MAY 16 — The gallery broke out into a thunderous applause when the Court of Appeal today set aside the nine-month jail sentence against activist Hishamuddin Rais and substituted it for the maximum fine allowed under the Sedition Act. Relief indeed! But the conviction was maintained. Despite what appeared to many as convincing arguments by his counsel that there was no basis for the conviction.
Hisham was charged for a speech at a Bersih rally at the end of which he urged 3 resolutions to be presented to political leaders: reject the outcome of the then concluded general election; reform the election commission; and hold re-election of some 20 odd seats. To make his point he had called upon the 200 odd crowd to go to the streets. Really quite innocuous demands. (Even US presidential candidates Sanders and Trump have complained of rigged electoral process in their election bid.)
But he was charged – and convicted – for seeking to overthrow the government through unlawful means. Under a provision of the Sedition Act – section 3(1)(b) that makes it an offence to seek to overthrow the government by non-lawful means – basically intended for such offences as inciting an insurrection by such non-lawful means as an armed revolt.
Now, how possibly can anyone, least of all the apex court (as the case commenced in the Sessions Court – construe Hisham’s speech by any stretch of the imagination, as a call to arms or such like?
You don’t appeal to political leaders (which would perforce include those in the ruling party) and propose by-elections when you want to provoke a revolution! Of the Arab Spring type as the lower court judges cited in their grounds.
As for ‘going to the streets’? That’s perfectly legal under the Peaceful Assembly Act, subject to procedural compliance.
But perhaps there are forensic reasons aplenty for upholding the conviction. Then let the Court of Appeal state these in a written judgment. Especially in such a critical case that allows a colonial relic law – originally ordained to suppress freedom fighters like Gandhi and nationalists like Samad Ismail and Boestamam – to upstage the Federal Constitution’s guarantee of free speech. This will vindicate its stance and put to rest wagging tongues that readily decry our justice system.
Silence is not an option for superior courts in such cases where constitutional right to free speech is being reined in on a tight leash. For the public has a right to know. And subject the wisdom pronounced from on high to respectful but anxious scrutiny.
* Gurdial Singh Nijar is a former law professor at University of Malaya.
** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.