Monday, September 22, 2014

Jail for sedition excessive, shows failure to protect free speech, say lawyers


Badges calling for abolition of the Sedition Act displayed during the Malaysian Bar's extraordinary general meeting in Kuala Lumpur on September 19. – The Malaysian Insider pic by Najjua Zulkefli, September 22, 2014.
Badges calling for abolition of the Sedition Act displayed during the Malaysian Bar's extraordinary general meeting in Kuala Lumpur on September 19. – The Malaysian Insider pic by Najjua Zulkefli, September 22, 2014. 

Courts have a duty to protect free speech but the recent trend of imposing jail for those convicted of sedition instead of fines has surprised lawyers who say it is only a political crime for expressing a different point of view.
They said the courts have a duty to protect and preserve the constitutional right of citizens to freedom of speech and expression, but expressed worry that the judiciary was not doing so.
Lawyer Latheefa Koya (pic, right) believes that custodial sentences are imposed to instil fear on would-be offenders.
"For many there is a chilling effect the moment police start investigation and prosecution by the public prosecutor. What more when an accused is sent to jail," she told The Malaysian Insider.
Those found guilty can be fined up to RM5,000 or a maximum three years' jail or both. Repeat offenders are liable to be imprisoned up to five years.
A fine exceeding RM2,000 or jail term exceeding one year would disqualify elected representatives and prevent them from holding public office.
"This is setting a trend, as at least nine opposition MPs and assemblymen are facing charges under this law," she said.
Student activist Adam Adli Abd Halim was sentenced to 12 months' jail on Friday after the court found him guilty of sedition, over his claim that Barisan Nasional (BN) cheated in 2013 general election.
Malaysian Bar president Christopher Leong (pic, left), who chaired an extraordinary general meeting of the Bar on the Sedition Act 1948 on Friday, said Adam Adli's punishment was excessive and a fine would have sufficed.
Latheefa said the courts had always imposed a fine even after the 1969 racial riots and after the Sedition Act was amended in 1970.
"The courts were liberal when it came to sentencing even after the violent clash, and the law was amended to widen the definition of seditious tendency," she said.
She said the late Datuk Mark Koding, a BN MP, who was found guilty of sedition in 1982, was given a bond over of good behaviour for two years without record of a conviction.
Penang Chief Minister and DAP secretary-general Lim Guan Eng was the first to be jailed for sedition when he was sentenced to 18 months in prison in 1998 by the Court of Appeal.
Activist Safwan Anang was recently sentenced to 10 months’ jail after he was found guilty of sedition, over his statements at a forum last year.
And human rights activist P. Uthayakumar was given the longest jail term so far – 30 months – for posting a "seditious" letter on a website in 2007. The Court of Appeal reduced his term to 24 months last week.
Only the late Karpal  Singh, who was wheelchair bound, was fined RM4,000 on March 11 this year for commenting on the Sultan of Perak’s role in the state’s 2009 constitutional crisis.
Even then, the prosecution had made submission to the court that Karpal be sent to jail on grounds of public interest.
Lawyers for Liberty executive director, Eric Paulsen (pic, right), said the recent sentencing in sedition cases showed that judges were unable to stop the abuse of power by the police and the public prosecutor.
"The jail terms against Safwan and Adam Adli are clearly disproportionate as these are political offences and there was no actual harm to the public," he said.
He said both were young offenders and had a bright future as Malaysians who cared for their country, especially its democratic process.
He said the judiciary must realise that it stood between the Malaysian public and the on-going sedition onslaught.
"It will be a sad day if the judiciary was unable to understand their proper functions in upholding the constitution and fundamental rights instead of interpreting the outdated sedition law in favour of the government," he added.
Lawyer M. Manoharan, who represented Uthayakumar, said there was abuse of power when it came to sentencing as the degree of punishment was at the discretion of the trial judge.
"Once a person has been found guilty, the accused is allowed to mitigate to get a lenient sentence but in the case of sedition the principle of mitigation appears to have been ignored," he said.
Manoharan said those found guilty of sedition could not be put in the same league as rapists, murderers or armed robbers.
"These are violent criminals but yet the courts have wide latitude when it comes to conviction and sentence," he said.
He said even in some murder cases, the courts have reduced the charge to culpable homicide not amounting to murder or causing grievous hurt, due to insufficient evidence. – September 22, 2014.
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