Sunday, September 14, 2014

IDRIS JALA LAGI

APAKAH KAMU PAKAR UNDANG-UNDANG?
AYAT-AYAT HASUTAN AZMI SHAROM

Prof Madya Dr Azmi Sharom (Dr Azmi) was charged on 2nd of October 2014 under section 4(1)(b) of the Sedition Act 1948 and Section 4(1)(c) as the alternative charge.

On 21st August 2014,  Dr Azmi, when asked by the Malay Mail reporter  about the steps that should be taken by PKR in solving the MB Selangor crisis has commented as follows:

“You don’t want a repeat of that, where a secret meeting took place. I think what happened in Perak was legally wrong. The best thing to do is do it as legally and transparently as possible. The open spectacle of a no confidence motion would leave Khalid no choice but to resign from his post and possibly call for the dissolution of the state Assembly”.

OFFENCES UNDER SEDITION ACT
A person is said to commit an offence under Section 4(1)(b) of the Sedition Act when he utters any seditious words.

An offence is also said to be committed under Section 4(1)(c) of the Sedition Act when a person prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication.

Under Section 2 of the Sedition Act, seditious has been defined as ‘when applied to or used in respect of any act, speech, words, publication or other thing qualifies the act, speech, words, publication or other thing as one having a seditious tendency.’
  
Section 3(1)(a) of Sedition Act
Section 3 (1)(a) states as follows:
“A seditious tendency is a tendency- ..o bring into hatred or contempt or to excite disaffection against any Ruler or against any Government..”

When Dr Azmi mentioned that a “secret meeting took place”, he was indirectly alleging that there was a sinister motive in the meeting and that it was improperly conducted, not transparent and the Sultan was abusing the process of law. In addition, when he stated “You don’t want a repeat of that”, it strengthened the point that the meeting was improper and wrong.

When a person believes that the Sultan has conducted or has been involved in actions which are beyond the law, it can cause hatred or may excite disaffection against the Sultan. In the case of Dato Seri Ir Hj Mohammad Nizar Bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General intervener) [2010] 2 MLJ 285, it was explained that the reason of conducting the meeting was due to the Sultan’s intention to satisfy himself that the 31 members of the State Legislative Assembly had lost confidence in the then Menteri Besar and to check on the status of the 4 members of the State Legislative Assembly of Perak regarding their voluntariness to support Barisan Nasional.

Thus the utterance of those words by Dr Azmi falls within the meaning of “seditious tendency” under section 3(1)(a) of the Sedition Act 1948. In addition, by uttering those words, Dr Azmi was also questioning the prerogatives, powers and jurisdiction of the Sultan as provided under the Perak Constitution which words fall within the meaning of a seditious tendency under section 3(1)(f) of the Sedition Act 1948.

Section 3(1)(c) of Sedition Act
Section 3 (1)(c) states as follows:
“A seditious tendency is a tendency- ..to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any state..”

When he mentioned “I think what happened in Perak was legally wrong” he was indirectly referring to the judiciary (“administration of justice”)as the decision had been made by the Federal Court.

In the case of Lim Guan Eng, High Court ruled –
         “Adalah diperhatikan tertuduh dipertuduh menghasut terhadap dua komponen pentadbiran keadilan di negara ini iaitu pendakwaan dan kehakiman. Pendakwaan meliputi penyiasatan, penangkapan oleh penguatkuasa undang-undang seperti polis dan arahan serta keputusan Pendakwa Raya.”

Therefore, when he mentioned those words, he had criticized the decision made by the Court by saying it was ‘illegal’ whereas the Constitution issues arise in Perak had been decided in the Federal Court as in the case of Dato Seri Ir Hj Mohammad Nizar Bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General intervener) [2010].

In that case, the court ruled that the Sultan had acted within his authority according to Article XVI(6) of the Perak Constitution which states:

“If the Menteri Besar ceases to command the confidence of the majority of the members of the legislative Assembly, then, unless at his request His Royal Highness dissolves the legislative Assembly, he shall tender the resignation of the Executive Council.”

Since the Perak Constitution issue was settled and decided by the Court, any remarks criticizing the decision will be considered as contempt against the administration of justice.


Section 3(1)(f) of Sedition Act

Section 3 (1)(f) states as follows: “A seditious tendency is a tendency- to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152,153 or 181 of the Federal Constitution.”

In the case of PP v Karpal Singh [2012], the court has classified the words uttered by Karpal Singh as having seditious tendency under Section 3 (1)(f) for  the following reasons:

“Dalam perkataan-perkataan responden dalam sidang akhbarnya, secara inti patinya responden sebenarnya bercakap tentang dua perkara pokok:

1. Tindakan DYMM Sultan Perak memecat Dato Seri Nizar di abwah perkara 16(6) Perlembagaan Negeri Perak dan

2. Tindakan Baginda melantik Zamri sebagai Menteri Besar Perak yang baru

Sama ada disukai atau tidak, adalah jelas bahawa kedua-dua perkataan pokok tersebut  adalah mengenai atau menyentuh kuasa dan prerogative DYMM Sultan perak. Lantaran itu jika perkataan-perkataan responden itu terbukti mempunyai kecenderungan bagi mempersoalkan apa-apa perkara, hak,taraf, kedudukan istimewa atau prerogative DYMM Sultan sebagai raja, yang ditetapkan atau dilindungi oleh Perkara 181 Perlembagaan Persekutuan, maka perkataan-perkataan reponden itu mempunyai kecenderungan menghasut di bawah Seksyen 3(1)(f).”

