JUDGMENT

Edgar Joseph Jr SCJ(delivering the judgment of the court)

This was a Reference to the Supreme Court by way of a Special Case in accordance with rr 33 and 34 of the Rules of the Supreme Court 1980 by Syed Ahmad Idid J of the High Court, Borneo, sitting in Kota Kinabalu, under the provisions of s 48(1) of the Courts of Judicature Act 1964. The questions asked in the Reference were these:

(1) Whether s 8A(1) of the Printing Presses and Publications Act 1984 read with s 8A(2), imposes restrictions on the right to freedom of speech and expression conferred by art 10(1)(a) of the Federal Constitution?

(2) If so, whether the restriction imposed is one permitted by or under art 10(2)(a) of the Federal Constitution?

(3) Whether s 8A(1), read with s 8A(2), is consistent with art 10(1)(a) and (2)(a) of the Federal Constitution and therefore, valid?

(4) Whether s 8A(2), by presuming false news per se to be malicious, amounts to pre-censorship and accordingly, contravenes art 10(1)(a) and (2) of the Federal Constitution.

In this judgment, unless the context otherwise requires, we shall, for the sake of brevity and convenience, refer to the Printing Presses and Publications Act 1984 and to the Federal Constitution as 'the Act' and 'the Constitution', respectively.

Before embarking upon a consideration of the questions of law aforesaid, it will be desirable to set out the course which the proceedings had taken.

The accused, Pung Chen Choon, was prosecuted in the Magistrates' Court at Kota Kinabalu, before the first class magistrate, Mr P Ravinthran, upon the following charge:

That you on 16 July 1990 at about 8am in Kota Kinabalu, Sabah, as editor of a newspaper The Borneo Mail was charged for maliciously publishing false news in The Borneo Mail dated 16 July 1990, ie a priest, Benjamin Basintol, had been arrested under the Internal Security Act 1960, one Roman Catholic priest, based in Keningau, is on the run from police arrest and several more other priests are also understood to be on the wanted list, and that you have thereby committed an offence under s 8A(1) of the Printing Presses and Publications Act 1984 (Rev 1987) and punishable under the same Act.

At the close of the case for the prosecution, the defence had raised the question whether s 8A of the Act imposes restrictions on the right to freedom of speech and expression in violation of art 10(1)(a) and (2)(a) of the Constitution and was therefore void under art 4(1).

To put the matter in perspective, the provisions of the Act and the Constitution which it would be convenient to set out are s 8A(1), (2) and (3) of the Act and art 10(1)(a) and (2)(a) of the Constitution. These provisions read as follows:

(8)A(1) Where in any publication there is maliciously published any false news, the printer, publisher, editor and the writer thereof shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term no exceeding three years or to a fine not exceeding twenty thousand ringgit or to both.

(2) For the purposes of this section, malice shall be presumed in default of evidence showing that, prior to publication, the accused took reasonable measures to verify the truth of the news.

(3) No prosecution for an offence under this section shall be initiated without the consent in writing of the Public Prosecutor.

10(1) …

(a) every citizen has the right to freedom of speech and expression; …

(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; …

The magistrate being satisfied that the question of law raised by the defence concerned the effect of certain pr