A ‘fantastic’ judgment on Sedition Act – Marcus Lee

A few days ago, a Federal Court judge called for lawyers to present shorter arguments to improve the judicial process. It was during a public conference, and his lordship opined that judges have a simple mind, therefore lawyers must present short and simple arguments.

It was a day or two after Dr Azmi Sharom’s judgment on the constitutionality of the Sedition Act. Coincidentally, the same judge who said the above also sat in Azmi’s case.

I almost perceived that this judge was trying to imply that his lordship was unable to comprehend what Gobind Singh and Malik Imtiaz had submitted in court. It cannot be! I mean, with his lordship’s level of intelligence, it cannot be.

I just don’t understand the call for shorter arguments. What if the legal arguments, for the benefit of the client or for the sake of justice, must be drafted in such a complex manner? Then though profusely, the ink and paper would still be wasted wisely.

If judges cannot appreciate the legal arguments, that cannot be the counsel’s problem. The learned counsel merely assists the judges by citing and applying the right laws.

Same goes for Azmi’s case. I don’t quite agree with the judgment (thanks Kalaivanan Murthy for sharing it), however persuasive it may have appeared to be.

Counsels for Azmi cited the case of Dewan Undangan Negeri Kelantan v Nordin Bin Salleh (“Nordin’s case”) to argue that only Parliament can enact laws that restrict fundamental liberties guaranteed under Article 10 of the Federal Constitution, reference was made to Article 10(2) as well, and since the Sedition Act was not made by the Parliament, it is invalid.

The honourable bench distinguished the Nordin case at the outset, reason being the difference in facts. In that case, it was state’s law – Azmi’s case is about the Sedition Act, a national legislation. Wow! What an enormous difference.

The crux of the Nordin case judgment is about upholding fundamental rights, and any laws restricting fundamental rights can only be made by Parliament. In that case, the word “parliament” was given a narrower meaning.

Similarly, the Sedition Act is a pre-Merdeka law – it was made when Parliament was not in existence. However, the judges in Azmi’s case conveniently cited a number of authorities and gave the word “parliament” in the Federal Constitution a broader meaning, to include the entity which made the Sedition Ordinance (the predecessor of Sedition Act).

In many cases, yes, the terms of the Federal Constitution were given a liberal and broad meaning. We must adopt a prismatic approach in interpreting the constitution. However, in those cases, broader interpretation was done to uphold justice and fundamental liberties.

In the Nordin case, restrictive meaning was given to the word “parliament” contained in the constitution for the very same reason. It was to uphold freedom of association.

In Azmi’s case, on the contrary, broader interpretation of the word “parliament” has resulted in allowing the Sedition Act to deny Azmi and all Malaysian their fundamental rights, ie. freedom of expression.

Besides many other cases, it was confirmed again in the case of Nik Noorhafizi bin Nik Ibrahim v PP, that the constitution is a living document – it demands that future judges breathe life into the provisions.

In the Indian case of Kesavananda v State of Kerala, it was held that the constitutional provisions had to be construed with regard to the march of time and the development of the law.

In Azmi’s case, the judges climbed up to the top of the ladder but had it leaning against the wrong wall. They should not be pedantic and say all constitutional provisions must be given a broad meaning and since the Nordin case gave a restrictive approach, it must be thrown away.

If the constitution is a living document, I think the court can interpret it either restrictively or broadly in order to achieve the ultimate purpose, be it for justice or upholding fundamental liberties. 

As per the late Sultan Azlan Shah in his judgment in Loh Kooi Choon v The Government of Malaysia, fundamental rights are not ordinary rights, they can only be abridged in a special manner.

Well, the Sedition Act is not an ordinary act either. It is not some Housing Development Act, it cannot be treated the same way. This is because the Sedition Act operates to limit the fundamental right to expression guaranteed by the Constitution.

Moreover, the purpose of the Sedition Ordinance was to suppress communism and now that is no longer an issue. We must interpret the constitution having due regard to the march of time and development – now, this act has turned into a tool for the government to suppress dissent.

Hence, a higher threshold must be adopted: the requirement and interpretation of the word “parliament” must be a stricter one because it is contained in a proviso allowing derogation of fundamental rights.

Well, is it so hard to understand this? No rocket science, this was said in the Federal Court case of Sivarasa Rasiah v Badan Peguam Negara.

Of course, in Azmi’s case the bench took the golden opportunity to depart from Sivarasa Rasiah’s case, despite it being ugly. How ugly?

Merely for one reason, that the word “reasonable” does not exist in the sentence of Article 10(2) of the Federal Constitution, the bench disregarded the reasonable test in Sivarasa Rasiah’s case. Seriously?

The judges should have known that the grounds of judicial review came in piecemeal, they are not written down in a so-called “Malaysian Judicial Review Act” nor in the constitution. These grounds were formulated by the common law judges along with time.

So if we don’t need reasonableness in making laws, Parliament can make all sorts of ridiculous and stupid laws that oppress people as long as Parliament sees it expedient. Does this make any slightest bit of sense? The court must, in such a need, rise as the last shield and be able to say: "No, this is a stupid law."

Another ground is proportionality – the court explained in one or two paragraphs and said the Sedition Act is proportionate so it is not unconstitutional. To me it is not convincing at all.

All in all, if Azmi is found guilty under the Sedition Act for that article he wrote, he will lose his job as a lecturer here in Universiti Malaya. Then I will not be able to sneak into his lectures anymore. Perhaps I should sneak in more now.

* Marcus Lee reads The Malaysian Insider.