Legal restrictions on publications under Malaysian law

Abstract

The thesis seeks to examine legal restrictions on publications on matters of public interest. The framework chosen to examine these restrictions is the democratic system of government in Malaysia. The study analyses the way the laws and judges balance the democratic interest with other interests such as the interest of state secrecy and security. The law, ex facie, is not reasonably balanced with the demands of constitutional democracy as envisaged by the Federal Constitution. The research examines and analyses laws as found in statutes and case law. References are made to legal writings and views regarding the laws. The Federal Constitution provides for a parliamentary democracy which entails participation of the electorate in electing representatives and in governing. This requires receiving and processing of information by the electorate and interested parties. Restrictions on publications hinder these processes. However, the Federal Constitution also provides for protection of competing interests such as the interest of reputation, public order, state secrecy and administration of justice. These are legitimate interests that should be taken into account by the law. However, judges need to play their role as the protector of the Constitution in ensuring that these interests do not subvert constitutional democracy. In most cases, the courts have failed to cast the law as required by constitutional democracy. The courts have sometimes failed to balance those competing interests. It is possible for judges to mould the common law and to construe written provisions, to shape it in accordance with constitutional democracy. However, if judges still fail to do their tasks, the other option is to amend the law or to enact new law. This research also seeks to highlight Islamic perspectives on restrictions on publication relating to governance. Shari`ah provides for competing interests against publication such as the interest of reputation, security and public order. However, Shari`ah also calls for the need for enjoining good and forbidding evil even against those in power.