2015: The year of laws against the Rule of Law – Syahredzan Johan

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Source: The Star Online

BY SYAHREDZAN JOHAN

The Palace of Justice in Putrajaya. It is the courts that should decide the best sentence to be imposed on a convicted person, taking into account the aggravating and mitigating factors of the case. - File pix

The Palace of Justice in Putrajaya. It is the courts that should decide the best sentence to be imposed on a convicted person, taking into account the aggravating and mitigating factors of the case. – File pix

THIS column will usually explore the legal events of the past year. But this year would be different. The focus of this article would instead be on the three controversial legislations passed by Parliament in 2015.

These legislations arguably are contrary to the Federal Constitution and breached the sacrosanct principles enshrined in the concept of the Rule of Law.

We start first with the amendments made to the Sedition Act. One would recall that a few years ago, the Government made a promise to repeal the Sedition Act.

However, it was retained, and this year, Parliament passed a law to amend the Sedition Act.  

One of the amendments to the Sedition Act is in relation to the discretion of the courts when it came to sentencing.

Under the original Act, the courts have discretion on whether to impose a fine or a jail sentence. But the law has been amended to take away the discretion of the courts.

The courts can now only impose a custodial sentence, with a minimum sentence of at least three years.

Taking away the court’s discretion in sentencing removes an important element of the criminal justice system.

One type of sentence does not fit all the different permutations of an offence.

It is the courts that should decide the best sentence to be imposed on a convicted person, taking into account the aggravating and mitigating factors of the case.

The Prevention of Terrorism Act (POTA) passed earlier this year also bypassed the courts.

The Act empowers the executive by way of a body known as the Prevention of Terrorism Board to detain persons without trial.

A person will not be charged in court and will not have the opportunity to defend himself or herself.  This is because no charges need to be proven against that person.

Essentially, the person may be incarcerated without the need of being brought to court.

The detention cannot even be challenged in court unless it is about procedural non-compliance.

With these two legislations, the executive has essentially either removed the court’s discretion or assumed the role of the court. This is tantamount to usurpation of the court’s role in our constitutional framework.

The third controversial law is the National Security Council Bill. The Bill in its pith and substance bestows upon the Prime Minister the power to declare an emergency by way of what is described in the law as a “declaration of security area”.

One must remember that within our constitutional framework, the power to declare an emergency is reserved for the Yang di-Pertuan Agong under Article 150 of the Federal Constitution.

Within the security area, wide powers are given to the executive, either directly or by way of deploying security forces to control movement of persons and vehicles, exclude persons, arrests without a warrant, impose curfews and take temporary control of property.

These powers are normally reserved for emergency situations, yet the executive will have these powers without having the need to go through the King.

The Bill is also contrary to the constitutional provision that clearly provides that the supreme commander of the armed forces is the Yang di-Pertuan Agong. With this law, a director of operations appointed by the executive, will be able to command the armed forces.

These are laws that go against our basic constitutional framework. They are contrary to the concept of the Rule of Law. All of them have been passed this year alone.

They are in addition to the laws already in our statute books which are of questionable constitutional validity.

Thus, 2015 will be remembered as the year in which our Parliament gave the executive more powers and ignored the guarantee of fundamental freedoms in our Federal Constitution.