It bestows enormous powers on the government to determine the typecast of television made available to the Malaysian public. In the midst of the suppositional deregulation of broadcasting, the Act now gives the Minister of Information virtually core powers to determine who wil l and who will not broadcast and the nature of the broadcast material. Under the Act, any potential broadcaster would need to apply for a licence from the minister beforehand. Later, the Act was amended on October 1996.By the amendment, this already-stringent alternate of legislation were aimed at taking into account the introduction of new services, such as cable and satellite television, satellite radio, pay TV and video-on demand. imputable to the drastic development in the electronic media, the Legislature has to repeal the old Telecommunication Act 1950 and the Broadcasting Act 1988 and introduced a new law which is the chats and Multimedia Act 1998.The Acts breakthrough was to bring together the previously disparate industries of broadcasting, telecommunications and internet services combined under legislation and more importantly, one regulator the communication theory and Multimedia commission.20 The Communication and Multimedia Act brings to the creation of Communication and Multimedia Commission Act 1998. the Communication and Multimedia Commission performing several functions including advising the Minister all matters concerning the national policy objectives for communication and multimedia system activities and implementing and enforcing the provisions of the communications and multimedia law.Interestingly, Information Malaysia 1980-81 and Information Malaysia 1985 revealed that between 1981 and 1985 alone, the number of titles of local newspapers, magazines, and journals in circulation increase from 56 to 10221. However, the increase in number cannot be the proof sustenance the allegation that during that time, the media was enjoying freedom of speech.There are some facts that we should not forget. In 1987, during the Operasi Lalang, a number of newspapers were closed(a) by the government22. Later, Harakah being categorizes as publications of political parties meant for party members and there is law forbids the publication being openly change to the public.Besides, Barisan Nasional have and controlled major Malaysian media organization. Further, prior to Dato Seri Anwars sacking, expulsion, and detention, the editor of Utusan Malaysia and Berita Harian, and the film director of operations of TV3 were forced to resign because they were allied to Anwar. In 1990, there was a case of Aliran Kesedaran23 In this case, the respondents had applied for a permit under s 6(1) of the Printing Presses and Publications Act 1984 to print and publish in Bahasa Malaysia a magazine under the name and style of Seruan Aliran.The application was refused by the Minister of inhabitancy personal business. The respondents applied for an order of certiorari to remove into the High Court for the spirit of quashing the decision of the Minister and for an order of mandamus directing the Minister to hear and determine the application for the permit according to law. The High Court made an order quashing the decision of the Minister and ord ered that the Minister shall hear and determine according to law the application for the permit. The appellant appealed.The court allowing the appeal and held that Section 12(2) of the Printing Presses and Publications Act 1984 gives the Minister of Home Affairs absolute treat to refuse an application for a license or permit. So unless it can be clearly established that the Minister for Home Affairs had in any way exercised his discretion wrongfully, unfairly, dishonestly or in bad faith, the High Court cannot question the discretion of the Minister.One of the hearty cases during this period was the case of Irene Fernandez. The facts were that in 1995, Tenaganita released a report documenting beatings, sexual violence against detainees by prison guards, and inadequate food and water in Malaysias immigration detention camp. Irene Fernandez was arrested and charged with malicious publication of false news under the Printing Presses and Publications Act. Magistrate Juliana Mohamed fo und Irene guilty and was sentence to one year imprison.Current Situation (2003-2006)Between these periods of time, there is no any new law designed to control the media. However, recently, Government has released the Media Council shoot (2006) which seeks to ameliorate some of the worst excess of the Printing Presses and Publications Act in regard to the local media.On page 4 of the Bill, it was stated An Act to establish the Malaysian Press Council for the purpose of preserving, promoting and protecting the freedom of the Press, of maintaining and improving the ethical and professional journalistic standards of newspapers, press publications and news/pressagencies in Malaysia.Nevertheless, there is fear in public that this piece of legislation will create another unnecessary public body with wide powers to curb press freedom despite its apparent duty to uphold that right. It efficiency also act as a censorship board, only dealing with complaints against the press organisations a nd journalists and not against denial of freedom of expression by other entities such as ministers or organisations whose actions effectively suppress the right of freedom of expression.Besides, bear in mind that all the laws governing the media before this are still securely in place and the main stream media also continue to be owned by interests directly or indirectly tied to the main component parties of the BN, especially UMNO and MCA.Some adventures happened during this time of period, showing to us that despite of the changes of the head of the Government, the media are not freer compared to the years before. The government shut down the Sarawak tribune for the