I refer to your report, “Sedition Act should be retained – Abdul Aziz” (https://www.newsarawaktribune.com.my/news/sedition-act-should-be-retained-abdul-aziz/) claiming that it is seditious to move for abolition of the Sedition Act.
This shocked me and I have immediately written my short article in answer to it, “Move to abolish Sedition Act is not seditious but welcome, Arun Kasi points out” (https://www.malaymail.com/news/what-you-think/2019/01/21/move-to-abolish-sedition-act-is-not-seditious-arun-kasi/1714774#.XEwPqgTeP6o.link).
In fact, the Sedition Act was a British administrative ordinance, adopted as law by the Law Revision Committee and it is not an Act passed by Parliament at House of Representatives and Senate with resultant receipt of Royal Assent.
The intended move of the new government to abolish Sedition Act 1948 has generally been welcome. However, legal expert Tan Sri Datuk Abdul Aziz Abdul Rahman claimed that to make a motion to abolish the Sedition Act is itself seditious.
This quite shocked me and triggered me to point out the background facts of the Sedition Act.
Freedom of speech is protected under Art. 10(1)(a) of the Federal Constitution, subject only to restriction imposed by any law made by the Parliament under Art. 10(2)(a) and 10(4).
The said Art. 10(1)(a) provides “every citizen has the right to freedom of speech and expression.”
Sedition Act 1948 purports to limit the freedom of speech when the speech would have seditious tendency pursuant to that Act. “Seditious tendency” was originally interpreted within certain boundaries, enumerated in the case of PP v Ooi Kee Saik & Ors by Raja Azlan Shah J (as he then was) in 1971.
However, the Court of Appeal in PP v Karpal Singh A/L Ram Singh far widened the boundaries in 2012, the decision of which was endorsed by the Federal Court in the same year.
This opened the floodgate resulting in many sedition convictions thereafter. The rightness of Karpal’s case has always been in serious question as it is a basic principle of criminal law that no one may be punished for an act which was not an offence when it was done.
This principle is entrenched in Art. 7(1) of the Federal Constitution. It means the scope of an offence cannot be judicially expanded in any case more than what it was before that, i.e. when the act constitution the alleged offence was done.
This explains the public support generally for abolition of the Sedition Act.
Leaving that aside, interestingly, it is not a law passed by the Parliament. It was one of the pre-Independence administrative ordinances made by the British Government called Sedition Ordinance 1948.
After Independence, in 1969, it was adopted as law by the Law Revision Committee by virtue of powers conferred under the Revision of Laws Act 1968.
It did not go through the parliamentary law making process, namely, i.e. being passed by the House of Representatives, Senate and receiving Royal Assent.
The distinction between a law passed through parliamentary process and a law adopted by a committee is not one between apple and orange but one between marble and pumpkin.
Accordingly, the Sedition Act, not being a law made by the Parliament, is not entitled to any protection accorded by Art. 159 of the Federal Constitution to laws made under Art. 10.
Hence, the question of a two-thirds majority support at each House of Parliament and consent of the Conference of Rulers, under Art. 159, to amend or abolish it does not arise.
In fact, the Sedition Act, being a law not made by the Parliament under Art. 10, has at all times been unconstitutional as it was contrary to the freedom of speech guaranteed by the Art. 10.
Hence, any motion to abolish the Sedition Act cannot be seditious and in fact must be welcome for reasons aforesaid.
ARUN KASI,
Kuala Lumpur
• Arun Kasi is a practicing lawyer and a fellow member of the Chartered Institute of Arbitrators.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
