©The Star (Used by permission)
by QISHIN TARIQ
PUTRAJAYA: The Federal Court has declared the Sedition Act 1948 constitutional and that its penalties are a reasonable restriction on the right to free speech.
Chief Justice Arifin Zakaria said this in dismissing law lecturer Dr Azmi Sharom’s petition challenging the law on the grounds that under Article 10(2) of the Federal Constitution, only Parliament could enact laws that restrict freedom of expression.
Justice Arifin ruled that a less restrictive interpretation of the phrase “Parliament may by law” (as stated in Article 10) was needed to be read in harmony with Article 162, which allows pre–Merdeka laws to continue to be used.
“Therefore the Act being an existing law at the material date should continue to be valid and enforceable post–Merdeka,” he said in a 10–page summary of the unanimous judgment for the media.
In addressing the question of whether the Sedition Act’s criminalisation of expression was an unreasonable restriction, the panel disagreed.
Justice Arifin noted that in the final draft of Article 10(2), the word “reasonable” as a qualifier to restrictions that could be imposed by Parliament was omitted.
“We are inclined to agree ... that it is not for the court to determine whether the restriction imposed by legislature pursuant to Article 10(2) is reasonable or otherwise,” he said.
The five–man panel, which also included Court of Appeal president Justice Md Raus Sharif, Chief Judge of Malaya Zulkefli Ahmad Makinudin, Justices Abdull Hamid Embong and Suriyadi Halim Omar ordered the case be remitted to the Sessions Court.
Dr Azmi, who was in a grey dress shirt, slacks and his signature ponytail, shook his head upon hearing the decision.
The courtroom was full of lawyers and Dr Azmi’s students from Universiti Malaya as early as 8.30am.
Azmi’s counsel Datuk Malik Imtiaz Sarwar said he would need to study the judgment before advising his client on how to proceed.
Deputy Solicitor General II Datuk Tun Abdul Majid Tun Hamzah said that with the resolution of this case, the prosecution could move ahead with the other sedition cases that have been stayed in view of Azmi’s petition.
On Nov 5, last year, the High Court invoked its power under Section 84 of the Court of Judicature Act 1964 to refer Dr Azmi’s sedition case to the Federal Court for determination, as it involved questions of the constitutionality of the Act.
Dr Azmi, 45, claimed trial on Sept 2 last year to making seditious comments in an article titled “Take Perak crisis route for speedy end to Selangor impasse, Pakatan told,” that was published in an English online portal on Aug 14.
Dr Azmi, a columnist with The Star, was charged under Section 4 (1)(b) of the Sedition Act, with an alternative charge under Section 4 (1)(c) of the same Act.
He faces a maximum fine of RM5,000 or jail not exceeding three years, or both.