BREAKING NEWS: Last Friday (25/11/2016), the Court of Appeal in the case of PP v Mat Suhaimi Shafiei dropped the mic on the constitutionality of the Sedition Act 1948!
Wait, landmark decision?
For the uninitiated, this is how Wikipedia defines a landmark decision:
“Landmark court decisions, in present day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law.”
In other words, landmark decisions are the kind of judgments that change the fundamental interpretation of a certain law.
Interesting! A little more context for this whole Sedition Act issue, please?
The Sedition Act was established by our British colonial masters in the 1940s to fight communist-terrorism as well as to curb the rising dissent of the leftist nationalists against the British at that time. Basically, they needed a law that gives them a lot of powers to round-up all these people and to generally keep the country peaceful.
In recent times, if you have been following the news, you would find that the Sedition Act has been mostly used on politicians, activists, bloggers and random users on Facebook who were found to have said things that the police and prosecution felt as having “seditious tendency”.
Seditious tendency? What’s that?
Good question! Section 3(1) of the Act would answer that question.
(1) A “seditious tendency” is a tendency—
(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;
(b) to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established;
(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;
(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State;
(e) to promote feelings of ill will and hostility between different races or classes of the population of Malaysia; or
(f) to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution.
Alamak! That sounds so wide!
Yes, and that was probably why the UK decided to abolish their sedition law completely in 2009. For the record, they also stopped using it decades before it’s complete abolishment.
But to be fair, Section 3(2) further states that there are some matters that cannot be deemed to have seditious tendency, such as statements “to show that any Ruler has been misled or mistaken” or “to point out errors or defects in any Government or constitution as by law established… or in legislation or in the administration of justice with a view to the remedying of the errors or defects”.
That’s not too bad, right?
Well, read on to Section 3(3):
“(3) For the purpose of proving the commission of any offence against this Act the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact the act had, or would, if done, have had, or the words, publication or thing had a seditious tendency.”
In other words, it does not matter if you do not have the intention to make statements that have “seditious tendency”.
That’s a very big deal because for criminal cases, the obligation is on the prosecution to prove that the act (actus reus) took place and the person had the intention (mens rea) to do so. This is so that the law is completely fair to the accused both procedurally and evidentially ( for e.g. murder with intention and murder without intention carry different weight of punishment).
So basically, it doesn’t matter if you don’t intend for it to be “seditious”. It’s not a defence.
Many would say that’s quite unfair.
So what’s the big deal about this landmark decision?
Section 3(3) itself!
A three-man bench in the Court of Appeal on Friday unanimously (aka all 3 of them) ruled that Section 3(3) violates Article 10 of the constitution (freedom of speech, freedom of assembly and freedom of association) and is therefore invalid.
“Section 3(3) was flawed and invalid because it did not require the prosecution to prove intent – which contravenes Article 10 of the Federal Constitution on the right to freedom of speech… Therefore, it is invalid and of no effect in law.” – Justice Varghese George Varughese
So what happens now?
The role of the Courts is to act as an independent third arm of the government to make sure there is always check and balance against the other two arms (Parliament and Executive). If the Court says that a law (or a section within the law) is invalid, the Parliament would then be bound to revise or remove it. Kind of like the Avengers.
It is also worth noting that the Attorney General’s Chambers still has an opportunity to appeal this decision to the Federal Court, but there must be some merits to the appeal and if the Attorney General’s Chambers fails to obtain the leave (permission to appeal), this decision will be final and binding.
This decision will have very significant impact on many ongoing sedition cases. What this means is that from now onwards, all the pending or new sedition cases will now be required to include evidence of the accused’s intention.
What a progressive move for press freedom and free speech in Malaysia!
And that’s how the Court of Appeal dropped the mic on a restrictive law older than Malaysia itself.
Pssst… If you ever get picked up by the police for sedition, you can find a lawyer on CanLaw in just 3 simple steps! We have got some pretty awesome lawyers on board!
Disclaimer: This article is a general guide and does not constitute legal advice. You are advised to seek legal advice from a professional lawyer for your specific situation.
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