Use of Sedition Act unconstitutional ‘as it’s not made by Parliament’

Source: The Malaysian Insight

picture of Former Federal Court judge Gopal Sri Ram

Former Federal Court judge Gopal Sri Ram speaking at the launch of the Selangor Bar’s new auditorium in Section 13, Shah Alam, today. He says if a pre-Merdeka law cannot be brought to accord with the constitution because it violates the doctrine of separation of powers, then the court has ‘no choice, but to strike it down’. – The Malaysian Insight pic by Kamal Ariffin

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.

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Ex-judge says court failed to use its additional powers in EC case

Source: FMT News

Paragraph 1 of the Courts of Judicature Act 1964 gives judges the additional power to remedy a wrong, especially on fundamental rights enshrined in the Federal Constitution, says Sri Ram. Pic taken from FMT News.

PETALING JAYA: The courts have additional powers to check on illegality and correct any injustice with regard to complaints against the Election Commission (EC) in carrying out the redelineation exercise, a retired judge said.

Gopal Sri Ram said judges could then issue the appropriate order to compel the EC to act in accordance with the law.

“The law is that if the EC acts contrary to the Federal Constitution in the exercise of its powers, then the court can examine the legality of the conduct.

“If there is either illegality in the way in which the power is exercised or any injustice has resulted because of the exercise of its powers, the court can issue the appropriate order to compel the EC to act in accordance with the law,” he told FMT. Read more

Ex-judge: Malanjum can assume top post only if CJ declines

Source: FMT News

PETALING JAYA: The current Chief Judge of Sabah and Sarawak Richard Malanjum can only be elevated if Chief Justice Raus Sharif declines to remain in office from Aug 3, a retired judge said.

Gopal Sri Ram said the Judicial Appointments Commission could propose to the Conference of Rulersto then appoint Malanjum to the top judicial post.

“It is a simple process,” he said, adding that Court of Appeal president Zulkefli Ahmad Makinudin could be acting chief justice until Sept 27 for Malanjum’s elevation to be finalised.

The other option, he said, was for the court to declare Raus’ appointment as unconstitutional, in which case a fresh appointment has to be made. Read more

Article 121 amendment illegal, says ex-judge

Source: FMT News

Gopal Sri Ram says changes in 1988, which effectively removed the independence of the judiciary, is illegal because it cuts across basic structure of written Federal Constitution. Pic from FMT News.

Gopal Sri Ram says changes in 1988, which effectively removed the independence of the judiciary, is illegal because it cuts across basic structure of written Federal Constitution. Pic from FMT News.

PETALING JAYA: The amendment to Article 121 of the Federal Constitution in 1988 has effectively stripped the judiciary of its independence, a retired Federal Court judge says.

Gopal Sri Ram said the amendment to remove the phrase “judicial power of the Federation” during the term of former prime minister Dr Mahathir Mohamad restricted the judiciary, and thus had ruined the constitutional scheme of Malaysia.

“As a result, the Federal Court in a murder case of a teenager held that the court only has such powers and jurisdiction that Parliament allows it to have,” he told FMT.

Sri Ram said this in response to an observation made by Navi Pillay, a former United Nations High Commissioner for Human Rights that Malaysia did not have an independent judiciary.

At a talk in Penang last week, Pillay who now sits on the constitutional court of South Africa, said the jurisdiction of the Malaysian judiciary was circumscribed by Parliament through that amendment in 1988. Read more

Putrajaya can proceed with appeal against sedition ruling

Source: FMT News

Lawyer N Surendran, who is also representing Mat Shuhaimi, says they did not object to the government's leave to appeal application as there was a novel question which he felt the court should have the opportunity to decide on. Pic from FMT News.

Lawyer N Surendran, who is also representing Mat Shuhaimi, says they did not object to the government’s leave to appeal application as there was a novel question which he felt the court should have the opportunity to decide on. Pic from FMT News.

PUTRAJAYA: The government can proceed with its appeal against the appellate court’s landmark ruling that struck down a provision in the Sedition Act 1948.

This follows a decision by the Federal Court’s three-man panel yesterday to grant the government leave to appeal against last Nov 25’s appellate court decision declaring Section 3 (3) of the Sedition Act, unconstitutional.

Chief Judge of Malaya Zulkefli Ahmad Makinudin chairing the panel allowed the govenment’s application after lawyer Gopal Sri Ram, representing Sri Muda assemblyman Mat Shuhaimi Shafiei, did not oppose leave to appeal application.

Federal Court judges Abu Samah Nordin and Zaharah Ibrahim were the other two judges presiding with Zulkefli.

