BLINDED BY THE TRUTH
A QUESTION OF FREE SPEECH
We argue about that myth called free speech. But in truth it exists only in our minds. Nowhere in the world has the concept of absolute free speech or absolute freedoms taken root or found acceptance. In one form or the other restrictions are placed on free speech by government, civil society, religious organizations and even in homes.
The First Amendment to the United States Constitution provides as follows:
“Congress shall make no law … abridging the freedom of speech, or of the press.”
At first blush it would appear that the First Amendment restricts government from making any laws curtailing the freedom of speech or the press.
Interestingly if one were to adopt a similar interpretation to the pre amble in the Malaysian Constitution which reads: “this Constitution is the Supreme Law of the Land”, one will have to conclude that the First Amendment to the US Constitution does guarantee the right to free speech after all. This is because ‘its says so’. But what’s in a word or series of words after all? The Constitution, many will argue is a law when literally translated. It is a subtle point that needs no further indulgence. It is a bit like calling the Koala a bear which it is not.
The language used in the First Amendment to the US Constitution (above) restricts the right to free speech not only of citizens, but also and more importantly of government at the federal and states level if it were applied literally. Once more to further analyse this point in relation to the First Amendment would serve only to confuse, take up time and therefore no further indulgence or explanation is necessary.
There is need though to discuss some of the major exceptions to the First Amendment which concerns free speech in order that we understand fully this storm in a tea cup that the Catholic Herald seeks to turn into a raging torrent for reasons it, the Catholic Herald appears confused about.
The reading and interpretation of Constitutions, especially of Constitutional rights is a vexed subject often misinterpreted by many, including lawyers and journalists. Many amongst this group seem to hold the view that an unfettered right to free speech exists in Malaysia, as it is also mistakenly believed to exist in the US, Australia and the United Kingdom.
BUT A GUARANTEE OF FREE SPEECH?
As a starting point to understanding the ‘Constitutional right’ to Free speech in Malaysia, it is helpful to examine the many ways in which the US Supreme Court has interpreted this elephant, the so called “guarantee of freedom of speech” (and the press).
Examined closely, the First Amendment in the US Constitution provides no protection nor does it underwrite or give guarantees, (perhaps a limited amount of protection) for every form and type of speech and expression. The same absence of guarantees it may be said, is true of the Constitutions of Malaysia, the UK and Australia.
The US Supreme Court is the Highest Court in the US. It is possessed of the Constitutional power, capacity and authority to strike down any law Congress passes, that it views to be unconstitutional. Malaysia’s Federal Court does not have that power or authority to the same extent. But that’s not the point here.
RESTRICTIONS AND EXCEPTIONS TO FREE SPEECH
Exceptions to free speech and guarantees under the US constitution, the First Amendment, provides no protection for instance to obscenity, child pornography, or speech that constitutes “advocacy of the use of force or of law violation … where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This point is important and directly relevant when applied contextually to the argument of a denial of free speech in the Malaysian Constitution (which, like the US Constitution places limitations on free speech and freedom of worship and religion, where certain exceptions and conditions exist; see Article 10 of the Malaysian Constitution below). There are parallels to be found in clauses (2), (3) and (4) of article 10 of the Malaysian Constitution.
The US Supreme Court has also decided that the First Amendment provides less than full protection (qualified protection) to commercial speech (Certain types of advertising….the Australian and English equivalents can be found in the ban on tobacco advertising), defamation (libel and slander), speech that may be harmful to children, hate speech broadcasts on radio and television, incitement and public employees’ speech (this last one controversial to labour unions and worker’s rights…….employees of the secret service, intelligence agencies and other public employee situations).
Regardless, in the US Constitution, speech protected by the First Amendment, may still be subject to the following: “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”
COMPARABLE EXCEPTIONS IN THE MALAYSIAN CONSTITUTION
A comparable set of conditions and exceptions to free speech and religion is evident in the Malaysian Constitution relating to the exercise of rights to freedom of religion and freedom to worship in Article 11. Of particular relevance is the conditions contained in clause (5) of Article 11.
There is more. Article 149 in clause 1(b),(c),(d)&(f) of the Malaysian Constitution when read in context with the prohibition on the use of the word Allah by the Malaysian Catholic Herald does contain prohibitions.
Furthermore, returning to the US Constitution, speech protected under the most extensive First Amendment protection may still be restricted, on the basis of its content. If the restriction passes “strict scrutiny” (i.e., if the government shows that the restriction serves “to promote a compelling interest” and is “the least restrictive means to further the articulated interest”) the restriction is upheld.
An equivalent condition or limit to the freedom is contained in clause (5) of the Article 11 of the Malaysian Constitution where it concerns the freedom and right to practice religion.
FREEDOM OF RELIGION A RED HERRING A RIGHT OR A PRIVILEGE?
