Amend the constitution or abolish the Sedition Act

 It is not a reasonable and proportionate restriction on free speech.

The Sedition Act 1948 ought to be struck out unless Parliament amends the Federal Constitution to expressly incorporate it as a permitted restriction on free speech.

A colonial relic, the Sedition Act was enacted when the country was under imperial control.

It has survived almost 70 years since Merdeka not because of constitutional legitimacy but due to judicial pronouncements rooted in the outdated notion that Malaysia practised parliamentary supremacy.

That principle, prevailing in the UK, holds that Parliament has the ultimate legal authority to enact, amend or repeal any law, and that no other institution, not even the courts, has the power to override or invalidate its legislation.

On that basis, the Sedition Act had for decades lingered as a convenient instrument of state authority, defended on the premise that Parliament may restrict speech absolutely in the name of national security.

Since 2017, however, the Federal Court has firmly embraced constitutional supremacy, and under this doctrine, the Sedition Act can no longer stand.

Constitutional supremacy dictates that the Federal Constitution is the supreme law of the land. Any legislation, whether pre- or post-Merdeka, that conflicts with its spirit must be voided.

Article 10(2)(a) of the constitution permits restrictions on free speech, but only if they are reasonable and proportionate.

The Sedition Act fails this test.

Predating the constitution itself, it criminalises speech based on vague notions of “seditious tendency”, without requiring proof of intent to incite violence or disorder.

Such a law bypasses constitutional safeguards and undermines the very liberties the constitution guarantees.

The judiciary’s oath of office, prescribed by the constitution itself, provides further clarity. Judges do not swear allegiance to Parliament or the government of the day.

Their solemn oath is to preserve, protect and defend the constitution.

Judicial power, vested in the superior courts by the constitution, is not a passive instrument to rubber-stamp legislative excess. It is an active and inherent power that allows the courts to act as the ultimate check and balance.

When a law infringes upon fundamental liberties, the judiciary has a constitutional duty to intervene. To leave the Sedition Act intact merely because it has been historically preserved is to betray that oath.

The jurisprudential shift taken by the apex court leaves no room for ambiguity. The courts must now exercise their full constitutional judicial power to strike down the Sedition Act.

Doing so will dismantle a vestige of colonial control and affirm Malaysia’s commitment to governance under its own constitution.

The judiciary will also be viewed not merely as honouring its oath but as fulfilling the nation’s promise to uphold the true supremacy of its constitution. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.