editors made a mistake of reprinting caricatures of Prophet Muhammad following Moslem protests of a Danish paper that first published them. other incident was that the Minister of Information, Datuk Zainuddin had sought the sacking of top NST editor at a meeting of UMNOs information bureau because he was unhappy wit h the way the NST had played up certain issues such as the religious rights of minorities and the governments policy on bumiputras.24 The government also delays in reviewing the publishing permit of the Oriental Daily and censor certain news that the government were not comfortable with.Moreover, the debate on Ninth Malaysia Plan was given wide publicity in the media, but it was the official view and principle for the Plan that enjoyed one-sided coverage. The leader of the opposition who spoke foe sestet hours on the Plan did not get any substantive coverage.25 Another issue was that Tun Dr. Mahathir had called a press conference to express his deep dashing hopes after Datuk Seri Abdullah dismissed the crooked bridge project. However, the mainstream media hardly covered it.ConclusionsThe freedom of the media has seen become more restrictive from the time prior to independence until now. At the early day, the British Colonial has a freer media compare to the media after independenc e. This expertness be because of the British regarded the individual freedom as up most important. When came to the early day after independence, the laws being designed were more restricted. However, this was comprehensible as the situation at that time, where Malaysia was in an Emergency.Unmindful speech might cause riot to the nation. Therefore, the government had to take step to go on this. In 1970-1985, there was more cases on freedom of speech, after the stand of the courts are clear in these issues, there was lesser cases.During the time frame from 1981 to 2002, many laws were designed and many existing laws were amended. Tun Dr. Mahathir tried to justify this by verbalism that the truth is that there is no absolute press freedom anyplace in the world, be it in a liberal democratic country or in countries governed by dictators.26 He further claimed that journalists and foreigners read a few newspapers which support the government and immediately concluded that there is no press freedom in Malaysia.This was in conjunction with his view points that Malaysian newspapers are free. But this freedom does not mean freedom to criticize the government alone. It also means freedom to support the government.27Further in Tun Dr. Mahathir speech at the national union of Journalists dinner on 15th June 1990, he stated that According to an old English proverb, power corrupt and absolute power tends to corrupt absolutely. If there are restrictions on press freedom, especially pertaining to reports on violence, sex and obscenity, then they are imposed because no one should be given absolute power. This is to prevent the possibility of absolute corruption. This constraint no way suggests there is no press freedom in Malaysia. Government leaders in this country have no absolute power.The people can change the government while the courts can reverse government decisions. Therefore, newspapers in Malaysia must accept these restrictions. This is done in the national int erest and not aimed at destroying pressfreedom. It is true that freedom of the media has to be limited but over limiting will only result to a closed society.Looking at the current situation, many are thinking that the new government would promote media freedom in view of the government enhancer policy. However, one should bear in mind that since Datuk Seri Abdullah took over the government until today, it was only three years passed. It is unfair to judge him at this moment. Whether or not there is free media under Datuk Seri Abdullah, we shall wait and see.Comparing to our nearest neighbor, Singapore, media in Malaysia enjoy more freedom. Singapore as a police state, the press is mobilized to explain and support the policies of the Singapore government, as an aid to development alternatively than assuming a counter-checking posture.In Chee Siok Chin case28, the Singapore court held that it bears focus that the phrase necessary or expedient confers on Parliament an super wide d iscretionary power and remit that permits a multifarious and multifarious approach towards achieving any of the purposes specified in Art 14(2) of the constitution. In differentiate to the Indian Constitution, there can be no questioning of whether the Legislations are reasonable. The courts sole task, when a constitutional challenge is advanced, is to ascertain whether an impugned law is within the purview of any of the permissible restrictions.As for electronic media, the media Corporation of Singapore, an evolution from a series of government owned broadcast Corporations, dominances the broadcasting media. The PAP government guards the broadcast turf with rigour, grudgingly allowing foreigner broadcasters to operate for commercial and public relations reasons but statute law them off local politics.Today, Malaysian society has an economic level of creation which provides for basic needs, health facilities, adequate housing and equal opportunities to education. Therefore, ther e is no reason why freedom of speech and free media should be restricted. determine of freedom of expression, exposure tocritical thinking and the importance of a polished society should be emphasizes. After 49 years of independence, Malaysian should not only concern with earning a livelihood and basic quality of life issues. conjunction shall have desire to acquire knowledge especially in social concerns such as freedom of speech.Bibliography1. A Case of the Media exemption Report of the SUHAKAM, Workshop on chuck up the spongedom of the Media at Kuala Lumpur, Aug. 1, 2002. 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