In defence of free speech

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Until radical systemic change can take place, we need to tolerate other points of view, however abhorrent they are, writes Azmil Tayeb.

Image credit: http://jimbicentral.typepad.com/
Image credit: http://jimbicentral.typepad.com/

If we don’t believe in freedom of expression for people we despise, we don’t believe in it all. – Noam Chomsky in Manufacturing Consent: The Political Economy of the Mass Media (1988).

Civil liberty such as freedom of speech has always been wrought with controversies even in countries where individual rights are clearly enshrined and safely protected by the constitution.

Malaysia is no exception. The fact that Tian Chua, an Opposition MP, is now being charged under the 1948 Sedition Act for his remarks on the armed conflict in Lahad Datu, Sabah clearly illustrates the fragility of this supposedly protected right in the Malaysian constitution.

Some people compare the arrested Tian Chua to right-wing loudmouths such as Ibrahim Ali and Ridhuan Tee Abdullah, who are allowed free rein to spew hate and stoke ethnic discord in public. While it is true that there is a double standard in the government’s [mis]handling of the free speech issue, those who make the comparison are missing the forest for the trees. The more salient point here is the executive and legislative branches’ undemocratic right to regulate free speech in Malaysia.

The right to free speech occupies an awkward place in the Malaysian constitution. Article 10 of the constitution states that every citizen does have the right to freedom of speech, expression, assembly and free association but this right is contingent on – nay, is construed by – the executive and legislative branches of the government as they see fit, namely under the pretence of national security, public order, and morality (Clauses 2, 3 and 4).

In a working democracy it is not the function of the executive and legislative branches of the government to decide on the legal boundary of a constitutional right; that is the job of the judiciary branch. Unfortunately, the Malaysian judiciary has lost its independence since 1988 when it underwent a major upheaval, instigated by the former PM, Mahathir Mohamad, and subsequently became a de facto arm of the executive branch.

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Lack of trust of rakyat

The Sedition Act, along with a slew of other draconian laws to stifle free speech such as the Printing Presses and Publication Act, the Official Secrets Act and the Police Act, has been used time and again to quash any views deemed subversive by the government. These are the products of a paternalistic government that claims to know what is best for its citizens. It is akin to a parent setting the boundary for the children to behave.

The difference is that parents will let go of the control and supervision once the children hit adulthood. Modern-day Malaysian citizenry, going on 56 years young, is still being treated by the government as snot-nosed, wet-behind-the-ears primary schoolchildren. The assertion that the people cannot be completely trusted with the rights to free speech is no longer tenable especially if Malaysia aspires to become a truly functioning democracy.

Experience, knowledge and responsibility can only be attained through real-world practice. Let us use the coming-of-age ritual of teenage driving as an example. Many parents in the beginning are understandably hesitant to allow their teenage children anywhere near the car’s steering column. But they have to let the teenagers take the family car out at some point since it is the only way for their children to gain familiarity and acquire an abiding sense of responsibility. The same can be said for the right to free speech. Malaysians can only learn how to responsibly exercise this right if they are allowed to do so with very minimal interference from the government.

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Paternalism is not democracy

A paternalistic form of governance, of course, is inimical to the very essence of democracy itself: a government of the people, by the people and for the people, a phrase put forth by President Abraham Lincoln in his highly memorable Gettysburg Address in 1863 at the height of the American Civil War. The relationship between the people and the government should never be top-down. It is not the role of the government to act as a father and unilaterally dictate the permissible boundary for the rights of the citizenry.

A democratic government is shaped by the people, or in the words of Jean-Jacques Rousseau, the “general will” that is the singular manifestation of the citizens’ wishes and interests. The crux of this “general will” is the ability of the people to express their views and grievances; hence the utmost importance of free speech in a functioning democracy. It is the people who should be telling the government how to behave – and not the other way around.

The contention that swirls around the right to free speech is to what extent this freedom can be exercised. Even in places such as the US, where freedom of speech (the First Amendment right) is sacrosanct, its limit is constantly debatable and shifting, depending on the changing mores of society and the way the political wind blows.

Freedom of speech typically can be restrained when it is employed as an incitement that leads to physical violence against an individual or a group of people. The question then is who gets to set the delimiting criteria for free speech? The main reason why the judiciary branch should take up this role is that, on the theoretical level, it is the least politically-influenced of the three branches of government. The executive and the legislative branches, by virtue of being the representatives of the people, are more susceptible to the vicissitudes of everyday politics and populist campaigns; as such, they are not able to stand above the fray and objectively judge constitutional matters purely on their legal merits.

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There is always a tendency for the executive and legislative branches to exploit the constitution for their own ends. It then falls under the purview of the judiciary branch, as an apolitical and independent institution, to decide on constitutional matters; more importantly, as a mechanism in the overall democratic check-and-balance system.

Tolerating other points of view

But, of course, the present-day judiciary in Malaysia is neither independent nor courageous enough to act as a countervailing force against the executive and legislative juggernauts. Hence it makes for a strong case that the current government needs to be changed in order for a deep systemic overhaul to take place.

Article 10 of the constitution has to be amended by jettisoning the arbitrary powers bestowed upon the executive and legislative branches to set the permissible limit for free speech and restoring the independent authority of judicial review on constitutional matters. Protecting the sanctity of our cherished social contract, as embodied in the constitution, should not be left to the whims and fancies of the legislative and executive branches of the government. In an ideal democracy, the judiciary is there to remind the other two branches of government when they get too big for their britches.

For the time being, short of radical systemic changes, what is sorely needed in Malaysia is the sincere and holistic understanding that the right to free speech also entails tolerating other points of view, however abhorrent they are. Yes, that even includes stomaching verbal diarrhoeas from the likes of Ibrahim Ali and Ridhuan Tee Abdullah.

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