Similarly in this case, by saying “I think what happened in Perak was legally wrong”, Dr Azmi has directly questioned the powers of the Sultan of Perak which have been conferred under Article 181 of the Federal Constitution and Article 18(2)(a) of the Perak Constitution.

Article 181 of Federal Constitution provides: “(1) Subject to the provisions of this Constitution, the sovereignty, prerogatives, powers and jurisdiction of the Rulers and the prerogatives, powers and jurisdiction of the Ruling Chiefs of Negeri Sembilan within their respective territories as hitherto had and enjoyed shall remain unaffected.”

Under the Perak Constitution, DYMM Sultan Perak has the discretion as follows:

“His Royal Highness may act in his discretion in the performance of the following functions (in addition to those in the performance of which he may act in his discretion under the Federal Constitution) that is to say the appointment of Menteri Besar.”

Therefore, when the powers of the Sultan have been clearly stipulated and well established, Dr Azmi by saying ‘what happened in Perak is legally wrong’ was clearly questioning the Sultan’s prerogatives protected under the law.

On top of that, at the time Azmi Sharom uttered the words, the crisis in Selangor relating to the MB’s appointment has been the highlight of public interest. Be that as it may, the backdrop and surrounding of the case when the word was uttered must also be considered. In PP v. MARK KODING, Mohamed Azmi J held:

“From the judgment of the Federal Court in the Reference pertaining to this case, it was held that whether or not the Accused’s speech as contained in Appendix ‘X’ was seditious within the Act will depend, firstly, on a reading of particular parts of it, secondly, on a reading of it as a whole, and, thirdly, on consideration of the context in which it was made.”

FREEDOM OF SPEECH
Article 10 provides for freedom of speech, assembly and association. It is also noted that the rights conferred are not absolute and are restricted only to citizens.

Every citizen has the right to freedom of speech and expression. But Parliament may by law impose restrictions it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any state Legislative Assembly or to provide against contempt of court, defamation or incitement to any offence.

The court in Public Prosecutor v Ooi Kee Saik clearly differentiated between  freedom of speech and when the speech turns into sedition:

“A line must therefore be drawn between the right to freedom of speech and sedition. In this country the court draws the line. The question arises: where is the line to be drawn; when does free political criticism end and sedition begin? In my view, the right to free speech speech ceases at the point where it comes within the mischief of s 3 of the Sedition Act. The dividing line between lawful criticism of Government and sedition is this — if upon reading the impugned speech as a whole the court finds that it was intended to be a criticism of Government policy or administration with a view to obtain its change or reform, the speech is safe. But if the court comes to the conclusion that the speech used naturally, clearly and indubitably, has the tendency of stirring up hatred, contempt or disaffection against the Government, then it is caught within the ban of paragraph (a) of s 3(1) of the Act. In other contexts the word 'disaffection' might have a different meaning, but in the context of the Sedition Act it means more than political criticism; it means the absence of affection, disloyalty, enmity and hostility. To 'excite disaffection' in relation to a Government refers to the implanting or arousing or stimulating in the minds of people a feeling of antagonism, enmity and disloyalty tending to make government insecure. If the natural consequences of the impugned speech is apt to produce conflict and discord amongst the people or to create race hatred, the speech transgresses paras (d)–(e) of s 3(1). Again para (f) of s 3(1) comes into play if the impugned speech has reference to question any of the four sensitive issues – citizenship, national language, special rights of the Malays and the sovereignty of the Rulers.”

Even though Section 3(2)(b) of the Sedition Act 1948 stipulates that the act of pointing out error or defects in any Government or Constitution as by law established is permitted, but such act or speech must not question in respect of any matter, right, status, position or prerogative of DYMM Sultan.

In the case of Madhavan Nair v PP (1975), Chang Ming Tat J. held that:
“This is the law as its stand today. Even a cursory reading of the law must show that in respect of those issues enumerated in paragraph f of Section 3(1) of the Sedition Act, the same issue spelled out in clause 4 of Article 10-the so called sensitive issue-questioning of them even for the purposed of pointing out errors or defect in the Constitution which would by Section 3(2)(b) save all other seditious tendencies would not safe this particular one”

In conclusion, considering the surrounding circumstances and statements as a whole, the words uttered by Dr Azmi have a seditious tendency within the meaning of section 3(1)(a), 3(1)(c) and 3(1)(f) of the Sedition Act 1948.


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