Why Calling a Spade a Spade and Charged with Sedition is Absolutely Unreasonable
I disapprove of what you say, but I will defend to the death your right to say it. – Evelyn Beatrice Hall (Stephen G Tallentyre) in The Friends of Voltaire (1906).
On the 6th of February 2009, Karpal Singh (a famous Malaysian lawyer and politician) was charged with uttering seditious words against the Sultan of Perak. He was alleged to have said that the removal of Datuk Seri Mohammad Nizar Jamaluddin as the Menteri Besar (Chief Minister) of the state of Perak by the Sultan could be questioned in court. On January 20 2012, The Appellate Court’s Justice Datuk Ahmad Maarop said the freedom of speech as guaranteed in the constitution meant a person had the right to speak, write or publish anything he or she liked as long as they did not break the laws. In other words, the right to free speech is not absolute.
In a country where top chief judges have openly admitted that the executives intimidate the judiciary, democracy is a mockery while hypocrisy is the common order. Justice is reduced into a commodity, while the majestic court palaces stand shamelessly as a market place controlled by elite tyrants. Lawyers, the merchants that trade in these markets march the streets pretending to challenge the very framework that they uphold. I will safe my torment on the so called noble profession for another day, as for now I am here to discuss what Justice Datuk Ahmad Maarop has said, that the freedom of speech is not absolute.
I am in the opinion that Karpal Singh committed no sedition by criticizing the Perak Sultans action in the Perak crisis. It is absurd that an appeal court judge could state something so baffling, that freedom of speech is not absolute. Justice Datuk Ahmad Maarop said that the prosecution only needed to prove that the words uttered by Karpal Singh had the tendency to be seditious. Justice Datuk Ahmad Maarop said that the prosecution need not prove that the words uttered had caused actual violence or adverse reactions. He added that whether the words uttered by Karpal Singh were true or otherwise, were immaterial.
Amazing how in Malaysia, sedition is so loosely defined when the crosshair is aimed at an opposition politician. Senior lawyers tell tales of how as lawyers we are supposed to respect and uphold the decisions of these so called Justices that guard the fundamental rights enshrined in the constitution. Yet I find it so difficult to respect opinions that simply threatens my right to free speech. Of course if any of you remember I am the same person who think that it is silly that we need a document to protect our fundamental rights. To me the constitution is a colonial legacy that we must give up in order to truly appreciate our freedom and independence.
Going back to the issue of sedition, it bothers me how certain parliamentarians are free not only to say seditious words, but also execute seditious acts like kissing the keris and promising it a blood bath, or handing out white ang pows, or even asking certain ethic groups to stock up on instant noodles, yet when a Singh calls a spade a spade he is charged with sedition, and the so called protectors of the constitution rips the whole notion of freedom into pieces and all the lawyers and all Kings men could not say a word against it. Interpretations by Courts of words of statutes to a particular set of facts has been changing with the change in the social and political structure of society and the opinion of its reasonable members. Sadly our reasonable members of society are not so reasonable since 1988.
When I say not so reasonable I must stress that it would be an understatement. I fear they would fail the reasonable man’s test at any given time. Decisions like banning the colour yellow, shooting tear gasses into Hospital compound, approving RM250 million loan for The National Feedlot Center, rushing the Peaceful Assembly Bill, … the list goes on and on. In the reasonable man’s standards our government can be considered to be unsound. The legal capacity of the government to contract since 2008 may be a legal question that needs to be decided upon. A government that can ban the colour yellow and make overpayments of RM270m for Tourism Ministry advertisements, could also sign contracts with unreasonable terms and conditions.
The new government should have the legal right to review all contracts signed by the government since 2008 (or at any time when the government’s actions was clearly unreasonable). The new government should also be accorded the right to trace all government monies that has been paid out and all contracts signed after 2008 should be subject to a review. Anyway, all this would only be possible if our courts can be considered reasonable.
I am only coming to this conclusion from an honest observation of the courts. I believe this would not tantamount to a contempt of court, I believe it is my moral obligation to criticize in such nature. I believe the defacto law minister would partially agree while Tun Mohd Dzaiddin Abdullah would wholly agree that our Judiciary was ‘subservient’ during the Mahathir era. Even with Tun Mahathir calling them liars, it still does not change the fact that the mind of the judiciary either imaginarily or realistically was under some form of undue influence from the living legend. This begs the question, are political related decisions since 1988 good law? I think it is about time we acknowledge the “invisible hand” and develop proper laws in the future.
As for the decision of Justice Datuk Ahmad Maarop, I respectfully beg to differ with. I believe the decision is weak in law, and the preferable law should be the decision of The Supreme Court of India on the 20th of January 1962 in the case of Kedar Nath Singh vs State Of Bihar 1962 AIR 955, 1962 SCR Supl. (2) 769. I quote the brilliant Sinha, B P. :
Section 124A of the Indian Penal Code which makes sedition an offence is constitutionally valid. Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the ambit of permissible legislative interference with the fundamental right. There is a conflict on the question of the ambit of s. 124A between decision of the federal Court and of the Privy Council. The Federal Court has held that words, deeds or writings constituted an offence under s. 124A only when they had the intention or tendency to disturb public tranquility. to create public disturbance or to promote disorder, whilst the Privy Council has taken the view that it was not an essential ingredient of the offence of sedition under s. 124A that the words etc, should be intended to or be likely to incite public disorder. Either view can be taken and supported on good reasons. If the view taken by the Federal Court was accepted s. 124A would be use constitutional but if the view of the Privy Council was accepted it would be unconstitutional. It is well settled that if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. Keeping in mind the reasons for the introduction of s. 124A and the history of sedition the section must be so construed as to limit its application to acts involving intention or tendency to create disorder, or disturbance of law and order; or incitement to violence.
I hope this goes to the Federal Court, and hopefully they would set the law straight again. Our judiciary has to regain its public’s trust and confidence, our judges must understand how times are changing and they will have to adapt to that. The open court concept is being redefined as more and more people are having access to court decisions and discussing them critically. The courts today are subject to fierce scrutiny of the public. Perhaps it would be beneficial for all of us to revisit the profound case of R v Sussex Justices, Ex parte McCarthy  1 KB 256,  All ER 233 – “Not only must Justice be done; it must also be seen to be done.”
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