Law student Cassandra Chung‘s in depth analysis.
On 6 October 2015, Professor Azmi Sharom of Universiti Malaya lost his constitutionality challenge in regards to the Sedition Act 1948. Prof. Azmi decided to challenge the pre-Independence Act after being charged under the Act itself for an article he wrote on the Perak constitutional crisis some time ago.
For those of you who are curious to the content of the article that could potentially put him in jail or cost him RM5,000, it may be found here.
As for the full court judgment, it can be found here.
I will seek to explain the potential effects the judgment will have on future constitutionality issues.
What is a constitutionality challenge and how does it work?
The supreme law of the Federation of Malaysia is the Federal Constitution. Every law passed must be in line with this document — if not, the court will declare it as unconstitutional and will not apply it.
The professor sought to challenge the s4(1) Sedition Act 1948 against Article 10(2) of the Federal Constitution — essentially he tried to tell the court that that provision of the Sedition Act goes against Art 10(2) of the Federal Constitution, hence should be disapplied.
Article 10(1) & (2) of the Federal Constitution is as follows:
(1) Subject to Clauses (2), (3) and (4)—
(a) every citizen has the right to freedom of speech and expression;
(b) all citizens have the right to assemble peaceably and without arms
(c) all citizens have the right to form associations
(2) Parliament may by law impose—
(a) on the rights conferred by paragraph (a) of Clause (1) 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 Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence;
(b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof or public order
(c) on the right conferred by paragraph (c) of Clause (1) such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.
The standard tests for determining the constitutionality of a particular legislation were set out in the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor.
The facts of Sivarasa are in short, as follows: a political party member wanted to run for the Malaysian Bar Council. However, there were rules preventing him from doing so because the Bar Council wanted to maintain their impartiality. Sivarasa challenged the rules on the basis that they infringed his Article 10 rights.
In ruling against Sivarasa, the judge had set out two important tests for determining whether a particular piece of legislation is in line with the constitution. They are as follows:
For Sivarasa, the restriction imposed on him was proportionate because while he could not be a member of the Bar Council, he could still be a member of the Malaysian Bar. He could still put forward his views in an attempt to influence the Bar Council; he was not completely barred from association with the Malaysian Bar or estopped from presenting his views.
Hence, the restriction Sivarasa sought to challenge fulfilled this test.
In striking down Professor Azmi Sharom’s challenge, the court struck down the reasonableness test set out in Sivarasa. It ruled that it was not for the court to decide whether what Parliament does is reasonable or not.
The proportionality test, however, still stands as shown when the court affirmed it. In ruling that the Sedition Act as proportionate, the professor’s challenge failed.
1. Reasonableness =/= Proportionality?
In describing the proportionality test, the judge in Sivarasa said that the question that should be asked is if the classification is “reasonable and necessary”. This indicates that the test of reasonableness and proportionality is linked. One possible interpretation is that if a law is unreasonable it can automatically be classified as disproportionate thus making it unconstitutional.
However, the judge in the professor’s case treated both tests as separate; after all he overruled reasonableness but affirmed proportionality. One cannot do so unless both are not intrinsically linked.
But now the question that arises is where does proportionality stand without reasonableness? If the reasonableness of the Sedition Act cannot be decided on, by what yardstick is its proportionality to be decided on?
The basis of the proportionality test in the professor’s case is unclear.
One possible effect of the striking down of the reasonableness test is that proportionality has lost its substance; there really is no point in keeping it. One possible effect of this is that there is no longer any coherent test for legislation against the Federal Constitution.
What does this mean for regular people like you and me? It means that Parliament can legislate whatever they like without any regard to the Federal Constitution until the court comes up with a new test. The Federal Constitution is the document that sets out our most basic rights which we often take for granted. Take Article 13(2) for example which sets out that no law shall provide for the compulsory acquisition of property without adequate compensation.
Let us assume tomorrow Parliament legislates that all people wearing glasses in the Federation of Malaysia are to give up the land to the government with no compensation given to those wearing glasses. Since the court cannot determine whether this is reasonable or not, they will have to let the law take its course and the government will then be allowed to deprive people with glasses of their land without giving them compensation. The court will then move on to the test of proportionality; but wait, how are they to determine if this new law is proportionate or not?
Reasonableness definitely cannot be used any longer. One could argue that “necessity” is still an available criteria. However, if something is necessary is it not reasonable as well? To decide on the necessity of something to to implicitly say it is reasonably needed.
My submission is there is no longer any test to determine what is constitutional and what is not; our rights under the Federal Constitution can no longer be protected against Parliament who may at any time turn its back on the people.
2. Parliament and the People
It is a known fact that we inherited much from the our former colonisers: the British. One of the many things Malaysia inherited is the Parliamentary and judicial system. One of the cornerstones of this British system is Parliamentary sovereignty; the concept that Parliament can legislate on whatever it likes and nobody can do a thing about it. Unlike Malaysia, the United Kingdom (UK) dos not have a formal document in which every law passed must conform to. The ultimate power, is Parliament itself.
