Hornbill Unleashed

November 15, 2014

Will rule of law stand if Sedition Act declared unconstitutional?

Filed under: Politics — Hornbill Unleashed @ 8:00 AM
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Hazlan Zakaria

Even if the Sedition Act or elements of the dreaded law is struck down by the courts as unconstitutional, as things stand, I don’t think it will immediately return the rule of law to our beloved land.

Though it would be a big step in the hard trudging road to that promised tomorrow.

The judicial review of the Sedition Act by UM law professor Asmi Sharom before the Federal Court is a landmark question over the constitutionality of the law, which has brought new hope to opponents of the draconian legislation and put on tenterhooks its champions who judge it a necessary tool to keep Malaysia under control and controlled by the powers that be.

But technicalities of the submission aside, will a nod from the Apex court that there is a clash between the Act and the Federal Constitution provide the remedy that opponents of the Act are looking for?

Will it result in the striking out of all the Sedition Act charges and ongoing prosecutions?

Will it return to us a more substantial incarnation of the rule of law?

I for one, the jaded pessimist that I have become, do not think it would be that easy.

For the misrule we face is more than just incidence of bad law or unconstitutional law, but the misuse and abuse of even what would have otherwise be good law.

The collected wisdom of the courts may provide us with the just interpretation of the law that we seek, but the outcome post-judgment leaves some room for debate.

We should leave all things cogent to this matter to the capable hands of the learned judiciary, as they are the modern day servitors of justice at the altar of Themis.

Though we do have to worry if the politically elected executive and political appointees that hold high offices linked to the enforcement and practice of the law will comply, if such a decision was to be handed down.

At the moment when the courts served out their dollop of wisdom, it may not necessarily translate into potent and pertinent action that is the prescribed if sometimes bitter remedy.

Nik NazmiTo put things into perspective, perhaps I should mention the quadruple acquittal of Seri Setia state assemblyperson Nik Nazmi Nik Ahmad in the face of what can only be called persecution as the office of the Attorney-General continues to prosecute him for punishment under an offence in a law that has been struck down by the Appellate Court.

It perhaps speaks much about the competence of the federal prosecutors and their ultimate boss when even the court had to tell them that the charge cannot be filed under the struck out provisions of the Peaceful Assembly Act (PAA), and that the court in which they are charging Nik Nazmi in has no standing to hear a case already decided by a higher court.

Nik Nazmi was acquitted after the Court of Appeals found that it was unconstitutional to criminalise actions linked to freedom of assembly as it is a guaranteed constitutional right, striking out Section 9(5) of the PAA.

While I would have reason to respect such ardour in our prosecutors, I wonder if it would be more of use against criminal cases.

One wonders why many gang and firearm related cases after the nationwide manhunt against underworld elements are still not in the court dockets yet while students, activists, politicians and lecturers are all being given the third degree?

But more seriously it signals that the politically appointed AG may not be quick in toddling off to withdraw legal actions under the Sedition Act umbrella even if the courts were to decide that it is unconstitutional.

We might see similar quadruple ala Nik Nazmi’s case in sedition cases even if Azmi won in his judicial review. After all, we are talking about powers that be who decided that there is no need to act on Royal Commission of Inquiry findings.

Indeed in some cases we see that public officials appointed by the current politically elected executive seem to have some trouble to follow directives from the courts, regardless of the obligation that should be compelling them. One case that comes to mind is the one involving an order to a high ranking enforcement official on a much talked about child custody.

Thus is the worry of those that are concerned that judicial decisions may not mean much to the powers-that-be are justified. I guess the main question now is how is this going to be, or should be addressed?

For one of many troubling things in our country at the moment is that disconnect between law and rule.

Perhaps in this case as in many others, it would do well for the powers-that-be to remember that “Kedaulatan Undang-Undang” is still part of Rukunegara, at least it still was the last time I checked.

1 Comment »

  1. When Najib said “bathe the keris with Chinese blood” in th TOCA stadium, he was not charged for sedition. When Hishamudin waved his keris at an Umno GA, he was not charged for sedition. When Perkasa and Isma are subcontracted by Umno to make very seditious statements, they were not charged for sedition. When Zahid Hamidi offered a reward for slapping someone, it was not seditious. So why do we need the sedition act? Every statement by Umno is not seditious anymore. Do we need the sedition act to arrest some one for saying ‘celaka’ or for saying ‘kangkong’. The police and judiciary are very confused on this act.

    Comment by Ronraj — November 18, 2014 @ 5:03 PM | Reply

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