Freedom of speech and expression must be resolutely protected — George Varughese

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JANUARY 9 — The Malaysian Bar welcomes the two recent landmark decisions of the Court of Appeal that have dealt a critical blow to the Sedition Act 1948.

In the case of Mat Shuhaimi bin Shafiei v Kerajaan Malaysia, section 3(3) of the Sedition Act 1948 — which provides that the intention of the accused is irrelevant to a sedition charge — was struck down as invalid, as it is a disproportionate restriction on the freedom of speech for the purposes of Article 10(2) of the Federal Constitution, and in breach of the guarantee of equal treatment and equal protection before the law under Article 8 of the Federal Constitution.

In delivering the unanimous decision of the Court of Appeal, Justice Varghese George accepted the submission that “ section 3 (3) of [the Sedition Act 1948] was an overkill, akin to using ‘a hammer to confront the menace of a mosquito’”.

Justice George further added: “It was indisputable that an accused [charged with an offence under section 4 (read together with section 3(1)) of the Sedition Act 1948] would be clearly disadvantaged and in effect discriminated.  This in effect would leave open the door for selective prosecution, an anathema or affront to the constitutional right to be dealt with equally and to be also protected equally before the law.”

In the case of Muhammad Safwan Bin Anang @ Talib v Pendakwaraya, the Court of Appeal acquitted and discharged Muhammad Safwan, who had been charged under section 4(1) of the Sedition Act 1948.

Justice Prasad Sandosham Abraham, in delivering the unanimous decision, suggested that the courts should take the “tooth comb” approach in deciding whether the impugned words have “a seditious tendency”.  Justice Abraham further said, inter alia, that “ the Court must scrutinize and independently evaluate the impugned statement to see whether the language used comes within the bounds of sedition rather than free speech; and failure to do so, by the Court in our view amounts to a serious misdirection in law which would render a conviction unsafe”.

These landmark decisions are indeed laudable, and are a strong endorsement for the freedom of speech and expression.

The Malaysian Bar notes that, in stark contrast, the authorities frequently used the Communications and Multimedia Act 1998 (“CMA”) in 2016 to suppress contrary views, muzzle press freedom, and deny democratic space. 

Section 233(1)(a) of the CMA criminalises, among others, the use of network facilities or network services by a person to transmit any communication that is deemed to be offensive and could cause annoyance to another person.  It is broad in scope, vague and ambiguous, with entirely subjective terms such as “offensive” and “annoy”, and has been used to quash contrary or dissenting voices in the public sphere. 

In 2016 alone, the number of reported cases totalled at least 39, including persons questioned, arrested, charged or sentenced.  Such resort to the CMA by the authorities has a chilling effect on the freedom of opinion and thought, and creates a climate of fear that suffocates freedom of expression and threatens to silence Malaysians.  Its use to stifle all forms of dissent continued unabated into the new year, as it was reported on 7 January 2017 that a man in Dungun, Terengganu had been arrested for allegedly criticising the Prime Minister.   

Another provision of the CMA that has been abused is section 263(2), which provides for the barring of public access to websites.  This has been perceived as intimidation and harassment of the media.

The continuing misuse of sections 233(1)(a) and 263(2) of the CMA is a serious encroachment on the freedom of speech and expression guaranteed under Article 10(1)(a) of the Federal Constitution and, more critically, the freedom of opinion and thought.  The freedom of the press is integral to the freedom of speech and expression, and is regarded as a necessary derivative of the right to know.  The right to know, or the right to information, is also implicit in this constitutional guarantee, and belongs to every citizen.

While it is recognised that the freedom of expression is not absolute, any restriction of this fundamental liberty must be reasonable and proportionate, and cannot be founded on any arbitrary or unlawful exercise of power by the authorities.  This would be nothing less than a frontal assault on the rule of law, and would render the constitutional guarantee in Article 10(1)(a) meaningless.

The Sedition Act 1948 remains a serious threat to the freedom of speech and expression, while the misuse of sections 233(1)(a) and 263(2) of the CMA gives rise to the perception that the CMA is yet another dressed-up political weapon.

The Malaysian Bar calls upon the Government to cease its use of, and to repeal, these legislation that negate the exercise of the freedoms of speech, expression, opinion and thought, which are guaranteed in the Federal Constitution to all citizens.  

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

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