PUTRAJAYA, March 24 ― The Sedition Act 1948 that criminalises speech is unconstitutional as the law was not created by Malaysia's Parliament, the Federal Court was told today.
Lawyer Datuk Malik Imtiaz Sarwar representing Universiti Malaya law lecturer Dr Azmi Sharom disputed Putrajaya's argument that the colonial-era law was considered as having been made by Parliament as it was created by the legislative body’s predecessor.
He further contended that the Section 4(1) of the Sedition Act violated Article 10(2) of the Federal Constitution as the particular section grants Parliament exclusive powers to impose legal restrictions on the right of freedom of speech guaranteed by the Article.
Earlier, the Attorney-General’s Chambers’ representative, Solicitor-General I Datuk Tun Abd Majid Tun Hamzah, argued that the word “Parliament” should be interpreted to have a wider meaning that includes the pre-independence Legislative Council.
“The Constitution being a living document should be given a wider interpretation,” Tun Abd Majid said.
But Imtiaz pointed out that the Federal Constitution specifically uses the two different terms of “Parliament” and “Legislative Council”, saying there would be “no need to make a distinction” if this was not intended.
Imtiaz also argued that the entire Sedition Act itself is void under the Federal Constitution and cannot be enforced.
Going beyond the argument that the Federal Constitution only empowered Parliament to legally restrict free speech, Imtiaz said the country’s supreme law similarly also granted the federal lawmaking body the powers to legislate on sedition.
“In 1971, the Constitution was amended to include Article 10 (4)... what that means is until 1971, even Parliament couldn’t make sedition laws,” he said.
Article 10(4) empowers Parliament to make laws to prohibit the questioning of matters and privileges, among other things, protected by the Constitution’s Part III, Articles 152, 153 or 181 — which deals with citizenship; the national language and other language; the special position of Bumiputera; and the sovereignty of Malay rulers.
The Sedition Ordinance 1948 was passed by the Legislative Council of the Federation of Malaya and came into force on July 19 the same year. It later went through a series of modifications by the Yang di-Pertuan Agong before minor changes and a renaming in 1970 to be the Sedition Act 1948.
Lawyers Roger Chan and Andrew Khoo held watching briefs for the Bar Council and Human Rights Commission of Malaysia (Suhakam), while New Sin Yew observed for the International Commission of Jurists (ICJ).
The five-man panel hearing the case and headed by Chief Justice Tun Arifin Zakaria included Court of Appeal president Tan Sri Md Raus Sharif, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin, Tan Sri Abdull Hamid Embong and Tan Sri Suriyadi Halim Omar.
The decision in Azmi's case is expected to have far-reaching effects on a string of sedition cases, in which those charged have also sought to challenge the law. Sedition trials have also been stayed pending the outcome of Azmi's challenge.
No date has been fixed yet for the Federal Court's decision on the constitutionality of the sedition law.
On September 2 last year, Azmi pleaded not guilty to the principal charge under Section 4(1)(b) and an alternative charge under Section 4(1)(c) of the Sedition Act 1948 at the Kuala Lumpur Sessions Court for a remark he made in an article published on Malay Mail Online.
Section 4(1)(b) covers “uttering any seditious words” while Section 4(1)(c) deals with individuals who publish seditious publications, among other things.
If convicted under either charge for his quotes in the article titled “Take Perak crisis route for speedy end to Selangor impasse, Pakatan told”, the UM associate professor could face a maximum fine of RM5,000, a maximum three-year jail term or both.