PUTRAJAYA, Oct 6 — Universiti Malaya law lecturer Dr Azmi Sharom lost today his constitutional challenge against the Sedition Act 1948 and will have to stand trial for issuing an allegedly seditious remark.
In dismissing Azmi’s bid, the Federal Court ruled this morning that the British-enacted law remains a constitutional and valid piece of legislation.
It also ruled that Section 4 of the Sedition Act under which Azmi was charged is constitutional.
“In the result, we hold that Section 4(1) does not run counter to Article 10(2)(a) of the Federal Constitution,” Chief Justice Tun Arifin Zakaria said when reading out the judgment.
Azmi’s lawyers had previously argued that the Sedition Act 1948 is not a valid law as it was not enacted by Parliament, which they said held the exclusive authority under Article 10 of the Federal Constitution to enact law restricting the rights to freedom of speech.
But the Federal Court agreed with the government’s argument that the Sedition Act 1948 is saved by Article 162 of the Federal Constitution, despite it being a law that was enacted before the Parliament came into existence after Merdeka Day.
“What we can gather from the above is that, it is thus the intention of the framers of the Constitution to ensure that the existing law will continue to be valid and enforceable upon the coming into operation of the Constitution on Merdeka Day,” the Federal Court said, having decided that the Sedition Act was considered as such an “existing law”.
The Federal Court also noted that Parliament has the right under Article 10(2)(a) to restrict the freedom of speech as it deems necessary or expedient for national security, among other things.
On top of these conditions to restrict the freedom of speech, the Federal Court noted today that a 2010 case before the apex court had affirmed the two tests of reasonableness and proportionality to determine if such restrictions are constitutional.
But Arifin said that the Federal Court decided to depart from the 2010 case’s requirement for restrictions to freedom of speech to be “reasonable” as it would amount to a “rewriting” of the Federal Constitution’s Article 10(2).
Among other things, Arifin also said that the restrictions imposed under the Section 4(1) of the Sedition Act do not amount to a “total prohibition” of the exercise of the right to free speech, as there are several exceptions under Section 3(2) to these restrictions.
He then concluded that the Federal Court agreed with the government’s argument that the Section 4(1) restrictions fall within the parametres laid out under Article 10(2).
The five-man panel headed by Arifin includes Court of Appeal president Tan Sri Md Raus Sharif, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin, Tan Sri Abdull Hamid Embong and Tan Sri Suriyadi Halim Omar.
On September 2 last year, Azmi pleaded not guilty to the principal charge under Section 4(1)(b) and an alternative charge under Section 4(1)(c) of the Sedition Act 1948 at the Kuala Lumpur Sessions Court for a remark he made in an article published on Malay Mail Online.
Section 4(1)(b) covers “uttering any seditious words” while Section 4(1)(c) deals with individuals who publish seditious publications, among other things.
If convicted under either charge for his quotes in the article titled “Take Perak crisis route for speedy end to Selangor impasse, Pakatan told”, the UM associate professor could face a maximum fine of RM5,000, a maximum three-year jail term or both.
Gobind Singh Deo, one of the lawyers representing Azmi, said the trial date at the Sessions Court for the academic’s case has yet to be fixed.