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Thursday, December 15, 2016

Activist wins right to challenge validity of Sedition Act

Lawyer Eric Paulsen says the Sedition Act, enacted in 1948 could not have been passed by a competent Federal legislature as our Parliament only came into existence in 1959.
Lawrence-JeyarajKUALA LUMPUR: The Sessions Court has allowed an activist’s application to challenge the validity of the colonial-era Sedition Act which is widely being used now by the government.
Lawrence Jeyaraj, who himself was charged under the Sedition Act last year, was today allowed to take his argument on the validity of the Sedition Act to the High Court.
Sessions Judge Rohatul Akmar allowed the constitutional question to be referred to the High Court after hearing submissions from Jeyaraj’s lawyer, Eric Paulsen.
Paulsen told the Sessions Court that this issue needs be revisited as the Federal Court last year in Azmi Shahrom’s case, had made an error of law.
Azmi, a law lecturer, failed in his constitutional challenge against the Sedition Act 1948 and was ordered to stand trial. However, the public prosecutor later withdrew the charge.
Today Paulsen told the court that under Article 10 (2) of the Federal Constitution, Parliament “by law” could impose restriction on freedom of speech.
The lawyer said in Azmi’s case, the apex court had interpreted “by law” to mean “by existing law”.
“The Sedition Act enacted in 1948 could not have been passed by a competent Federal legislature as our Parliament came into existence in 1959,” Paulsen said.
Jeyaraj was charged under the Sedition Act for publishing a Facebook comment that purportedly said the judiciary had become “underlings of the political masters”, following Anwar Ibrahim’s sodomy verdict by the Federal Court last year. He is currently out on RM5,000 bail.
Critics of the Sedition Act obtained a major concession, when the Court of appeal in a landmark decision last month ruled that Section 3(3) of the legislation is unconstitutional as the prosecution was now exempted from proving intention of accused persons.
A three-man panel chaired by Justice Lim Yee Lan said that both intention and the act must be proven to establish a prima face case.
In that case, the court had allowed the application by Sri Muda assemblyman Mat Shuhaimi Shafiei who had challenged the constitutionality of the Sedition Act in relation to seditious tendency and its penalty.
Paulsen told FMT he was unsure whether the High Court would hear Jeyaraj’s constitutional challenge or it would be referred straight to the Federal Court.
“There is an apex court ruling that a matter referred by a Sessions Court to the High Court can only be determined by the Federal Court,” he said.
He said there were also legal opinions that the High Court had the jurisdiction to hear and determine constitutional issues. -FMT

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