Attorney-General Mohamed Apandi Ali, who led a team of senior federal counsels to represent the government submitted three legal questions for the Federal Court to decide. Read more

‘Sarawak native land ruling does not cover other states’

Source: FMT News

Each region is governed by its own statutes, says former Federal Court judge Gopal Sri Ram. Pic form FMT News.

Each region is governed by its own statutes, says former Federal Court judge Gopal Sri Ram. Pic form FMT News.

PETALING JAYA: The native communities of Sabah and the peninsular states remain unaffected by a recent Federal Court ruling that defeated a bid to enable the Dayaks of Sarawak to apply native customary rights (NCR) on virgin forests, according to a retired judge.

Former Federal Court judge Gopal Sri Ram said the land laws were different for the three regions.

“The decision will not have a binding effect as Sarawak is governed by its land ordinance while Sabah and the states in Malaya are guided by their own statutes,” he said.

Last Dec 20, the Federal Court allowed the Sarawak Government’s appeal against a Court of Appeal decision that recognised “pemakai menoa” (territorial domains) and “pulau galau” (communal forest reserves) as NCR land.

The Court of Appeal had affirmed a 2011 High Court ruling in favour of Tuai Rumah Sandah and seven other landowners in Ulu Machan, Kanowit. Read more

Orang Asli ada hak atas tanah adat

Sumber: FMT News

Menduduki tanah untuk selama beberapa generasi ialah tanggapan kuat dan hampir tidak boleh disangkal yang mereka memegang hak itu, kata bekas hakim Datuk Seri Gopal Sri Ram.

Menduduki tanah untuk selama beberapa generasi ialah tanggapan kuat dan hampir tidak boleh disangkal yang mereka memegang hak itu, kata bekas hakim Datuk Seri Gopal Sri Ram. Gambar dipetik dari FMT News.

PETALING JAYA: Orang Asli di semenanjung mempunyai hak undang-undang terhadap tanah adat mereka, kata hakim bersara Datuk Seri Gopal Sri Ram.

“Mereka boleh memperoleh hak milik adat tanah itu hanya dengan menyemai, memburu, mengutip hasil hutan dan tinggal di situ,” katanya.

Sri Ram berkata mereka tidak perlu mengeluarkan hak kepada tanah, seperti pemilik .

“Menduduki tanah itu untuk beberapa generasi ialah tanggapan kuat dan hampir tidak boleh disangkal yang mereka memegang hak itu,” katanya.

Hakim bersara Mahkamah Persekutuan itu berkata demikian sebagai respons kepada laporan aktivis Orang Asli ditahan kerana mendirikan sekatan di kawasan hutan simpan di Gua Musang, Kelantan. Read more

Chief Secretary’s threat void, says ex-judge

Source: FMT News

Gopal Sri Ram defends the constitutional right of civil servants to attend peaceful rallies. Pic taken from FMT News.

Gopal Sri Ram defends the constitutional right of civil servants to attend peaceful rallies. Pic taken from FMT News.

PETALING JAYA: A retired judge has ticked off Chief Secretary Ali Hamsa for threatening civil servants with pay cuts or dismissal if they participate in tomorrow’s Bersih and Red Shirt rallies.

Speaking to FMT, former Federal Court judge Gopal Sri Ram said Ali had made an “unconstitutional demand”.

He said public sector employees could exercise their constitutional rights provided it did not interfere with their professional duties.

“Participation in a rally is a right conferred under Article 10 of the Federal Constitution and any restriction is absolutely void,” he said. Read more

Equality is not about being liberal, ex-judge tells former chief justice

Source: The Malaysian Insider

Lawyer Gopal Sri Ram arrives at the Federal Court in Putrajaya, outside Kuala Lumpur on October 30, 2014. The Malaysian Insider/Najjua Zulkefli

Lawyer Gopal Sri Ram arrives at the Federal Court in Putrajaya, outside Kuala Lumpur on October 30, 2014. The Malaysian Insider/Najjua Zulkefli

A retired Federal Court judge has taken a former chief justice to task for claiming that liberal-minded judges are a threat to Malaysia’s Islamic values as they used Western human rights as a benchmark to administer justice.

Datuk Seri Gopal Sri Ram said it was wrong for Tun Abdul Hamid Mohamad to label judges as liberals because those who sat on the bench were required to interpret the law correctly.

“It is a most unfair criticism to level against a Court of Appeal judgment which accorded equality to people different from us, purely on medical reasons,” he told The Malaysian Insider.

Sri Ram said this in response to a report in Utusan Malaysia on Monday where Hamid was quoted as saying that the liberal judges had overlooked that the Federal Constitution recognised offences under Islamic law. Read more