Tuesday, October 6, 2015

1948 Sedition Act is valid, Federal Court rules

Hafiz Yatim  

The Federal Court ruled today that the Sedition Act 1948 is valid under the Federal Constitution.
Chief Justice Arifin Zakaria, who led five-member bench that included the top three in the judiciary, said the intention of the framers of the constitution is to ensure the existing (pre-Merdeka) law is valid and continues to be valid and enforceable upon the coming into operation of the Constitution on Merdeka Day.
“It follows therefore that the Act being the 'existing law' at the material date should continue to be valid and enforceable post-Merdeka day,” he said.
"Hence, we answer the (second question) on whether the Sedition Act is valid under the Federal Constitution as ‘in the positive’," Justice Arifin said in announcing the decision.
Justice Arifin reasoned further that after Malaya achieved independence, it was not possible for a new set of legislation to be immediately enacted by Parliament to replace existing laws.
“It is inevitable that all laws then in operation will have to be continued until they are repealed. This is provided in Article 162 which is a transitional provision intended to ensure the continuance of all existing laws after Merdeka Day with such modifications as maybe made by federal or state law.”
The other judges sitting with him were Court of Appeal President Md Raus Sharif, Chief Judge of Malaya Zulkefli Ahmad Makinudin and Federal Court judges Abdull Hamid Embong and Suriyadi Halim Omar.
Section 4(1) do not contravene Article 10(2)
Justice Arifin also ruled the first question of law asked, on whether Section 4(1) of the Sedition Act contravenes Article 10(2) of the Federal Constitution, to be in the negative.
"We are inclined to believe that it is not the court to determine whether a restriction is reasonable or otherwise. It is subject to the purview of the legislature, not the court," he held.
Article 10 is regarding freedom of speech, expression and assembly, while sub section (2) concerns that Parliament by law may impose restrictions.
For Article 10 (2), the CJ said Parliament is given the right to impose restrictions in the interests of the security of the Federation.
“Section 4(1) […] this is our view that it is consistent with Article 10 (2) (a) and Article 10 (2) (4) of the Constitution as it cannot be said that the restrictions imposed by Section 4(1) are too remote or not sufficiently connected to the subjects enumerated in Article 10 (2).
“Upon close analysis, we agree with the plaintiff's submission (the prosecutor) that the restrictions imposed in Section 4(1) fall squarely within the ambit or parameter of Article 10 (2) (a) of the Constitution,” said the chief justice.
Justice Arifin then ordered that the sedition case against Universiti Malaysia law lecturer, Associate Professor Azmi Sharom (photo), to be remitted to the Sessions Court.
The case is based on comments Azmi had allegedly made to The Malay Mail Online on the Selangor menteri besar crisis brewing at the time, which was consequently published in an article titled ‘Take Perak crisis route for speedy end to Selangor impasse, Pakatan told’.
Justice Arifin also said the interests of justice is as important as the interests of the arrested persons
Ironically, Justice Arifin was the judge who wrote the judgment in the Perak constitutional crisis case between Mohd Nizar Jamaluddin vs Zambry Abdul Kadir in 2010, at the apex court when he was the Chief Judge of Malaya then.
The High Court agreed on Nov 5 to refer to the Federal Court on two issues:
  • whether Section 4(1) of the law contravenes Article 10(2) of the Federal Constitution; and
  • whether the law itself is valid under the Constitution.
'Court must interpret law, not legislators'
Azmi, 46, said he is disappointed with the decision.
"I thought my lawyers have made good arguments and points to the case," he said.
"I am surprised that they did not agree with the strong argument. At the end of the day, why is it that in the constitution only Parliament can make laws to restrict freedom of speech because Parliament is democratically elected," he said.
"It is important that we have a democratically-elected body and this is the point which was missed by the court. I am very upset as this is a sad day for civil liberty in Malaysia. The purpose is for the courts to interpret ‎whether the law is reasonable or not and not for the legislators to do so," he said.
The academician hopes that despite the law now being declared legal it would not stop people from voicing out.
With this decision, a plethora‎ of others charged under the Sedition Act in recent months are likely to stand trial as they have cited Azmi's referral to the Federal Court as their reason to postpone the hearing dates of their cases.
Among those in court included blogger and lawyer Haris Ibrahim and Adam Adli Abdul Halim both of whom have been charged with sedition.
Some 60 students from Universiti Malaya turned up today in support of Azmi.
Foreign observers are also in the court to hear the judgment, including representatives from the United States.
Azmi was represented by Malik Imtiaz Sarwar, Gobind Singh Deo (photo) and Parvinder Singh while the deputy solicitor-general I Tun Abdul Majid Tun Hamzah appeared for the prosecution.
Gobind said the decision meant that the apex court was not with the law professor and he will write to the Sessions Court for a date to be fixed for mention.
The UM students are slated to hold a press conference outside the massive Palace of Justice complex in Putrajaya where they are expected to demonstrate in support of Azmi.

Read more: https://www.malaysiakini.com/news/314666#ixzz3nlcfzrVQ

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