Stopped, raided, shut down or arrested
This is a frightening place to be, and it usually has more give in it than it feels like. Most of these turn on a licence condition or a council by-law rather than the speech offence everyone assumes, and that changes what you can do next.
What reaches you, and in what order
Federal Constitution
ConstitutionArticle 5 on liberty and Article 10 on expression. Article 5(3) is the one that bites in the first hour: you must be told the grounds of your arrest and allowed to consult a lawyer of your choice. Every restriction below is an exercise of the Article 10(2) power, and every challenge to one starts here.
Criminal Procedure Code
Act 593Section 28A is the provision to know by heart. You must be told why you are being arrested, and you may contact a relative and a lawyer and speak to that lawyer out of police hearing. Read it with s.28A(8), which lets the police delay that access where it would interfere with evidence or with arresting someone else, so a refusal can be lawful and arguing otherwise at the counter makes things worse. Section 117 is the limit on how long you can be held before a magistrate has to extend it. Ask for the grounds, ask for a lawyer, then stop talking.
Entertainment (Federal Territory of Kuala Lumpur) Act 1992
Act 493In practice a shutdown is usually enforced through the venue's entertainment licence and its conditions, not through a speech offence. That matters, because the remedy is different.
Local Government Act 1976
Act 171Council by-laws on hours, noise and premises are the other common basis.
Communications and Multimedia Act 1998
Act 588Section 233 is the provision most often used over something posted.
Penal Code
Act 574Section 298A on causing religious disharmony also reaches public imagery, and it is the heaviest of these: a minimum of two years' imprisonment, with the Criminal Procedure Code's discharge and good-behaviour-bond routes expressly shut off. Raise its constitutionality early. The Supreme Court held in Mamat bin Daud v Government of Malaysia [1988] 1 MLJ 119 that s.298A is in substance a law about religion, which is a State matter, and so beyond Parliament's power. It has never been repealed and it is still charged. Note the limit of the argument: the reasoning turns on Parliament legislating for the States, so it is at its strongest outside the Federal Territories and weakest in Kuala Lumpur, Putrajaya and Labuan, where Parliament does legislate on State subjects.
Sedition Act 1948
Act 15** `Under this Act what you meant does not form part of the offence, so arguing that you never intended anything is not the defence people expect. That makes the exact words used, and what was actually said or shown, the ground you fight on. Do not try to work this one out alone.
Peaceful Assembly Act 2012
Act 736If it was characterised as an assembly rather than a performance.
Film Censorship Act 2002
Act 620For anything screened, remembering that possession alone is inside s.6.
Syariah criminal enactments
State lawFor Muslim artists a state Syariah enactment runs in parallel with all of the above, and work cleared federally can still be actionable there.
Official Secrets Act 1972
Act 88If documents are involved and the classification question arises.
Get the exact provision cited, in writing, before you argue anything. Half of these situations turn out to be a licensing decision that is reviewable rather than an offence that has to be defended.
Related situations
Post a set, reel or performance video
Uploading is reproduction and communication to the public, and then four separate speech regimes sit on top of…
ScenarioBusk or perform in the street
The rule that decides whether you can play is almost always your own council's by-law, and nobody publishes th…
ScenarioShoot and screen a film or documentary
Approval is the gate, a FINAS licence is the price of admission, and possession alone is an offence.…
This page is published by ALIM (Art × Law Initiative Malaysia) as general legal information for Malaysia’s creative communities. It is not legal advice. It does not take your circumstances into account, and reading it does not create a solicitor-client relationship with ALIM or with anyone associated with it.
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