Amidst a flurry of criticisms by several prominent lawyers against the Sedition Act at the 2015 Karpal Singh Forum in Penang yesterday, former Appeals Court judge Mahadev Shankar told the audience not to panic.
Mahadev said the real test of whether the amendments to the Act - which were passed in Parliament last week - can be enforced is when a case is brought to court.
He expressed optimism about the current situation as judges always looked at the concerns of both sides of a case, to come up with solutions.
“If this matter (sedition) comes to court, if I am sitting there, I would tell the prosecutor - you may think this is seditious but convince me that it is,” said the retired judge.
“The test is how the judges are going to act and my hope is they are there to protect the people. If the judge does his job, if he obeys the oath he has taken to protect the constitution, I think, we will be okay.
We don’t need to go into a panic about this. Whatever man creates, others can undo. Laws are not cast in stone,” Mahadev (left) said to loud applause.
Other than Mahadev, other speakers at the forum, which was moderated by former Bar Council president Christopher Leong, included human rights advocate Ambiga Sreenevasan, current Bar chairman Steven Thiru and Queen’s Counsel Mark Trowell.
Chief Minister Lim Guan Eng opened the event, while organiser Penang Bar Committee chairperson Shyama Nair gave the welcoming remarks.
Trowel who knew Karpal for 30 years, delivered a tribute to commemorate his first death anniversary.
In the panel discussion, Trowell said that Australia, where he hails from, abolished the Sedition Act in 1970.
As a foreigner, he said he saw no reason or threat for Malaysia to have such legislation.
“Is it because of the diversity of race and religion here that a law is needed to protect everyone?” he queried.
Trowell (left) said he once spoke to Attorney-General Abdul Gani Patail who told him Malaysia should not be judged by international standards as the country has its own special problems.
Anwar Ibrahim was then facing trial for his Sodomy II case. Trowell sat as an international observer and observed that he should be judged like everyone else in Malaysia.
“I told him if Malaysia wants to be a democratic nation within the international community, there are international standards which must be applied,” he said.
“Gani Patail did not respond and spoke about something else instead,” Trowell smiled, to the laughter of the crowd.
Mahadev also tried to explain why the government had decided tofortify the Sedition Act, which critics said was an assault on free speech and independence of the judiciary.
He said he often placed himself in other people’s shoes to understand the driving force behind each motivation, for example, what drives a small group of power brokers to control the lives, fate and destiny of others.
Malaysia is not unique, he added, citing America’s Patriot Act to deal with terrorists following the Sept 11, 2001 attack on the Twin Towers and World Trade Center, killing 3,000 over innocent lives.
“There is a universal problem here that is rooted in fear, in the instinct of survival and the need to hold on to whatever you have,” he said.
“It is a funny culture, the more you have, the more desperate you are, so that your position is not threatened,” he added.
The government belongs to everyone, he said, and must serve all, and not just certain quarters.
However, nobody knew the government’s concerns and people may guess, speculate, and even attribute sinister motives, but this is not the way to address the matter.
Mahadev then pointed out that the problem of the Sedition Act lies in its definition as one only comes to know he or she is seditious after a court conviction.
He said one may be motivated by a noble sentiment or public concern to speak and the person may not know that his or her remarks were offensive to others.
“You only know when you said something unlawful when someone taps you on the shoulder at 3am, preferably on a Friday night, and you cannot go to court until Monday. This is not a happy situation,” he said, to much laughter from the audience.
“If you do not know yourself what is wrong or right, how are you going to cope with this situation - diam lah semua. Jangan bising (keep quiet all, do not make noise) but will this get you anywhere?” he asked.
“Until you get into the court and the judge is looking at what you said, or did not say, it is merely a suspicion. It is only at the moment of conviction that it is established that what you said was wrong,” he explained.