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This article first appeared in Forum, The Edge Malaysia Weekly on October 1, 2018 - October 7, 2018

It is universally acknowledged that parliamentarians have a significant role to play in the promotion and protection of human rights, an obligation that they invariably share with the executive and judiciary. In this context, the Kotte Declaration, adopted on Feb 3, 2016, is noteworthy in that it outlines the commitment of the Commonwealth Parliamentary Association for Asia to promote and protect human rights and emphasises the parliaments’ responsibility to integrate international norms and standards into national legislation.

The recently elected Malaysian government has made a pledge to review, repeal and abolish statutes deemed oppressive and an abuse of power. These laws include those that curtail freedom of expression.

Freedom of expression, access to information and press freedom are among the fundamental rights and freedoms enshrined in Article 19 of the Universal Declaration of Human Rights 1948, which states that, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. These rights are interrelated and have an indivisible relationship.

Freedom of expression obviously cannot be exercised effectively and may not bring any benefit to a country if society does not have adequate access to information. Access to information is an integral part of the right to freedom of expression and the corollary right to media freedom. Indeed, a true democracy cannot exist without freedom of expression, access to information and press freedom.

The importance of these rights has also been underlined as a target in Goal 16 of the 2030 Agenda for Sustainable Development Goal (SDG), which states that every state is obligated to guarantee public access to information and fundamental freedoms. To realise that target, it is crucial for the parliamentarians to ensure that the laws relevant to the freedom of expression, access to information and press freedom are in line with international human rights standards.

In Malaysia, all these freedoms are protected under Part II of the Federal Constitution and form a portion of the fundamental liberties of each individual in the country. However, those guarantees are, of course, not absolute. Pursuant to Article 10(2) of the Federal Constitution, parliament has the right to impose such restrictions as it deems necessary or expedient in the interest of the security of the Federation and other grounds enumerated in Article 10(2).

Nonetheless, the parliament or the legislature is not free to impose any restriction at whim; the restrictions must fall within the parameters set out under Article 10(2). Here, the parameters defined in Article 10(2)(a) are meant to protect, among others, national security, friendly relations with other countries, public order or morality, as well as impose limitations to protect the privileges of parliament or of any legislative assembly, or to provide against contempt of court, defamation or incitement to any offence.

Currently we have several legislations in Malaysia that regulate and, to a certain extent, restrict freedom of expression, access to information and press freedom. In the past, we saw how these laws were used to silence dissent and restrict access to, and dissemination of information. Common in all these legislations are vague provisions and allocation of unfettered powers to the authorities. These have been seen as diluting fundamental freedoms and blocking the needed scrutiny of improper, unreasonable and abusive use of power. To prevent abuse of the laws, the fate of Malaysia should not be left to a few good elected men or women. Instead, institutional and legal guarantees grounded on the rule of law must be put in place.

Certain countries have enacted Freedom of Information legislation (FOI legislation) to ensure that the public has fair access to information and to foster openness and transparency in the government, a feature seen as vital to a democratic society. With access to government records, the people would be able to make informed decisions.

The media has often been described as an influential force in democratic society — even to the extent of being called the fourth estate, which refers to the fourth branch of government after the executive, legislative and judiciary. Thus, it is important to have a free media that is at liberty to report the truth, even if it may be in the form of criticism of the government. To ensure the country’s progresses towards becoming a developed nation, there must be checks and balances of the government by a free media in an atmosphere of transparency and accountability.

It is sad that Malaysia was ranked No. 145 out of 180 countries in the World Press Freedom Index 2018, as published by Reporters Without Borders. The ranking was not a positive reflection of Malaysia’s aspiration towards becoming a developed country. Regretfully, we have seen perhaps unjustifiable restrictions and harassments imposed on the media, leading to a “chilling effect” on the press and media. Happily, there have been marked improvements in this area under the new government.

As I have mentioned before, the fundamental freedoms allocated by the Federal Constitution are subject to limitations. However, these limitations must be subject to the condition that they are for purposes of legitimate aims that are prescribed by international human rights principles such as national security, public health and so on; that they must be based on compelling needs for the protection of legitimate aims; that they are proportional, fair and reasonable to the protection of legitimate aims; and lastly, that there must be adequate safeguards so as to avoid any abuse of powers.


Datuk Mohamad Ariff Md Yusof is the speaker of Dewan Rakyat. This article is an excerpt from his speech at the Roundtable with Parliamentarians: Aligning national legislation with international standards on freedom of expression, access to information and press freedom in Kuala Lumpur on Sept 25.

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