For all intents and purposes the Allah issue (Catholic Herald and the use of the word Allah) is about freedom of speech and the limits or exceptions to those freedoms as prescribed under the Malaysian Constitution.
If you ask a Malaysian lawyer though, the question would elicit a completely bewildering response. “It is about freedom of worship. It is about freedom of religion.” Perhaps it is this level of ignorance and self interest advocacy, that is at the heart of the on going debate threatening to tear apart the social fabric of the country. In the process it is stretching the fragile and frayed levels of tolerance in government and its Malay Muslim majority.
A DENIAL OF FREEDOM TO PRACTICE RELIGION?
The allegation of denial of freedom to practice their religion has been made over and over again by Malaysia’s Christians and their supporters in blogsphere.
An example of denials of freedom of religion and freedom to practice religion is exemplified by the German government’s recent decision to outlaw Scientology as a religion. In so doing it has reduced Scientology to the status of a cult drawing all of the negative implications that flow from such a classification. The example viewed at another and more extreme level is, that of the position of the Ahmadi Muslims of Pakistan (referred to there as heretics), treated as social and political outcasts and killed by other religious fanatics with relative impunity there.
The Ahmadi’s are identified by the UN High Commission for Refugees as a persecuted and vulnerable minority in much the same category as the Baha’i of Iran. The Baha’i too are subject of deportations, arrest, torture and imprisonment as sanction for practicing their “outlawed” religion anywhere in Iran.
Iran’s mainly Sephardic Jews interestingly are not a persecuted minority there unlike the Bahai. They are treated with great respect and their synagogues and community buildings protected by the Islamic republic. The point may be lost on some but it needs to be examined in the context of claims of religious persecution and denial of freedom to practice religion advanced by churches since the recent Court of Appeal decision in the Allah matter.
The view that the prohibition on the use of the word Allah is somehow Islamic or based on an interpretation of Islam is a widely spread falsehood manufactured by intellectually dishonest blogs and online publications that are part of a wider anti Islamic coalition like the Malaysian Insider, Malaysia Kini and the Nutgraph.
THE COURT OF APPEAL DECISION
None of the plight of either of these groups, the Baha’i, the Ahmadis or the Scientologists has parallels to the position of Christians in Malaysia. And therefore the argument advanced of Christians being denied their religious freedoms in Malaysia must logically fail.
The courts have not (and neither has the Malaysian government) denied the Catholics or other Christians of Malaysia the right to practice their faith freely. This debate is about the use of an import into the Christian (Catholic) vernacular and in their bible. It offends a majority of the population in the process. The Court of Appeal of Malaysia has reviewed and adjudicated on Bee Lian Lau J’s flawed decision the court below.
What this prohibition on the use of the word “Allah” represents (and upheld in the Court of Appeals decision) is justification for an exception to that contentious constitutional freedom of speech and religion in a limited way.
It is a parlous pursuit to extrapolate on the Court of Appeal’s decision in the Allah matter and to incite the level of mistrust, communal division and destabilization of state and inter communal harmony. It is particularly so when this interpretation is on the basis of a misperception of a lawful act of state, through a misreading of the constitution. And that restriction on use of the word Allah arising out of a constitutional exception to that right by an act of state can by no means be said to be unconstitutional by any measure of the yardstick.
REFERENCE- RELEVANT EXTRACTS FROM THE MALAYSIAN CONSTITUTION
Article number: 149
● (1) If an act of parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation –
❍ (a) to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property; or
❍ (b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation; or
❍ (c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence; or
❍ (d) to procure the alteration, otherwise than by lawful means, of anything by law established; or
❍ (e) which is prejudicial to the maintenance or the functioning of any supply or service to
the public or any class of the public in the Federation or any part thereof; or
❍ (f) which is prejudicial to public order in, or the security of, the Federation or any part thereof, any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament; and Article 79 shall not apply to a Bill for such an
Act or any amendment to such a Bill.
Article number: 10
(1)Subject to Clauses (2), (3) and (4) –
❍ (a) every citizen has the right to freedom of speech and expression;
❍ (b) all citizens have the right to assemble peaceably and without arms;
❍ (c) all citizens have the right to form associations.
● (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 or any part thereof, 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 court, defamation, or incitement to any offence;
❍ (b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, or public order;
❍ (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.
● (3) Restrictions on the right to form associations conferred by paragraph (c) of Clause (1) may also be imposed by any law relating to labour or education.
● (4) In imposing restrictions in the interest of the security of the Federation or any part thereof or public order under Clause (2) (a), Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law.
Article number: 11
(1)Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.
(2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.
● (3) Every religious group has the right –
❍ (a) to manage its own religious affairs;
❍ (b) to establish and maintain institutions for religious or charitable purposes; and
❍ (c) to acquire and own property and hold and administer it in accordance with law.
● (4) State law and in respect of the Federal Territories of Kuala Lumpur and Lubuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
● (5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality