KUALA LUMPUR, Jan 5 ― Today, law lecturer Azmi Sharom will be seeking to transfer his sedition trial from a lower court to the High Court, a seemingly routine application that may actually determine whether Malaysians will be able to defend themselves in a sedition charge by saying that they had tried to point out a mistake by the government or rulers.
Gobind Singh Deo, who represented the Universiti Malaya academic, said that a successful transfer bid would pave the way for the Federal Court to ultimately ensure a fair trial for all Malaysians accused of sedition by clearing up a legal uncertainty over the defences available.
“It's extremely important for the law to be defined clearly so that those who stand charged [with] sedition offences are able to properly prepare their defences, because you need to know with a reasonable amount of certainty, what defences are available to you before you go to trial.
“You do not want a situation where you think the defences are available and find these defences are not available after the trial, by which time it is too late to mount any other defences,” he told Malay Mail Online when contacted yesterday.
This is particularly important given the spike in sedition prosecutions where it appeared that the Sedition Act 1948 has a wide scope on what may be considered to have seditious tendencies, he said.
In a landmark decision last October, the Federal Court answered two constitutional questions in Azmi’s case by saying that the pre-Merdeka Sedition Act remains a valid law, also stating that the law is constitutional as it does not fully restrict freedom of speech.
Although the Federal Court had cited Section 3(2) of the Sedition Act, which says it is not seditious if the intent was to show a ruler has been misled or mistaken in any of his measures or to point out a government’s errors or defects, Gobind said the apex court had not considered the impact of Section 3(3) ― which says intention is irrelevant for sedition offences ― on these statutory defences.
The legal uncertainty or “gray area” now is whether Section 3(3) will make the defences under Section 3(2) redundant, a point which only the High Court had previously mentioned in other cases, but which the higher courts had not specifically decided on, Gobind said.
The importance of today’s bid to transfer Azmi’s sedition trial to the High Court is to ensure that the Federal Court will eventually be able to clarify or “fine-tune” its October ruling and decide once and for all on the “gray area”.
In a system where everyone is allowed two levels of appeal in a criminal trial, a Sessions Court case would only end at the Court of Appeal, while a High Court case can be appealed all the way to the Federal Court, the country’s highest court.
“Because if it ends in the Court of Appeal, the Court of Appeal will not be able to reconsider the judgment of the Federal Court because the Court of Appeal is by hierarchy one level lower or inferior to the Federal Court. So the Court of Appeal has limited powers to deal with the decision of the Federal Court,” Gobind said, pointing out that the lower court would be bound by the Federal Court’s decision and would not be able to expand on it.
“But if the Federal Court hears the appeal, then the Federal Court will have the jurisdiction to put right and clarify all concerns which arise, having regards to the application of its decision in the constitutional reference to the facts of this case.
Azmi’s case and an ongoing appeal in the late Karpal Singh’s sedition case are two test cases on the contradiction between Section 3(2)’s defences that hinge on a person’s intentions and Section 3(3) that says intention is irrelevant, Gobind confirmed.
When contacted yesterday, civil liberties lawyer Syahredzan Johan said the court needs to make clear the correct interpretation of these two provisions if there is indeed a contradiction.
“Remember, the defences available for sedition offences are woefully limited, and if the scope is made even narrower by this contradiction or worse, rendered illusory altogether, then this would certainly affect those accused under the Act,” he told Malay Mail Online.
Lawyer Andrew Khoo questioned how an individual could show under Section 3(2) of the Sedition Act that they had not made remarks with a seditious tendency unless their intention is taken into account, in contrast with Section 3(3) that says intention is irrelevant.
“Azmi Sharom's case is important for those who wish to express an opinion on public issues, whether they be political commentators, lawyers, academics or just folks on the street. Will they enjoy the protection of the constitutional provision of freedom of expression, or will they fall foul of the very fine and narrow distinctions that separate freedom of speech from freedom after speech,” Khoo, the co-chair of the Bar Council’s Human Rights Committee, told Malay Mail Online.
Last December 16, Kuala Lumpur Sessions Court judge Amernudin Ahmad dismissed Azmi’s application to adjourn the trial there until the High Court disposes of the associate professor’s application to transfer the case. He fixed instead January 8 for the trial hearing at the Sessions Court.
Azmi was charged on September 2, 2014, under Section 4(1)(b) and alternatively under Section 4(1)(c) of the Sedition Act for a remark he made in an article titled “Take Perak crisis route for speedy end to Selangor impasse, Pakatan told”, with a conviction under either charge punishable by a maximum RM5,000 fine, a maximum three-year jail term or both.
