Hornbill Unleashed

November 2, 2014

Likewise on the Sedition Act, Bar Council

Filed under: Politics — Hornbill Unleashed @ 8:00 AM
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Faidhur Rahman Abdul Hadi

Finally, the executive body of the Malaysian Bar, the Bar Council, has broken its two-day silence over the question of whether it is acting hypocritically and applying double standards in the appointment of a retired Federal Court judge, Datuk Seri Gopal Sri Ram, as lead counsel for Datuk Seri Anwar Ibrahim’s case which is, as at the time of writing, still being argued before the Federal Court.

The press release, published on the Malaysian Bar’s website, is short in length, concise in message and unapologetic in tone, and defends this silence by deferring to a Federal Court decision in September 2013. Therein the court decided that there was nothing presently in law that prohibited a retired judge from appearing as counsel in court. Never mind the fact that the resolution was passed at the Malaysian Bar AGM held on March 15, 2014 and is thus subsequent to this court decision. This, the Bar Council claims stoically, is why, despite the Bar’s concerns on this issue, it has chosen to remain silent all this while.

Earlier prior to this press release, a news portal, the Rakyat Post, quoted two lawyers defending the Bar Council’s stance in not addressing this concern. One, Lim Chee Wee, ex-president of the Malaysian Bar, was quoted as saying that such concerns were “misplaced”. The other, Nizam Bashir, a lawyer, was even more upfront. He argued that since there is already a Federal Court decision on the issue, the matter should not be discussed further as the Bar “has its hands tied and can’t do anything about the resolution”. It is noted at this point that since the Rakyat Post report was also carried on the Bar’s website, the views of these two lawyers could, and indeed should, be deemed to be the views of the Bar Council on the matter as well.

From the above, it is not a stretch to surmise that what the Malaysian Bar is telling us is that when the constitutionality of any practice, convention or indeed law comes before any court of law and is upheld, that should be the end of the matter and further questions or disputes concerning the same must be ignored and discouraged, whether or not there is any resolution of the Bar stating otherwise than what is decided by the court.

We, other practising lawyers of the Bar and ordinary members of the Malaysian public, should take note of this and be fair, applying it equally for all other Malaysian Bar resolutions as well. When it is constitutional by the courts, it should be okay, and any resolution stating otherwise amounts to naught, so says the Bar Council.

But didn’t the Bar Council convene an EGM on September 19, 2014? What was discussed and passed at this EGM, one wonders? Oh yes, it was a resolution to call for the abolition of the Sedition Act 1948 and to exert pressure on the Malaysian government to abide by its alleged previous commitment to repeal the said Act. That resolution, too, was passed by the Malaysian Bar, and subsequent to that, also pursuant to this same resolution, the so-called “Walk for Peace and Freedom” was held on October 16, 2014.

Various reasons were given by the Bar Council on why the said Act should be abolished. Selective prosecution and supposed violations of freedom of speech count as but a few of these. But what about the Sedition Act’s constitutionality?

Isn’t this a crucial factor to be considered in the retention or otherwise of the Act as well, given that the Bar believes that constitutional laws and practices must be let be in spite of any resolution to the contrary?

First, it must be determined whether the Sedition Act 1948 is constitutional. In my humble opinion, it is plainly evident, even by looking at Article 63(4) of the Federal Constitution, that the Act is most definitely constitutional. The said clause states that parliamentary privilege shall not extend to any person charged with an offence under the Sedition Act 1948, and by virtue of such a provision, the Act is the only ordinary legislation mentioned in the Federal Constitution by name.

But just in case this isn’t enough to convince the sceptics out there that the Act is indeed constitutional, let us also look at a recent Court of Appeal decision, namely Mat Shuhaimi bin Shafiei v Public Prosecutor [2014] 2 MLJ 145. In this case, the accused, Mat Shuhaimi, was charged under the Sedition Act in connection with his views on the Laws of the Constitution of Selangor, 1959 which were said to be seditious. The accused challenged the constitutionality of the Act before the High Court, and his application was dismissed. The accused then appealed the matter before the Court of Appeal.

The appeal court considered the constitutionality of the law from two angles, firstly its reasonableness and secondly, its proportionality. It is apt to add that the court did also consider the temporal aspect of the Act, that is, whether the Act, being a pre-Merdeka law, remains good law.

From the first angle, namely reasonableness, His Lordship Abdul Malik Ishak JCA held, and I quote: “In our judgment, the Sedition Act is constitutional and it does not violate Articles 10(1)(a) and 10(2)(a) of the Federal Constitution (on freedom of speech and lawful restrictions in respect thereof). It does not offend the reasonableness test. It is reasonable to maintain the Sedition Act because, ‘the government has a right to preserve public peace and order, and therefore, has a good right to prohibit the propagation of opinions which have a seditious tendency’.” The last line is quoted from the older but nonetheless still binding precedent, Public Prosecutor v Ooi Kee Saik & Ors [1971] 2 MLJ 108.

For the second angle, proportionality, the court held, and again I quote the words of His Lordship Abdul Malik Ishak JCA that: “The Sedition Act is proportionate to the necessity to safeguard the security of the Federation and to maintain law and order as well as to avoid incitement. In particular, the impugned provision does not overreach Article 10(2)(a) of the Federal Constitution (on lawful restrictions on freedom of speech) and it is substantively fair and proportionate and thus it does not violate the equality provision in Article 8(1) of the Federal Constitution.”

Lastly, on whether the Act was still good law despite being enacted prior to Merdeka, the court held that “in our judgment, the Sedition Act being a pre-Merdeka law is good law and it is still valid up to this very day. The validity of the Sedition Act comes under the saving provisions of Article 162 of the Federal Constitution (on the validity of laws existing before Merdeka)” and concluded, convincingly that “The Sedition Act falls squarely within the framework of Article 10(2) of the Federal Constitution and its validity and constitutionality cannot be challenged.”

There it is. The Sedition Act 1948 is good law and constitutionally sound. So, what now? Knowing this, is the Bar Council to forthwith rescind its resolution of September 19, 2014 call for the repeal of the Sedition Act? Is it to immediately cease any and all actions in support of such a repeal? I suggest it should, if only to retain any more credibility than what it has already lost and regain what little is left of their reputation.

Rightly, in light of what the Bar Council has stated regarding the issue of ex-judges appearing as counsel in the courts, and to ensure consistency and avoid further hypocrisy on its part, the Bar should not stop at merely ceasing to call for the repeal of the Sedition Act. It should promptly defer to the above-mentioned decision, stating that as the Court of Appeal has ruled that the Act is constitutional, its hands are tied and it can’t do anything about its resolution of September 19, 2014 urging the Act’s repeal.

It should state that concerns over prosecutions under the Act are misplaced, and should decline to discuss, let alone pursue, any notion of having the Sedition Act 1948 removed from the corpus of our laws. It should also unreservedly disassociate itself from any of its previous measures against the existence of the Act. Then, and maybe then, will the Malaysian Bar’s credibility and reputation in the eyes of the public be restored, and we lawyers can again proudly say that we are members of the Bar.

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