One of the issues often raised is whether the UK should have a formal document like Malaysia with the courts being the body that is able to interpret it and declare laws not in line with this formal document. However, commentators have raised several concerns regarding this notion. They argue that Parliamentary sovereignty is a manifestation of what people want. After all, the Members of Parliament (MPs) are directly elected by the people themselves. Judges within courts, however, are not elected. Unlike MPs, judges are under less political pressure to conform to what people want or what people’s ideas of public morality are. To allow judges to strike down laws may create tension between what people want and what judges want, more so if the demographics of the judges do not reflect the general population.
Let us now look at these arguments in light of the Malaysian context. As it stands now, judges are appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister after consulting all the other sultans in Malaysia (the Conference of Rulers). While it is a convention that the Agong always listens to the Prime Minister, there are very exceptional circumstances in which he will say no.
Let us assume for a moment, that Malaysia is a violent country in which all citizens enjoy bloodshed (which has also been legalised) but the Agong does not. The Prime Minister attempts to appoint a judge who clearly subscribes to the ideals of the people in regards to going around killing people as they like. The Agong in an act of defiance says no to such a recommendation and only relents when the Prime Minister appoints somebody who does not believe in going around killing people. What is going to happen is this judge is going to start interpreting the law in such a way to limit the ability of Malaysian citizens to go around legally killing whoever they please.
Perhaps this is too extreme an example but it does beg the question of what should happen if a judge is imposing his form of morality in which the general population does not believe in. In this context, should the court then be allowed to decide what is a reasonable law or not? Would declaring a law as unreasonable be going against what the people really want seeing that MPs are a direct reflection of the people? One may argue that the Election Commission is corrupt but to such arguments I must ask, are they corrupt because we permit them to do so? Corruption is after all a two-way action, there is a giver and taker. Parliament is composed of incompetent MPs because people do not mind such MPs being there. Since MPs legislate, are draconian and arbitrary laws not a reflection of what the general population want?
It is difficult to say what the general consensus on the Sedition Act is. While there is the #MansuhAktaHasutan movement, let us not forget that existing beside that is the #KekalAktaHasutan movement. For all we know, the latter could be the majority sentiment. If that really is the case, why should the court be allowed to strike it down?
3. Jury/Judge Equity
One might argue that there exists certain laws that should not exist simply because they are unjust despite what the general population thinks. I am certain most readers would think a law that permits reckless killing (as aforementioned) falls under such a category. Perhaps this is the case with the Sedition Act. The next question to ask then is the position of jury/judge equity in Malaysia.
“Jury equity” is a term coined in the UK to describe juries who make decisions in contradiction to the law on the basis that the law is unjust and hence, the criminal should be acquitted (released from all charges). Since Malaysia no longer practices the jury system, the appropriate term in the Malaysian context would be “judge equity”: when judges make decisions in contradiction with the law to remedy injustice.
It would seem the law as it stands now is that reasonableness can no longer be used as the test for constitutionality thus rendering proportionality void as argued. If another constitutionality challenge is to come before the courts in regards to another unjust law (i.e. Prevention of Terrorism Act 2014), should the courts reinstate the tests for the sake of striking it down? It may seem like the right thing to do, striking down a law that permits two years detention without trial. However, to contradict already existing law carries a whole host of problems of its own.
To decide against already existing law would create legal uncertainty. Every person is entitled to know whether their actions are wrong or not before the law. For judges to rule against already existing law would throw people into confusion as to the status of whether what they are doing is right or wrong before the law. Furthermore, such judges who practice judge equity send an implicit message to the public that it is fine to break the law whenever they see fit, which of course, has the potential to create a rather chaotic society. While some may trust judges to practice such equity only in exceptional cases and possess discernment (inconvenience =/= injustice), the same should not be said to the general population who may take such judge equity decisions as permission to break whatever law they want, whenever they please.
Judge equity in action makes us question society’s priorities; is striking down unjust laws more important than knowing whether what you’re doing is right or wrong before the law? Or vice versa?
Sivarasa rules on a very important point in regards to constitutionality — our Constitution has a basic structure and nothing should be allowed to go against this basic structure even amendments to the Constitution itself. This point has yet to be overruled. At the heart of the issues raised above is a problem of power balance and a struggle to juggle our priorities as a nation. We want judges to uphold our basic rights in our Constitution yet forget in doing so, they risk overriding the will of Parliament; the direct manifestation of the people of our nation; Parliament, the one entity that has the power to amend the Constitution.
A substantial number of people want an Islamic nation which some deem unjust and the same can be said for those who clamour for a secular society. Perhaps these issues will continue to plague us until we find our collective identity as a nation, when we finally decide what in the world constitutes a Malaysian.