Case Summary and Outcome

Azmi Bin Sharom, a law professor at the University Malaya, was accused of committing sedition and was charged on September 2, 2014 for his remarks on an online news article. Sharom challenged the court over the constitutionality of the Sedition Act because it is from the colonial era. The court later delivered a decision, considered as a landmark verdict, that the law was constitutional.  The Attorney General decided to drop the charges against Sharom on February 12, 2016.

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Facts

Law Professor Dr. Azmi Bin Sharom was charged on September 2, 2014 under Section 4(1)(b) and alternatively under Section 4(1)(c) of the Sedition Act for the remarks he made on an article entitled “Take Perak crisis route for speedy end to Selangor impasse, Pakatan told”. The article was published on the website “Malay Mail Online” on August 14, 2014.

The article was about a political crisis in the state of Selangor in Malaysia, in which the state had planned to remove the Menteri Besar or Chief Minister before the official legislative assembly took place. Sharom was quoted in the news article as saying that a constitutional crisis could happen similar to what happened in the state of Perak in 2009 when the state’s Chief Minister was removed from his position by the state’s Sultan.

His quotes in the articles are as follows:

1. You don’t want a repeat of that, where a secret meeting took place.
2. I think what happened in Perak was legally wrong. The best thing to do is to do it as legally and transparently as possible.
3. A vote by the house of representative should be done in the house of representative.

“Any person who utters any seditious words” as described under Section 4 (1)(b) and “Any person who prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication” as described under Section 4 (1)(c); “shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both, and, for a subsequent offence, to imprisonment for a term not exceeding five years; and any seditious publication found in the possession of the person or used in evidence at his trial shall be forfeited and may be destroyed or otherwise disposed of as the court directs.”

Sharom pleaded not guilty to the charges at the Kuala Lumpur Session Court. He then challenged the constitutionality of the Sedition Act. His lawyer stated that the 1948 law was not valid because it was not enacted by Parliament, and Article 10 of the Constitution of Malaysia prescribes that it has the exclusive authority to enact laws restricting the right to freedom of speech.

Article 10 of the Constitutions states :

(1) Subject to Clauses (2), (3) and (4)

• Every citizen has the right to freedom of speech and expression;
• All citizens have the right to assemble peaceably and without arms;
• All citizens have the right to form associations.

(2) Parliament may by law impose

• On the rights conferred by paragraph (a) of Clause (1), such restrictions as 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 Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence;
• 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;
• 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.

(3) Restrictions on the right to form associations conferred by paragraph (c) of Clause (1) may also be imposed by any law relating to labour or education.

(4) In imposing restrictions in the interest of the security of the Federation or any part thereof or public order under Clause (2)(a), Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law.

Instead of the being enacted by Parliament, Counsel Malik Imtiaz Sarwar, who represented Sharom, submitted to the Court that the Sedition Act was left over from the British colonial era and was then enacted by the Legislative Council. The Council in this case was established in 1948 and was the legislative body of the Federation on Malaya before the Malaysian Parliament was formed.

However, the Federal Court ruled on October 6, 2015 that the law and its Section 4 are constitutional. In the ruling, Chief Justice Tun Arifin Zakari stated “In the result, we hold that Section 4(1) does not run counter to Article 10 (2)(a) of the Federal Constitution.” The Court agreed with the government’s argument that the Sedition Act is saved by Article 162 of the Federal Constitution even though it was from the British colonial era.

The Federal Court reportedly stated “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.” In this case, the existing law means the Sedition Act. It was also noted the Parliament has the right under Article 10 (2)(a) to restrict the freedom of speech as it deems necessary or expedient for national security. The Chief Justice also stated 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.

Following the ruling, Sharom decided to apply for his case to be heard at the High Court instead of the Sessions Court at the end of 2015. His lawyer, Gobind Singh Deo, stated that they considered that the High Court would be “better suited to hear and determine those questions of law.” However, on January 13, 2016, the Kuala Lumpur High Court dismissed his application. The High Court judge Datuk Haji Ab Karim Ab Rahman said that there was no exceptional fact in the case, and it would be a fair trial even though the case was under the responsibility of the Sessions Court.

On February 12, 2016, the Attorney General Tan Sri Mohd Apandi Ali decided to withdraw the charges against Sharom. He stated, “In the interest of justice, and after examining the evidence given by the prosecution’s witnesses in court, I am using my discretion under Article 145 (3) of the Federal Constitution and decide to drop the charges against Dr. Azmi.” Article 145 (3) grants the Attorney General the sole and exclusive authority to institute and conduct any criminal proceedings.

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Decision Overview

As the Sedition Act is viewed to be a threat to freedom of expression, the decision is considered to create fear among those who criticize the government. The International Commission of Jurists (“ICJ”) addressed that the term “seditious tendencies” is “ambiguously defined to mean any kind of speech or publication that causes “hatred or contempt, or excite disaffection” against any ruler or the government or promotes “ill will and hostility between the different races or classes.” Any speech or publication that raises questions over the “special privileges” of the Malay people is also considered as seditious. According to ICJ, sedition is a strict liability offence in Malaysia which the intention of a person allegedly making seditious statements is not important. A person can make a statement without the intention to cause “hatred or contempt” towards the government. However, he or she can still be charged for sedition if authorities believe that the person in fact incited the feelings.

According to the ICJ, the number of cases under the Sedition Act has dramatically increased since 2014.Those who face sedition charges include academicians, lawyers, politicians, students, and activists. This matches with what political analysts had commented that the Act has been “selectively applied and used to clamp down on those who say anything afoul of the government in the past two years.”

According Khoo Kay Peng, a political analyst, he states “This ruling is going to put the country’s reform credentials at stake. It will allow the government to continue using this Act as a tool to limit freedom of speech among the government’s political opponents and there has been no response from the government to guarantee otherwise.”

Malaysia is not a signatory to the International Covenant and Political Rights (“ICCPR”), which means that it does not recognize Article 19 of the covenant which addresses the right to freedom of expression. The Malaysian government stated in 2012 that it would follow the treaty only if it is beneficial to the country as there had been some areas in the law that cause “discomfort among the races”.

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