Thursday, October 23, 2014

Doubts in administration of justice

Updated: Thursday October 23, 2014 MYT 8:26:15 AM
The Star
THE recent episode in Parliament when Minister in the Prime Minister’s Department Nancy Shukri gave a written reply to a parliamentary question in relation to the Malay Bible burning threat by Datuk Ibrahim Ali raises a number of concerns.
The minister in a written reply stated, inter alia, that Ibrahim was not charged under the Sedition Act because the police concluded that he was merely defending the sanctity of Islam and had not intended to create chaos with this statement.
The written statement was from the Attorney-General’s Chambers where the Attorney-General (A-G) is the adviser to the Government on legal matters under Article 145(2) of the Constitution.
The first concern is the reliance by the A-G Chambers on the finding that Ibrahim was not intending to create chaos, to exculpate him from a charge under the Sedition Act.
However, section 3(3) of the Act clearly states that “(for) the purpose of proving the commission of any offence under this Act the intention of the person charged... shall be deemed irrelevant if in fact the words... had a seditious tendency”.
Again in relation to Ibrahim’s statement in the context of the words used, is there not a “seditious tendency” under the section 3 (1)(d) where “seditious tendency is defined as being a tendency” to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia...”, an offence under section 4 of the Act?
The second concern is that it would appear that the police had concluded that there was no intention to create chaos. How the police came to that conclusion shows that the provisions of the Sedition Act had not been understood or studied by the officers who compiled the investigation papers (collectively called the IP) before they concluded that no action should be taken against the man.
The third concern is that under Article 145(2) it is the duty of the A-G to advise, among others, any minister on legal matters. The A-G is the ultimate legal adviser to the Government and he cannot afford to be wrong.
The A-G Chambers will answer a parlia­mentary question in the form of an opinion. An opinion will comprise a statement of facts and the application of the law on the facts.
In our context the A-G Chambers relied on the police for the facts of the case. On the issue of law and its interpretation the A-G Chambers appeared to rely on the opinion of the police in the IP, as well, that no offence had been made out under the Sedition Act. That clearly is wrong.
I had been with the A-G Chambers for 16 years in the 70s and early 80s and the protocol for dealing with parliamentary questions was strict. An answer had to go through many layers of scrutiny and approval before being sanctioned by the A-G for release. What has happened to the strict procedure in the A-G Chambers?
Admittedly the A-G Chambers in my days was, and more so now is, never idle as the volume of problems that come to the chambers for legal opinion is enormous.
But in matters relating to parliamentary questions, truthful and accurate statements of law are expected in the august body of Parliament as the A-G is the ultimate adviser of the government in legal matters.
There needs to be a re-think probably of the protocol relating to answers to parliamentary questions especially in criminal law matters, and the decision on the law should be for the A-G Chambers and nobody else, except for the courts.
There are other concerns but perhaps I should deal with the biggest concern. It is with regard to the perception of the role of the A-G (as Public Prosecutor) in the legal administration of the country.
The A-G under Article 145(2) has the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence.
The power is an awesome power which has to be exercised bona fide and with great professionalism and care. And any perception that the A-G when exercising such powers, is biased, selective or acts under ministerial pressure or pressure from any group will bring disrepute to the office of the A-G and cause grave misgivings as to the fair administration of the legal system. And when mistrust arises in regard to the exercise of such powers it would be to the discredit of the Government.
Clearly, the A-G Chambers has to be circumspect in regard to police IPs when dealing with the issues of fact and, especially when dealing particularly with parliamentary questions.
The A-G Chambers must also be solely responsible for the interpretation of the law in accordance with the tenor of the legislation and the relevant court-decided cases on that law; and the A-G cannot abdicate that duty to any other body, though the courts will have the last say on it.
With these concerns in mind, in relation to the Sedition Act, the A-G should review the cases where persons have already been charged in court bearing in mind that:
(1) The Sedition Act is an oppressive law and that many jurists and scholars consider sedition (based on common law seditious libel) as obsolete. Seditious libel came during a period when the divine right of rulers was not only accepted but believed to be necessary; rulers who dispensed laws were above questions and criticism of rulers was considered sinful as well as unlawful.
Lord Denning in Landmarks in the Law (1984) stated at p 295:
The offence of seditious libel is now obsolescent. It used to be defined as words intended to stir up violence, that is, disorder, by promoting feelings, of ill-will or hostility between different classes of His Majesty’s subjects.
But this definition was found to be too wide. It would restrict too much the full free discussion of public affairs... So it has fallen into disuse for nearly 150 years. The only case in this century was R. v. Caunt... when a local paper published an article stirring up hatred against Jews. The jury found the editor Not Guilty.
In the Canadian Supreme Court decision of Boucher v The King [1951] SCR 265 at 285-286, Mr Justice Rand held:
Up to the end of the 18th century it (crime of seditious libel) was, in essence, a contempt in words of political authority or the actions of authority.
If we conceive of the governors of society as superior beings, exercising a divine mandate, by whom laws, institutions and administrations are given to men to be obeyed, who are, in short, beyond criticism, reflection or censure upon them or what they do implies either an equality with them or an accountability by them, both equally offensive.
(2) That once a person is charged for an offence under the Act, looking at the state of case law in Malaysia, there is no defence that can normally be taken for offences, say, under the Penal Code or other acts creating offences. So it appears there can be no defence even of truth, lack of intention, presence of an innocent or honourable intention, absence of consequent harm, or even a lack of possibility or potential for consequent harm. Prove the utterance of words as “seditious” (defined circularly and widely) and there is no defence to the utterance. Very oppressive in the 21st century. And to think this is the law in Malaysia, a democratic country.
(3) That the A-G before exercising his discretion whether to charge a person for sedition must ignore pressure from any quarter, political or otherwise, the noisy and the cantankerous, and the well-meaning and well-intentioned groups (who have not seen the oppressive implications of the law), and focus on whether it is reasonable to charge such a person in the context of all relevant circumstances in an age of “disagreement in ideas and belief on every conceivable subject” which are the essence of our life in modern Malaysia pushing on for developed status in 2020.
Let us hope that the A-G, who had indicated he would review the cases of those charged for sedition, will do so with a group of officers who have researched the history of sedition law, its very rare use in other common law countries including Australia, Canada, India, Ireland, New Zealand, South Africa, United Kingdom and the United States and the reasons why that is so.
Using such reasons and in the context of reasonableness it is hoped the charges against a slew of persons including academics will be withdrawn. It boggles the mind that even intellectual discourse can be considered seditious.
Kuala Lumpur

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