KUALA LUMPUR, March 17 — Parliamentary privilege that provides lawmakers with legal immunity to discuss matters freely in Parliament does not apply in cases involving the Sedition Act 1948.
Instead, the colonial-era law that critics say is used to stifle dissent contains a rare exception that is able to pierce the legal protection that otherwise affords parliamentarians freedom from criminal or civil liability for speech made within the walls of the Dewan Rakyat.
While Article 63(2) of the Federal Constitution states that lawmakers will not be liable for actions or speech that are part of parliamentary proceedings, a subsequent article countermands this for instances involving the Sedition Act 1948 and laws enacted under Article 10(4) that protect the national language, Bumiputera quotas and the Malay rulers.
“What this means is that anything that you say in Parliament cannot be subjected to any criminal charge or cannot be questioned in any court at all,” civil liberties lawyer Syahredzan Johan told Malay Mail Online.
“But Article 63(4) provides the exception and this was inserted after the race riot of 1969. So now although you have the privilege, there is an exception and the exception is that the privileges shall not apply to a person who’s charged under the Sedition Act.”
PKR vice-president Nurul Izzah Anwar was arrested yesterday when she reported to the Dang Wangi police station to answer for allegedly seditious remarks she made in questioning the Federal Court’s decision to jail her father, Opposition Leader Datuk Seri Anwar Ibrahim, when she read out his speech in Parliament.
The Lembah Pantai MP’s arrest drew immediate protests against what was viewed as a violation of her parliamentary privilege.
As with Syahredzan, lawyers New Sin Yew and Eric Paulsen said that legal immunity in Parliament was not absolute and lawmakers may still be liable for offences involving sedition.
But both disagreed that Nurul Izzah was criminally liable for her remarks, contending that Article 63(4) allowed for very specific exceptions to parliamentary privilege under the Sedition Act 1948 as amended by the Emergency (Essential Powers) Ordinance No. 45, 1970.
According to New, the ordinance in question inserted a new definition of seditious tendency under Section 3(1)(f) of the Sedition Act, which is tendency to question the national language, Bumiputera special rights or the sovereignty of the Malay rulers.
“Yes, because she (only) spoke on judiciary, political conspiracy. Privileges are applicable to her, that would be my reading,” Paulsen told Malay Mail Online.
New went a step further to say that while the exception remained on paper, it was effectively non-existent as the particular definition of sedition no longer existed as Putrajaya’s lifting of all declared Emergencies in 2011 rendered the Emergency (Essential Powers) Ordinance No. 45, 1970 void.
“A fortiori, the Sedition Act 1948 as amended by the Emergency (Essential Powers) Ordinance No. 45 1970 is no longer an exception to Izzah’s immunity.
“Even if Izzah's speech has seditious tendency under any of the Sections 3(1)(a) to (g) of the Sedition Act, she cannot be liable to sedition,” New added.
The last MP to be charged with sedition for parliamentary speech was Barisan Nasional MP Mark Koding in 1982, when he questioned the existence of Chinese and Tamil schools and the use of both languages on signboards.
Koding was subsequently convicted for suggesting the amendment of Article 152 of the Federal Constitution, which pertains to the national language.
“That’s the problem with the Sedition Act, everything can be seditious. It’s very difficult to say something is not seditious … That’s why we want it abolished,” added Syahredzan, whose Bar Council’s National Young Lawyers Committee is the organiser of the Abolish the Sedition Act campaign.
Putrajaya previously pledged to repeal the Sedition Act 1948 that critics say is used to stifle political opposition and dissent, but later announced that it will be retained and expanded instead.