Source: The Malaysian Insight
THE use of the British-inherited Sedition Act 1948 to prosecute individuals is unconstitutional as it is a pre-Merdeka law, said a former Federal Court judge.
Gopal Sri Ram, who represented Anwar Ibrahim in the opposition leader’s second sodomy trial in 2014, said only Parliament had the power to impose restrictions on freedom of speech.
“The Sedition Act is an existing law. All right. It is good. You can frame it up on your wall. But, you cannot prosecute anyone under it because it is not a law made by Parliament.
“So, it is an existing law and a valid law, but it cannot be enforced,” he said during a lecture at the launch of the Selangor Bar’s new auditorium in Section 13, Shah Alam.
Gopal pointed to Article 10(2) of the federal constitution, which stipulates that only Parliament may impose on the rights to freedom of speech, expression and assembly guaranteed under Article 10(1).
“Article 10(1)(a) confers the freedom of speech. It is a guaranteed right. But, it is not an absolute right like Article 5(1). It is a delegated right because the delegation comes in Article 10(2).”
Article 10(2) permits Parliament to enact “such restrictions as it deems necessary or expedient in the interest of the security of the federation…”, while Article 5(1) states that no person shall be denied of his personal liberty unless the law allows it to be so.
Gopal said the sedition law “may exist, but we cannot exercise powers under that law because the constitution remains”.
“Therefore, the Sedition Act is a very good law. Excellent. As I’ve said, the home minister can frame it up in his house. But he can’t prosecute people under it.
“You can do any gymnastics you want. You can do anything you like. But, you cannot make a pre-existing law a law passed by Parliament. It is not a restriction imposed by Parliament.
Earlier in his lecture, Gopal said should the court be faced with a pre-Merdeka law that was inconsistent with the constitution, as it deprived a supplicant of rights afforded under the constitution, it should do its “utmost to modify the law to bring it into accord with the constitution”.
He said if the law could not be brought to accord with the constitution because it violated the doctrine of separation of powers, then the court had “no choice, but to strike it down”.
“In carrying out these exercises, the court is not performing a legislative function. It is performing its constitutional duty.”
Last week, the Federal Court, in a sedition case involving Selangor PKR assemblyman Mat Shuhaimi Shafiei, set aside a 2016 ruling that Section 3(3) of the Sedition Act was unconstitutional.
The sub-section allows government prosecutors to charge someone with sedition without proving intent.
Gopal represented Shuhaimi, who was charged in 2011 with posting allegedly seditious material on his blog.
Court of Appeal judge Varghese George Varughese, in 2016, had ruled that the law contravened Article 10 of the federal constitution and was, therefore, invalid and of no effect in law. – January 19, 2018.