Fair trial in sedition cases a misnomer, say lawyers

Law lecturer Dr Azmi Sharom flanked by lawyers Gobind Singh Deo (left) Malik Imtiaz Sarwar, in court to challenge the constitutionality of the Sedition Act, yesterday. – The Malaysian Insider pic by Afif Raiezal, September 26, 2014.

Sedition law creates an uneven playing field as the courts' narrow interpretation of the law almost always favoured the prosecution, lawyers say.

They expressed alarm by the lower standard of proof required in sedition cases, and over judges accepting submissions by the prosecution before imposing jail terms, even on first offenders.

As such, the lawyers told The Malaysian Insider that it was imperative that judges interpret federal laws like the Sedition Act with the Federal Constitution, in particular Article 10, which guarantees freedom of speech and expression.

They noted that an opportunity has been opened following constitutional challenges to the colonial-era law mounted by three people charged with sedition.

Law lecturer Dr Azmi Sharom, Padang Serai MP N. Surendran, and Sri Muda assemblyman Mat Shuhaimi Shafiei have challenged the constitutionality of the Sedition Act, claiming it violates their right to free speech.

Lawyer Balwant Singh Sidhu said unlike other criminal offences, in which the prosecution must show the act and intention to prove its case, the rule did not apply in sedition cases.

"For sedition, the act alone is sufficient and intention is irrelevant," he said, adding that prosecutors need not prove there was incitement, or harm caused to a third party.

He said prosecutors only need to show that the accused made statement or remarks with seditious tendency.

Balwant said in the long list of sedition trials in this country, especially after 1970, only lawyer Datuk Param Cumaraswamy was acquitted.

Last week, student activist Adam Adli Abd Halim was sentenced to 12 months' jail after the Sessions Court found him guilty over his statement that Barisan Nasional (BN) cheated in the 2013 general election.

Meanwhile, activist Safwan Anang was sentenced to 10 months’ jail over a speech at a forum last year.

Human rights lawyer P. Uthayakumar was given the longest jail term so far – 30 months – for posting a "seditious" letter on a website in 2007. The Court of Appeal reduced his term to 24 months last week.

Balwant said the judiciary must weigh carefully whether statements came within the ambit of sedition.

"The law as it stands is rather unclear and is open to abuse," he added.

Former Bar Council president, Ragunath Kesavan (pic, right), said the courts were sending a strong message that they do not condone freedom of expression by jailing first-time offenders.

"The court should be the last bastion of justice and defender of individual and constitutional right," he added.

He said in a democratic system, one has the right to express his opinion even if the majority may not agree.

He said fringe groups and individuals would always exist to make inflammatory remarks but such opinion did not reflect the views of the majority.

"There should be some latitude as long as seditious statements do not result in violence, and are a threat to public order and national security," he said.

However, the judiciary was swayed by public sentiment and this was wrong because the court must evaluate the impact of a statement, said Ragunath.

Lawyer Abdul Shukor Ahmad said the sedition case against the late Karpal Singh proved that the law favoured the prosecution and raised the chances of a conviction.

Citing the Court of Appeal’s decison last year to allow the prosecution's appeal against Karpal’s initial acquittal without calling for his defence, Shukor said: "The superior court interpreted the current sedition law very narrowly and that makes it impossible for an accused person to get an aquittal.

“Also, it is dangerous precedent for lower courts.”

A month before his death in April this year, Karpal was found guilty of sedition for saying that the late Sultan of Perak had acted outside the constitution in appointing a new menteri besar in 2009. He was fined RM4,000.

Shukor said the historical context that led to the introduction of the Sedition Act no longer existed, and the current situation demanded that the courts examine the law in the present-day setting and in line with principles of constitutional interpretation.

"Then, it was to counter communist insurgency and communal division. After 57 years of independence, our society has matured and the tolerance level is much better," he said.

“Lawyers must take the opportunity to persuade the judges to interpret the law aprproriately and do a constitutional audit of the Sedition Act."

- TMI