Cons Ti Law
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Transcript of Cons Ti Law
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Freedom of Speech and Expression
Prepared for : Madam Irini bt Hj Ibrahim
Prepared by : Ahmad Ismail Illman Bin
Mohd Razali
October 2007, Q2(c), Part C
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The issues of the case. (I)
y Women Solidaritys permit to publish a Newsletter was
granted but subject to the condition that the Newsletter shall
be for internal circulation only amongst members of the
organization.
y Women Solidarity appealed to the Home Minister against the
imposed condition, the appeal however was refused by the
Minister under the Printing Presses & Publication Act 1984,which states the Ministers discretion is final.
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The issues of the case. (II)
y Womens Solidarity now wishes to take the matter to Court
for a declaration that the Printing Presses & Publications Act
198 as well as the condition imposed are unconstitutional.
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The Law
y The issues that have been identified are matters concerningof the fundamental right to freedom of speech andexpression.
y The fundamental right to freedom of speech and expression
is vested in Article 10 (1) (a) where by, the provision statesthat every citizen has the right to freedom of speech andexpression.
y The restraints on this fundamental liberty are laid down in
Article 10 (2) (3) and (4).T
he provision gives power to theParliament to make law to restrict the rights of freedom ofspeech and expression as it deems necessary or expedient.
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The Law
y However, Parliaments legislative power is not unlimited. Itcan enact legislation only on the constitutionally permissiblegrounds and for the purpose only of promoting the objectsenshrined in the constitutional provision dealing with the
freedom.
y In Dewan Undangan Negeri Kelantan v Nordin Salleh it washeld that a restriction can be challenged if it directs affects
the fundamental right or the restrictions inevitableconsequence is such that it makes the exercise of fundamentalrights ineffective or illusory.
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The Law
y There is a strong presumption of the constitutional validity of
legislation.The burden of proof lies on the party seeking to
establish the contrary.
y In this case, this party will beWomens Solidarity.
y If certain provision construed in one way would make them
consistent with the Constitution and another interpretationwould render the unconstitutional, the court should lean in
favour of the former as conveyed in PP v Pung Chen Choon.
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The Law
y Even if a parliamentary law is constitutionally valid,executive action under the laws authority may be challengedif it infringes the Constitution or is ultra vires the parent lawor is in breach of the principles of natural justice.
y Article 4(1) states the Constitution is the supreme law of theFederation, any law passed after Merdeka Day which isinconsistent with the Constitution shall, to the extent of the
inconsistency, be void.
y Article 4(1) is further strengthen with Article 162(6).
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The Law
y Executive action under the laws authority may also be
challenged in court of law.
yJudicial Review may declare ultra vires on unconstitutionalaction of the Executive.
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The Law
y In the case of J.B. Jeyaretnam it was held that a power given
to restrict free speech must not be arbitrary and
untrammeled.
y Arbitrary powers are an affront to Article 8s promise of
equality before the law and equal protection of the law.
y In Dow Jones vs AG Singapore, it was held that the Ministersdecision on what amounted to engaging in domestic politics
was open to judicial review.
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The Lawy In Persatuan Aliran v Minister, an admirable sentiment was
expressed by the Supreme Court that even though section
12(2) of the Printing Presses and Publication Act gives to the
Minister an absolute discretion to refuse an application for a
licence or permit, the Ministers discretion is, nevertheless,
subject to judicial review on the principles of illegality,
irrationality and procedural impropriety principles of
judicial review reformulated in the British case, Council of
Civil Service Union v Minister for the Civil Service.
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The Law
y Unfortunately such liberal sentiments are not always
reflected in actual decisions.
y In the Aliran case the permit was refused, the plaintiff
invoked Article 8 which was equality before the law, Article10 which was freedom of speech and Article 152 which was
the recognition of Malay as the official language to back its
application in court.
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The Law
y The Supreme Court summarily rejected the constitutional
arguments and concentrated on the administrative law issue
of abuse of power which there was no proof.The plaintiff was
denied relief even though it had sought the protection of the
Constitution.
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The Application.y Womens Solidarity may bring the matter to court to claim that both the
Printing Presses & Publications Act 1984 as well as the conditionimposed are unconstitutional.
y Womens Solidarity may claim both of the two has infringe its
fundamental right of freedom of speech and expression in Article 10(1)as well as the promise of equality before the law in Article 8.
y The condition imposed to subject the Newsletter to only internalcirculation was arbitrary.Thus violating Article 8.
y The Ministers discretion on the refusal of appeal forWomens SolidarityNewsletter was deny the freedom of speech and expression ofWomensSolidarity and thus violating Article 10(1).
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The Application
y However, the application that will be made byWomen
Solidarity may be rejected.
yOn the basis of judicial precedent, Persatuan Aliran vMinister claim of infringement of Article 10 and Article 8
failed.Therefore, it would be likelyWomens Solidarity claim
would also fail.
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The Conclusion.
y Printing Presses and Publications Act in sections 3(3), 6(1),and 12(2), confer on the Minister absolute discretion togrant, refuse, or revoke a licence or permit. Section 13Amakes the Ministers decision final and not questionable in
court of law.
y In a legal system with a supreme Constitution, no law canviolate the Constitution; no clause can authorize conduct that
transgresses constitutional limits; no provision can barjudicial review of unconstitutional decision. Onconstitutional issues, courts cannot be excluded.Thisprinciple is at the heart and soul of constitutionalism.
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Dear Madam Irini.I would like to again apologize for my actions on the last day of Constitutional Law
class. I am deeply sorry for not being able to make it.
I did try to reschedule with the Security Commission but they informed me thatthe interview sessions were already full, as they cannot move me into a moreconvenient slot.
Saya memohon maaf teramat kepada Puan!
Thank you Madam for giving me a chance to redeem my mistakes.
I apologize once again Madam.
P.s- Congratulation Madam for getting your PhD !
Sincerely
Ismail Illman